in Re Murrin Brothers 1885, Ltd., Eri-Bbtx, LLC, and Concho Minick, Individually and Derivatively on Behalf of Billy Bob's Texas Investments, LLC, Philip Murrin, and Cowtown Concessions, Inc., D/B/A River Ranch Stockyards

IN THE SUPREME COURT OF TEXAS
══════════
No. 18-0737
══════════
IN RE MURRIN BROTHERS 1885, LTD., ERI-BBTX, LLC, AND CONCHO MINICK,
INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF BILLY BOB’S TEXAS
INVESTMENTS, LLC, PHILIP MURRIN, AND COWTOWN CONCESSIONS, INC., D/B/A
RIVER RANCH STOCKYARDS
══════════════════════════════════════════
ON PETITION FOR WRIT OF MANDAMUS
══════════════════════════════════════════
Argued October 10, 2019
JUSTICE BLACKLOCK delivered the opinion of the Court.
The parties to this mandamus action are warring ownership factions of “the world’s largest
honky-tonk,” the iconic Fort Worth establishment Billy Bob’s. Both sides, the Hickman Group
and the Murrin Group, assert the right to control the management of Billy Bob’s. The litigation
began in May 2017. By January 2018, it was nearly ready for trial, when the Murrin Group,
relators in this case, moved to disqualify the Hickman Group’s lawyers. Conflicts of interest can
require disqualification of counsel in some circumstances, even at a late stage of the case, and
courts must carefully examine alleged conflicts to ensure the integrity of the judicial process. In
these circumstances, however, the Murrin Group relators have not established a clear entitlement
to the harsh remedy of attorney disqualification. Nor have they established their lack of an
adequate remedy at law if the case proceeds with its current alignment of parties and counsel. For
the reasons explained below, the Court denies mandamus relief.
I. Factual and Procedural Background
Billy Bob’s is a historic entertainment venue located in the Fort Worth Stockyards. In
2011, the three long-time owners of Billy Bob’s—Steve Murrin, Don Jury, and Holt Hickman—
decided to reorganize the company. They brought in additional owners and collectively formed
Bill Bob’s Texas Investments (BBT), a closely held LLC, to own and manage Billy Bob’s. BBT’s
owners adopted a Company Agreement, which dictates BBT’s structure and contains rules for the
management of BBT. One of those rules requires unanimous consent of the owners to any “matter
within the scope of any major decision.” Among the “major decisions” requiring unanimous
consent is “settling, prosecuting, defending or initiating any lawsuit, administrative or similar
actions concerning or affecting the business of BBT LLC and/or the BBT LLC Property.” After
adopting the Company Agreement, the owners received a Certificate of Formation for BBT from
the Secretary of State. The Certificate of Formation lists six “Governing Persons” of BBT, all of
whom are either owners of BBT or closely related to an owner or ownership entity.
On January 1, 2011, Concho Minick, both an owner and a Governing Person, was
unanimously elected President and Managing Member with “full power and authority to make and
carry out all decisions in connection” with “the ordinary, daily and routine business affairs of
BBT.” Several years later, nine of BBT’s twelve owners—and four of its six Governing Persons—
became dissatisfied with Minick’s performance. This opinion refers to the anti-Minick faction as
the Hickman Group. In May 2017, the Hickman Group attempted to dismiss Minick by a majority
vote of the Governing Persons.
Despite the Hickman Group’s attempt to dismiss him, Minick claimed a right to remain as
President and Managing Member. He claimed his dismissal was a “major decision” for which the
2
Company Agreement required a unanimous vote of the owners. Under that theory, the Hickman
Group’s dismissal of Minick was invalid because three owners—Minick himself, Murrin Brothers
1885, Ltd., and ERI-BBTX, LLC—opposed Minick’s dismissal. Two Governing Persons—
Minick and Steve Murrin—opposed the dismissal as well. This opinion refers to the pro-Minick
faction as the Murrin Group. Generally speaking, the Murrin Group are the Relators in this
mandamus action, while the Hickman Group are the Real Parties in Interest. 1
The Murrin Group responded to the Hickman Group’s attempt to dismiss Minick by filing
the underlying lawsuit against the Hickman Group. The suit contained claims asserted individually
by the members of the Murrin Group and claims asserted derivatively on behalf of BBT. The suit
sought injunctive relief to prevent the Hickman Group from acting unilaterally on behalf of BBT
and the appointment of a receiver for BBT to break the intractable gridlock allegedly caused by
the unanimity provision. It also sought a declaration that the four Governing Persons in the
Hickman Group lacked authority to replace Minick as Managing Member without a unanimous
vote.
