Opinion
No. 02-01-174-CV.
Delivered August 30, 2001.
Original Proceeding.
PANEL M: GARDNER, LIVINGSTON, and WALKER, JJ.
LIVINGSTON, J. filed a dissenting opinion.
OPINION
The court has considered Relator's petition for writ of mandamus, the response of the Real Party in Interest, and the reply thereto and is of the opinion that relief should be denied. An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex. 1986) (orig. proceeding). We do not believe Relator has shown that another remedy, such as an appeal, is not available or adequate.
For example, with respect to availability, Relator has not explained why it could not intervene in the underlying suit to protect its own interest. See Breazeale v. Casteel, 4 S.W.3d 434, 436 (Tex.App.-Austin 1999, pet. denied) (allowing intervention after judgment to protect nonparty's own property interest). Additionally, Relator has standing to appeal the order of sanctions upon final judgment if it is bound by that order, even though it was not a named party in the underlying suit. See, e.g., Jernigan v. Jernigan, 677 S.W.2d 137, 140 (Tex.App.-Dallas 1984, no writ) (holding nonparty bound by judgment entitled to appeal); see also Torrington v. Stutzman, 46 S.W.3d 829, 843-44 (Tex. 2000) (discussing standing issue); Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex. 1965) (allowing father not made a party to adoption proceedings to bring equitable bill of review to challenge termination of parental rights).
Relator has also not shown that appeal would be an inadequate remedy. Mandamus is intended to be an extraordinary remedy available only in limited circumstances involving manifest and urgent necessity, not for grievances that may be addressed by other remedies. In re Tarrant County, 16 S.W.3d 914, 918 (Tex.App.-Fort Worth 2000, orig. proceeding) (citing Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding)). Absent the vitiation or severe compromise of a party's ability to present a viable claim or defense, imposition of monetary sanctions are ordinarily reviewable on appeal from the final judgment. Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding).
The order of which Relator complains directs it to pay the relatively modest sanction of $1000 to Real Party in Interest, and Relator does not claim that the sanction in this amount is so severe as to threaten to preclude a decision on the merits, thereby rendering an appeal inadequate as a remedy. Transamerican Natural Gas v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding); see also Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991) (orig. proceeding) (holding appeal adequate remedy for "death penalty" monetary sanctions only where payment is deferred until final judgment).
With respect to the defects upon which the dissent would grant the writ of mandamus, Relator argues that this court should read two documents, a letter and a sanctions order, as one document. Relator's approach is counterintuitive. On the one hand, Relator argues that the sanctions order is void because the trial court acted without authority. On the other hand, Relator argues that the letter is void because it does not specify who should pay the $1000 sanction. However, when both documents are read together, as requested by Relator, the complained of errors are remedied.
The central focus of Relator's petition is lack of notice. Relator has the burden to produce a sufficient record to establish its right to mandamus relief. Tex.R.App.P. 52.3(g); see In re Braden, 960 S.W.2d 834, 836 (Tex.App.-El Paso 1997, orig. proceeding). Even if Relator lacks an available and adequate remedy at law, we believe that Relator's record is not sufficient to show its entitlement to relief based on lack of notice, because its only proffered evidence regarding that ground consists of an affidavit of a person whose authority either to make the affidavit or to receive notice is not shown. Accordingly, Relators' petition for writ of mandamus is DENIED.
We vacate our May 18, 2001 stay of the trial court's May 15, 2001 order. We reinstate the trial court's order of May 15, 2001 and ORDER that Relator shall pay the $1000 assessed in the trial court's order to the Real Party in Interest, Brad Mayfield, on or before September 8, 2001.
Relator shall pay all costs incurred in this proceeding, for which let execution issue.
I respectfully dissent from the majority's denial of the mandamus requested by Relator, Insurance Depot.
Relator complains of an order purportedly directing it to pay as a sanction or contempt $1000 to the plaintiff in the underlying action because it failed to appear at a mediation ordered by the court under the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. Rem. Code Ann. § 154.001-.073 (Vernon 1997). Relator is the insurer for the defendant in the underlying case, but not a named party in that proceeding.
The alleged sanction order is based on two documents: one is a purported order signed by the Honorable Sidney Farrar, Jr. as a presiding judge of County Court at Law Number Two; the other is a letter order signed later by the presiding judge of that court, the Honorable Steve Wallace.
Because the letter order directs payment to be received by a party, I will treat the letter order as a sanction as opposed to a contempt fine, which is payable to a court. See Cadle Co. v. Lobingier, 34 S.W.3d 598, 607 (Tex.App.-Fort Worth 2000, no pet.)
The record shows that the presiding judge of County Court at Law Number Two is Steve Wallace. The record also shows that Sidney Farrar was the mediator appointed to mediate the case per Judge Wallace's order to mediation. A mediator appointed under section 154 has no authority to enter a sanction or contempt order. Id. § 154.053 (Vernon Supp. 2001). Thus, the purported May 15, 2001 Farrar order is a nullity and void and cannot form the basis for an order for sanctions.
The other document purporting to order sanctions is a letter ruling signed by the presiding judge Steve Wallace on May 11, 2001 allegedly granting plaintiff's motion for sanctions. The letter ruling states, "Having granted Plaintiff's motion for sanctions on May 4, 2001, it is the opinion of the Court that sanctions in the amount of $1,000 should be awarded to the Plaintiff." Although it is a grant of the plaintiff's motion, which was directed to Relator, Insurance Depot, Relator is never named or directed to pay the sanction. The letter ruling merely states that $1000 should be paid to plaintiff, but fails to state by whom.
Mandamus relief is appropriate to correct a clear abuse of discretion or where a trial court's order is void. In re Acceptance Ins. Co., 33 S.W.3d 443, 448 (Tex.App.-Fort Worth 2000, no pet.). Because Farrar had no authority to issue a sanctions order, I would conclude the purported sanctions order dated May 11, 2001 is void and of no effect.
Likewise, an order directing a party to receive a monetary sanction, but failing to direct who is to pay such sanction, is of no force or effect. While we should recognize that a trial court has inherent authority to enforce its orders to settlement and mediation, to be valid the orders must be sufficiently specific to constitute a valid sanction or contempt order. See Hayes v. Hayes, 920 S.W.2d 344, 346 (Tex.App.-Texarkana 1996, writ denied); Gleason v. Lawson, 850 S.W.2d 714, 717 (Tex.App.-Corpus Christi 1993, no writ.); Kutch v. Del Mar College, 831 S.W.2d 506, 510 (Tex.App.-Corpus Christi 1992, no writ). Contempts or sanctions that are insufficiently specific constitute an abuse of discretion. Compare Johnson v. Smith, 857 S.W.2d 612, 617 (Tex.App.-Houston [1st Dist.] 1993, orig. proceeding). I would therefore conclude that Judge Wallace's May 11, 2001 letter ruling is void and of no effect.
I also disagree with the majority's analysis of Relator's complaints. Its petition is not limited to a review by mandamus solely on the basis of no notice and due process violations. Relator clearly raises a jurisdictional complaint due to its non-party status (second issue) and further complains of the orders' lack of specificity (fourth issue). Because I believe Relator has sufficiently raised these issues, it is appropriate for us to address them. Tex.R.App.P. 38.9.
I would therefore hold both "orders" invalid and void, and would grant the mandamus.