Court of Appeals of Texas, Fifth District, Dallas
Proceeding from the 417th Judicial District Court Collin
County, Texas Trial Court Cause No. 417-00618-2016
Justices Lang, Myers, and Boatright
DOUGLAS S. LANG JUSTICE
original proceeding, relator Tunad Enterprises, Inc.
complains of the trial court's order compelling
post-judgment discovery and the trial court's refusal to
hear relator's motion to set supersedeas bond. We stayed
the underlying proceedings, including efforts to execute on
the underlying judgment, and requested responses from the
real party in interest and respondent. We conditionally grant
the petition in part and deny the petition in part.
trial court signed a no-answer default judgment against
relator on December 15, 2016. Relator's appeal is pending
in this Court. The real party in interest, Martin Palma d/b/a
Liz Pizza ("Palma") served relator with a notice of
deposition and duces tecum in aid of execution of judgment on
March 24, 2017. Relator filed a motion for protection from
that discovery, but did not set the motion for hearing. Palma
filed a motion to compel the discovery. At the hearing on the
motion to compel, the trial court ordered relator to file a
supersedeas bond by May 16, 2017 and stated that the trial
court would award attorney's fees to Palma and compel
discovery if a bond was not timely filed.
attempted to file a $0.00 supersedeas bond with an affidavit
of negative net worth on May 11, 2017 and again on May 18,
2017, but the clerk rejected the filings. The clerk rejected
the first filing because the bond did not equal the
compensatory damages awarded in the judgment, interest for
the duration of the appeal, and court costs. The clerk
rejected the second filing at the trial court's
instructions to the clerk that the bond was insufficient. On
May 18, 2017, the clerk notified relator's counsel that
the trial court had instructed relator to file a motion to
set supersedeas bond and to set it for hearing. Relator filed
the requested motion to set supersedeas bond, but the trial
court clerk refused to set the motion for hearing because the
matter is on appeal and "cannot be scheduled for
on July 5, 2017, the trial court signed an order compelling
the post-judgment discovery and awarding Palma $2, 400.00 in
attorney's fees incurred filing and prosecuting the
motion to compel. The trial court ordered relator to provide
responses to the duces tecum by 4:00 p.m. on July 20, 2017
and to present a corporate representative for deposition on
August 25, 2017. The trial court also awarded Palma $5,
400.00 in attorney's fees "if this Order is
appealed." Finally, the trial court ordered that
relator's answer to the lawsuit "shall be deemed
stricken" if relator "fails to timely comply with
all aspects of this Order." In four issues, relator now
seeks a writ ordering the trial court to hear and rule on
relator's motion to set supersedeas bond and to vacate
the award of unconditional appellate attorney's fees,
vacate the $2, 400 fees award, and vacate the order to strike
relator's answer if relator failed to comply with the
order granting the motion to compel.
to Hear Motion to Set Supersedeas Bond
complains that the trial court refused to hear and rule on
relator's motion to set supersedeas bond. A trial court
is required to consider and rule upon a motion within a
reasonable time. Safety-Kleen Corp. v. Garcia, 945
S.W.2d 268, 269 (Tex. App.-San Antonio 1997, orig.
proceeding). When a motion is properly filed and pending
before a trial court, the act of giving consideration to and
ruling upon that motion is a ministerial act, and mandamus
may issue to compel the trial judge to act. Id. No
litigant is entitled to a hearing at whatever time he may
choose, however. In re Chavez, 62 S.W.3d 225, 229
(Tex. App.-Amarillo 2001, orig. proceeding). A trial court
has a reasonable time within which to consider a motion and
to rule. In re Craig, 426 S.W.3d 106, 107 (Tex.
App.-Houston [1st Dist.] 2012, orig. proceeding); In re
Sarkissian, 243 S.W.3d 860, 861 (Tex. App.-Waco 2008,
orig. proceeding); In re Blakeney, 254 S.W.3d 659,
661 (Tex. App.-Texarkana 2008, orig. proceeding).
a trial court has a duty to rule within a reasonable time,
the relator seeking a writ of mandamus compelling the trial
court to rule must establish that she took action to alert
the trial court that it had not yet considered his motion.
In re Buholtz, No. 05-16-01312-CV, 2017 WL 462361,
at *1 (Tex. App.-Dallas Jan. 31, 2017, orig. proceeding);
Crouch v. Shields, 385 S.W.2d 580, 582 (Tex.
App.-Dallas 1964, writ ref'd n.r.e.); In re Dong
Sheng Huang, 491 S.W.3d 383, 385-86 (Tex. App.-Houston
[1st Dist.] 2016, orig. proceeding) (internal citations
omitted). It is relator's burden to provide the court
with a record sufficient to establish his right to relief.
Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992);
Tex.R.App.P. 52.3(k), 52.7(a).
the trial court has refused to hear the motion to set
supersedeas bond despite relator's two attempts at filing
a bond and relator's filing of the motion to set
supersedeas bond as requested by the trial court. That is an
abuse of discretion for which relator lacks an adequate
remedy at law because the trial court has a ministerial duty
to rule on the motion. Accordingly, we conditionally granting
the writ on this issue.
post-judgment discovery order is not subject to direct appeal
and may be reviewed through mandamus, See In re
Lowery, No. 05-14-01509-CV, 2014 WL 8060585, at *2 (Tex.
App.-Dallas Dec. 18, 2014, no pet.) (objections to
post-judgment discovery reviewed through mandamus); see
also Bielamowicz v. Cedar Hill Indep. Sch. Dist., 136
S.W.3d 718, 723 (Tex. App.-Dallas 2004, pet. denied)
("Mandamus is appropriate to obtain judicial review of a
trial court's post-judgment discovery order."). As
such, the general mandamus standard applies. To be entitled
to mandamus relief, a relator must show both that the trial
court has clearly ...