CSR LTD. v. Link

BAKER, Justice,

dissenting.

Because the Court improperly departs from sound precedent and in my opinion, invites an unnecessary increase in mandamus practice, I respectfully dissent.

The Special Appearance and Mandamus Relief

When a trial court overrules a special appearance, the moving party ordinarily has an adequate remedy on appeal and consequently, may not secure extraordinary relief through mandamus. K.D.F. v. Rex, 878 S.W.2d 589, 592 (Tex.1994). On the few occasions this Court has considered the issue in an original proceeding, we have found mandamus relief available “only in limited circumstances.” See Canadian Helicopters v. Wittig, 876 S.W.2d 304, 305 (Tex.1994). These “limited circumstances” are cases involving sovereign immunity, comity and the parent-child relationship. Otherwise, we have held that mandamus relief for the denial of a special appearance is available only in extraordinary situations.1 We have held extraordinary relief 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 cost and delay.” Canadian Helicopters, 876 S.W.2d at 308-09 (emphasis added). Consequently, the relator must show that ordinary appeal is inadequate. See Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992); National Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 776 (Tex.1995)(Cornyn, J., dissenting).

Special Appearance Hearing

The hearing on a special appearance is for the receipt of evidence and proof, “not just argument.” See O’Connor & Davis, O’Con-nor’s Texas Rules * Civil Trials, Ch. 3 § 7, at 118 (1996); see also Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 n. 4 (Tex.1992). The non-resident defendant carries the burden of proof to negate all bases of personal jurisdiction. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). On mandamus review, the relator has the burden of showing, based on the evidence presented to the trial court, an abuse of discretion and the inadequacy of ordinary appeal. Canadian Helicopters, 876 S.W.2d at 305.

Abuse of Discretion-Standard of Review

In any mandamus proceeding, we review the trial court’s decision for an abuse of discretion. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). To determine there is an abuse of discretion, we review the entire record. See Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). Our focus remains on the trial court order regardless of the court of appeals’ decision. Johnson, 700 S.W.2d at 918. The party challenging the trial court’s decision must establish that the facts and law permit the trial court but one decision. Johnson, 700 S.W.2d at 917.

An appellate court may not reverse for an abuse of discretion merely because it disagrees with the trial court’s decision, if that decision was within the trial court’s discretionary authority. See Beaumont Bank, N.A. v. Butter, 806 S.W.2d 223, 226 (Tex.1991). The reviewing court must give deference to the trial court’s resolution of a factual issue, and cannot set that decision aside unless it is clear from the record that the trial court could have reached only one decision. See Walker, 827 S.W.2d at 839-40.

An appellate court may not deal with disputed factual matters in a mandamus proceeding. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex.1991); Dikeman v. Snell, 490 S.W.2d 183, 187 (Tex.1973). An abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and some evidence reasonably sup*600ports the trial court’s decision. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978).2

An abuse of discretion does not exist if some evidence3 in the record shows the trial court followed guiding rules and principles. Morrow, 714 S.W.2d at 298.

Adequate Remedy on Appeal

In addition to showing that the trial court abused its discretion in reviewing the facts or in applying the law to the facts of a particular case, the relator must also make a mandamus record to show that ordinary appeal is not an adequate remedy. See Canadian Helicopters, 876 S.W.2d at 305. “This burden is a ‘heavy one.’” Canadian Helicopters, 876 S.W.2d at 305. In its recent writings in the special appearance context, the Court has discussed this element in terms of forcing the non-resident to show “irreparable harm.” See National Sand, 897 S.W.2d at 776; Canadian Helicopters, 876 S.W.2d at 305. I do not agree with this amorphous standard because it “snarl[s] mandamus law with new distinctions”,4 and as I discuss below, oversteps the bounds of mandamus review absent legislative or rules influence. Despite this unique and unfounded standard, the Court conducts a flawed analysis under the standard and provides CSR with an undeserved short cut to appellate relief.

National Sand v. Canadian Helicopters

Unfortunately, I find today’s opinion similar to National Sand, 897 S.W.2d at 769. In National Sand, the Court granted a defendant mandamus relief after the trial court denied its special appearance without any showing by the defendant that it did not have an adequate remedy on appeal. See National Sand, 897 S.W.2d at 777 (Cornyn, J., dissenting). Here, as in National Sand, CSR has not shown that without mandamus relief, its harm will be “irreparable, exceeding mere increased cost and delay.” See Canadian Helicopters, 876 S.W.2d at 308-09. In fact, the Court’s opinion is based almost entirely on the assertions of CSR’s counsel that without mandamus relief, CSR may be forced to defend itself in numerous trials, which could be both lengthy and complicated.5 925 S.W.2d at 596. The Court also relies on an unrelated case from the Seventh Circuit to declare that because “[m]ass tort litigation ... places significant strain on a defendant’s resources,” CSR is entitled to extraordinary relief. 925 S.W.2d at 596 (citing Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir.1995)). Here again, the Court misses the mark. CSR should not benefit from the Court’s sympathetic logic drawn from a ease in federal court involving different issues and different parties. Instead, we should require CSR to meet its heavy burden of showing irreparable harm.

