NO. 02-0134
IN THE SUPREME COURT
OF
IN RE: SHELL OIL COMPANY, PENNZOIL-QUAKER STATE COMPANY
AND DELTA DISTRIBUTORS, INC. f/k/a or d/b/a DELTA SOLVENT
ORIGINAL PROCEEDING FROM THE
COURT OF APPEALS FOR
THE FIRST SUPREME JUDICIAL DISTRICT OF TEXAS
REAUD,
MORGAN & QUINN, INC.
(409)
838-1000
FAX
(409) 833-8236
Richard J. Clarkson
State Bar No. 04323000
Herschel L. Hobson
State Bar No. 074460
Attorneys for Real Parties in Interest, William L. Simpson and Eva Simpson
IDENTITY OF PARTIES AND COUNSEL
Real Parties in Interest:
William L. Simpson and Eva Simpson
Counsel for Real Parties in Interest:
Richard J.
Clarkson, Reaud, Morgan & Quinn,
Inc.,
Herschel L.
Hobson, Law Offices of Herschel L.
Hobson,
Relators:
Shell Oil Company, Pennzoil-Quaker State Company and Delta Distributors, Inc. f/k/a or d/b/a Delta Solvent
Counsel for Relators:
B. Stephen Rice, Hays, McConn, Rice & Pickering, 400 Two Allen Center, 1200 Smith Street, Houston, Texas 77002 – Attorney for Shell Oil Company
Mark
Smith, Touchstone, Bernays, Johnston,
Beall & Smith, 4700 Renaissance Tower, 1201 Elm Street, Dallas,
Texas 75270 – Attorney for Delta Distributors f/k/a or d/b/a Delta Solvent
Greg C. Laswell, Akin, Gump, strauss, hauer & Feld, 1900 Pennzoil Place-South Tower,
711 Louisiana Street, Houston, Texas 77002 – Attorney for Pennzoil Company,
Pennzenergy Company, Pennzoil-Quaker State Company and Atlas Processing Company
CONTENTS
Page
Identity of Parties and Counsel......................................................................................... ii
Contents................................................................................................................................. iii
Authorities............................................................................................................................. iv
Statement of Facts................................................................................................................ 1
Summary of the Argument................................................................................................. 3
Argument and Authorities................................................................................................. 5
Jurisdictional Requirement that Writ
Requested Must be One
Agreeable to the Principles of Law Regulating
Those Writs.......................... 5
No Importance to Jurisprudence of Texas.......................................................... 14
Forum Shopping and Mandamus......................................................................... 19
Declaratory Judgment is Not a Counter-Claim
for Affirmative
Relief Under Rule 162............................................................................................. 20
Erroneous Prohibition Against Proceeding in
the Jefferson
County District Court.............................................................................................. 22
Conclusion and Prayer........................................................................................................ 25
Certificate of Service............................................................................................................ 26
AUTHORITIES
Page
State Cases:
83 S.W. 1104 (Tex.Civ.App.—Austin 1904).................................................................... 10
BHP Petroleum Co., Inc. v. Millard
800 S.W.2d 838 (Tex. 1991)................................................................................................ 20
1 Dallam 504 (Tex.Rep.Sup., 1843)................................................................................... 6
155 S.W.2d 793 (Tex. 1941)................................................................................................ 6
876 S.W.2d 304 (Tex. 1994)................................................................................................ 8,12,17
Cleveland v. Ward
285 S.W. 1063 (Tex. 1926).................................................................................................. 22,23
925 S.W.2d 591 (Tex. 1996)................................................................................................ 17
951 S.W.2d 394 (Tex. 1997)................................................................................................ 12
Electronic Data Systems Corp. v. Pioneer Electronics (USA), Inc.
68 S.W.3d 254 (Tex.App.—Ft. Worth 2002, no pet.)...................................................... 20
14 Wall. 152, 81 U.S. 152, 20 L.Ed. 877 (1871).............................................................. 7
9 Clark & Finn. 279............................................................................................................. 7
Flores v. Peschel
927 S.W.2d 209 (Tex.App.—Corpus Christi 1996, orig. proceeding)......................... 22,23
640 S.W.2d 870 (Tex. 1982)................................................................................................ 9,21
767 S.W.2d 680 (Tex. 1989)................................................................................................ 12
Hooks v.
Fourth Court of Appeals
808 S.W.2d 56 (Tex. 1991).................................................................................................. 21
Howell v. Mauzy
899 S.W.2d 690 (Tex.App.—Austin 1994, writ den’d.).................................................. 24
56 S.W.3d 265 (Tex.App.—Houston [1st Dist.] 2002, orig. proceeding)...................... 9
In re GNC Franchising, Inc.
22 S.W.3d 929 (Tex. 2000, dissenting opinion only)...................................................... 16
968 S.W.2d 346 (Tex. 1998)................................................................................................ 8
In re Missouri Pacific Railway Co.
998 S.W.2d 212 (Tex. 1999)................................................................................................ 13
In re Nitla S.A. de C.V.
45 Tex.Sup.Ct.J. 571 (Tex. 2002)...................................................................................... 8
In re Smith Barney, Inc.
975 S.W.2d 593 (Tex. 1998)................................................................................................ 13
In re Union Pacific Resources Co.
