In re USAA: Chuck Norris And The SCOTX Mandamus Standard
The year 1999. You're an appellate lawyer in a silk stocking firm in Houston, Texas. You hear someone running toward your office door. The door bursts open to reveal a trial lawyer, pupils dilated and sweat beading on his forehead.
His client, Mega Co., just had a hearing on its 5000 page motion for summary judgment (that the trial lawyer insisted on drafting himself) and lost. A fact question. Who knew?
Now they are set for trial in a month but he vowed to Mega Co.'s CEO that they were going to stop the trial and appeal "all the way to the Supreme Court."
That's why he came to see you. "I want you to handle the appeal." He feels like he's offering you a plum piece of work that will keep you fully and lucratively employed for some time to come.
You invite him to sit down, perhaps offer him a beverage, before informing him that you will not be handling the appeal because there is nothing to appeal.
There is no appeal from an interlocutory order denying the garden variety summary judgment. Everybody knows that.
"But this is truly extraordinary," he says. "What about one of those mandamus things?"
After ascertaining that the only thing extraordinary about this proceeding is that this trial lawyer prefers not to lose, you answer, "No. A denial of summary judgment is not reviewable by mandamus." Everyone knows that, you add to yourself.
Flash forward a decade, and the answer is not so clear. But it is not nearly as murky as some folks complain. You just have to understand the Chuck Norris exception to restrictions on mandamus review.
After the jump, my own take on why the Supreme Court of Texas is like Chuck Norris when determining whether mandamus should issue because appellate remedies are inadequate.
Last Friday, the Supreme Court of Texas released In re United Services Automobile Association ("USAA") (pdf), which involves the granting of a petition for writ of mandamus to overturn the denial of a motion for summary judgment. For some, this must be the final sign of the coming apocalypse.
These are the signs, according to the prophets doom:
- In 1992, former Chief Justice Phillips wrote Walker v. Packer and placed neat categories around those things for which an appellate remedy is inadequate.
- But by 1996, things started to erode when Justice Spector wrote CSR Ltd. v. Link and allowed mandamus review of personal jurisdiction, at least in an extraordinary, mass tort setting.
- Then in 2004, Justice Hecht wrote In re Prudential by channeling his inner Stephen Breyer and promulgating a multi-factor, case-by-case-cost-benefit-analysis to determine whether an appellate remedy was adequate.
- Then in 2008, Justice Brister (now of the Andrews Kurth Appellate Practice Group) drank the electric Kool Aid and wrote In re McAllen Medical Center, a footnote laden variation on the theme of "we know it when we see it."
And now, the soothsayers say, the Supreme Court will hand out mandamus relief willy nilly, like dealers at a music festival. We're reviewing the denial of summary judgment, the prophets moan. Mass hysteria. Dogs and cats living together. Locusts. Frogs. Angels of death.
But I don't think the end is near. At least not because of Walker v. Packer. There is a standard here if you look carefully enough. It is the Chuck Norris standard. It is the right of the court system to defend itself.
You know the plot of the typical Chuck Norris movie: the beginning will have some minor skirmishes or the "bad fight" where Chuck gets beat up and has to muddle through. But eventually, the bad guy will pick on Chuck's girl or commit some calumny that is sufficiently odious and Chuck goes medieval and starts to round-house kick everything in sight.
Well, that's the new, extra-Walker-v.-Packer mandamus standard. Not every horrible ruling is subject to mandamus review. But the cost-benefit balance will allow the Court System to resort to self-defense.
The Court System and Chief Justice Jefferson are Chuck Norris. And Chuck does not want to round-house kick your trial court case. But the Court System (Chuck) has a right to defend itself from being abused. If you try to game the system, especially where there is a legislative policy stated to the contrary, Chuck (the Court System) will issue a mandamus (round-house kick) to your face.
Just look at the three cases Chief Justice Jefferson relies on in USAA:
- CSR Ltd. involved untold hordes of plaintiffs who tried to game the system by marooning a foreign defendant in Texas where it had no jurisdictional contacts and (the plaintiffs thought) no way of escape other than settlement--a civil justice hostage taking.
- Prudential involved a party who agreed not to put its contractual counterpart or the Court System through a jury trial but tried to do so anyway, thinking it might impose the costs and hide behind the "harmless error rule" in the event that it's gambit resulted in a nice verdict.
- McAllen Medical Center involved upholding the legislative value judgment that medical malpractice plaintiffs not encumber the civil justice system (or the medical profession) with claims lacking medical expert support.
- And then USAA involved a second useless trial, made necessary only because of the plaintiff's strategic decision to pursue the first trial in a court without jurisdiction.
So, while the cost-benefit analysis may be mushier than the categories in Walker v. Packer, these cases have something in common. The courts will strike that balance in favor of mandamus relief when necessary to protect the system from abuse.
Said differently, Chief Justice Jefferson may seem quiet, reserved and dignified on the surface, but like Chuck Norris, he has a wicked round-house kick when provoked.
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