CSR has not shown that the denial of its special appearance will compromise its ability to defend the underlying suit on the merits so that it will suffer irreparable harm. Canadian Helicopters, 876 S.W.2d at 308. The only proof directly from CSR in support of its special appearance is the affidavit of Edwin Anthony Smith, CSR’s group manager of financial reporting. Despite his affidavit testimony that he is “familiar with the records of CSR Limited and the scope of CSR Limited’s operations,” Smith’s affidavit does not provide any testimony, nor did CSR provide any other proof, that it would suffer irreparable harm by its continued presence in this *601litigation pending an opportunity to pursue ordinary appeal. Absent such a showing, I cannot comprehend how the Court can rightfully conclude that CSR carried its burden of proving irreparable harm.

Although CSR’s arguments about the trial court’s lack of personal jurisdiction may be compelling, that issue ought to be resolved on appeal. As a majority of this Court recently stated:

The mere fact that a trial court’s erroneous denial of a special appearance will result in an eventual reversal on appeal does not mean that the trial will be a “waste of judicial resources’ as that term was used in Walker. To hold otherwise would mean that virtually any trial court order constituting reversible error would be a proper subject for mandamus review. Such a result is inconsistent with the rule that mandamus is an extraordinary remedy to be used only in limited circumstances.

Canadian Helicopters, 876 S.W.2d at 308 n. 11 (quoting Walker v. Packer, 827 S.W.2d at 843). As in Canadian Helicopters, regardless of whether the trial court in this case erred, this is not the type of extraordinary situation where this Court should consider mandamus. See Canadian Helicopters, 876 5.W.2d at 309. To decide differently leaves this Court and the courts of appeals without clear guidelines for mandamus review in special appearance cases — not to mention the guesswork trial courts face.

Rule Change or Legislative Enactment

Beyond this Court’s narrow exceptions that allow for mandamus relief when a trial court denies a special appearance, I believe that Rule 120a provides, at least by implication, that ordinary appeal is the remedy for the denial of a special appearance. See Tex.R. Civ. P. 120a(4).6 Until National Sand, Texas courts interpreted the rule to mean that if a party properly filed its special appearance, and unless the sovereign immunity/comity or parent-child exceptions applied, the moving party does not waive its special appearance and has an adequate remedy on appeal whenever the trial court denied its special appearance. See, e.g., Aktienggesellschaft v. Kirk, 859 S.W.2d 651, 652 (Tex.App.—Eastland 1993, orig. proceeding); N.H. Helicopters, Inc. v. Brown, 841 S.W.2d 424, 425-426 n. 1 (Tex.App.—Dallas 1992, orig. proceeding)(cited with approval in Canadian Helicopters, 876 S.W.2d at 306 n. 6); Sullivan v. Tab Sales Co., 576 S.W.2d 137 (Tex.Civ.App.—Texarkana 1978, orig. proceeding); Carpenter Body Works, Inc. v. McCulley, 389 S.W.2d 331, 332 (Tex.Civ.App.—Houston 1965, writ ref'd), cert. denied, 382 U.S. 979, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966); see also Thode, In Personam Jurisdiction; Article 20S1B, The Texas “Long Arm” Jurisdiction Statute; And The Appearance To Challenge Jurisdiction In Texas and Elsewhere, 42 Tex. L. Rev. 279, 332 (1964)(recognizing that “[t]he possible abuse of the interlocutory appeal as a vehicle for delay appears to outweigh the hardship presented by lack of an interlocutory appeal.”). If Rule 120a should be changed to allow interlocutory appeal of an order on a defendant’s special appearance, that change should be accomplished through the State Bar Rules Committee and in conjunction with the Court’s rule-making authority, not by case law mandate. Amending Rule 120a to provide for interlocutory appeal of a denial of a special appearance as a part of a case would not be a novel addition to our rules of civil procedure. See, e.g., Tex.R. Civ. P. 76a(8)(al-lowing for interlocutory appeal of order sealing court records).

Short of a rule change, the legislature could, if it desired, provide a statutory method for interlocutory appeal of the denial of a special appearance.7 Again, this is not a *602novel idea. The Texas Civil Practices and Remedies Code provides for interlocutory appeal of a number of pre-trial rulings. See Tex. Civ. PRAC. & RemCode § 51.014.8 In my view, before the Court allows interlocutory appeals as a matter of course, or “[b]ecause of the size and complexity” of a ease, we should await word from the legislature. 925 S.W.2d at 597.

