Opinion
NO. 01-15-00774-CV
07-12-2018
IN RE PATTI J. WAGNER, AS GUARDIAN OF JENNY WAGNER, AN INCAPACITATED ADULT, Relator
Original Proceeding on Petition for Writ of Mandamus
DISSENT FROM DENIAL OF EN BANC RECONSIDERATION
This case was tried to a jury in October 2011. The trial judge issued his order granting a new trial on March 27, 2012. This original proceeding challenging that order was filed in September 2015, nearly three and a half years after a new trial was ordered. It should have been immediately and summarily denied as untimely filed. Instead, the case lingers at our court well over six years after the challenged order was entered.
Our en banc court has the power and the duty to correct the panel's error and to expedite proceedings to permit this case to be retried as soon as possible. Because the court fails to do so, I respectfully dissent.
I
The relevant procedural history is easily summarized. The tragic fire that gave rise to this litigation occurred in September 2008. This lawsuit was initiated in June 2009. The case was tried to a jury in October 2011, leading to an order granting a new trial in March 2012. The March 2012 order is the subject of this original proceeding, which was filed over three years later in September 2015.
How did that happen? After the trial judge ordered a new trial, one of the defendants in the trial court, Anthonia Uduma, filed a motion to dismiss the claims against her pursuant to the procedures applicable to healthcare liability claims under Chapter 74 of the Civil Practice and Remedies Code. The denial of that motion on August 23, 2012 resulted in an accelerated interlocutory appeal that was initiated the next day, August 24, 2012. This court's opinion affirming the trial court's interlocutory order issued just over two years later, on August 27, 2014.
Uduma v. Wagner, No. 01-12-00796-CV, 2014 WL 4259886, at *1 (Tex. App.—Houston [1st Dist.] Aug. 27, 2014, pet. denied) (mem. op.).
Uduma continued to pursue her interlocutory appeal, filing a petition for review in the Supreme Court of Texas on December 12, 2014. That petition was denied on June 5, 2015. The Supreme Court sent notice that the petition had been denied to this court on August 24, 2015. This court's mandate in the interlocutory appeal issued on Friday, September 4, 2015. The following Tuesday, September 8, 2015, Wagner initiated this original proceeding to challenge the new-trial order issued over three years earlier in March 2012.
II
Despite the extended delay between the new-trial order and the filing of this original proceeding, Wagner claimed to have "acted diligently to assert her rights." She noted that her petition was filed "on the business day following this Court's issuance of the mandate in the interlocutory appeal." She also relied upon developments in the law governing the availability of mandamus review of new-trial orders. However, her petition acknowledged that the availability of mandamus review of the merits of the reasons specified in an order granting a new trial was definitively confirmed when the Supreme Court issued its opinion in In re Toyota Motor Sales on August 30, 2013.
407 S.W.3d 746, 758 (Tex. 2013).
Although Wagner argued that "changes in the law can justify waiting to seek mandamus relief," her arguments do not justify waiting as long as she did. The fact that the interlocutory appeal was pending was meaningless—that tangential litigation did not prevent Wagner from initiating her own challenge to the new-trial order, which would have mooted the interlocutory appeal if successful. She had no other legal arguments that would have been prejudiced by pursuing mandamus relief before the resolution of Uduma's interlocutory appeal. Moreover, the inevitable refinements in the law that have developed in the wake of In re Toyota Motor Sales were no justification for Wagner to stand pat for two entire years before initiating her own mandamus challenge.
III
It is black-letter law of Texas appellate procedure that an important equitable principle governing mandamus relief is that equity aids the diligent and not those who slumber on their rights. While the application of this rule isn't always clear in marginal cases, the answer should have been obvious and applied swiftly in this case. Even giving Wagner the benefit of the doubt about whether she was justified in holding off on filing her mandamus petition while In re Toyota Motor Sales was pending in the Supreme Court, the availability of the mandamus remedy in this scenario was known as of the day the opinion issued. A two-year delay after that decision, waiting until September 2015 to file the mandamus petition, was not justified by the pendency of an opposing party's interlocutory appeal, the purported operation of a discovery stay, or the continuing development of the law as other litigants across Texas actively explored the parameters of mandamus relief from new-trial orders both before and after the August 2013 decision in In re Toyota Motor Sales.
