Deloitte & Touche LLP v. Fourteenth Court of Appeals

951 S.W.2d 394, 1997 WL 303860

• Court: Texas Supreme Court
• Decided: October 2, 1997
• Docket: 96-0362
• Status: Published

Opinions

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 section 51.014(3) of the Civil Practice and Remedies Code, the court of appeals ordered a class certified. 905 S.W.2d 642, 655 (Tex.App.—Houston [14th Dist.], writ dism’d w.o.j.). The parties opposing class certification then applied for writ of error in this Court. We dismissed the application for want of jurisdiction because an appeal of an interlocutory class certification order is final in the court of appeals in the absence of a dissent or conflict. See Tex. Gov’t Code § 22.225(b)(3), (c); Tex. Civ. Prac. & Rem.Code § 51.014(3). The class opponents then sought mandamus relief in this Court.

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 Tex. Gov’t Code § 22.225(b)(3). We granted leave to file to consider this question. Having done so, we conclude that we should not exercise our "writ power in this case. Accordingly, we deny the petition for writ of mandamus.

In the underlying suit, two named plaintiffs, J.D. Weatherly and Elliott Horwiteh, alleged that they suffered losses resulting from their purchase of certain debentures from Entertainment Marketing, Inc. Weath-erly and Horwiteh asserted various causes of action stemming from alleged misrepresentations by EMI and its accountants, Deloitte & Touche, as well as several individual defendants. Weatherly and Horwiteh sought certification of a class of similarly situated plaintiffs. Deloitte & Touche and Ronald Begnaud, who oppose class certification, are the relators in this mandamus proceeding.¹ We will refer to them collectively as “De-loitte & Touche.”

Deloitte & Touche contends that the court of appeals abused its discretion by misapplying Rule 42 of the Texas Rules of Civil Procedure. Deloitte & Touche maintains that this Court always has mandamus jurisdiction to correct the failure of the courts of appeals to properly apply the law. Weatherly and Horwitch, on the other hand, argue that the Legislature has foreclosed our jurisdiction in this case by granting exclusive final authority over interlocutory class certification decisions to the courts of appeals.

I.

Our original jurisdiction for mandamus is not the equivalent of appellate jurisdiction. Compare Tex. Gov’t Code § 22.002 (defining the Supreme Court’s original jurisdiction for mandamus) with Tex. Gov’t Code § 22.001 (defining- the Supreme Court’s appellate jurisdiction). The Texas Constitution permits the Legislature to confer original jurisdiction on the Supreme Court to issue writs of mandamus. Tex. Const. art. 5, § 3. The Legislature has defined this Court’s mandamus jurisdiction as follows:

The supreme court or a justice of the supreme court may issue writs of proce-dendo 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. '

Tex. Gov’t Code § 22.002(a) (emphasis added). Thus, our mandamus jurisdiction extends to the courts of 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 Tex. Gov’t Code § 22.225(b)(3) (“[A] writ of error is not allowed from the supreme court” for an interlocutory appeal on a class certification ruling.). Further, our mandamus jurisdiction is not dependent on appellate jurisdiction. See, e.g., National Union Fire Ins. Co. v. Ninth Court of Appeals, 864 S.W.2d 58, 61-62 (Tex.1993) (conditionally granting mandamus to compel court of appeals to allow filing of statement of facts); State ex rel. Pettit v. Thurmond, 516 S.W.2d 119, 123 (Tex.1974) (conditionally granting mandamus to compel trial court to vacate a criminal sentence though recognizing the supreme court only has civil appellate jurisdiction); 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 to the supreme court in an appeal in which a justice of the court of appeals dissented from a case tried in the county court). Consequently, this Court maintains mandamus jurisdiction over this cause regardless of whether we have appellate jurisdiction over Deloitte & Touche’s application for writ of error.

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.

A party seeking mandamus relief must establish the lack of an adequate appellate remedy. See Walker, 827 S.W.2d at 840. Deloitte & Touche has a remedy by appeal. First, the Legislature provided Deloitte & Touche an interlocutory appeal of the trial court’s class certification ruling. See Tex. Civ. PRAC. & Rem.Code § 51.014(3). Second, Deloitte & Touche may appeal the class certification after a trial on the merits.

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 Tex. Gov’t Code § 22.225(b)(3). We have found no ease, nor has Deloitte & Touche cited to any, where this Court exercised its mandamus power solely to review the merits of a decision of an intermediate appellate court rendered in the regular course of an appeal.

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. Tex. Gov’t Code § 22.001(a). Furthermore, a court of appeals’ judgment is final and unappealable, absent a dissent or conflict, in several types of eases, including election contests not involving a state officer or the validity of a statute. See Tex. Gov’t Code § 22.225(b)(2). Until recently, slander and divorce cases were conclusive and final in the courts of appeals. See Act of June 12, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1731, amended by Act of June 20,1987, 70th Leg., R.S., ch. 1106, § 2,1987 Tex. Gen. Laws 3804, and Act of June 18, 1993, 73rd Leg., R.S., eh. 855, § 2,1993 Tex. Gen. Laws 3366 (current version at Tex. Gov’t Code § 22.225(b)). No one ever argued that there was an inadequate remedy by appeal for divorce and slander eases despite their finality in the courts of appeals.

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, 104 S.Ct. 999, 79 L.Ed.2d 231 (1984); Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir.1982), cert. denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983); Williams v. New Orleans Steamship Ass’n, 673 F.2d 742 (5th Cir.1982), cert. denied, 460 U.S. 1038, 103 S.Ct. 1428, 75 L.Ed.2d 789 (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.

1 . We have received briefs supporting Deloitte & Touche from amici curiae Texas Association of Defense Counsel and the Coastal Corporation. Professor William Dorsaneo, III, of the Southern Methodist University School of Law and Professors Charles Silver and Samuel Issacharoff of the University of Texas School of Law have filed amicus briefs generally supporting the position of Weatherly and Horwitch.