969 S.W.2d 427 (Tex. 1998)................................................................................................ 12
45 Tex.Sup.Ct.J. 851 (Tex. 2002)...................................................................................... 13
700 S.W.2d 916 (Tex. 1985)................................................................................................ 8,9,11,12
321 S.W.2d 290 (Tex. 1959)................................................................................................ 11
Lord v. Clayton
352 S.W.2d 718 (Tex. 1962)................................................................................................ 22
Love v. The State
Bar of Texas
982 S.W.2d 939 (Tex.App.—Houston [1st Dist.] 1998, no pet.).................................... 23
Mapco, Inc. v.
Forrest
795 S.W.2d 700 (Tex. 1990)................................................................................................ 22
1 Cranch, 137, 5 U.S. 137, 2 L.Ed. 60 (1803).................................................................. 6
Pace Concerts, Ltd. v. Resendez
72 S.W.3d 700 (Tex.App.—San Antonio 2002, pet. den’d.).......................................... 21
Polaris Investment Management Corp.
892 S.W.2d 860 (Tex. 1995)................................................................................................ 19,20
445 S.W.2d 950 (Tex. 1969), cert. den’d. 397 U.S. 997, 90 S.Ct. 1138,
25 L.Ed.2d 405 (1970).......................................................................................................... 7,11
504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992).................................................... 14
Railroad Comm. v. Shell Oil Co.
164 S.W.2d 773 (Tex.Civ.App.—Austin 1942, writ ref’d.)............................................ 23
Rosenthal v.
Ottis
865 S.W.2d 525 (Tex.App.—Corpus Christi 1993, orig. proceeding)......................... 21
487 S.W.2d 716 (Tex. 1972)................................................................................................ 12
342 S.W.2d 422 (Tex. 1961)................................................................................................ 8
827 S.W.2d 833 (Tex. 1992)................................................................................................ 8,14
900 S.W.2d 316 (Tex. 1995)................................................................................................ 14
128 S.W.2d 1138 (1939)....................................................................................................... 8,14
268 S.W. 715 (Tex. 1925)..................................................................................................... 6
Zimmerman v. Ottis
941 S.W.2d 259 (Tex.App.—Corpus Christi 1996, orig. proceeding)......................... 9,22
Rules, Statutes and Other Authorities:
1 Tex.Jur. 3d, Actions, § 273
(1993).............................................................................. 9
38 Tex.Jur.
3d, Extraordinary Writs § 200 (May 2002)............................................ 6
Tex.Civ.Prac.&Rem.Code
§ 5.001........................................................................... 18
Tex.Civ.Prac.&Rem.Code
§ 15.0642....................................................................... 19
Texas Code Construction Act, § 311.023......................................................................... 17
Texas Constitution, Art. V, § 3.......................................................................................... 5,6,17
Tex.Govt.Code §
22.002(a)........................................................................................... 5,11,17
Tex.R.App.P. 52.3(e).......................................................................................................... 5
Tex.R.Civ.P. 87................................................................................................................... 13
Tex.R.Civ.P. 162................................................................................................................ 4,21,25
Texts and Periodicals:
Carlson & Garcia, “Discretionary Review
Powers of the Texas Supreme
Court,” 50 Tex.B.J. 1201..................................................................................................... 16
Dorsaneo,
10 Texas Litigation Guide, chpt. 152 (2000)................................................ 16
Holdsworth, Sir William, A History of
English Law, chpt. III, p. 229
(7th Ed., 1956)......................................................................................................................... 6
Rhodes, Charles W. “Rocky,” 29 St. Mary’s
L.J. 525, et. seq.,
“Demystifying the Extraordinary Writ:
Substantive and Procedural
Requirements for the Issuance of Mandamus”.............................................................. 19
Rodd, Elizabeth V., paper presented by
Justice Priscilla Owen, “What
is Important to the Jurisprudence of the
State?,” Texas Bar CLE
(June 21, 2002)...................................................................................................................... 15
Story, Joseph, II Commentaries on the
Constitution of the United States,
§ 17.03, p. 533 n.2 (3d Ed., 1958)....................................................................................... 6
NO. 02-0134
IN THE SUPREME COURT OF TEXAS
IN RE: SHELL OIL COMPANY, PENNZOIL-QUAKER STATE COMPANY
AND DELTA DISTRIBUTORS, INC. f/k/a or d/b/a DELTA SOLVENT
ORIGINAL PROCEEDING FROM THE
COURT OF APPEALS FOR
THE FIRST SUPREME JUDICIAL DISTRICT OF TEXAS
TO THE HONORABLE SUPREME COURT OF TEXAS:
COME NOW, WILLIAM L. SIMPSON and EVA
SIMPSON, Real Parties in Interest, and submit this response on the merits to
the Petition for Writ of Mandamus. For
clarity, Real Parties in Interest are referred to as “Simpson;” Relators are
