holding that a relator demonstrates the lack of an adequate remedy by appeal “only when parties are in danger of permanently losing substantial rights. It is not satisfied by a mere showing that appeal would involve more expense or delay than obtaining a writ of mandamus.”
How later courts described this case
- holding that a relator demonstrates the lack of an adequate remedy by appeal “only when parties are in danger of permanently losing substantial rights. It is not satisfied by a mere showing that appeal would involve more expense or delay than obtaining a writ of mandamus.”
- stating, in reviewing a trial court order denying a special appearance, that appeal may be inadequate and thus mandamus relief appropriate if the Court determines the case presents “extraordinary” circumstances
- holding party establishes no adequate appellate remedy by showing danger of losing substantial rights
- noting line of cases upholding requirement that mandamus relief issues only where no adequate remedy by appeal possible
Written by the judges who cited it.
The opinion
HECHT, Justice,
joined by GONZALEZ, Justice, dissenting.
The core principle of our mandamus jurisprudence is that the extraordinary writ will issue only to correct a clear abuse of discretion or to compel performance of a legal duty, and only when appeal is an inadequate remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). Exactly three applications of this principle are possible in the case now before us. One is to hold that the district court did not clearly abuse its discretion in denying defendant’s special appearance, making it unnecessary to consider the adequacy of remedy by appeal. Another is to hold that a defendant whose special appearance is overruled has an adequate appellate remedy, making it unnecessary to consider whether the district court clearly abused its discretion. The third is to hold that the district court clearly abused its discretion in denying defendant’s special appearance, and that defendant has no adequate remedy by appeal.
The Court attempts the second approach, but with exceptions. One is for cases involving “the rights of children and parents in family law situations.” Ante 876 S.W.2d at 307. Another — actually, the Court is vague on whether it would recognize this exception — is for cases involving “the issue of sovereign immunity, implicating comity and foreign affairs concerns”. Ante at 306. A third exception is for cases in which the trial court’s abuse of discretion in denying a special appearance is not merely clear but really clear. The Court describes this exception as follows:
We do not foreclose the possibility that a trial court, in denying a special appearance, may act with such disregard for guiding principles of law that the harm to the defendant becomes irreparable, exceeding mere increased cost and delay. In such a situation, a defendant’s remedy by appeal may be inadequate and mandamus therefore appropriate.
Ante at 308.
The difficulty with the third exception is that it creates two novel notions in mandamus jurisprudence. One is that there are different degrees of abuse of discretion, clear and super-clear. A clear abuse, sufficient for mandamus relief in some cases, is not enough in the case of a denial of a special appearance; in the latter case, the abuse of discretion must be super-clear. We have never recognized such a distinction before, and the Court does not say whether it is specially created for this case or whether it may have broader application. The other new concept is that a super-clear abuse of discretion can make appeal an inadequate remedy when a merely clear abuse cannot. Ordinarily, whether there has been a clear abuse of discretion and whether there is an adequate remedy by appeal are discrete inquiries, and neither has anything to do with the other. In other words, in determining whether a party’s appellate remedy is adequate, it makes no difference that the trial court’s ruling was merely arguably wrong, or probably wrong, or even blatantly wrong. The two prerequisites for mandamus relief are logically independent and treated accordingly, except now in cases involving special appearances.
*311 As a purely abstract matter, I should think the more desirable course would be to avoid snarling mandamus law with new distinctions if at all possible, as it certainly is in this case. If these new distinctions are necessary, we ought at least to have some idea what they mean. What is the difference between a clear and super-clear abuse of discretion? Why does this case not involve a super-clear abuse of discretion? Should these different levels be used in other cases? Why does a super-clear abuse of discretion make an otherwise adequate appellate remedy inadequate? No hint of an answer to these questions can be found in the Court’s opinion.
Even if clarity is not important, consistency should be. We have recently held that a party who is denied a federal right to arbitration may obtain relief by mandamus. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992). We hold today that a party who is wrongly compelled to arbitrate under federal law may also obtain relief by mandamus when such party would have been entitled to an appeal under federal law, but no state procedural mechanism permits such an appeal. Freis v. Canales, 877 S.W.2d 283 (Tex.1994) (per curiam). In either case the party could proceed to litigate or arbitrate the merits of his dispute and then complain on appeal that he was in the wrong forum. I cannot see why remedy by appeal is inadequate in these circumstances but adequate when a party is compelled to litigate in a court which, under the undisputed facts, has no personal jurisdiction over him.
