Doing Mandamus Right:Views from Inside and

Outside the CourthouseHouston Bar Association

Appellate Practice SectionSeptember 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 recordTRAP 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

◦ 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)

Failure to perform ministerial duty◦ 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 [14 th 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. 14-13-00771-CV (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

11-0222In re State of TexasFiled March 25, 2011Argued 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

13-0537In re State Board for Educator CertificationFrom Travis County and the Austin Court of AppealsOral 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

12-0946In re Bridgestone Americas Tire Operations LLCFrom Montgomery County and the Beaumont Court of AppealsOral 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 continued13-0928In re Steven LipskyFrom Parker County and the Fort Worth Court of AppealsOral 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 Anti-SLAPP 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

13-0794In re General Motors LLCFrom Zapata County and the San Antonio Court of AppealsOral 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

13-0953In re Magnum Hunter Resources Corp.From Dallas County and the Dallas Court of AppealsOral argument set December 9 A principal issue is whether the trial court erred by ordering a third-party oil-and-gas producer’s trade-secret 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 factLaches (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.