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In re Tunad Enterprises, Inc.

Court of Appeals of Texas, Fifth District, Dallas

September 14, 2017


         Original Proceeding from the 417th Judicial District Court Collin County, Texas Trial Court Cause No. 417-00618-2016

          Before Justices Lang, Myers, and Boatright



         In this 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.


         The 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.

         Relator 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 hearings."

         Then, 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.

         Refusal to Hear Motion to Set Supersedeas Bond

         Relator 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).

         Although 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).

         Here, 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

         The 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 ...

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