| January 2010 Decisions of the Fourteenth Court of Appeals in Houston [14th Dist.] 2010) Houston Opinions |
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Opinion Release Dates: January 4, 5, 6, 7, 12, 14, 20, 21, 26, 28, 2010 JANUARY 2010 DECISIONS WITH LINKS TO APPELLATE OPINIONS IN CIVIL CASES DETAILS FOR CASES DECIDED BY THE FOURTEENTH COURT OF APPEALS IN JAN 2010 Released Opinions January 28, 2010 Civil Causes Decided: Mattox v. County Commissioners' Court of Grimes County (pdf) (Tex.App.- Houston [14th Dist.] Jan. 28, 2010)(Substituted opinion by Justice Hedges) (denial of sanctions affirmed) REVERSED AND REMANDED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Brock Yates and Frost 14-08-00193-CV Gregory R. Mattox and Barbara Wilkerson v. County Commissioners' Court-Grimes County, Betty Shiflett-Grimes County Judge, John Bertling-County Commissioner Pct 1., and Pam Finke- County Commissioner Pct 4 Appeal from 506th Judicial District Court of Grimes County Trial Court Judge: Albert M McCaig Jr. Dissenting Opinion by Justice Frost in Mattox v. County Commissioners' Court of Grimes County Matzel v. Stonecrest Ranch Property Owners Ass'n (pdf) (Tex.App.- Houston [14th Dist.] Jan. 28, 2010) (Yates) (HOA litigation, removal) AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Frost and Brown 14-08-00326-CV Carol Matzel v. Stonecrest Ranch Property Owners Association Appeal from County Court at Law No 2 of Montgomery County Trial Court Judge: Judge Jerry Winfree Silas v. St. Lukes' Episcopal Properties Corp. (Tex.App.- Houston [14th Dist.] Jan. 28, 2010)(Seymore) (no evidence summary judgment against res ipsa loquitur premises liability claim affirmed, no proof that defendant knew of dangerous defect on premises) AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00353-CV Kimberly Silas v. St. Luke's Episcopal Properties Corporation and The Women's Specialist of Houston, PLLC Appeal from 234th District Court of Harris County Trial Court Judge: Reese Rondon DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00088-CV Cary Garrett v. Don McGill Toyota Katy/Scion Appeal from County Civil Court at Law No 3 of Harris County Duke Energy Filed Services LP (Tex.App.- Houston [14th Dist.] Jan. 28, 2010)(per curiam) (appellate mediation ordered, case settled, agreed vacature and dismissal) VACATED AND DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00586-CV Duke Energy Field Services, LP (now known as DCP Midstream LP and DCP Assets Holdings, LP v. El Paso Production Company LP (now known as El Paso E&P Company, LP Appeal from 80th District Court of Harris County Trial Court Judge: Larry Weiman DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00790-CV Imelda Guevara v. Joel Guevara, Maria Guevara and Raymond Guevara Appeal from 310th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00858-CV Barbara Young Settles v. John F. Robert, Independent Executor Appeal from Probate Court No 2 of Harris County Trial Court Judge: Michael James Wood DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00926-CV Mary Wheeler and Mary Wheeler as Next Friend of Aaronisha Derrow and Darrell Wheeler v. Weston Dee Wade and Chocalingham Palaniappan Appeal from 295th District Court of Harris County In re Vitol, Inc. (Tex.App.- Houston [14th Dist.] Jan. 28, 2010)(per curiam grant of mandamus) (mandamus granted against temporary injunction entered in family court without proper hearing) (appeal of temporary injunction by mandamus proper in family law case) MOTION OR WRIT GRANTED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-10-00049-CV In Re Vitol, Inc. and Miguel Angel Loya Appeal from 257th District Court of Harris County Trial Court Judge: Judy L. Warne In re Keen Transport, Inc. (Tex.App.