Rivercenter Associates v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (quoting Callahan v. Giles, 137 Tex. 571, 575, 155 S.W.2d 793, 795 (1941)).
In re Oceanografia, S.A. de C.V., 494 S.W.3d 728 (Tex. 2016) (per curiam), relied upon by the panel, is easily distinguishable from this case. The intervening interlocutory appeal in that case was an appeal from the denial of a special appearance. See In re Oceanografia, 494 S.W.3d at 730. As the Supreme Court noted, seeking mandamus relief in that case before the the same party's special appearance was finally resolved might have compromised the appeal of the special appearance. Id. at 731. Similarly, the four-year delay in pursuing a forum non conveniens remedy, the denial of which resulted in the mandamus proceeding in In re E.I. du Pont de Nemours & Co., also was explained by the time required for the relator to litigate a special appearance first. See 92 S.W.3d 517, 524-25 (Tex. 2002). Unlike the justification of avoiding a general appearance pending the litigation of a special appearance, no comparable dynamic was at play in this case—Wagner would not have compromised any other active requests for relief by seeking mandamus relief in a timely fashion and before Uduma's interlocutory appeal was resolved. Indeed, to the extent Wagner's petition was meritorious, it could have obviated the need to fully litigate Uduma's interlocutory appeal.
The panel curiously suggested that Wagner's delay was justified by the discovery-stay provision of Civil Practice and Remedies Code section 74.351(s). See In re Wagner, No. 01-15-00774-CV, 2017 WL 6374549, at *6 (Tex. App.—Houston [1st Dist.] Dec. 14, 2017) (orig. proceeding). The panel's suggestion that Uduma's motion to dismiss triggered a discovery stay under section 74.351(s) has no support in the statutory text and is a dubious proposition. Regardless, in the usual case the function of that statute is to delay the initiation and ordinary course of civil discovery relating to a healthcare liability claim until after the expert report requirement of section 74.351(a) has been satisfied. By contrast, this case has already been tried once, so the significance of the discovery stay as applied to these circumstances, if it applied at all, was greatly diminished. Even to the extent there was a discovery stay, that would not have prevented Wagner from seeking mandamus relief from the new-trial order.
See, e.g., In re Whataburger Rests. LP, 429 S.W.3d 597 (Tex. 2014) (orig. proceeding) (mandamus petitions filed in 2010 and January 2011 challenging new-trial order entered in May 2010); In re Health Care Unlimited, Inc., 429 S.W.3d 600 (Tex. 2014) (mandamus petitions filed in March 2012 and May 2012 challenging new-trial order entered in January 2012); In re City of Houston, 418 S.W.3d 388 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) (mandamus petition filed in March 2013 challenging new-trial order entered in February 2013); In re Bent, 487 S.W.3d 170 (Tex. 2016) (mandamus petitions filed in June 2013 and December 2014 challenging new-trial order entered in May 2013); In re Wyatt Field Serv. Co., No. 14-13-00811-CV, 2013 WL 6506749 (Tex. App.—Houston [14th Dist.] Dec. 10, 2013, orig. proceeding) (per curiam) (mem. op.) (mandamus petition filed in September 2013 challenging new-trial order entered in March 2013); In re Baker, 420 S.W.3d 397, 399 (Tex. App.—Texarkana 2014, orig. proceeding) (mandamus petition filed in November 2013 challenging new-trial order entered in October 2013); In re Old Am. Cty. Mut. Fire Ins. Co., No. 13-13-00644-CV, 2014 WL 1633098 (Tex. App.—Corpus Christi Apr. 23, 2014, orig. proceeding) (mem. op.) (mandamus petition filed in November 2013 challenging new-trial order entered in August 2013); In re Stearns, No. 02-14-00079-CV, 2014 WL 1510059 (Tex. App.