DELOITTE & TOUCHE LLP and Ronald Begnaud, Relators, v. THE FOURTEENTH COURT OF APPEALS, Respondent.
No. 96-0362.
Supreme Court of Texas.
June 6, 1997.
Rehearing Overruled Oct. 2, 1997.
For these reasons, and for the reasons stated in the court of appeals’ opinion, 932 S.W.2d at 59-61, I would hold that Dresser‘s fair notice requirements apply to this case and that Green‘s attempt to exculpate itself from delay damages is unenforceable as a matter of law. Accordingly, I would affirm that part of the court of appeals’ judgment reinstating the jury‘s award of delay damages to Solis.
Gregg C. Laswell, O. Clayton Lilienstern, Elizabeth A. Wiley, Houston, for relators.
ENOCH, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, GONZALEZ, HECHT, CORNYN, BAKER and ABBOTT, Justices, join.
This original mandamus action involves an interlocutory appeal of a class certification ruling. In the underlying class action lawsuit, the trial court denied class certification. On an interlocutory appeal under
The issue that confronts us here is whether we should exercise mandamus jurisdiction when the court of appeals’ judgment is conclusive on the law and the facts. See
In the underlying suit, two named plaintiffs, J.D. Weatherly and Elliott Horwitch, alleged that they suffered losses resulting from their purchase of certain debentures from Entertainment Marketing, Inc. Weatherly and Horwitch asserted various causes of action stemming from alleged misrepresentations by EMI and its accountants, Deloitte & Touche, as well as several individual defendants. Weatherly and Horwitch sought certification of a class of similarly situated plaintiffs. Deloitte & Touche and Ronald Begnaud, who oppose class certification, are
Deloitte & Touche contends that the court of appeals abused its discretion by misapplying
I.
Our original jurisdiction for mandamus is not the equivalent of appellate jurisdiction. Compare
The supreme court or a justice of the supreme court may issue writs of procedendo and certiorari and all writs of quo warranto and mandamus agreeable to the principles of law regulating those writs, against a statutory county court judge, a statutory probate court judge, a district judge, a court of appeals or a justice of a court of appeals, or any officer of state government except the governor, the court of criminal appeals, or a judge of the court of criminal appeals.
Although the Legislature has excluded class certification rulings from our appellate jurisdiction, it has not excluded class certification rulings from our mandamus jurisdiction. See
II.
Acknowledging, however, that the jurisdiction to issue mandamus and adjudicate appeals are separate grants of authority does not end the inquiry. Mandamus is an extraordinary proceeding, encompassing an extraordinary remedy. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). We exercise our mandamus power sparingly and deliberately. For example, we will not exercise this power if an ordinary appeal is adequate irrespective of litigation costs that could be saved by our correcting an erroneous trial court‘s pretrial decision. Id. at 842. Further, we will not exercise this power even if we disagree with the trial court, but the decision is not “a clear abuse of discretion” devoid of any guiding principles of law. Id. at 839-40.
For us, the question is whether an interlocutory appellate remedy concluding in the court of appeals is adequate. Deloitte & Touche‘s petition for writ of mandamus merely sets forth the same arguments found in its application for writ of error. Essentially, Deloitte & Touche requests this Court to review the legal conclusions of the court of appeals—conclusions that are made final in the court of appeals. See
There is no “right” to a second appeal. The very nature of our appellate jurisdiction illustrates this. In general, this court has appellate jurisdiction only over the following cases when they have been brought to the court of appeals: (1) cases in which the justices of the court of appeals disagree; (2) cases in which the court of appeals decision conflicts with another court of appeals or supreme court decision; (3) cases involving the construction or validity of a statute; (4) cases involving state revenue; (5) cases in which the railroad commission is a party; and (6) cases in which the error committed by the court of appeals is of such importance to the jurisprudence of this State to require correction, unless the judgment of the court of appeals is made final by statute.
The finality of Deloitte & Touche‘s appellate remedy at the court of appeals level alone cannot be the basis for exercising our mandamus power. To grant this mandamus, without more, would call into question all past and present finality rules of the Legislature. Deloitte & Touche must show some extraordinary circumstance making its interlocutory appellate remedy inadequate.