The Hickman Group hired the law firm of Kelly Hart & Hallman (KHH) to represent BBT
in the litigation and to represent the defendants named in the Murrin Group’s suit. The engagement
letter with KHH was signed by BBT’s CFO as well as nine of BBT’s twelve owners and four of
its six Governing Persons. It appears to be undisputed that KHH’s legal fees have been paid from
BBT’s funds, both for its representation of BBT itself and at least to some extent for its
1
The terms “Hickman Group” and “Murrin Group” are used for convenience and, hopefully, for clarity.
They are not intended to have any legal significance. Both groups contain several entities and individuals, and we do
not suggest that all members of each “Group” share identical interests or are perfectly aligned procedurally in every
nook and cranny of this complex case.
3
representation of the individuals and entities comprising the Hickman Group. KHH filed
counterclaims, again on behalf of both the Hickman Group members individually and on behalf of
BBT derivatively. The counterclaims also sought appointment of a receiver for BBT.
Between May 2017 and January 2018, the parties engaged in active litigation, including
competing summary judgment motions, which the trial court denied in November 2017. The case
was set for trial in April 2018. In January 2018, the Murrin Group filed a motion to disqualify
KHH as counsel for BBT and as counsel for the Hickman Group. The motion alleged that because
BBT is the “plaintiff” in the Murrin Group’s derivative claims against the Hickman Group, KHH’s
representation of both BBT and the Hickman Group amounts to the impermissible representation
of both sides in the same case. And because BBT is really a plaintiff, the Murrin Group alleged,
KHH must also be disqualified from representing the individual Hickman Group defendants who
are adverse to KHH’s former client, BBT. In March 2018, the Murrin Group filed a Rule 12
motion, which required KHH to “show [its] authority” to represent BBT. TEX. R. CIV. P. 12. The
Rule 12 motion argued that the decision to hire counsel on behalf of BBT was a “major decision”
requiring unanimous agreement of the owners. The Hickman Group’s principal response was that
the Certificate of Formation granted them authority to hire counsel for BBT with a simple majority
of the Governing Persons.
The trial court denied both motions. It did not explain its denial of the motion to disqualify.
As to the Rule 12 motion, the trial court explained in writing that the letter of representation and
BBT’s Certificate of Formation constituted the “sufficient authority” required by the rule. The
Murrin Group sought mandamus relief in the court of appeals as to the denial of both motions.
The court of appeals denied relief without explanation. The Murrin Group filed a petition for writ
4
of mandamus in this Court, challenging the denials of the Rule 12 motion and the motion to
disqualify.
II. Analysis
A. Standard of Review
Mandamus is an extraordinary remedy and will only issue if the lower court has clearly
abused its discretion and the relators have no other adequate remedy. In re H.E.B. Grocery Co.,
492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding). Mandamus relief is only appropriate when
the relators have established that only one outcome in the trial court was permissible under the
law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding),
overruled on other grounds by In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 213
(Tex. 2009) (orig. proceeding). It is meant for circumstances “involving manifest and urgent
necessity and not for grievances that may be addressed by other remedies.” Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992) (orig. proceeding) (quoting Holloway v. Fifth Court of Appeals, 767
S.W.2d 680, 684 (Tex. 1989) (orig. proceeding)).
B. Disqualification Motion
We start with the motion to disqualify KHH. The inappropriate denial of a motion to
disqualify is an abuse of discretion for which there is generally no adequate remedy on appeal. In
re Turner, 542 S.W.3d 553, 555 (Tex. 2017) (orig. proceeding). The remaining question is whether
the trial court abused its discretion when it denied the motion to disqualify. We conclude that it
did not.
Disqualification of counsel is a severe remedy that can result in significant expense to
clients, disrupt the orderly progress of litigation, and deprive a party of the counsel of its choice.
5
In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding). The Murrin Group
alleges that KHH is violating several disciplinary rules, including Rule 1.06(a) and Rule 1.09, by
representing parties on both sides of the same lawsuit. 2 Although courts and litigants often “look[]
to our disciplinary rules to decide disqualification issues,” In re Meador, 968 S.W.2d 346, 350
(Tex. 1998) (orig. proceeding), the rules “do not determine whether counsel is disqualified in
litigation.” Nat’l Med. Enters. v. Godbey, 924 S.W.2d 123, 132 (Tex. 1996) (orig. proceeding).