The Court’s Authorities Are Flawed

The Court relies upon four cases from other states to justify its “approach” today. See United States v. Superior Court, 144 Ariz. 265, 697 P.2d 658 (1985); Lupo v. Lineberger, 318 Ark. 315, 855 S.W.2d 293 (1993); State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 656 N.E.2d 1288 (1995); Conn v. ITT Aetna Fin. Co., 105 R.I. 397, 252 A.2d 184 (1969). Notwithstanding the fact that our mandamus jurisprudence is fully developed, and until recently, appeared well-settled under the Walker standard, all four eases are distinguishable.

In United States v. Superior Court, the Arizona Supreme Court gave way to its “general policy of declining jurisdiction” of an original proceeding because the case dealt with adjudication and quantification of water rights, “one of the most important issues conceivable in an arid state such as Arizona.” United States v. Superior Court, 697 P.2d at 662. CSR does not invoke such an issue in this case.

In Lupo, the Arkansas Supreme Court considered whether it should provide extraordinary relief to a physician who the trial court ordered to testify by deposition. Lupo, 855 S.W.2d at 293. Not only did the' supreme court deny the petitioner extraordinary relief, but the ease did not involve a special appearance. Lupo, 855 S.W.2d at 295. It involved a discovery dispute not unlike our recent “apex” deposition ease where we afforded mandamus relief to corporate executive after the trial court ordered him to appear for deposition. Lupo, 855 S.W.2d at 294-96; see also Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex.1995). Lupo is not instructive here.

In Steiner, the Ohio Supreme Court granted extraordinary relief to a mother involved in a custody battle over her two children against her estranged mother-in-law. Steiner, 656 N.E.2d at 1290. Steiner offers no support for today’s opinion because this Court has previously recognized that an adequate remedy on appeal may be lacking in special appearance cases involving the parent-child relationship. See Canadian Helicopters, 876 S.W.2d at 307.

Conn is the only case closely analogous to today’s facts; however, it is distinguishable also. The Supreme Court of Rhode Island decided Conn in 1969, at a time where, because of a “changing economy” and greater “means of communication and transportation,” courts, “to keep pace,” began “to relax the jurisdictional strictures of Pennoyer v. *603Neff, 95 U.S. 714, 24 L.Ed. 565 (1877).” Conn, 252 A.2d at 186. The Conn court allowed for interlocutory review of the denial of a corporate defendant’s special appearance to interpret the state’s new longarm statute and to “provide some guidance to the bar and to the courts on the scope of the statute.... ” Conn, 252 A.2d at 188. Except for the court’s need to interpret the new longarm statute for “future litigation,” the court would have denied extraordinary relief. Conn, 252 A.2d at 188. Over a quarter of a century has passed since the Supreme Court of Rhode Island decided Conn. Today’s opinion is not necessary to explain anything to our state’s bench and bar about now fully-evolved principles of personal jurisdiction. Consequently, Conn’s logic does not support the Court’s action here.

In some other states, courts have the benefit of a statutory guide or a rules device providing interlocutory relief following the denial of a special appearance or plea to the jurisdiction. See, e.g., Miller v. Miller, 506 So.2d 1084 (Fla.Dist.Ct.App.1987)(interlocutory relief allowed by Florida Rules of Appellate Procedure); Healy v. Vaupel, 133 Ill.2d 295, 140 Ill.Dec. 368, 549 N.E.2d 1240 (1990)(statute and rules of procedure allowed for interlocutory relief); Byrd v. Ontario Freight Lines Corp., 39 N.J.Super. 275, 120 A.2d 787 (1956)(discussing availability of statute allowing for interlocutory review of personal jurisdiction issue); Poret v. State Personnel Comm’n, 74 N.C.App. 536, 328 S.E.2d 880 (1985), overruled sub nom. on other grounds, Batten v. N. Carolina Dep’t of Correction, 326 N.C. 338, 389 S.E.2d 35 (1990)(immediate appeal of jurisdictional question allowed by statute); United Erectors, Inc. v. Pratt & Lambert Corp., 338 Pa.Super. 577, 488 A.2d 43 (1985)(diseussing Pennsylvania Rule of Appellate Procedure allowing interlocutory relief from order sustaining personal or in rem jurisdiction). We do not. Without statute or rule to provide interlocutory appeal, I do not believe mandamus is appropriate after the denial of a special appearance except in cases involving sovereign immunity, comity and child custody issues. These limited exceptions invoke important, and many times, immediate public policy concerns, which is not the case here, nor was it the case in National Sand.