referred to as “Shell.” Simpson argues
to this Court as follows:
[All record references are to Real Parties In Interest’s Appendices]
The pertinent facts in this case are found in the pleadings of the parties, and the dates on which those pleadings were filed in the various district courts of Texas:
The case of Simpson, et al v. Shell Oil
Co., et al filed in the 128th District Court of Orange County,
Texas, Cause No. A-990,251, on July 8, 1999 (Appendix “B” – Civil Docket
Sheet);
June 20, 2000, Order signed granting the Motion
to Transfer Case to Harris County, Texas (Appendix “B” – Civil Docket
Sheet);
On December 21, 1999, a lawsuit was filed in
the 60th District Court of Jefferson County, Texas, in the case of Simpson,
et ux v. Delta Distributors, Inc., et al, Cause No. B-0162,024 (Appendix
“D” – Civil Docket Sheet);
Shell Oil Co., Delta Distributors, Pennzoil-Quaker State Co. filed answers and motions to transfer venue, abate or dismiss (Appendix “D”);
Simpson, et al v. Shell Oil Co., et al filed in the 280th District Court
on June 28, 2000 (Appendix “C” – “General Order of the Court”);
On November 21, 2000, the Simpsons filed
their Motion for Non-Suit in the 280th District Court
(Appendix “C”);
On November 28, 2000, Shell Oil Co., Delta
Distributors and Pennzoil-Quaker State Co. filed Defendants’ Objection to
Plaintiffs’ Motion for Non-Suit and Original Counter-Claim and Petition for a
Declaratory Judgment (Appendix “C”);
The Simpsons filed their Plaintiffs’ Reply
to Objections to Non-Suit on December 4, 2000 (Appendix “C”);
On December 8, 2000, Judge Lindsay filed her
order denying Plaintiffs’ Motion to Dismiss, or in the Alternative, Order of
Reinstatement; and Order Enjoining Plaintiffs from Proceeding Against These
Defendants in Another Forum (Appendix “A”).
A transcription of the arguments of counsel made on December 8, 2000, on the Motion for Non-Suit are attached as Appendix “E.” Judge Lindsay explained her reasoning for denying the non-suit filed by the Simpsons:
But I am quite convinced that the case, your
case against defendants should either remain here or come back here. One or the other.
Now with there being no question, but what –
plaintiffs have refiled their case, it’s clear that plaintiffs are not dropping
their case. If it comes back here, it
comes back to this court, my general thought is that I should do exactly what
Mr. Laswell suggests and set aside the non-suit, reinstate the case if it’s
considered dismissed, which I don’t really think it is. I think I actually have to dismiss it before
it’s really dismissed, but if you have a right to it, I think I should set that
aside at this point. Like I said I don’t
know what to do with those other ones over there. So I’ll sign an order to that effect a little
later today.
**********
MR. BROWN:
Your Honor, I have an order to submit to the court in accordance with
your ruling. It is slightly different,
Your Honor, in that it does have a provision in there which enjoins the
plaintiffs from proceeding in Harris County given the venue, I’m sorry, in
Jefferson County given that venue has been established here.
THE COURT:
Okay, Mr. Brown. Okay. What you’re suggesting, this order that I do
is grant the non-suit but just enjoin them from filing the other suit.
MR. LASWELL:
That’s not what I argued. Let me
look at that.
THE COURT:
Look at that. That’s what the
order says.
MS. BRENNER:
Wrong order.
MR. BROWN:
I’m trying to think. Do we have
that? I think we may have an alternate.
THE COURT:
Actually, I don’t care if you have an order or not. I just assume drop one by.
(Appendix “E,” pages 13-15).
On
February 18, 2002, Judge Tony Lindsay granted the Simpsons’ Motion for Non-Suit
and dismissed the entire case without prejudice. Two orders were signed on that date. The second order contained hand-written
interlines by Judge Lindsay. See,
Appendix “F.”
The Supreme Court does not have jurisdiction to take up and rule on the petition for writ of mandamus because it does not contain factual or legal allegations that are “agreeable to the principles of law regulating those writs” as set out in the Anglo-American common-law, the Texas Constitution or Texas statutes. The standard which Shell asked this Court to use in reviewing the facts and law of the case is inapposite. “Abuse of discretion” is not the standard to apply to a ministerial act or a mandatory duty. There is no showing that Shell is “in danger of permanently losing substantial rights.” There is no showing that the facts or the law in this case “is of such importance to the jurisprudence of the state as to require correction.” The allegations in the petition for writ of mandamus of forum shopping by the Simpsons are unproven and “forum shopping” is not the proper subject of a mandamus petition. The amended pleading of Shell raising a declaratory judgment claim, filed after the Simpsons’ non-suit, is not an affirmative claim under Tex.R.Civ.P. 162.
Judge Lindsay clearly abused her discretion in refusing to grant Simpsons’ Motion for Non-suit. Simpson had an absolute right to take a non-suit at the time one was requested in the Harris County lawsuit. An order is not necessary. The non-suit automatically occurs. At the time the non-suit motion was filed, Shell had not filed any pleadings in the trial court seeking affirmative relief. The trial court’s actions on December 8, 2000, constituted a refusal to acknowledge the non-suit or to comply with its ministerial duty to dismiss Simpsons’ claims.
The 280th Judicial District Court of Harris County, Texas, did not have any constitutional, statutory or inherent jurisdiction to enjoin either Simpson or the 60th Judicial District Court of Jefferson County, Texas, from proceeding in the lawsuit on file in Jefferson County, Texas.