Rather, the rules “provide helpful guidance” and “suggest the relevant considerations.” Id.
Ultimately, a court “must consider all the facts and circumstances to determine whether the
interests of justice require disqualification.” Meador, 968 S.W.2d at 350.
Even if a violation of the disciplinary rules is established, the party requesting
disqualification must also show it will suffer prejudice if disqualification is not granted. Nitla, 92
S.W.3d at 422. In addition to the movant’s burden to show prejudice, the trial court should also
consider “the extent to which the nonmovant will suffer prejudice from the disqualification of his
or her attorney.” Meador, 968 S.W.2d at 350. Such prejudice to the nonmovant may include the
financial burden of obtaining substitute counsel that is not already familiar with the case. See
Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 434 (1985) (“To be sure, an order granting
disqualification itself leads to delay. Alternate counsel must often be retained. . . . [S]uch counsel
will need time to gain the knowledge of the disqualified attorneys.”); Nat’l Oilwell Varco, L.P. v.
Omron Oilfield & Marine, 60 F. Supp. 3d 751, 766–68 (E.D. Tex. 2014) (discussing the cost of
disqualification in both time and money). It may also include denial of the nonmovant’s right to
2
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.06(a), 1.09, reprinted in TEX. GOV’T CODE ANN., tit. 2,
subtit. G, app. A (Tex. State Bar R. art. X, § 9).
6
be represented by the counsel of its choice. In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004) (orig.
proceeding). There is also the potential for tactical abuse by the party seeking disqualification.
When ruling on disqualification motions, “courts must adhere to an exacting standard . . . to
discourage their use as a dilatory trial tactic.” In re RSR Corp., 568 S.W.3d 663, 666 (Tex. 2019)
(orig. proceeding) (per curiam) (quoting Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656
(Tex. 1990) (orig. proceeding)) (internal quotation marks omitted).
The foundation of the Murrin Group’s disqualification argument is the notion that the
Hickman Group and BBT are directly adverse to one another—that they are “opposing parties” for
purposes of Rule 1.06(a). According to the Murrin Group, BBT is a plaintiff in the derivative
action, and the members of the Hickman Group are the defendants. As the Murrin Group sees it,
if KHH represents both BBT and the Hickman Group, it is representing both the plaintiff and the
defendant in the same case. Representing both sides in one case is the axiomatic conflict of
interest, the Murrin Group contends, and it should never be tolerated. See TEX. DISCIPLINARY
RULES PROF’L CONDUCT R. 1.06(a) (“A lawyer shall not represent opposing parties to the same
litigation.”).
The battle lines are not so clear, however. Shareholder derivative actions provide a
procedural pathway for a minority shareholder to sue on behalf of the company for wrongs
committed against the company. Sneed v. Webre, 465 S.W.3d 169, 182–83 (Tex. 2015); Eye Site,
Inc. v. Blackburn, 796 S.W.2d 160, 162 (Tex. 1990); see also TEX. BUS. ORGS. CODE §§ 21.552,
101.452 (outlining requirements for derivative suits). Because the suit is to vindicate the
company’s rights, it is often said that the company is a “plaintiff” in a derivative action. See, e.g.,
Ross v. Bernhard, 396 U.S. 531, 538 (1970); Clark v. Lomas & Nettleton Fin. Corp., 79 F.R.D.
7
658, 659 (N.D. Tex. 1978); Nat’l Bankers Life Ins. Co. v. Adler, 324 S.W.2d 35, 36 (Tex. App.—
San Antonio 1959, no writ); cf. In re Schmitz, 285 S.W.3d 451, 452 (Tex. 2009) (orig. proceeding).
Labeling the company a “plaintiff” does not tell the whole story, however. Most companies begin
derivative litigation resistant to the minority shareholder’s derivative claims. The resistance of the
company’s usual decisionmakers to the minority shareholder’s claims is what causes derivative
litigation in the first place. For this reason, in addition to sometimes being called plaintiffs,
companies embroiled in derivative litigation are also commonly called “nominal defendants.” See,
e.g., Meyer v. Fleming, 327 U.S. 161, 167 (1947); Bankston v. Burch, 27 F.3d 164, 167 n.10 (5th
Cir. 1994); Neff ex rel. Weatherford Int’l, Ltd. v. Brady, 527 S.W.3d 511, 518 (Tex. App.—
Houston [1st Dist.] 2017, no pet.). Thus, companies in derivative litigation are simultaneously
“plaintiffs” and “defendants,” depending on how you look at it. Of course, if the company is
literally both plaintiff and defendant, then no lawyer could ever represent it in derivative litigation
because to do so would automatically place the lawyer on both sides of the case. Obviously, that
is not the rule.
