Opinion issued September 11, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-26-00795-CV
IN RE SUCHMOR THOMAS, M.D. AND STAVAN VORA, Relators
Original Proceeding on Petition for Writ of Mandamus
CONCURRING OPINION
This original proceeding raises interesting questions about LLC law and
fiduciary or fiduciary-type duties. Had the questions arisen in a permissive appeal,
my vote would have been to grant permission and hear the appeal.
Why? Because it is easy to spot a substantial ground for disagreement about
at least one issue presented. But this case comes to us as a mandamus proceeding. So instead of looking for a substantial ground for disagreement, we look for
something more like the opposite:
• “Mandamus relief is appropriate when a petitioner demonstrates a clear
abuse of discretion and has no adequate remedy by appeal.” Paxton v.
City of Austin, — S.W.3d —, No. 24-1078, 2026 WL 1445577, at *5
(Tex. May 22, 2026) (quoting In re Geomet Recycling LLC, 578 S.W.3d
82, 91 (Tex. 2019)).
• “Generally, mandamus relief is appropriate only when (1) there has
been a clear abuse of discretion by the trial court, and (2) there is no
adequate remedy on appeal.” In re State, 355 S.W.3d 611, 613 (Tex.
2011).
These familiar formulas—a “clear” abuse of discretion and the absence of an
“adequate” remedy by appeal—can entail considerable nuance.
The mandamus petition assails an order denying a motion to dismiss under
Rule of Civil Procedure 91a. The case has detailed pleadings but little factual
development. Facts deserve mention because the Texas Supreme Court has spent
years telling us that the balancing test in adequate remedy doctrine “is necessarily a
fact-specific inquiry.” In re Academy, Ltd., 625 S.W.3d 19, 32 (Tex. 2021); see also
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004).
Sometimes a fact-specific inquiry would benefit from a larger bundle of facts.
See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 469 (Tex. 2008) (“The balancing
analysis we have followed for some years now merely recognizes that the adequacy
of an appeal depends on the facts involved in each case.”).
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For this reader, then, the adequate remedy prong in a mandamus about denial
of a Rule 91a motion will often require a thorough explanation in the mandamus
petition, so that we can do the careful and “fact-specific” balancing that the supreme
court instructs us to perform.
Now, my preference for a thorough explanation has its limits. If the pleader
avers something vacuous like negligent infliction of emotional distress, and if that is
the only claim, the relator can handle the adequate remedy prong in two sentences.
But if the pleadings involve complex and evolving questions about business law, and
if dismissing one claim would still leave other claims to go to trial, query how that
affects the balance in gauging the adequacy of ordinary appeal as a remedy.
The rules relating to fiduciary duty in Texas companies have not been fully
explicated by the Texas Supreme Court. This Court took a stab at fleshing out some
of those rules in Allen v. Devon Energy Holdings, L.L.C., 367 S.W.3d 355 (Tex.
App.—Houston [1st Dist.] 2012, pet. granted, judgm’t vacated w.r.m.). Those of us
involved as counsel in that case worked very hard on all the issues, and the opinion
shows that this Court worked equally hard. But the holding in Allen (which was
followed by a petition for review, a settlement, and a joint motion seeking
withdrawal of the opinion) has not been fully endorsed outside this Court, and Texas
business law in the ensuing years has continued to develop apace.
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So when it comes time to decide how these important duty rules should work,
this writer would prefer to tackle the legal issues in a summary judgment setting
(including by permissive appeal) rather than the awkward confines of a mandamus,
where we have to make delicate judgment calls about a “clear” abuse of discretion
and perform fact-specific balancing to evaluate an “adequate” remedy by appeal.
Apart from all of this, there is the reality that every new mandamus petition
coexists with a growing number of other appellate cases. Filings in this Court went
up by about a quarter in the last year, and by more than a third in the last two years.
Perhaps this rising tide of cases results from the fact that we live in a growing state
with an active business environment, which is positive as far as it goes, but it also
makes it harder to police the pleadings in all the cases that might otherwise be
feasible to examine.
“Mandamus is an extraordinary writ, and is not issued as a matter of right, but
rests largely in the sound discretion of the Court.” Callahan v. Giles, 137 Tex. 571,
575, 155 S.W.2d 793, 795 (1941); see Munson v. Terrell, 101 Tex. 220, 221, 105
S.W. 1114, 1115 (1907) (same); Palm v. Lesher, 489 S.W.2d 351, 355 (Tex. Civ.
App.—Houston [1st Dist.] 1973, orig. proceeding) (“sound judicial discretion”). For
the reasons explained here, it seems to me that the wiser exercise of that sound
discretion would be to decline to get involved via mandamus at this stage, knowing
that there may come a day when we need to weigh in.
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David Gunn
Justice
Panel consists of Justices Guerra, Gunn, and Morgan.
Justice Gunn, concurring.
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