I.
Under Tex.R.App.P. 52.3(e), a petition for writ of mandamus must contain a statement of jurisdiction. Although Shell mentions Tex.Govt.Code § 22.002(a), it does not mention Art. V, § 3 of the Texas Constitution, or any of the jurisdictional requirements that must attend the filing of an application for a writ of mandamus. Many of these requirements go back to the misty beginnings of Anglo-American jurisprudence.
Shell makes only the minimal bare-bones reference to the Texas Government Code. There is no explanation following that citation explaining why this case falls within the ambit of that provision of the Government Code. There are two jurisdictional bases for the Supreme Court to issue mandamus: (1) when mandamus is necessary to enforce the court’s appellate jurisdiction, and (2) when original mandamus jurisdiction has been conferred by the legislature. Shell relies only on a legislative enactment in claiming that this Court has jurisdiction to hear its complaint. That Government Code provision (Tex.Govt.Code § 22.002(a)) states:
(a) The supreme court or a justice of the supreme court may issues writs of . . . mandamus agreeable to the principles of law regulating those writs, against 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. (Emphasis added)
The Supreme Court has original jurisdiction to issue writs of mandamus “agreeable to the principles of law regulating those writs” against district court judges and courts of appeals and their justices.
In Yett v. Cook, 268 S.W. 715, 718-719 (Tex. 1925), the Supreme Court stated that the Texas Constitution Art. V, § 3, authorizing the issuance of writs of mandamus by the Supreme Court was to be interpreted by examining the common-law rules prescribing occasions when writs of mandamus could issue. The common law was to be followed by the Supreme Court unless the common-law rules had been modified by a Texas statute. Mandamus is a common-law and not an equitable remedy. See, Callahan v. Giles, 155 S.W.2d 793, 795 (Tex. 1941). See also, 38 Tex.Jur. 3d, Extraordinary Writs § 200 (May 2002). This was the law under the Republic of Texas as well. See, Bradley v. McCrabb, 1 Dallam 504 (Tex.Rep.Sup., 1843).
The italicized language from the Government Code, set out above, came from one of the initial acts of the United States Congress. See, Joseph Story, II Commentaries on the Constitution of the United States, § 17.03, p. 533 n.2 (3d Ed., 1958) (Congress, by the judiciary act of 1789, chpt. 20, § 13, did confer on the supreme court the authority to issue writs of mandamus, in cases warranted by the principles and usages of law, to persons holding office under the authority of the United States:
But, when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law, is amenable to the law for his conduct, and cannot at his discretion sport away the vested rights of others.
But the supreme court, in 1801, held the delegation of power to be a mere nullity. Marbury v. Madison, 1 Cranch, 137, 165, 173 to 180, 5 U.S. 137, 2 L.Ed. 60 (1803). The early history of mandamus under English common-law is summarized and discussed in a number of volumes in the magisterial work by Sir William Holdsworth, A History of English Law. See, for example, 1 A History of English Law, chpt. III, p. 229 (7th Ed., 1956).
The same principle, coming down from the common law of England, applies to judicial officers, who, though not answerable for errors of judgment, however plain the mistake, are responsible for any injury which results from their failure to perform a ministerial duty cast upon them by law. In Ferguson v. Earl of Kinnard, (9 Clark & Finn. 279, 290,) Lord Brougham, after stating the first branch of this proposition, added:
But, where the law neither confers judicial power, nor any discretion at all, but requires certain things to be done, everybody, whatever be its name, and whatever other functions of a judicial or discretionary nature it may have, is bound to obey; and, with the exception of the legislature and its branches, everybody is liable for the consequences of disobedience.
Lord Campbell said in the same case (p. 312):
Where there is a ministerial act to be done by persons who, on other occasions, act judicially, the refusal to do the ministerial act is equally actionable as if no judicial functions were, on any occasion, entrusted to them. There seems no reason why the refusal to do a ministerial act, by a person who has certain judicial functions, should not subject him to an action, in the same manner as he is liable to an action for an act beyond his jurisdiction.
The most useful opinion by this Court in discussing this jurisdictional terminology is Pope v. Ferguson, 445 S.W.2d 950, 952-954 (Tex. 1969), cert. den’d. 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970). Chief Justice Calvert gives the reader an in-depth understanding of the mandamus jurisdiction in Texas and its historical roots. Chief Justice Calvert, in speaking for an unanimous court, quotes extensively from Ex Parte Newman, 14 Wall. 152, 81 U.S. 152, 20 L.Ed. 877 (1871), on the meaning of the phrase “principles and usages of law.” It is still today the definitive discussion of the matter in Texas jurisprudence. In Calvert’s opinion, several sections contain italicized quotes from the Ex Parte Newman decision. Shell has made no attempt in its brief to demonstrate to this Court that its petition for mandamus complies with the ancient common-law and statutory requirement that a petition for mandamus comply with the “principles and usages of law.” The burden on Shell is to do this! It has failed.