—Fort Worth Apr. 17, 2014, orig. proceeding) (mem. op.) (mandamus petition filed in March 2014 challenging new-trial order entered in January 2014); In re Zimmer, Inc., 451 S.W.3d 893 (Tex. App.—Dallas 2014, orig. proceeding) (mandamus petition filed in July 2014 challenging new-trial order entered in April 2014); In re Procesos Especializados en Metal, S.A. de C.V., No. 04-14-00543-CV, 2014 WL 4347724 (Tex. App.—San Antonio Sept. 3, 2014, orig. proceeding) (mem. op.) (mandamus petition filed in August 2014 challenging new-trial order entered in May 2014); In re Cort, No. 14-14-00646-CV, 2014 WL 4416074 (Tex. App.—Houston [14th Dist.] Sept. 9, 2014, orig. proceeding) (mem. op.) (mandamus petition filed in August 2014 challenging new-trial order entered in June 2014); In re Adkins, No. 13-14-00484-CV, 2014 WL 5026051 (Tex. App.—Corpus Christi Oct. 8, 2014, orig. proceeding) (mem. op.) (mandamus petition filed in August 2014 challenging new-trial order entered in March 2014); In re Athans, 458 S.W.3d 675 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding) (mandamus petition filed in August 2014 challenging new-trial order entered in May 2014); In re Davenport, No. 04-14-00666-CV, 2015 WL 1089679 (Tex. App.—San Antonio Mar. 11, 2015, orig. proceeding) (mem. op.) (mandamus petition filed in September 2014 challenging new-trial order entered in September 2014); In re E.I. duPont de Nemours & Co., 463 S.W.3d 80, 83 (Tex. App.—Beaumont 2015, orig. proceeding) (per curiam) (mandamus petition filed in October 2014 challenging new-trial order entered in September 2014).
Six years is a long time to wait for a new trial, and the prejudice to the defendants of having to wait an additional three years beyond the time required to litigate the interlocutory appeal is self-evident. We can't turn back the clock, but the least we can do is act swiftly to correct this court's error and help to expedite the next inevitable round of review in the Supreme Court. I would grant en banc reconsideration and deny mandamus relief. Because the court does not do so, I respectfully dissent.
Michael Massengale
Justice The en banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, and Caughey. Justice Lloyd, not participating. Justice Massengale, voting to grant en banc reconsideration and dissenting from the denial of en banc reconsideration.
APPENDIX
Procedural Timeline
September 4, 2008 Fire at Four J's Community Living Center June 26, 2009 Original petition filed by Parti J. Wagner July 3, 2009 In re Columbia Medical Center decided by Supreme Court of Texas October 17-21, 2011 Jury trial March 27, 2012 Order granting new trial July 12, 2012 Anthonia Uduma's motion to dismiss pursuant to Civil Practice and Remedies Code Chapter 74 August 23, 2012 Interlocutory order denying Uduma's motion to dismiss August 24, 2012 Notice of interlocutory appeal filed by Uduma August 31, 2012 In re Toyota Motor Sales scheduled for oral submission to the Supreme Court of Texas in January 2013 January 4, 2013 In re Toyota Motor Sales argued in the Supreme Court of Texas, in which a principal issue was whether an appellate court may evaluate a new-trial order on the merits in a mandamus proceeding 9 August 30, 2013 In re Toyota Motor Sales decided by the Supreme Court of Texas, holding that the reasons articulated in a new-trial order are subject to merits-based mandamus review August 27, 2014 Opinion affirming interlocutory denial of Uduma's motion to dismiss December 12, 2014 Petition for review filed by Uduma June 5, 2015 Petition for review denied by Supreme Court of Texas September 4, 2015 Mandate issued by First Court of Appeals September 8, 2015 Petition for writ of mandamus filed by Wagner May 10, 2016 Case submitted in First Court of Appeals April 27, 2017 Petition for mandamus granted by First Court of Appeals December 14. 2017 Revised opinion issued by First Court of Appeals January 22, 2018 Motion for reconsideration en banc filed