Mandamus: Statutory Requirements and 2017 Case Law

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1 Mandamus: Statutory Requirements and 2017 Case Law Justice Douglas S. Lang and Rachel A. Campbell January 18, 2018 Presented to the Dallas Bar Association Appellate Law Section

2 Practical Practice Tips (PPT) Supreme Court Writ Jurisdiction and Power- Does Chosen Writ Apply to Issues and Facts?? ( Square Peg-Round Hole : Deny). Tex. Gov t Code Ann (West Supp. 2017); writs of procedendo, certiorari, quo warranto, mandamus, injunction, habeas corpus, etc.

3 PPT Courts of Appeals Writ Jurisdiction and Power- Does Chosen Writ Apply to Issues and Facts?? ( Square Peg-Round Hole : Deny). Tex. Gov t Code Ann (West Supp. 2017); writs of mandamus and other writs necessary to enforce [its] jurisdiction..., concurrently with the Supreme Court, writ of habeas corpus.... See also Tex. Election Code Ann (West 2010), mandamus to compel any duty... in connection with...an election.... ; Tex. Const. art V, 6.

4 PPT Mandamus Petition, Motion for Temporary Relief, and Response-Make it clear and to the point! 1. Concise Statement of Facts Supported by Cites to the Record (i.e., appendix or record). TRAP 52.3 (g) 2. Clear and Concise Argument with Authorities and Cites to the Record. TRAP 52.3 (h)

5 PPT Fully Present the Case for Both Elements of Mandamus (Again, Cite to Appendix or Record): 1. The Trial Court Abused Its Discretion, and, 2. There Is No Adequate Remedy by Appeal.

6 PPT Petition Must be Properly Certified: 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) Dismissal Without Above Language! See In re Butler, 270 S.W.3d 757 (Tex. App.- Dallas 2008, orig. proceeding).

7 Appendix and Record- PPT 1. Appendix Must Contain a certified or sworn copy of any order complained of, or any other document showing the matter complained of.... TRAP 52.3 (k) (1); In re Cullar 320 S.W. 3d 560 (Tex. App.-Dallas 2010, orig. proceeding). 2. Record-Relator Must File a certified or sworn copy of every document that is material and a properly authenticated transcript of... relevant testimony.... TRAP 52.7; In re Cullar, 320 S.W.3d 560, 566 (Tex. App.-Dallas 2010, orig. proceeding).

8 Mandamus Standards-General Ministerial Act- 1) legal duty to perform a nondiscretionary act, 2) demand for performance, and 3) refusal to act. O Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). See also, In re State ex rel. Weeks, 391.W. 3d 117 (Tex. Crim. App. 2013). Action of Trial Court- To correct a clear abuse of discretion or violation of duty imposed by law when no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004).

9 The Supreme Court of Texas Mandamus Decisions

10 Supreme Court Mandamus Statistics: Fiscal Years New petitions filed Total dispositions Petitions denied 79.8% 72% 81.9% 78.8% 73% Petitions granted 6.7% % 5.5% % 5 6.3% 14

11 The Battle Ground (Maybe)- Adequacy of Appellate Remedy

12 Mandamus Standards-Adequate Remedy by Appeal (ARBA) Former Rigid Rule- Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). The requirement that mandamus issue only where there is no adequate remedy by appeal is sound, and we reaffirm it today.... We further hold that an appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. As we observed in Iley v. Hughes, the delay in getting questions decided through the appellate process... will not justify intervention by appellate courts through the extraordinary writ of mandamus. Interference is justified only when parties stand to lose their substantial rights. 158 Tex. at 368, 311 S.W.2d at 652. (emphasis added).

13 ARBA Current Practical and Prudential Approach to ARBA- Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights, to give needed and helpful direction, and spare parties time and money wasted enduring improperly conducted proceedings. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (emphasis added) (contractual jury waiver-no ARBA).