Shell, in its petition for mandamus, under its Issues Presented and arguments, urges this Court to examine whether or not the trial court “abused its discretion.” The Simpsons deny this major premise of Shell, and assert that the actions of the trial court involve only a ministerial duty. The jurisdiction of this Court to issue its writ of mandamus lies to compel the performance of a ministerial act or a mandatory duty. Shell neither discusses nor argues that the trial court’s ruling in denying the non-suit was a ministerial act. The only question raised by Shell is whether or not the trial court abused its discretion. A court clearly abuses its discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917, 918 (Tex. 1985). A mere discretionary abuse complaint does not invoke this Court’s mandamus jurisdiction in this case. The office of mandamus is to execute, not to adjudicate. Wortham v. Walker, 128 S.W.2d 1138, 1151 (1939). A writ of mandamus issues to compel the performance of a ministerial act, it will not issue to control an ordinary discretionary act. Turner v. Pruitt, 342 S.W.2d 422, 423 (Tex. 1961). Shell argues to this Court that the trial court did not clearly abuse her discretion in performing some non-ministerial duty. This raises no jurisdictional issue. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994). Likewise, the actions of the Court of Appeals should not be the focus of this Court’s review. As stated in In re Nitla S.A. de C.V. 45 Tex.Sup.Ct.J. 571, 573 (Tex. 2002):
In determining whether a court of appeals abuses its discretion by granting mandamus relief, our focus remains on the trial court’s ruling. Meador, 968 S.W.2d at 350.
See also, In re Meador, 968 S.W.2d 346 (Tex. 1998).
If Shell is going to raise a clear abuse of discretion complaint, it must, as a condition precedent, demonstrate as a matter of law that there is no other adequate remedy at law. See, Johnson v. Fourth Court of Appeals at p. 917. All pertinent case law demonstrates that the duty to acknowledge or grant a non-suit is ministerial. No case law suggests that such action, or non-action, by the trial court involves a discretionary act. See, Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982). See also, 1 Tex.Jur. 3d, Actions, § 273 (1993).
The First Court of Appeals’ ruling in the case-at-bar was merely following its own stare decisis and that of this Court in ruling that the trial court had no discretion on whether or not to grant the non-suit. See, In re Fuselier, 56 S.W.3d 265, 268 n.1 (Tex.App.—Houston [1st Dist.] 2001, orig. proceeding):
In Greenberg v. Brookshire, 640 S.W.2d 870 (Tex. 1982), the respondent in a divorce suit requesting affirmative relief two days after petitioner filed a motion for nonsuit. Over petitioner’s objection, the trial court held a hearing and rendered an order on respondent’s claim. The petitioner sought mandamus relief directing the trial court to withdraw its order. Id. at 871. The supreme court held that the judge should not have held the hearing and erred in rendering the order because petitioner was entitled to the non-suit immediately upon its filing. Id.
Perhaps the matter is most bluntly stated in Zimmerman v. Ottis, 941 S.W.2d 259, 261 (Tex.App.—Corpus Christi 1996, orig. proceeding):
When a plaintiff nonsuits his entire case, leaving no remaining claims for affirmative relief in the lawsuit, there is no longer any real controversy between the parties, and the trial court has no jurisdiction to grant affirmative relief or continue the lawsuit in such a way as to suggest that any justiciable claims remain for determination. The lawsuit remains on the docket merely as an empty shell awaiting the final ministerial act of dismissal. Although plenary power remains to sanction or set appellate deadlines, plenary power in this context includes only those powers that are necessary to the court’s disciplinary authority over the parties before it or for the demarcation of deadlines for purposes of appeal.
The reason why the trial court can do no more than perform the ministerial act of acknowledging the end of the litigation, following a plaintiff’s non-suit, has always been understood by the Texas courts. Back in the days when gentlemen-of-the-law in Texas still understood and used Latin, the Court of Appeals in Accousi v. G. A. Stowers Furniture Co., 83 S.W. 1104, 1105 (Tex.Civ.App.—Austin 1904), stated the matter most eloquently:
A court is defined to be a place wherein justice is judicially administered. And in every court there must be at least three constituent parts – the actor, reus, and judex: the actor, or plaintiff, who complains of injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arising upon the fact, and, if an injury appears to have been done, to ascertain and by it officers to apply the remedy. Chase’s Blackstone, 626, 627. The other two constituent parts of the court must coexist with the judex, in order that it may exercise the power to examine the truth of the fact, determine the law arising therefrom, and apply the remedy; i.e., pronounce judgment. Then, when entered of record, and not until then, does the enrollment become “a monument of so high a nature, and importeth in itself such absolute verity, that, if it be pleaded there is no such record, it shall not receive any trial by witness, jury, or otherwise, but only be itself.” 3 Bl. Comm. 331.
The learned Judge Neill invokes Blackstone and his commentaries as the authority for the proposition that no lawsuit can continue when the original actor (plaintiff) is no longer in the lawsuit. For there to be litigation, the actor (plaintiff) and reus (defendant) “must co-exist with the judex (judge), in order that it (court) may exercise the power to examine the truth of the fact, determine the law arising therefrom, and apply the remedy.” For a trial court to properly exercise its jurisdiction “there must be at least three constituent parts.” This is why a non-suit has always been held to bring the principle litigation to an end. This is without regard to such post-litigation issues as sanctions and the payment of certain fees or costs.