Rather than labor over which party label applies to a company in derivative litigation, the
proper inquiry is to look to whether the substance of the challenged representation requires the
lawyer to take conflicting positions or to take a position that risks harming one of his clients. Nat’l
Med. Enters., 924 S.W.2d at 132 (“Adversity is a product of the likelihood of the risk and the
seriousness of its consequences.”). Courts around the country are divided on whether such a risk
is always present in derivative litigation. Some courts have concluded that representation by one
law firm of both the company and the insider defendants is categorically impermissible. See In re
Oracle Sec. Litig., 829 F. Supp. 1176, 1188–89 (N.D. Cal. 1993) (“Here, because Oracle’s special
8
settlement committee lacked independent counsel, the derivative settlement reeks of collusion
between derivative plaintiffs’ counsel and the individual defendants, at the expense of the
corporation.”); see also In re Conduct of Kinsey, 660 P.2d 660, 669 (Or. 1983) (requiring separate
counsel unless the claim is “patently sham or patently frivolous”); Rowen v. LeMars Mut. Ins. Co.
of Iowa, 230 N.W.2d 905, 914 (Iowa 1975) (holding that the potential for a conflict of interest is
so great as to require representation by independent counsel). Other courts, including in Delaware,
have taken a more practical approach, reasoning that the interests of the company and its
controlling officers or directors are often aligned, and separate counsel is not necessary unless a
divergence of those interests arises. Respler on Behalf of Magnum Hunter Res. Corp. v. Evans, 17
F. Supp. 3d 418, 421 (D. Del. 2014) (“[I]n derivative actions, there exists no conflict of interest
between a corporation and individual director defendants at the motion to dismiss stage.”);
Marcum v. Scorsone, 457 S.W.3d 710, 719 (Ky. 2015) (holding that common representation is not
independent grounds for disqualification in a shareholder derivative suit); Scattered Corp. v. Chi.
Stock Exch., Inc., No. 14010, 1997 WL 187316, at *6–8 (Del. Ch. Apr. 7, 1997); Robinson v.
Snell’s Limbs & Braces of New Orleans, Inc., 538 So. 2d 1045, 1048–49 (La. Ct. App. 1989)
(“[T]here is no conflict of interest because there are really no adverse interests being
represented.”). Some courts have held that serious allegations of fraud or insider dealing against
managers may trigger adversity between the company and its managers, requiring separate
counsel. Compare Stepak ex rel. S. Co. v. Addison, 20 F.3d 398, 404–05 (11th Cir. 1994)
(disqualification required in derivative suit for firm who previously represented board-member
defendants in criminal proceedings), with Bell Atl. Corp. v. Bolger, 2 F.3d 1304, 1316 (3rd Cir.
1993) (disqualification not required in derivative suit for firm who simultaneously represented
9
corporation and individual manager defendants where there were no allegations of serious
wrongdoing).
We announce no categorical rule governing dual representation in derivative litigation.
Whether a company and the individual defendants are “opposing parties” for purposes of Rule
1.06(a) in derivative litigation requires consideration of the true extent of their adversity under the
circumstances. The definition of “directly adverse” representation provided in the comments to
the disciplinary rules provides useful guidance in derivative litigation, as elsewhere:
Within the meaning of Rule 1.06(b), the representation of one client is directly
adverse to the representation of another client if the lawyer’s independent judgment
on behalf of a client or the lawyer’s ability or willingness to consider, recommend
or carry out a course of action will be or is reasonably likely to be adversely affected
by the lawyer’s representation of, or responsibilities to, the other client. The dual
representation also is directly adverse if the lawyer reasonably appears to be called
upon to espouse adverse positions in the same matter or a related matter.
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.06 cmt. 6.
To use the comment’s language, the Murrin Group contends that KHH’s “independent
judgment on behalf of” BBT will be “adversely affected” by KHH’s simultaneous representation
of the Hickman Group. It also contends, as it must, that the dual representation will prejudice the
Murrin Group. See Nitla, 92 S.W.3d at 422 (requiring showing of prejudice to movant seeking
disqualification). Examining the Murrin Group’s arguments, there is considerable overlap
between the dual representation’s alleged adverse effects on BBT and its alleged prejudice to the
Murrin Group. This is not surprising. Naturally, the Murrin Group claims to be aligned with BBT
and acting on its behalf. According to the Murrin Group, the Hickman Group’s legal positions are
incorrect and harmful to BBT. Unsurprisingly, the Hickman Group believes the Murrin Group’s
legal positions are incorrect and harmful to BBT. Stripped of the conceptual and procedural
10
baggage of its “derivative” claims, this case is about who controls the management of BBT—the
Hickman Group by virtue of its majority interest, or the Murrin Group by virtue of the Company
Agreement’s unanimity provision. Either the Hickman Group is right, in which case its interests
and BBT’s are truly aligned, or the Murrin Group is right, in which case BBT is aligned with it
instead.