14 In re State Farm Lloyds, 520 S.W.3d 595 (Tex. 2017) Trial court ordered insurer to produce electronically stored information (ESI) in native or near-native form, regardless of whether more convenient, less expensive, and reasonably usable format was readily available. Supreme court concluded when electronic data in reasonably usable form is readily available, trial court must assess, on case-by-case basis, whether any enhanced burden or expense associated with requested form is justified when weighed against proportional needs of case.

15 State Farm Lloyds-Continuted Supreme court s seven factors to be considered: (1) likely benefit of requested discovery, (2) needs of case, (3) amount in controversy, (4) parties resources, (5) importance of issues at stake in litigation, (6) importance of proposed discovery in resolving litigation, and (7) any other articulable factor bearing on proportionality. Mandamus denied without prejudice to allow insurer to seek reconsideration by trial court under new guidelines. (No ARBA analysis).

16 In re Nat l Lloyds Ins. Co., 532 S.W.3d 794 (Tex. 2017) Discovery dispute in multidistrict litigation against insurers on homeowners claims for underpaid insurance claims. Insurers challenged homeowners attorney fee request as unreasonable. Homeowners sought discovery of insurers attorney-billing information, even though insurers neither used their own attorney fees as comparator nor sought to recover any portion of their own attorney fees. Supreme court concluded that under such circumstances, attorney-billing information sought is privileged and/or not relevant. Supreme court granted mandamus directing trial court to vacate order allowing discovery of insurers attorney-billing information. (ARBA analysis)

17 In re Coppola, 2017 WL (Tex. Dec. 15, 2017) Tort claim against real estate vendor. Vendor denied leave to designate purchaser s transactional attorneys as responsible third parties pursuant to section (a) of Texas Civil Practice and Remedies Code. Supreme court concluded (1) motion to designate was timely and (2) even if pleading deficiency existed, trial court lacked discretion to deny the motion to designate without affording [the vendor] an opportunity to replead.

18 In re Coppola, Continued ARBA issue of first impression. Citing In re Prudential Ins. Co. of Am., Supreme Court concluded (1) [a]llowing a case to proceed to trial despite erroneous denial of a responsible-thirdparty designation would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of [the vendor s] defense in ways unlikely to be apparent in the appellate record ; (2) in such case, [t]he denial of mandamus review impairs and potentially denies a litigant s significant and substantive right to allow the fact finder to determine the proportionate responsibility of all responsible parties ; and (3) accordingly, ordinarily, a relator need only establish a trial court s abuse of discretion to demonstrate entitlement to mandamus relief with regard to a trial court s denial of a timely-filed section (a) motion.

19 In re Turner, 2017 WL (Tex. Dec. 22, 2017) Issue of whether law firm must be disqualified after employing paralegal who had previously worked for opposing party s law firm. Supreme court stated (1) to rebut the rebuttable presumption that a nonlawyer employee imparted confidential information obtained at her previous employment, the hiring firm must demonstrate that it instructed the nonlawyer employee to refrain from working on any matter on which she worked in any previous employment ;

20 In re Turner, Continued (2) [t]he failure to provide this general instruction to a new employee creates an unacceptable risk of disclosure, even if the hiring firm is unaware of the new employee s specific conflict ; and (3) [h]ere, the record demonstrates that [the hiring firm] did not provide this instruction until after it discovered [the employee s] conflict. ARBA: supreme court cited In re Columbia Valley Healthcare Sys., 320 S.W.3d 819, 824 n.2 (Tex. 2010), and stated, Mandamus is available where a motion to disqualify is inappropriately denied as there is no adequate remedy on appeal.

21 MARK YOUR CALENDARS- TEXAS DAY OF CIVILITY- HONORING CIVILITY IN THE LEGAL PROFESSION April 20, 2018-Belo Mansion, noon to 4:30 p.m.

22 DEEDS, NOT WORDS We can be excellent without being arrogant, successful without being boastful, tenacious without being contentious, self-critical without being defensive. [A]t the end of the race there is a prize called reputation and our reputation is based on deeds, not words. Curry, Judge Richard L. Lawyers of Conscience Enforce the Unenforceable. Illinois Bar Journal 75 (1986):