In the matters discussed above, Shell has not shown that its request for a writ of mandamus in this Court is “agreeable to the principles of law regulating those writs” set out in § 22.002(a) of the Texas Government Code. As Chief Justice Calvert said in Pope at page 953:
[T]he principles and usages of law do not warrant the use of the writ to re-examine a judgment or decree of a subordinate court in any case, nor will the writ be issued to direct what judgment or decree such a court shall render in any pending case, nor will the writ be issued in any case if the party aggrieved may have a remedy by writ of error or appeal, as the only office of the writ when issued to a subordinate court is to direct the performance of a ministerial act . . . .
Shell has asked this Court to review the performance of what should have been a ministerial act on the part of the trial court by using an abuse of discretion standard. This Court does not have the jurisdiction to apply an abuse of discretion standard on a ministerial act question and such has never been recognized under “the principles and usages of law” found in Anglo-American jurisprudence. Johnson at page 917 states:
This determination is essential because mandamus will not issue to control the action of a lower court in a matter involving discretion.
A discretionary act and a ministerial act are as two ships passing in the night! As stated in Jones v. Strayhorn, 321 S.W.2d 290, 295 (Tex. 1959):
When it is once decided that a trial judge exercising a “discretionary” authority has but one course to follow and one way to decide then the discretionary power is effectually destroyed and the rule which purports to grant such power is effectively repealed. (emphasis added)
(Cited on point in Johnson, 700 S.W.2d at p. 917-918). One who seeks a mandamus based upon a discretionary act has a heavy burden. See, State v. Sewell, 487 S.W.2d 716, 718 (Tex. 1972). That burden becomes unbearable when any “discretionary power is effectively destroyed” and the only duty is to perform a ministerial act.
Likewise, Shell has failed to show that it does not “have a remedy by writ of error or appeal.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). Shell must have made a mandamus record to show that ordinary appeal is not an adequate remedy. Canadian Helicopters, 876 S.W.2d at p. 305. This has not been done. Nor has Shell established as a matter of law that there are in this mandamus action “extraordinary circumstances causing irreparable harm and precluding an adequate remedy by appeal.” See, Deloitte & Touche, LLP v. Fourteenth Court of Appeals, 951 S.W.2d 394, 398 (Tex. 1997). Canadian Helicopters at page 304 states that:
This requirement is met only when parties are in
danger of permanently losing substantial rights.
Shell has made no attempt to show that it is in danger of permanently losing substantial rights unless the Texas Supreme Court intervenes.
Shell has not claimed that its issues involve fundamental error. Any of the issues that Shell is worried about such as venue for the trial in this case are issues that can be waived if not raised by a proper motion. See, In re Union Pacific Resources Co., 969 S.W.2d 427, 428 (Tex. 1998). Arguendo error, the Simpsons contend that Shell did not properly preserve its issues on abatement, venue or any dominant jurisdictional issues between Harris and Jefferson County courts. A mandamus proceeding is not the place to try issues of whether or not error was properly preserved in the trial court. For instance, in In re Missouri Pacific Railway Co., 998 S.W.2d 212, 215 (Tex. 1999), this Court stated:
We have repeatedly denied mandamus to review the merits of a venue decision because we considered it an incidental trial ruling correctable by appeal. Before 1983, venue rulings were immediately correctable by interlocutory appeal under the former plea of privilege practice. In 1983, the Legislature replaced interlocutory venue appeals with the rule that in an ordinary post-trial appeal, improper venue is not subject to harmless error analysis, virtually guaranteeing reversal.
We have held that an appeal is inadequate to remedy an erroneous venue decision in only one instance – mandatory transfer in a suit involving the parent-child relationship. In Proffer v. Yates, we reasoned that the need to expeditiously resolve custody and support issues makes ordinary appeal inadequate. Outside of suits involving the parent-child relationship, our Court has steadfastly declined to review by mandamus whether venue was proper in the county of suit under the venue statutes.
See, Tex.R.Civ.P. 87. Any dispute as to where the trial of this case should ultimately be held is a matter for a regular appeal. The only proper issue before this Court is whether or not the trial court’s handling of the notice of non-suit involved only a ministerial duty on her part.
Shell is left with the untenable argument that the trial court and court of appeals should have abandoned stare decisis in this case. See, In re Smith Barney, Inc., 975 S.W.2d 593, 599-600 (Tex. 1998); In the Interest of K.M.S., a child, 45 Tex.Sup.Ct.J. 851, 851-852 (Tex. 2002). Mandamus issues only where the law is clear. It is not a procedural tool [no jurisdictional powers to abrogate case law under review since the phrase “agreeable to the principles of law regulating those writs” requires that the legal issue be so settled that its violation by the trial court is “a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law”] to overturn centuries of stare decisis. Wortham, 128 S.W.2d at p. 1151, restates this maxim of mandamus law:
Relator, to be entitled to the right, must at least have a clear legal right to the performance by respondent of the particular duty sought to be enforced, that is, there must be a clear legal right in relator and a corresponding duty on the part of the person to whom the writ is directed. No intendments are to be indulged. Relator must by averment and proof show an unqualified right to the writ. * * * Absent any clear legal right of relator which it is the duty of respondent to grant, there is no substantial resting place upon which to base the application, for in its final analysis the question for determination is whether the right of the aggrieved party is so free from doubt and the duty of the officer so clear and free from any substantial question that an order should issue to compel performance. (emphasis added)
In Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995), this Court quoted from a concurring opinion by Justice Antonin Scalia in Quill Corp. v. N. Dakota, 504 U.S. 298, 321, 112 S.Ct. 1904, 1916, 119 L.Ed.2d 91 (1992), on the strict constructionist viewpoint of stare decisis:
(“[R]eliance on a square, unabandoned holding of the Supreme Court is always justifiable reliance . . . .”). Finally, under our form of government, the legitimacy of the judiciary rests in large part upon a stable and predictable decision making process that differs dramatically from that properly employed by the political branches of government. See Vasquez v. Hillery, 474 U.S. 254, 265-66, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986). (“[Stare decisis] permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.”).