The Court’s recent decisions in this area are troubling, and I believe, confirm my views. Compare National Sand, 897 S.W.2d at 769 (providing mandamus relief for denial of special appearance) with Canadian Helicopters, 876 S.W.2d at 304 (denying foreign defendant mandamus relief after denial of special appearance). These decisions, along with today’s opinion, do not square. There is little rhyme or reason to these cases except perhaps the amorphous standard of “clear and super clear” abuse of discretion. See Canadian Helicopters, 876 S.W.2d at 310 (Hecht, J., dissenting). As the Court has been reminded, hard cases make bad law. See Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 172 n. 1. (Tex.1989)(Hecht, J., dissenting). CSR’s position in this ease offers hard enough facts. Nevertheless, I believe that the Court’s decision today sets bad precedent that adds uncertainty to pretrial rulings and, as a result, encourages litigants to unnecessarily file original proceedings.9

The Road of No Return-Ignoring Precedent

As the Court recently reminded us, “we adhere to our precedents for reasons of efficiency, fairness, and legitimacy.” See Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex.1995)(Cornyn, J., joined by Gonzalez, Enoch and Spector, JJ.). “[I]f we [do] not follow our own decisions, no issue could ever be considered resolved.” Weiner, 900 S.W.2d at 320 (Cornyn, J., joined by Gonzalez, Enoch and Spector, JJ.). Following Canadian Helicopters, National Sand and today’s opinion, it is apparent that the Court has only paid lip service to its self-proclaimed *604judicial edict that “stare decisis is a sound policy.” Weiner, 900 S.W.2d at 320. The Court ought to practice what it preaches and “not succumb to a temptation to continually revisit prior decisions as new fact situations arise....” See Weiner, 900 S.W.2d at 332 (Owen, J., dissenting, joined by Phillips, C.J., and Hecht, J.). Mandamus should not issue simply because we disagree with a trial court’s ruling. See Butter, 806 S.W.2d at 226.

Absent any legislative guidance, today’s decision veers from the design of Rule 120a and bolts from precedent. Because today’s decision can only lead the Court down a road of no return, I respectfully dissent.

. See Canadian Helicopters, 876 S.W.2d at 308-09. Remarkably, Canadian Helicopter's “situation” and its argument to this Court were similar to CSR’s "situation” and argument here. Nevertheless, the Court denied Canadian Helicopters mandamus relief.

.There is at least some dispute about whether CSR made admissions about its Texas contacts while arguing a case to the West Virginia Supreme Court. 925 S.W.2d at 595 n. 1. Nevertheless, and despite warnings that, "in cases turning on disputed factual issues, mandamus would not be proper,” the Court decides today that the trial court abused its discretion. See Canadian Helicopters, 876 S.W.2d at 312 (Hecht, J., dissenting)(citing Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990)); see also Huey, 571 S.W.2d at 862 ("[a]n abuse of discretion does not exist where the trial court bases its decision!] on conflicting evidence.”).

. Part of my quarrel with the Court’s opinion is that the majority reviews CSR's evidence in a light most favorable to CSR, which in effect, makes for a no evidence review. This is contrary to the more limited and proper standard of abuse of discretion.

. See Canadian Helicopters, 876 S.W.2d at 311 (Hecht, J., dissenting).

. While this Court's grant of writ may relieve CSR of defending itself in a Texas state court, it hardly relieves CSR from “numerous trials” in other states.

. The rule provides:

If the court sustains the objection to jurisdiction, an appropriate order shall be entered. If the objection to jurisdiction is overruled, the objecting party may thereafter appear generally for any putpose. Any such special appearance or such general appearance shall not be deemed a waiver of the objection to jurisdiction when the objecting party or subject matter is not amenable to process issued by the courts of this State.

Tex.R. Civ. P. 120a(4).

. Commentators have recognized that a non-resident defendant may be highly inconvenienced by having to wait to appeal. However, they have *602urged that "[rjather than the courts stretching the extraordinary remedy of mandamus to accommodate this need [for interlocutory review], the legislature could and should amend the Civil Practice and Remedies Code to contemplate interlocutory appeal of the denied special appearance.” See Muldrow & Gray, Treading the Mine Field: Suing and Defending Non-Residents in Texas State Courts, 46 Bavlor L. Rev. 581, 609 (1994).

. The statute provides that:

A person may appeal from an interlocutory order of a district court, county court at law, or county court that:
(1) appoints a receiver or trustee;
(2) overrules a motion to vacate an order that appoints a receiver or trustee;
(3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure;
(4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65;
(5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state; or
(6) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73.

Tex. Civ. Prac. & Rem.Code § 51.014.

. Following National Sand and today’s opinion, one might ask what prudent Texas lawyer would advise a client to abide by Rule 120a(4). After today, there is little incentive to wait to appeal the denial of a special appearance when mandamus may be immediately available. Indeed, former Justice Barrow's mandamus “thicket” prophecy is now “reality." Joachim v. Chambers, 815 S.W.2d 234, 245 (Tex.1991)(Gonzalez, J., dissenting)(quoting Jampole v. Touchy, 673 S.W.2d 569, 578 (Tex.1984)(Barrow, J., dissenting)).