Deloitte & Touche LLP v. Fourteenth Court of Appeals

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) section 22.225(b)(3) of the Government Code precludes only our appellate jurisdiction over class certification decisions. This analysis fails to reconcile the inherent conflict between our assumption of jurisdiction in cases such as this and section 22.225(b), which makes the courts of appeals’ decisions on class certification orders “conclusive on the law and fact.” See Tex. Gov’t Code § 22.225(b); Tex. Civ. Prac. & Rem.Code § 51.014(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., Tex. Civ. Prac. & Rem.Code § 51.014 (authorizing interlocutory appeals of orders appointing receivers or trustees; orders overruling motions to vacate orders appointing receivers or trustees; orders certifying or refusing to certify a class; orders granting or refusing temporary injunctions; and orders denying motions for summary judgment based upon claims of immunity or free speech grounds); § 171.017(a)(1) (orders denying applications to compel arbitration); see generally Robert J. Hear on, Jr., Appealable Judgments and Orders § 3.8, Appellate Prooedure in Texas (1979); Keith Dollahite, Accelerated Civil Appeal in Texas: A Valuable Opportunity for Review, 56 Tex. Bar J. 752, 752 (September 1993). Unless the particular statute permitting an interlocutory appeal provides otherwise, the judgment of a court of appeals “is conclusive on the law and facts, and a writ of error is not allowed” in the absence of a dissent on a question of law in the court of appeals or a conflict between the decision of the court of appeals and that of another court. Tex. Gov’t Code § 22.225(b), (c) (emphasis added); see Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 254 (Tex.1983).

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.” Tex. Const. art. V, § 3 *399 (emphasis added). Thus, the Constitution grants the Legislature broad discretion to prescribe and limit our original mandamus jurisdiction. The Legislature has done so in section 22.002 of the Government Code. That provision authorizes this Court to issue writs of mandamus “agreeable to the principles of law regulating those writs” against district courts, statutory county courts, statutory probate courts, courts of appeals, and state government officers. Tex. Gov’t Code § 22.002(a); see Pope v. Ferguson, 445 S.W.2d 950, 953-54 (Tex.1969), cert. denied, 397 U.S. 997 , 90 S.Ct. 1138 , 25 L.Ed.2d 405 (1970).

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 eonclusiveness 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 ease 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 *400 cise of mandamus jurisdiction in a case stemming from a criminal proceeding does not run afoul of our Constitution’s delineation of civil and criminal jurisdiction. See Tex. Const, art. V, § 3; art. V, § 5.

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 section 22.225(b), the majority tries to limit the impact of its jurisdictional decision by holding that a party must demonstrate “extraordinary circumstances making its interlocutory appellate remedy inadequate.” 951 S.W.2d at 397. In the context of class actions, however, that requirement provides no meaningful boundary. First, it could be argued that the requirement adds nothing to mandamus jurisprudence. Mandamus is, by definition, an extraordinary writ, available only in “very narrow and extraordinary circumstances.” Polaris Investment Mgt. Corp. v. Abascal, 892 S.W.2d 860, 860 (Tex.1995). Thus, to say that we will exercise jurisdiction over mandamus petitions challenging class certification orders only if extraordinary circumstances are present is merely to say that we will treat this class of cases like any other.

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. Section 51.014(3) of the Civil Practice and Remedies Code permits the appeal both of orders granting and denying class certification; under the statute, neither type of order is given any higher priority than the other. And from the perspective of the party seeking class certification, an appellate decision reversing an order granting certification may be critical, even fatal to the underlying cause of action. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 470 , 98 S.Ct. 2454, 2458-59 , 57 L.Ed.2d 351 (1978).

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.

. The courts of appeals were formerly required to certify a dissent or a conflict between the court’s opinion and that of another court to this Court to resolve the pertinent legal issue. See Act of April 13, 1892, 22d Leg., 1st C.S., ch. 15, 1892 Tex. Gen. Laws 25 , 31; Act of May 9, 1899, 26th Leg., R.S., ch. 98, 1899 Tex. Gen. Laws 170 .