II.
In Walker v. Packer, 827 S.W.2d 833, 839 n.7 (Tex. 1992), this Court stated:
Additionally, this court will not grant mandamus relief unless we determine that the error is of such importance to the jurisprudence of the state as to require correction.
Shell has not made that claim and has surely not made that point in its petition for mandamus. One of the best papers on this subject was delivered by Justice Priscilla Owen on June 21, 2002, at the Practice Before the Supreme Court, Texas Bar CLE program, “What is Important to the Jurisprudence of the State?” There at pages 7-8 of the paper presented [written by Elizabeth V. Rodd], Justice Owen set out a number of criteria that she and Justice Hecht included in their dissents to the Supreme Court’s denial of petitions for review or mandamus:
· The issue has arisen in several cases. Todd Shipyards Corp. v. Perez, 35 S.W.3d 598 (Hecht, J., dissenting to denial of petition for review).
· The issue is likely to recur. Id.; see also In re GNC Franchising, Inc., 22 S.W.3d 929 (Hecht, J., dissenting to denial of petition for writ of mandamus).
· The courts that have considered the issue have been in disagreement. Todd Shipyards, 35 S.W.3d 598.
· The court of appeals’ decision defeated legislative policy. Texas Workers’ Comp. Ins. Fund v. Serrano, 22 S.W.3d 341, 343 (Hecht, J., dissenting to denial of petition for review).
· A grant is necessary to resolve a conflict among the courts of appeals. Id.
· A trial court’s order granting a new trial in the interest of Justice without explaining reasons was “in the interest of injustice.” In re Volkswagen of Am., Inc., 22 S.W.3d 462 (Hecht, J., dissenting to denial of petition for writ of mandamus); see also In re Bayerische Motor Werke, AG, 8 S.W.3d 326 (Hecht, J., dissenting to denial of petition for writ of mandamus).
· The order at issue may be a significant intrusion on constitutional rights. In re Gaylord Broadcasting Co., 22 S.W.3d 848 (Hecht, J., dissenting to denial of petition for writ of mandamus).
· The case affects every attorney who investigates a client’s claim and significantly intrudes on attorney-client relationships. In re Tex. Farmers’ Ins. Exch., 12 S.W.3d 807 (Hecht, J., dissenting to denial of petition for writ of mandamus).
· The case raises important question about interplay between local court rules and statute and statewide rules. In re Rio Grande Valley Gas Co., 8 S.W.3d 303 (Hecht, J., dissenting to denial of petition for writ of mandamus).
· A trial court’s refusal to allow defendants to supersede the judgment will cause two respected educational institutions economic and noneconomic injury and impair the cause of higher education. In re South Texas College of Law, 4 S.W.3d 219 (Hecht, J., dissenting to denial of petition for writ of mandamus).
See, Carlson & Garcia, “Discretionary Review Powers of the Texas Supreme Court,” 50 Tex.B.J. 1201, 1204 (1987), where Professor Carlson and Mr. Garcia list six factors of their own that might make a case before the Supreme Court important to the jurisprudence of Texas. These factors mesh with a number of those that are cited by Ms. Rodd and Justice Owen. See also, Dorsaneo, 10 Texas Litigation Guide, chpt. 152 (2000), for a more detailed discussion of those limiting requirements that must be satisfied before a writ of mandamus will be granted. None of those criteria for arguing for the grant of a mandamus by the Supreme Court were raised by Shell in its application pending in the case at bar. Some of the issues raised by Justices Hecht and Owen, set out above, would not apply to a petition for writ of mandamus. One supposes that the justices can pick and choose among those various reasons for a ground for the grant, or not, of a petition for a writ of mandamus. For example, Justices Hecht and Owen dissented to the denial for a petition for mandamus in In re GNC Franchising, Inc., 22 S.W.3d 929, 931-932 (Tex. 2000, dissenting opinion only) (issue raised was likely to recur and was significant to the state’s jurisprudence).
