Transcript Doing Mandamus Right: Views from Inside and Outside the

Doing Mandamus Right:
Views from Inside and
Outside the Courthouse
Houston Bar Association
Appellate Practice Section
September 18, 2014
Certification requirement
“The person filing the petition must certify
that he or she has reviewed the petition
and concluded that every factual statement
in the petition is supported by competent
evidence included in the appendix or
record.”
TRAP 52.3(j)
Necessary contents of the
appendix

“a certified or sworn copy of any order
complained of, or any other document showing
the matter complained of;

any order or opinion of the court of appeals, if
the petition is filed in the Supreme Court;

and unless voluminous or impracticable, the text
of any rule, regulation, ordinance, statute,
constitutional provision, or other law (excluding
case law) on which the argument is based”
TRAP 52.3(k)(1)
Certification regarding reporter’s
record
TRAP 52.7(a)(2) requires a properly
authenticated transcript of any relevant
testimony from any underlying
proceeding, including any exhibits offered
in evidence, or
 a statement that no testimony was
adduced in connection with the matter
complained.

Certificate of compliance
(motion for temporary relief)
TRAP 52.10(a) requires the relator to make
a certificate of compliance (i.e., to notify or
make a diligent effort to notify all parties
by expedited means (such as by telephone
or fax) that a motion for temporary relief
has been or will be filed and must certify to
the court that the relator has complied with
this paragraph before temporary relief will
be granted.
Grant of temporary relief
“The court—on motion of any party or on
its own initiative—may without notice grant
any just relief pending the court’s action on
the petition.”
TRAP 52.10(b)
Action on the petition
“If the court is of the tentative opinion that
relator is entitled to the relief sought or that a
serious question concerning the relief requires
further consideration, the court must request a
response if one has not been filed.”
TRAP 52.8(b)
Mandamus cases decided within
the last year

Void orders

Failure to perform ministerial duty
◦ In re Vaishangi, No. 13-0169, 2014 WL 2535996 (Tex. June 6, 2014) (trial
court had no jurisdiction to enforce Rule 11 agreement after plenary power
expired)
◦ In re Bates, 429 S.W.3d 47 (Tex. App.—Houston [1st Dist.] 2014, orig.
proceeding) (trial court had no jurisdiction to grant MNT/nunc pro tunc
granted after plenary power expired)
◦ In re American Nat’l County Mut. Ins. Co., No. 14-12-01135-CV, 2013
WL 476824 (Tex. App.—Houston [14th Dist.] Feb. 6, 2013, orig. proceeding)
(trial court had no jurisdiction over declaratory judgment lawsuit against
insurance company where tort claimant had not yet established that
tortfeasor was liable to tort claimant)
◦ In re Lee, 411 S.W.3d 445 (Tex. 2013) (refusal to enter judgment on
mediated settlement agreement)
◦ In re Reynolds, 14-14-00329-CV, 2014 WL 3002429 (Tex. App.—Houston
[14th Dist.] July 1, 2014, orig. proceeding) (refusal to enter final judgment)
Mandamus cases decided within
the last year

Mandatory venue (see CPRC § 15.0642)
◦ In re Fisher, 433 S.W.3d 523 (Tex. 2014) (CPRC § 15.020, major
transaction-specification by agreement)
◦ In re The Signorelli Company, No. 01-13-01031-CV, 2014 WL 4086300
(Tex. App.—Houston [1st Dist.] Aug. 19, 2014, orig. proceeding) (CPRC §
15.011, action for recovery of interest in real property
◦ In re Hannah, 431 S.W.3d 801 (Tex. App.—Houston [14th Dist.] 2014, orig.
proceeding) (CPRC § 15.017, slander)

Attorney Disqualification
◦ In re Texas Windstorm Ins. Ass’n, 417 S.W.3d 119 (Tex. App.—Houston
[1st Dist.] 2013, orig. proceeding)
◦ In re Gunn, No. 14-13-00566-CV, 2013 WL 5631241 (Tex. App.—Houston
[14th Dist.] Oct. 15, 2013, orig. proceeding)
◦ In re Williard Law Firm, L.P., No. 01-13-00358, 2013 WL 4779691 (Tex.
App.-Houston [1st Dist.] Sept. 5, 2013, orig. proceeding)
◦ In re Stone, No. 14-13-00311-CV, 2013 WL 1844267 (Tex. App.—Houston
[14th Dist.] Apr. 19, 2013, orig. proceeding)
Mandamus cases decided within
the last year