It could be argued that the court of appeals’ action in directing class certification by itself constitutes an extraordinary circumstance giving rise to a mandamus remedy. We reject such a contention. Although no Texas appellate court has directed class certification, several appellate courts from other jurisdictions have done so, including the Fifth Circuit. See Forbush v. J.C. Penney Co., 994 F.2d 1101 (5th Cir.1993); see also Boykin v. Georgia-Pacific Corp., 706 F.2d 1384 (5th Cir.1983), cert. denied, 465 U.S. 1006 (1984); Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir.1982), cert. denied, 463 U.S. 1207 (1983); Williams v. New Orleans Steamship Ass‘n, 673 F.2d 742 (5th Cir.1982), cert. denied, 460 U.S. 1038 (1983); Cruz v. Hauck, 627 F.2d 710 (5th Cir.1980); Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991); Daniels v. Centennial Group, Inc., 16 Cal.App.4th 467, 21 Cal.Rptr.2d 1 (1993); Haywood v. Superior Bank F.S.B., 244 Ill.App.3d 326, 185 Ill.Dec. 327, 614 N.E.2d 461 (1993), appeal denied, 152 Ill.2d 559, 190 Ill.Dec. 888, 622 N.E.2d 1205 (1993); Rivera v. United Gas Pipeline Co., 613 So.2d 1152 (La.Ct.App. 1993); Murphy v. Hiniker, 261 N.W.2d 836 (Minn.1978); Strawn by Strawn v. Canuso, 271 N.J.Super. 88, 638 A.2d 141 (App.Div. 1994); Delgozzo v. Kenny, 266 N.J.Super. 169, 628 A.2d 1080 (App.Div.1993); Pruitt v. Rockefeller Center Properties, Inc., 167 A.D.2d 14, 574 N.Y.S.2d 672 (N.Y.App.Div. 1991); Brandon v. Chefetz, 106 A.D.2d 162, 485 N.Y.S.2d 55 (N.Y.App.Div.1985); Weinberg v. Hertz Corp., 116 A.D.2d 1, 499 N.Y.S.2d 693 (N.Y.App.Div.1986); Klocke v. A & D Ltd. Partnership, 90 Ohio App.3d 317, 629 N.E.2d 49 (1993); Alsea Veneer, Inc. v. State, 117 Or.App. 42, 843 P.2d 492 (1992), aff‘d in part and rev‘d in part, 318 Or. 33, 862 P.2d 95 (1993). The court of appeals’ action is not extraordinary merely because it directed the class to be certified.
We do not preclude the possibility that in an interlocutory appeal context we might issue mandamus against a court of appeals for procedural irregularities or for actions taken by a court of appeals so devoid of any basis in law as to be beyond its power. But in such cases, we would not be reviewing questions of law over which the court of appeals has final authority; instead, we would be reviewing extraordinary circumstances causing irreparable harm and precluding an adequate remedy by appeal. The facts of this case, however, do not constitute the type of extraordinary situation where mandamus should issue.
Deloitte & Touche has not established its right to relief by mandamus, and we choose not to exercise our mandamus power under the circumstances of this case. Accordingly, we deny Deloitte & Touche‘s petition for writ of mandamus.
SPECTOR, Justice, dissenting.
I respectfully dissent. I disagree that “[t]he issue that confronts us here is whether we should exercise mandamus jurisdiction.” 951 S.W.2d at 395 (emphasis added). Instead, the issue is whether we can take jurisdiction over Deloitte & Touche‘s petition for writ of mandamus. Because I believe that the Legislature has foreclosed our mandamus jurisdiction over class certification orders, I cannot join in the majority‘s opinion.
In essence, the majority says, 1) our mandamus jurisdiction is distinct from our appellate jurisdiction; 2) we have mandamus jurisdiction over the courts of appeals; and 3)
I.
Generally, only final decisions of trial courts are appealable. N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). The Legislature has, however, authorized the appeal of a number of interlocutory orders. See, e.g.,
Under the Texas Constitution, “[t]he Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State.”
Two “principles of law” regulating the writ of mandamus are relevant here. The first is that the relator in a mandamus proceeding must have no adequate remedy by appeal. See Pope v. Ferguson, 445 S.W.2d at 953-54. The majority properly concludes that “the finality of Deloitte & Touche‘s appellate remedy at the court of appeals level alone cannot be the basis for exercising our mandamus power [because to do so] would call into question all past and present finality rules of the Legislature.” 951 S.W.2d at 397. But the majority‘s jurisdictional analysis fails to acknowledge another principle of law regulating the writ of mandamus: an appellate court, including this one, cannot issue the writ unless it concludes that the lower court clearly failed to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). In other words, we cannot grant a writ of mandamus against a court of appeals in an interlocutory class certification appeal without finding that the court incorrectly decided the law. To say, then, that we have jurisdiction in this case (though we decline to exercise it) irreconcilably clashes with the conclusiveness the Legislature has conferred upon the intermediate courts’ resolution of questions of law. In the words of one amicus curiae, Professor William Dorsaneo III, “the court should just say no to mandamus review in these circumstances.”
