“The denied discovery was necessary to develop a defense that goes to the heart of ExxonMobil’s case—that the providers’ rates were unreasonable. Additionally, the effects of the trial court’s denial of discovery will evade review by any higher court because the discovery ExxonMobil cannot obtain is from third parties, the providers, and thus cannot be included in the appellate record. Under these circumstances, we conclude that ExxonMobil lacks an adequate remedy on appeal.” In re ExxonMobil Corp., No. 20-0849 (Nov. 19, 2021) (applying In re K & L Auto Crushers, LLC, 627 S.W.3d 239 (Tex. 2021) (orig. proceeding).
Category Archives: Mandamus
Laches Didn’t Bar Mandamus
In addition to other points about “apex depositions,” the supreme court rejected an argument that an unreasonable delay barred mandamus relief:
“American reasonably explained the year-long period between the trial court’s order compelling Eberwein’s deposition and American’s mandamus filing in the court of appeals. The record establishes that American did not receive notice of the order until four months after its issuance. At that point, the parties were on notice that the order set preconditions to Eberwein’s deposition by requiring Arnette to serve a new deposition notice designating deposition topics. To date, neither has occurred, with no explanation on Arnette’s part. As the trial date loomed, first in December 2020 and now in December 2021, American prudently sought mandamus relief to avoid the necessity of rescheduling the trial. On this record, the delay is neither unexplained nor unreasonable.”
In re American Airlines, Inc., No. 20-0789 (Oct. 22, 2021) (per curiam) (reaching a different conclusion than the Fifth Court of Appeals did in 2020.
Of Masks and Men
The present state of mask-mandate litigation as defined by a supreme court order yesterday:
Mandamus Here, Not There
The supreme court’s August 19 order in a mask-mandate case:
reminds of a basic rule of mandamus procedure, Tex. R. App. P. 52.3(e):
Look homeward, legislators
In response to a mandamus petition by the Texas AG, the supreme court stayed a trial-court order that had enjoined the potential arrest of Democratic legislators who are avoiding the second special session. A prompt response was also requested.
Legislature, Heal Thyself
In In re Turner, the Texas Supreme Court denied a mandamus petition about the Governor’s line-item veto of Legislative funding, observing: “While the interference by one branch of government with the effectual function of another raises concerns of separation of powers, the issue presented here is primarily one of differences among legislators. Although the Governor certainly seeks to advance legislation he favors, the majority of the members of the Legislature support the same legislation. Relator House members oppose that legislation and have broken quorum to further their opposition. It appears from the record of the special session that they could have restored Article X funding for the Legislature had they been present to vote to do so. They have chosen to continue to absent themselves in order to prevent passage of voting legislation.” No. 21-0538 (Aug. 9, 2021) (per curiam) (emphasis added).
Muscular Mandamus
Two recent opinions involved the enforcement of statutes that the Court saw as prohibiting the filing of the action–In re: Academy, No. 19-0497 (June 25, 2021), in which a federal statute said that the specified kinds of cases about firearms sales “may not be brought in any Federal or State court,” and In re: Facebook, No. 20-0434 (June 25, 2021), about the Communications Decency Act’s command that “[n]o cause of action may be brought” about the subject matters of that Act. Both were enforced by petitions for writ of mandamus, based on the principle that “requiring [Defendant] to ‘proceed to trial–regardless of the outcome–would defeat the substantive right’ granted by” those statutes.
Discovery About Arbitration?
In In re Copart, the supreme court granted mandamus relief as to discovery connected with a motion to compel arbitration: “In sum, Ordaz’s motion and affidavit demonstrate no colorable basis or reason to believe that the requested discovery would be material in establishing the agreement’s existence and enforceability. Ordaz thus failed to provide the trial court with a reasonable basis to conclude that it lacks sufficient information to determine whether her claims against Copart are arbitrable.” No. 19-1078 (March 12, 2021).
Punt?
By a 5-4 margin, the supreme court dismissed a closely-watched case about ERCOT’s sovereign immunity on jurisdictional grounds: “[A]fter the court of appeals rendered its decision, and before the parties asked us to review that decision, the trial court entered a final judgment in the underlying suit, and that judgment is now the subject of a separate appeal pending in the court of appeals. Because the trial court’s interlocutory order merged into the final judgment and no longer exists, we cannot grant the relief the parties seek. As a result, any decision we might render would constitute an impermissible advisory opinion, and these consolidated causes are moot.”
A dissent by Chief Justice Hecht–no judicial activist, and no frequent user of exclamation points or italics–took issue with this result: “[T[]e court of appeals has already had the opportunity to review the dismissal. Indeed, it was the court of appeals that ordered the dismissal! And by ruling on immunity, this Court would not be infringing on the court of appeals’ judicial power. The court of appeals has already ruled on that issue. There is no reason for the court to reiterate its ruling in a second appeal. It is waiting on this Court to rule. The Court can resolve the parties’ dispute and grant relief, however it decides the immunity issue, but instead it chooses delay and wasting more of the parties’ and judicial system’s time and resources.” (emphasis and exclamation mark in original).
Another concurrence and dissent elaborated further on the themes in these two opinions. ERCOT v. Panda Power, No. 18-0781 (March 19, 2021).
Mandamus-able
In re Gonzales, a case about untimely designation of a responsible third party, reviewed authority about “inadequate remedy” for purposes of mandamus relief: “In both cases, the defendants moved for leave to designate a responsible third party from whom the plaintiffs could not recover, creating an imbalance in the proportionate responsibility framework. In both cases, the defendants did not satisfy section 33.004’s provisions that protect a plaintiff’s right not to try the case against an empty chair. And in both cases, the trial courts abused their discretion by granting the defendants’ motions. If Dawson was an appropriate case to grant mandamus relief, then so is this one; requiring Gonzales to go through a trial before remedying the trial court’s error would defeat the substantive right that subsection (j) protects.” No. 20-0506 (March 5, 2021).
