Mandamus! Mandamus! - Texas Supreme Court's Power Grab Continues

Q: When does the Republican Supreme Court grant mandamus, a tool supposed to be used sparingly, and only under exceptional circumstances?

A: When its favorite defendants (health care providers, large corporations, insurance companies) need it, i. e., when they did not get their way with the judge in the trial court, and don't want to wait until final judgment to bring their appeal.

The Court is even willing to create new law when the occasion calls for it, most recently to second-guess a trial judge's ruling on a venue issue, the type of order for which interlocutory appeal is not permitted.

Voilà! There it comes: A makeover and enhancement of mandamus powers just in time to aid the tort-defendants in distress brought on by wrongful-death plaintiffs.

To justify the ruling limiting trial courts' discretion in venue rulings, and subjecting them to instant review by the appellate courts, the majority paints the specter of a plaintiff dragging a defendant through the courts of all 200+ counties in the state in search of the best loci to pick a jury (affectionately referred to as "judicial hellholes" by tort reformers). But that's not all. The Court marshals res judicata to undergo a remake too. So far the judicial done-deal doctrine has not had application to claims that were nonsuited (and thus were not taken to trial, not to mention a judgment on the merits), but now it serves to butress the finality of the first venue transfer secured by the defendant, the preliminary nature of venue rulings notwithstanding.

Justice Wainwright lamely protests, but goes along in a two-sentence concurrence because the Court having crossed the Rubicon last week, the new precedent is now a jurisprudential fait accompli.

In re Team Rocket, LP, No. 06-0414 (Tex. May 23, 3008)(Opinion by Justice Green)(mandamus granted to enforce first transfer of venue; nonsuit and refiling in third county disapproved)
IN RE TEAM ROCKET, L.P., MLF AIRFRAMES, INC., AND MARK L. FREDERICK; from Fort Bend County; 14th district (14-06-00136-CV, ___ S.W.3d ___, 04-25-06)stay order issued June 13, 2006, lifted The Court conditionally grants the petition for writ of mandamus. Justice Green delivered the opinion of the Court.

EXCERPT FOLLOWS:

Although we generally do not grant a petition for mandamus for venue determinations absent extraordinary circumstances, we have granted mandamus relief when the trial court issued an improper order transferring venue that “wrongfully burdened fourteen other courts in fourteen other counties, hundreds of potential jurors in those counties, and thousands of taxpayer dollars in those counties.” Masonite, 997 S.W.2d at 199.

When, as in this case, a trial court improperly applied the venue statute and issued a ruling that permits a plaintiff to abuse the legal system by refiling his case in county after county, which would inevitably result in considerable expense to taxpayers and defendants, requiring defendants to proceed to trial in the wrong county is not an adequate remedy. See Prudential, 148 S.W.3d at 137. “[A]n appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ,” Walker, 827 S.W.2d at 842, but extraordinary relief can be warranted when a trial court subjects taxpayers, defendants, and all of the state’s district courts to meaningless proceedings and trials. See Prudential, 148 S.W.3d at 137.We have granted mandamus relief in the context of Rule 87 venue rulings where, as here, the trial court made no effort to follow the rule. See Henderson v. O’Neill, 797 S.W.2d 905, 905 (Tex. 1990) (per curiam); cf. Bridgestone/Firestone, Inc. v. Thirteenth Court of Appeals, 929 S.W.2d 440, 442 (Tex. 1996) (per curiam) (explaining that, in that Rule 87 venue case, no extraordinary circumstances existed to justify mandamus relief).

In this case, the Creekmores defied the Harris County trial court’s venue order by attempting to have another court revisit the question of venue, which had already been decided. To say that the Fort Bend County trial court, which violated statutory venue procedure and Rule 87(5), committed reversible error while declining to correct the injustice would compromise the integrity of the venue statute and result in an irreversible waste of resources.

Interestingly, the Court was not so concerned about wasting resources when it culled the arbitration award in favor of Lemon Home Owners Cull on request of Perry Homes, and ordered a trial on the merits (while routinely enforcing arbitration when requested by employers and corporate defendants against claimants who don't have deep pockets).

Justice Wainwright delivered a concurring opinion, in which Chief Justice Jefferson and Justice O'Neill joined.

For the reasons expressed in my dissent in In re McAllen Medical Center, __ S.W.3d __, __ Tex. 2008), I respectfully disagree with the Court’s expansion of its mandamus jurisdiction beyond established legal tenets. Because the Court has indeed crossed that bridge, I reluctantly join the Court’s opinion.