The history of the grants of petitions for mandamus by the Supreme Court indicate a waxing and waning on the part of the Court as to when jurisdiction exists to decide whether or not a petition for a writ of mandamus should be granted. For example, in the dissent of Justice Baker in CSR Ltd. v. Link, 925 S.W.2d 591, 599 (Tex. 1996), the justice points out that under Canadian Helicopters v. Wittig, at page 305, there are historically “limited circumstances” in which the Supreme Court has granted its writ. Those cases are ones “involving sovereign immunity, comity and the parent-child relationship.” Any exception involving extraordinary relief is “available only upon a showing that the trial court abused its discretion to the extent that it acted with ‘such disregard for guiding principles of law that the harm to the defendant becomes irreparable exceeding mere increased costs and delay.’” Canadian Helicopters, 876 S.W.2d at p. 308-309. Justice Baker argues that historically only a few categories of classes of cases are granted mandamus relief by the Supreme Court. Surely, the jurisdiction of the Supreme Court to consider and grant a writ of mandamus is not like Forrest Gump’s “box of chocolates.” One picks and chooses according to the mood and taste of the moment.
To determine when an application for a writ of mandamus to the Supreme Court shall lie is the exact equivalent of determining the character and extent of the Court’s mandamus jurisdiction. That function is a purely legislative one, on general principles, and unequivocally is made so, in Texas, by such provisions of Article V, § 3, which declares what that jurisdiction shall be “until otherwise provided by law.” Being thus a legislative power, its exercise by this Court is restricted to the legislature’s intent, according to all settled rules of constitutional construction. The rules of statutory construction are even clearer. Any court must interpret Section 22.002(a) of the Tex.Govt.Code according to the requirements of the Texas Code Construction Act, § 311.023:
In construing a statute, whether or not the statue is considered ambiguous on its face, a court may consider among other matters the:
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws on the same or similar subjects;
(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provision.
(Emphasis added)
This is particularly so in examining the history of the writ of mandamus and its jurisdictional requirement that the petition be “agreeable to the principles of law regulating those writs.” One can examine those “principles of law” going back to the earliest days when the courts in this country were part of the British judicial system. The Code Construction Act is also aided by the requirements of Tex.Civ.Prac.&Rem.Code § 5.001 (“the rule of decisions in this state consists of those portions of the common law of England that are not inconsistent with the constitution or laws of this state, the constitution of this state, and the laws of this state”).
This Court must recognize a jurisdictional firewall, adhering to the ancient common-law restrictions on the use of mandamus, or this Court will be increasingly afflicted with these writs, and having determined to entertain them on increasingly subjective criteria, will willy-nilly be required to accept many more petitions for a writ. This Court has pointed out on numerous occasions that a writ of mandamus is not a substitute for an appeal. For additional authority on these questions, see, Charles W. “Rocky” Rhodes, “Demystifying the Extraordinary Writ: Substantive and Procedural Requirements for the Issuance of Mandamus.” (For example, see, § 10D, “Importance to the Jurisprudence of the State,” pp. 586-587.) 29 St. Mary’s L.J. 525, et. seq. (1998).
One of the major building blocks for a jurisdictional fire wall would be the requirement that the matter raised in the petition must truly be of significant importance to the jurisprudence of Texas. Of course, one man’s meat is another man’s poison. This is where the restrictive and stingy criteria of the common law become useful.
III.
FORUM SHOPPING AND MANDAMUS
The only statute that specifically mentions a mandamus in connection with venue provisions is Tex.Civ.Prac.&Rem.Code § 15.0642. It clearly does not apply to the facts in this case and is not cited by Relators in their joint brief on the merits. Shell argues that the Simpsons’ non-suit only has to do with forum shopping tactics. Of course, there is no evidence in the record on this point. No depositions support such an argument. No interrogatories address the issue. No requests for admissions address the issue. No requests for production address the issue. Such a “belief” on the part of Shell results only from the feverish imagination of itself and its attorneys. Be that as it may, this Court has held that mandamus is not a proper vehicle to test one’s surmise that there is forum shopping in a case. The Court stated in Polaris Investment Management Corp., 892 S.W.2d 860, 862 (Tex. 1995):
Finally, Polaris argues that venue in Maverick County is improper. While this Court shares many of the concerns about forum shopping expressed in the concurring opinion that accompanied the court of appeals’ denial of leave to file, Texas law is quite clear that venue determinations are not reviewable by mandamus. See, e.g., Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex. 1990). While Polaris can, of course, seek appellate review of the trial court’s venue ruling by ordinary appeal, it argues that these are extraordinary circumstances that will result in harm that cannot be remedied through the ordinary appellate process.
The Polaris court acknowledged that it was not within its powers to extend its mandamus jurisdiction to this issue, but that “the proper forum for dealing with the problems articulated in Polaris’ petition and in the court of appeals’ concurring opinion is the Texas legislature.” In Electronic Data Systems Corp. v. Pioneer Electronics (USA), Inc., 68 S.W.3d 254, 256-257 (Tex.App.—Ft. Worth 2002, no pet.), the court held that the legislature in 1995 did respond to that recommendation by the Supreme Court in Polaris Investment Co., but only on those matters governing joinder and intervention of plaintiffs. The original Polaris Investment Management decision of this Court remains good law.
IV.
DECLARATORY JUDGMENT IS NOT A COUNTER-CLAIM FOR
AFFIRMATIVE RELIEF UNDER RULE 162
In BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 840-841 (Tex. 1991), this Court stated:
“At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit . . . .” Tex.R.Civ.P. 162. The plaintiff’s right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief. G