Discovery orders
◦ In re Ford Motor Co., 427 S.W.3d 396 (Tex. 2014) (order to disclose
financial/business records overly broad, impermissible fishing expedition)
◦ In re State Bar of Texas, No. 13-0161, 2014 WL 4116820 (Tex. Aug. 22, 2014)
(order precluding commission from using expunged records an abuse of discretion)
◦ In re Valero Refining-Texas, L.P., No. 01-14-00149-CV, 2014 WL 4115917 (Tex.
App.—Houston [1st Dist.] Aug. 21, 2014, orig. proceeding) (order to produce trade
secrets an abuse of discretion)
◦ In re Platinum Energy Solutions, Inc., 420 S.W.2d 342 (Tex. App.—Houston [14th
Dist.] Jan. 21, 2014, orig. proceeding) (statute limiting discovery when a corporation
proposed to dismiss a derivative proceeding controlled, making discovery order an
abuse of discretion)
◦ In re BDPJ Houston, Inc., 420 S.W.2d 309 (Tex. App.—Houston [14th Dist.] 2013,
orig. proceeding) (order compelling discovery of location, amount, and expenditure of
confidential settlement funds an abuse of discretion)
◦ In re Walter Kidde Portable Equip., No. 01-12-01012-CV, 2013 WL 4004591 (Tex.
App.—Houston [1st Dist.] Aug. 6, 2013, orig. proceeding) (order disallowing deposition
of government witness abuse of discretion)
◦ In re City of Houston, No. 14-12-00861-CV, 2013 WL 85097 (Tex. App.—Houston
[14th Dist.] Jan. 4, 2013, orig. proceeding) (order denying discovery relevant to lost
profits relating to development and/or sale of real property held to be an abuse of
discretion in inverse condemnation case)
Mandamus cases decided within
the last year

Pre-suit discovery/Rule 202
◦ In re Doe, No. 13-0073, 2013 WL 9600953
(Tex. Aug. 29, 2014) (personal jurisdiction over
relator needed to permit pre-suit discovery)
◦ In re Bailey-Newell, No. 01-13-00783-CV,
2014 WL 2779420 (Tex. App.—Houston [1st
Dist.] June 19, 2014, orig. proceeding) (Rule
202 cannot be used to circumvent Texas Labor
Code’s mandatory, jurisdictional requirement of
exhaustion of administrative remedies)
Mandamus cases decided within
the last year

Grant of a new trial/review of reasons
◦ In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013)
(reasons in new trial order subject to merits-based mandamus review)
◦ In re Whataburger, 429 S.W.3d 597 (Tex. 2014) (trial court abused
discretion by ordering new trial based on juror misconduct [juror
incorrectly answered questionnaire])
◦ In re Health Care Unlimited, Inc., 429 S.W.3d 600 (Tex. 2014) (trial
court abused discretion by ordering new trial based on juror
misconduct [juror’s communication with employee of party])
◦ In re United Servs. Auto. Ass’n, No. 01-13-00508-CV (Tex. App.—
Houston [1st Dist.] Aug. 21, 2014, orig. proceeding) (trial court abused
discretion by ordering new trial for jury’s failure to find, violation of
limine, improper closing arguments, damages not supported by the
evidence, zero attorney’s fees)
◦ In re City of Houston, 418 S.W.3d 388 (Tex. App.—Houston [1st
Dist.] 2013, orig. proceeding) (trial court abused discretion by ordering
new trial based on newly discovered deposition testimony)
Mandamus cases decided within
the last year

Severances, Abatements, Pleas to the Jurisdiction, & Stays
◦ In re Progressive County Mut. Ins. Co., No. 01-14-00199-CV,
2014 WL 2618298 (Tex. App.—Houston [1st Dist.] June 12, 2014,
orig. proceeding) (severance of extra-contractual claims from
breach of contract required)
◦ In re Immobiliere Jeuness Establissement, No. 14-13-00771CV (Tex. App.—Houston [14th Dist.] Feb. 6, 2014, orig. proceeding)
(indefinite abatement until compliance with certain business code
provisions subject to mandamus)
◦ In re Walker, 428 S.W.3d 212 (Tex. App.—Houston [1st Dist.]
2014, orig. proceeding) (trial court erred in denying plea to the
jurisdiction based on Uniform Child Custody Jurisdiction and
Enforcement Act)
◦ In re Bliss & Glennon Inc., No. 01-13-00320-CV, 2014 WL
50831 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, orig.
proceeding) (trial court’s severance of claims in violation of
automatic stay imposed by CPRC § 51.04(b) pending interlocutory
appeal of class certification order constituted an abuse of
discretion)
Mandamus cases decided within
the last year