Perhaps anticipating suits like this one—control-fights between LLC members couched as
derivative actions—the legislature has provided that “if justice requires: a derivative proceeding
brought by a member of a closely held limited liability company may be treated by a court as a
direct action brought by the member for the member’s own benefit.” TEX. BUS. ORGS. CODE §
101.463(c). For purposes of the disqualification motion, the trial court could have treated the
derivative claims as claims “brought by the member for the member’s own benefit,” rather than
disqualifying KHH based on the procedural complexities introduced by the derivative claims.
Indeed, if the derivative claims are treated as direct claims, as the statute permits, the Murrin
Group’s case for disqualification essentially vanishes.
On top of that, none of the other “facts and circumstances” presented to the trial court
supported disqualification. At the time the trial court considered the disqualification motion, the
case was nearly ready for trial. The Hickman Group and the Murrin Group were fully adverse.
Both sought to control BBT. BBT’s alignment as a party raised complex questions about the
nature of derivative suits but was ultimately immaterial to the core merits question: Which
ownership group has authority to control BBT? That question could be vigorously and fairly
litigated by the parties and counsel currently before the court, and the resolution of it would resolve
the nagging question of BBT’s alignment. No showing was made that KHH possessed confidential
11
information belonging to BBT that prejudiced the Murrin Group and could not have otherwise
been obtained from the Hickman Group. Moreover, the disqualification motion could have been
brought much earlier in the litigation, as KHH’s dual representation had long been known to all.
All these facts and circumstances support the trial court’s decision not to disrupt the existing
alignment of parties and counsel on the eve of trial.
Finally, the Murrin Group contends that allowing KHH to represent both BBT and the
Hickman Group will confuse the jury, to the detriment of the Murrin Group, by creating the false
impression that the Hickman Group speaks for BBT or that the two are one and the same. But
even assuming the validity of this concern, the Murrin Group does not explain why the severe
remedy of disqualification is the only way to address it. The Murrin Group is free to seek jury
instructions or other parameters for the conduct of trial that would ensure an even playing field.
At bottom, this is a fairly straightforward case about which ownership group controls the
company’s decisions. A jury is unlikely to have any problem identifying the two ownership groups
and their counsel. It is unclear why a jury would need to be told anything at all about the question
of which lawyers have authority to represent the company itself. It is also unclear how the answer
to that question would have any practical impact on the case, which boils down to a fight between
the Murrin Group and the Hickman Group, both of which are well represented by the lawyers of
their choice. The trial court did not abuse its discretion by declining to use the severe remedy of
disqualification to address the Murrin Group’s concern about jury confusion.
In sum, the trial court did not abuse its discretion by denying the motion to disqualify.
Mandamus relief as to that motion is denied.
12
C. Rule 12 Motion to Show Authority
Rule 12 of the Texas Rules of Civil Procedure provides:
A party in a suit or proceeding pending in a court of this state may, by sworn written
motion stating that he believes the suit or proceeding is being prosecuted or
defended without authority, cause the attorney to be cited to appear before the court
and show his authority to act.
TEX. R. CIV. P. 12. Upon such a motion, “the burden of proof shall be upon the challenged attorney
to show sufficient authority to prosecute or defend the suit on behalf of the other party.” Id. If the
challenged attorney fails to show sufficient authority, “the court shall refuse to permit the attorney
to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or
defend appears.” Id.
In support of its Rule 12 motion, the Murrin Group contended that KHH lacks authority to
represent BBT because the unanimity requirement of the Company Agreement prevented the
Hickman Group from hiring counsel for BBT. The Hickman Group’s primary response was that
the powers afforded Governing Persons by the Certificate of Formation constituted “sufficient
authority” for a majority of Governing Persons to hire counsel for KHH under these circumstances.
