Opinion
14-21-00154-CV
07-15-2021
IN RE DOJO BAY HOUSE, LLC, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS 151st District Court Harris County, Texas Trial Court Cause No. 2019-60692
Panel consists of Chief Justice Christopher and Justices Spain and Wilson.
MEMORANDUM MAJORITY OPINION
TRACY CHRISTOPHER, CHIEF JUSTICE
On March 23, 2021, relator, Dojo Bay House, L.L.C., filed a petition for writ of mandamus in this Court. See Tex. Gov't Code Ann. § 22.221; see also Tex.R.App.P. 52. In the petition, relator asks this Court to compel the Honorable Mike Engelhart, presiding judge of the 151st District Court of Harris County, to set aside its order granting the motion to strike relator's amended petition filed by real parties in interest Hoover Slovacek, L.L.P. and Patrick Drake or, alternatively, to set aside its order denying relator's motion to consolidate.
Relator has not established that it is entitled to mandamus relief. Any issue with the record did not prevent our determination that relator is not entitled to mandamus relief. There is no need for relator to file a new petition. Accordingly, we deny relator's petition for writ of mandamus.
MEMORANDUM DISSENTING OPINION
CHARLES A. SPAIN JUSTICE.
Relator has not provided an original-proceeding record that complies with the mandatory requirements of Texas Rule of Appellate Procedure 52.7, which is a condition precedent to this court determining the original proceeding on the merits. See Code Construction Act, Tex. Gov't Code Ann. § 311.016(3) (defining "must"); Tex. R App. P. 52.7; In re Kholaif, Nos. 14-20-00731-CV & 14-20-00732-CV, 2020 WL 7013339, at *1-4 (Tex. App.-Houston [14th Dist] Nov. 25, 2020, order), disp., 615 S.W.3d 369, 370 (Tex. App.-Houston [14th Dist.] 2020) (orig. proceeding).
Westlaw incorrectly states that the November 25, 2020 interlocutory order and dissent "has not been released for publication in the permanent law reports. Until released, it is subject to revision or withdrawal."
The court should have notified relator of the procedural issue with the original-proceeding record so that it could be cured. See Kholaif, 2020 WL 7013339, at *1, 615 S.W.3d at 370. The court did not, which is a due-process and due-course-of-law issue. See In re Pena, 619 S.W.3d 837, 839 (Tex. App.- Houston [14th Dist.] 2021) (orig. proceeding) (Bourliot, J., dissenting); Kholaif, 2020 WL 7013339, at *3.
I dissent to the court not notifying the relator of the procedural issue with the record and denying the petition on the merits without a proper record. I express no opinion on the merits of the petition for writ of mandamus.