Miscellaneous
◦ In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168 (Tex. 2013) (supersedeas
bond amount cannot include attorney’s fees)
◦ In re Helix Energy Solutions Group, Inc., No. 14-13-00238-CV, 2013 WL 5470089
(Tex. App.—Houston [14th Dist.] Sept. 30, 2013, orig. proceeding) (failure to grant
special exceptions in a shareholder derivative action)
◦ In re King, No. 01-13-00434-CV, 2013 WL 4007798 (Tex. App.—Houston [1st Dist.]
Aug. 6, 2013, orig. proceeding) (appointment of a discovery master)
◦ In re Prodigy Servs. LLC, No. 14-14-00248-CV, 2014 WL 2936928 (Tex. App.—
Houston [14th Dist.] June 26, 2014, orig. proceeding) (disburse settlement funds held
in the registry of the court)
◦ In re Dauajare-Johnson, No. 14-14-00256-CV, 2014 WL 3401094 (Tex. App.—
Houston [14th Dist.] July 10, 2014, orig. proceeding) (denial of motion to dismiss for
forum non conveniens)
◦ In re RH White Oak, LLC, No. 14-13-00979-CV, 2014 WL 495105 (Tex. App.—
Houston [14th Dist.] Feb. 6, 2014, orig. proceeding) (order adjudicating claims and
defenses and precluding presentation on the merits of the case imposes death penalty
sanctions)
◦ In re Blank, No. 01-13-00792-CV, 2013 WL 5276108 (Tex. App.—Houston [1st Dist.]
Sept. 18, 2013, orig. proceeding) (failure to grant continuance based on conflict with
religious holy days an abuse of discretion)
Mandamus petition argued, not yet
decided in the Texas Supreme Court
11-0222
In re State of Texas
Filed March 25, 2011
Argued November 5, 2013
The principal issue is whether the AG is
entitled to notice about a constitutional challenge
and can intervene in a private lawsuit after the
fact, asserting an interest in defending the State’s
laws.
Mandamus petitions set for oral argument in
the Texas Supreme Court
13-0537
In re State Board for Educator Certification
From Travis County and the Austin Court of Appeals
Oral argument set October 14, 2014
The principal issue is whether the trial court
erred in holding that the Board’s notice of appeal
did not suspend enforcement of an injunction
when generally a governmental entity need
not post supersedeas.
Mandamus petitions set for argument
continued
12-0946
In re Bridgestone Americas Tire Operations LLC
From Montgomery County and the Beaumont Court of
Appeals
Oral argument set November 5
The principal issues in this Texas lawsuit over
injuries to Mexican children in an accident that killed
their parents in Mexico are (1) whether civil procedure
Rule 44 allows appointment of the children’s uncle, a
Texas resident, as next friend to bring this claim for
the children when they have a legal guardian in Mexico
and (2) whether a next friend can be a plaintiff as
defined by the forum non conveniens statute.
Mandamus petitions set for argument
continued
13-0928
In re Steven Lipsky
From Parker County and the Fort Worth Court of
Appeals
Oral argument set December 4
In this dispute over claims that gas contaminated
a home water supply, allegedly as a result of shale-oil
production, the issues are (1) whether the Texas
Citizens’ Participation Act (a/k/a the Texas AntiSLAPP Statute) requires heightened proof (clear and
specific evidence) of each essential element of a claim
and, if so, (2) whether the minerals producer presented
clear and specific evidence of conspiracy, defamation,
and business-disparagement claims.
Mandamus petitions set for oral argument
continued
13-0794
In re General Motors LLC
From Zapata County and the San Antonio Court of
Appeals
Oral argument set November 6
In this challenge to a trial court’s protective
order to produce, retain and share trade secrets, the
principal issues are (1) whether the court abused its
discretion by ordering the trade secrets shared and
retained and (2) whether the retention provision
constitutes an unconstitutional taking. General Motors
also argues in its mandamus petition that it does not an
adequate remedy by appeal.
Mandamus petitions set for oral argument
continued
13-0953
In re Magnum Hunter Resources Corp.
From Dallas County and the Dallas Court of Appeals
Oral argument set December 9
A principal issue is whether the trial court erred
by ordering a third-party oil-and-gas producer’s tradesecret reserve reports disclosed to a law firm facing
malpractice claims by a former client over negotiations
for a “farmout” deal. The important subsidiary question
is whether the client had possession, custody and
control of the reserve reports under a participation
agreement with the third-party producer. That
agreement purportedly gave any party to the deal
access upon request to production data, evaluations
and reports.
Typical things that can
foreclose mandamus
Contested issues of fact
Laches (there is no filing deadline but
lengthy delay could cause the petition to
be denied)
 Failure to raise the issue in the trial court
(does the complaint below match the
complaint raised in the mandamus?)
 Insufficient record in the trial or the
appellate court


Taking a dual appeal and
mandamus
There are still some situations where it is
unclear whether to file an interlocutory
appeal or mandamus.
 In CMH Homes v. Perez, 340 S.W.3d 444,
453 (Tex. 2011), the court treated an
interlocutory appeal of an order
appointing an arbitrator as a mandamus
in the interest of judicial economy and
efficiency.