The entire difficulty with the Court’s approach can be avoided one of two ways. The third exception, for rulings that are really clearly wrong as opposed to merely clearly wrong, could be abandoned. Following the Court’s rule, this would leave a trial court’s denial of a special appearance unreviewable except by appeal. No matter how few contacts a defendant might have with Texas, and even if there were none at all, a trial court could exercise personal jurisdiction over him until judgment was rendered. The Court is unwilling to go this far, and in my view, wisely so.
The other alternative is to hold that remedy by appeal is inadequate when a special appearance is denied and focus instead on whether the ruling involves a clear abuse of discretion, applying the same standards in determining that issue as would be applied in any other mandamus case. This approach is so plainly preferable that I cannot understand why the Court does not follow it. None of the cases from other jurisdictions which the Court cites reflect a dual standard of mandamus review, with a higher test for personal jurisdiction cases than other cases. The Court’s goal, as I perceive it, is to restrict mandamus relief for denial of a special appearance to very exceptional cases. This goal, with which I am fully sympathetic, can be fully attained by strictly applying the traditional mandamus prerequisite of a clear abuse of discretion. It is attained in this manner in the other states whose opinions the Court cites. It is not necessary to inject new and illogical distinction into mandamus law. Mandamus applications will not be discouraged any more effectively by holding that appeal is an adequate remedy except in rare cases, than by holding that no clear abuse of discretion will be found except in rare cases.
As for whether the district court clearly abused its discretion in this case, I believe it plainly did. Personal jurisdiction over a party may be established by proving either specific or general contacts between the party and the forum state. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, 815 S.W.2d 223, 226-28 (Tex.1991); Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). Specific contacts are those out of which the litigation in the forum arises. Guardian Royal, 815 S.W.2d at 227-28 ; Schlobohm, 784 S.W.2d at 357 . There are no such contacts here. Plaintiffs in the underlying litigation claim damages for injuries and deaths resulting from a fire aboard a helicopter. The fire occurred in Canada. Defendant, Canadian Helicopters Limited, a Canadian company, owned the helicopter. It was leased in Canada and flown by a Canadian pilot. All but three of the injured passengers were Canadian citizens, and none had ever lived in Texas. Plaintiffs do not claim that the trial court has specific jurisdiction over Canadian Helicopters.
*312 General personal jurisdiction may be premised upon “continuous and systematic contacts between the nonresident defendant and the forum state.” Guardian Royal, 815 S.W.2d at 228 ; see Schlobohm, 784 S.W.2d at 357 . The only evidence of such contacts in this case is the following. From August 1989, when Canadian Helicopters was incorporated, until March 1993 when its special appearance was heard, it signed three contracts with Texas companies and governed by Texas law, and it agreed to deliver two helicopters to purchasers in Texas. It also hired two Texas residents as employees, both of whom worked primarily outside Texas and maintained their Texas residences for a period of time solely as a matter of personal convenience. In less than two years, one left Canadian Helicopters’ employ and the other left Texas. Canadian Helicopters’ parent added a Texas lawyer to its board of directors and sought legal advice from him. Finally, Canadian Helicopters occasionally purchased services and supplies in Texas and sent its employees to industry conferences and meetings here.
The district court appointed a master to hear evidence on Canadian Helicopters’ special appearance. The master found not only that Canadian Helicopters’ contacts with Texas were never continuous or systematic, but also that it attempted specifically to avoid subjecting itself to the jurisdiction of Texas courts. The district court received no evidence other than that heard by the master and made no contrary findings, but nonetheless concluded that it had personal jurisdiction over Canadian Helicopters.
The line between contacts which are continuous and systematic and those which are not is indistinct in some cases, but not this one. The master was right: there is simply no evidence here of the contacts required for general personal jurisdiction. The district court’s contrary conclusion was, I think rather plainly, a clear abuse of discretion. Indeed, I should think this case would even meet the Court’s super-clear test. Obviously, the Court does not agree, but it fails to explain its conclusion. The Court never alludes to the evidence of general jurisdiction.
If, as it appears, the Court’s principal purpose is to discourage mandamus applications, the Court would make its point very effectively, I think, by holding that even when the trial court’s denial of a special appearance is as dubious as this one, the ruling will not be disturbed except on appeal. While I share a similar purpose, I do not think it much encouraging of mandamus to hold that only in a case as clear as this one will relief be granted. Indeed, in cases turning upon disputed factual issues, mandamus would not be proper. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990). Thus, I would hold that because the district court clearly abused its discretion and Canadian Helicopters has no adequate remedy by appeal, the writ of mandamus should issue, conditioned upon the district court’s refusal to reverse its ruling. Accordingly, I dissent.