To begin with, we disagree with the Murrin Group’s suggestion that the trial court
effectively decided the merits of its claims by denying the Rule 12 motion. The trial court’s ruling
that KHH showed “sufficient authority” to represent BBT was not a merits decision on ultimate
issues such as the meaning of the company documents and control of the company moving
forward. It had nothing to do with the central merits question of whether dismissal of Minick as
Managing Member required unanimity. Those questions remain for resolution later. Denial of the
Rule 12 motion no more decided the merits than did denial of the Murrin Group’s summary
judgment motion.
13
To resolve the Murrin Group’s request for mandamus relief on the Rule 12 motion, we can
assume without deciding that the Murrin Group is correct that the Company Agreement required
unanimous consent of the owners before BBT could hire KHH. To obtain mandamus relief, the
Murrin Group must do more than show the trial court abused its discretion by misinterpreting
BBT’s governing documents. It must also establish its lack of an adequate remedy if mandamus
relief is not granted. In re H.E.B. Grocery Co., 492 S.W.3d at 302. It has not done so.
The Murrin Group alleges three primary harms caused by the denial of the Rule 12 motion.
None of these, it argues, can be adequately remedied absent mandamus relief: (1) the Murrin Group
has been denied its contractual right to veto BBT’s litigation counsel; (2) the jury will be confused
and prejudiced against the Murrin Group if it is told that KHH represents both BBT and the
Hickman Group; and (3) payment of KHH’s legal bills comes from BBT, including the Murrin
Group’s interest, requiring the Murrin Group to essentially fund their opposition. Under these
circumstances, none of these alleged harms satisfies the lack-of-adequate-remedy requirement.
To the first point, the normally adequate remedy for breach of a contractual right is
damages. Should the Murrin Group succeed on the merits, whether at trial or on appeal, it may
pursue relief for losses suffered due to the unauthorized hiring of KHH. The Murrin Group also
complains of its irretrievable loss of the right to control which lawyers represent BBT. We have
difficulty identifying how, in this context, the loss of that right harms the Murrin Group, other than
monetarily. The heavily litigated question of whether KHH properly represents “the company”
seems unlikely to have any practical impact on the outcome of the already well-lawyered dispute
between the Murrin Group and the Hickman Group over control of BBT. The only concrete, non-
monetary harms the Murrin Group alleges are the possibility of jury confusion and the unfairness
14
of being made to contribute towards its opponent’s legal bills. We have already described how
the jury-confusion concern can be otherwise remedied. And determining which group ultimately
controls BBT—including its legal advisors—is a merits question that is yet to be resolved.
Adequate remedies exist for recovery of any legal fees that may turn out to have been improperly
paid from the Murrin Group’s interest in BBT. 3
Under these circumstances, the relators have not established the lack of an adequate remedy
if mandamus relief is not granted. Accordingly, mandamus relief as to the Rule 12 motion is
denied.
III. Conclusion
Gone are the days when a family feud over a dance hall and saloon in the Fort Worth
Stockyards would be solved by six-shooters. These days, we use lawyers instead of lead. Thank
goodness for that. As complicated, expensive, and frustrating as litigation can be, it sure beats a
shootout at the stockyards. Today’s denial of mandamus relief allows this dispute to proceed
toward that peaceful alternative to shootouts known as trial, where both sides may be represented
by their chosen lawyers.
Although its mandamus petition is denied, the Murrin Group may or may not ultimately
succeed in this litigation. We express no opinion on the likelihood of success of either party on
the merits. In this mandamus posture, we look only to whether the relators established both a clear
3
Some courts have found the lack of an adequate appellate remedy for denial of a Rule 12 motion. See, e.g.,
In re Salazar, 315 S.W.3d 279, 286–87 (Tex. App.—Fort Worth 2010, orig. proceeding) (granting mandamus relief
because “[a]n appeal after final judgment would be inadequate because the time and money for trial as the parties are
currently named and aligned would be wasted in enduring a proceeding that concludes without a binding judgment”).
We do not cast doubt on those holdings or on the possibility that an adequate appellate remedy may not exist in some
Rule 12 disputes. We hold only that in the unique circumstances of this case, the relators have not established that
they lack an adequate remedy by which to redress the improper denial of the Rule 12 motion.
15
abuse of discretion and the lack of an adequate remedy at law as to the two trial court rulings they
challenge. We conclude the relators did not establish a clear abuse of discretion as to the motion
to disqualify. We further conclude the relators did not establish the lack of an adequate remedy at
law as to the Rule 12 motion. The petition for writ of mandamus is denied.
__________________________________
James D. Blacklock
Justice
OPINION DELIVERED: December 20, 2019
16