The cases cited by the majority are not analogous to this one. Simpson v. McDonald, for example, is one of a number of instances in which we have issued mandamus to require a court of appeals to perform a mandatory statutory duty to certify a dissent or conflict and thus invoke this Court‘s appellate jurisdiction.1 See, e.g., Simpson v. McDonald, 142 Tex. 444, 179 S.W.2d 239, 243 (1944) (conditionally granting mandamus to require court of appeals to perform its statutory duty to certify questions of law in case in which a justice of the court of appeals dissented in case appealed from county court); Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062, 1066 (1938) (conditionally granting mandamus to require court of appeals to certify a conflict in an appeal on plea of privilege); Jacobs v. Pleasants, 114 Tex. 242, 267 S.W. 251, 253 (1924) (granting mandamus to require court of appeals to certify a conflict in case originally filed in justice court).
These cases are not comparable to the case at hand. In each of them, we exercised our mandamus jurisdiction to effectuate the Legislature‘s intent that we act as the final arbiter of conflicts on questions of law; if we had not granted mandamus relief, appeals that the Legislature meant us to resolve would never have reached us. Here, in contrast, Deloitte & Touche attempts to invoke our mandamus jurisdiction to circumvent the Legislature‘s mandate that the decisions of the courts of appeals are final and conclusive on appeals from class certification decisions.
The majority also cites State ex rel. Pettit v. Thurmond, 516 S.W.2d 119 (Tex.1974). In that case, we granted mandamus to require a trial court to vacate a criminal sentence. Id. at 123. What the majority does not acknowledge is that a mandamus proceeding is a civil rather than a criminal action, even if it arises from a criminal case. Hogan v. Turland, 428 S.W.2d 316, 316 (Tex.1968); see also Berume v. Hughes, 275 S.W. 268, 269 (Tex.Civ.App.-Fort Worth 1925) (orig.proceeding) (holding that court of civil appeals had mandamus jurisdiction in a criminal case); 55 C.J.S.2D Mandamus § 2(b). Accordingly, our exer-
Finally, the majority cites National Union Fire Ins. v. Ninth Court of Appeals, 864 S.W.2d 58, 61 (Tex.1993), in which we conditionally granted mandamus to compel the court of appeals to file a statement of facts. In National Union, however, we were merely policing the appellate process in a case that would ultimately have reached us by writ of error.
II.
Apparently recognizing the conflict between our assumption of mandamus jurisdiction of class certification decisions and
Moreover, we recently described “extraordinary circumstances” that may justify mandamus relief when a trial court erroneously denies a special appearance in a mass tort case. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996). Those circumstances, including the pressure to settle regardless of the merits of the claims and the strain on judicial resources, are almost certain to be present in most class actions. See In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298-1300 (7th Cir.1995); General Motors Corp. v. Bloyed, 916 S.W.2d 949, 954 (Tex.1996); Thomas E. Willging, et al., An Empirical Analysis of Rule 23 to Address the Rulemaking Challenges, 71 N.Y.U. L.REV. 74, 97 (1996) (noting one study indicating that judges spend, on the average, eleven times more hours on certified class actions than on typical civil cases). We can therefore surely anticipate that most class certification appellants will assert that an order certifying a class involves “extraordinary circumstances.”
Finally, I am troubled by the majority‘s statement that “[i]t could be argued that the court of appeals’ action in directing class certification by itself constitutes an extraordinary circumstance.” 951 S.W.2d at 397. This statement implies that it is more significant when a court of appeals certifies a class that has been denied than when a court reverses an order granting class certification. This distinction is foreign to the interlocutory appeal statute.
In my view, the majority‘s amorphous opinion will cause losing parties to file mandamus petitions in virtually every class certification appeal. The majority errs by refusing to draw the bright jurisdictional line this case demands. I would dismiss Deloitte & Touche‘s petition for lack of jurisdiction.