- Houston [14th Dist.] Jan. 28, 2010) (per curiam denial of mandamus) MOTION OR WRIT DENIED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-10-00075-CV In Re Keen Transport, Inc and Vincent Ray Burd Appeal from County Court No. 3 of Galveston County Criminal Causes Decided: AFFIRMED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-08-00043-CR Phillip Price v. The State of Texas Appeal from 180th District Court of Harris County AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00175-CR John Wesley Hamilton v. The State of Texas Appeal from 179th District Court of Harris County AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Jennings and Sullivan 14-08-00289-CR Eudalia Bonilla v. The State of Texas Appeal from 239th District Court of Brazoria County AFFIRMED: Opinion by Justice Frost Before Justices Brock Yates, Frost and Brown 14-08-00290-CR David Ronald Roland v. The State of Texas Appeal from 122nd District Court of Galveston County AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Frost and Brown 14-08-00584-CR Reza Haghigi Ahmadi v. The State of Texas Appeal from 337th District Court of Harris County AFFIRMED: Opinion by Justice Frost Before Justices Brock Yates, Frost and Brown 14-08-00611-CR Michael David Whitton v. The State of Texas Appeal from 123rd District Court of Shelby County AFFIRMED: Opinion by Justice Sullivan Before Justices Seymore, Brown and Sullivan 14-08-00615-CR Joyal Lee Lackey v. The State of Texas Appeal from 7th District Court of Smith County AFFIRMED: Opinion by Justice Sullivan Before Justices Seymore, Brown and Sullivan 14-08-00620-CR Joyal Lee Lackey v. The State of Texas Appeal from 7th District Court of Smith County REVERSED AND RENDERED: Opinion by Justice Sullivan Before Chief Justice Hedges, Justices Brock Yates and Seymore 14-08-00731-CR William Dale Redwine v. The State of Texas Appeal from 7th District Court of Smith County AFFIRMED: Opinion by Justice Mirabal Before Chief Justice Hedges, Justices Anderson and Mirabal 14-08-00862-CR Wade Steadman Stafford v. The State of Texas Appeal from 185th District Court of Harris County AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00913-CR Donnie Dewayne Robinson v. The State of Texas Appeal from 405TH District Court of Galveston County AFFIRMED: Opinion by Justice Mirabal Before Chief Justice Hedges, Justices Anderson and Mirabal 14-08-01012-CR Van Benjamin v. The State of Texas Appeal from 351st District Court of Harris County AFFIRMED: Opinion by Justice Mirabal Before Chief Justice Hedges, Justices Anderson and Mirabal 14-08-01081-CR Marcus Dixon v. The State of Texas Appeal from 337th District Court of Harris County AFFIRMED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-08-01142-CR Dylan James Laughrey v. The State of Texas Appeal from 239th District Court of Brazoria County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-10-00010-CR Ervin Kay v. The State of Texas Appeal from 262nd District Court of Harris County January 26, 2010 Civil Causes Decided: General Insulation Company v. King (pdf) (Tex.App.- Houston [14th Dist.] Jan. 26, 2010)(Brown) (misappropriation of trade secrets and breach of contract case) AFFIRMED: Opinion by Justice Brown 14-08-00633-CV General Insulation Company v. Daniel L. King Appeal from 234th District Court of Harris County Trial Court Judge: Reese Rondon Boss Hoss Cycles of Houston, LLC v. Wells Fargo Bank, NA (pdf) (Tex.App.- Houston [14th Dist.] Jan. 26, 2010)(Brown) (dealer agreement contract dispute with bank relating to assignment of retail installment contracts, obligation to repurchase assigned contracts for failure to furnish evidence of perfection of security interest, breach of agreement not excused) AFFIRMED IN PART DISMISSED IN PART: Opinion by Justice Brown 14-08-00648-CV Boss Hoss Cycles of Houston, LLC and David Cesshier v. Wells Fargo Bank, N.A. Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: R. Jack Cagle Doa v. Le (Tex.App.- Houston [14th Dist.] Jan. 26, 2010)(Sullivan) (DWOP dismissal for failure to appear in person for trial reversed, TRCP 7, subpoena not to be enforced by dismissal) REVERSED AND REMANDED: Opinion by Justice Kent Sullivan 14-08-01113-CV Paulene Hong Dao and Hung Anh Le a/k/a Hong Le v. Mong Cong Le Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Linda Storey Criminal Causes Decided: AFFIRMED: Opinion by Justice Brown 14-07-01031-CR Vellar Clark, III v. The State of Texas Appeal from 351st District Court of Harris County AFFIRMED: Opinion by Justice Christopher 14-09-00037-CR Taylor Boyce Gordon v. The State of Texas Appeal from County Court at Law No 3 of Montgomery County January 21, 2010 Civil Causes Decided: In Interest of KLAC (pdf) (Tex.App.