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denying mandamus petition because relator failed to demonstrate lack of adequate remedy by appeal due to filing of interlocutory appeal regarding appointment of receiver
Summary of this case from In re FuentesOpinion
NUMBER 13-15-00602-CV
02-22-2016
IN RE JUAN MANUEL ORTIZ
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum OpinionPer Curiam
Relator, Juan Manuel Ortiz, has filed a petition for writ of mandamus seeking to vacate a November 23, 2015 "Second Supplemental Interim Order[]" requiring him to pay reimbursement and attorney's fees to the real party in interest, Saray Ortiz, in the underlying divorce proceeding. This Court has requested and received a response to the petition for writ of mandamus from Ortiz.
"Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal." In re Frank Motor Co., 361 S.W.3d 628, 630 (Tex. 2012) (orig. proceeding); see In re Olshan Found. Repair Co., 328 S.W.3d 883, 887 (Tex. 2010) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d at 888; Walker, 827 S.W.2d at 840. In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding); In re Prudential Ins. Co., 148 S.W.3d at 135-36. It is the relator's burden to properly request and show entitlement to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding).
In addition to other requirements, relator must include a statement of facts supported by citations to "competent evidence included in the appendix or record," and must also provide "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record." See generally TEX. R. APP. P. 52.3. In this regard, it is clear that relator must furnish an appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record).
The Court, having examined and fully considered the petition for writ of mandamus, the response, and the applicable law, is of the opinion that relator has not met his burden to obtain mandamus relief. First, the petition for writ of mandamus fails to meet the requirements of the appellate rules insofar as it lacks relevant transcripts. See TEX. R. APP. P. 52.7(a)(2), 52.11(d). Second, based on the limited record presented and the evidence and argument presented to the trial court, relator has failed to show that the trial court abused its discretion in issuing the order at issue. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36. Third, relator has not shown that he lacks an adequate remedy by appeal. Relator has appealed the November 23, 2015 order and subsequent orders in cause number 13-15-00566-CV, currently pending in this Court. See TEX. CIV. PRAC. & REM. CODE ANN. §51.014(a)(1), (2) (West, Westlaw through 2015 R.S.) (allowing interlocutory appeals from orders regarding the appointment of a receiver). To the extent that relator's issues in this original proceeding attack the award of reimbursement and attorney's fees rather than the appointment of a receiver, which is an issue that is subject to appeal, relator neither alleges nor establishes that the order for reimbursement and attorney's fees is void or otherwise threatens the continuation of this litigation. Cf. Braden v. Downey, 811 S.W.2d 922, 928-29 (Tex. 1991) (holding that a remedy by appeal is inadequate when monetary sanctions threaten the party's willingness or ability to continue the litigation); see In re Noble Drilling (Jim Thompson), LLC, 449 S.W.3d 625, 632 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding); In re Onstad, 20 S.W.3d 731, 732-33 (Tex. App.—Texarkana 2000, orig. proceeding); In re Lavernia Nursing Facility, 12 S.W.3d 566, 571-72 (Tex. App.—San Antonio 1999, orig. proceeding). Instead, relator alleges that the order "creates immediate and irreparable harm" because "if he cannot get access to such large sums of money, he is assured of being in contempt of an unwarranted order."
For these reasons, the stay previously imposed by this Court is LIFTED. See TEX. R. APP. P. 52.10(b) ("Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided."). The petition for writ of mandamus is DENIED. See id. 52.8(a).
PER CURIAM Delivered and filed the 22nd day of February, 2016.
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).