- Houston [14th Dist.] Jan. 21, 2010)(Boyce) (termination of parental rights affirmed, ineffective assistance of counsel claim overruled) AFFIRMED: Opinion by Justice Boyce Before 14-08-00960-CV In the Interest of K.L.A.C., D.D.C., and S.L.H.C Appeal from 315th District Court of Harris County Trial Court Judge: MICHAEL H. SCHNEIDER Fernandez v. Vazquez Bustamante (pdf) (Tex.App.- Houston [14th Dist.] Jan. 21, 2010)(Brown) DISMISSED: Opinion by Justice Brown 14-08-00990-CV Ana Cristina Fernandez v. Rosa Maria Vazquez Bustamante Appeal from Probate Court No 2 of Harris County In Re Estate of Ortiz-Vasquez (pdf) (Tex.App.- Houston [14th Dist.] Jan. 21, 2010)(Brown) (probate venue mandamus denied) MOTION OR WRIT DENIED: Opinion by Justice Jeff Brown Before 14-08-01035-CV In Re Estate of Jose Francisco Ortiz-Vasquez. a/k/a Jose F. Ortiz, a/k/a Jose Francisco Ortiz, a/k/a Francisco Ortiz, Deceased Appeal from Probate Court No 2 of Harris County The Levin Law Group, PC v. Sigmon (Tex.App.- Houston [14th Dist.] Jan. 21, 2010)(Sullivan) (no breach of agreement to mediate on specific terms that were not agreed to, silence not assent, no meeting of the minds on cancellation fee, unforceable contract not formed) Appellant, the Levin Law Group, P.C. (“LLG”) filed suit against attorney Ernesto de Andre Sigmon for breach of an agreement to mediate an underlying civil lawsuit. The trial court granted Sigmon’s motion for summary judgment after Sigmon asserted, inter alia, (a) he did not accept the terms of the agreement, (b) he did not reschedule or cancel the mediation, and (c) the statute of frauds operated to bar the alleged oral contract. We affirm the judgment. AFFIRMED: Opinion by Justice Kent Sullivan Before 14-08-01165-CV The Levin Law Group, P.C. v. Ernesto De Andre Sigmon Appeal from Co Civil Ct at Law No 4 of Harris County Trial Court Judge: Roberta Anne Lloyd DISMISSED: Per Curiam Before 14-08-01173-CV Jane Plumlee v. Union Pacific Railroad Company Appeal from 61st District Court of Harris County DISMISSED: Per Curiam Before 14-09-00132-CV Solid International Trading Corp. d/b/a Solid Int'l Inc. v. Delia Cardona, Individually, and on behalf of Rosa Rodriguez, an incapacitated Adult, and Samantha Ruiz, a Minor, Monica Daniel Ruiz, a Minor, and Diviana Ruiz, a Minor Appeal from 270th District Court of Harris County DISMISSED: Per Curiam Before 14-09-00514-CV Sylvia Evelyn Luna a/k/a Silvia Evelyn Viva and Hector Adame v. Texas Department of Family & Protective Services Appeal from 314th District Court of Harris County DISMISSED: Per Curiam Before 14-09-00515-CV Sylvia Evelyn Luna a/k/a Silvia Evelyn Viva and Hector Adame v. Texas Department of Family & Protective Services Appeal from 314th District Court of Harris County DISMISSED: Per Curiam Before 14-09-00564-CV Dustin Davlin v. Emma Davlin Appeal from 246th District Court of Harris County DISMISSED: Per Curiam Before 14-09-01042-CV United Bank Card, Inc. v. Universal Weather and Aviation, Inc. Appeal from 157th District Court of Harris County MOTION OR WRIT DENIED: Per Curiam Before 14-09-01062-CV In Re Boxer Property Management Corporation and 9343 North Loop, L.P. Appeal from 133rd District Court of Harris County DISMISSED: Per Curiam Before 14-09-01075-CV All About Staffing, Inc. v. Donna Moorman Appeal from 11th District Court of Harris County MOTION OR WRIT DENIED: Per Curiam Before 14-10-00001-CV In Re Elizabeth Thomas Appeal from 333rd District Court of Harris County Criminal Causes Decided: AFFIRMED: Opinion by Justice Sullivan Before 14-08-00661-CR Alexander Michael Hatcher v. The State of Texas Appeal from 185th District Court of Harris County AFFIRMED: Opinion by Justice Boyce Before 14-08-00816-CR Leonardo Terriquez v. The State of Texas Appeal from 232nd District Court of Harris County AFFIRMED: Opinion by Justice Frost Before 14-08-00864-CR Raphael Michael Verdun v. The State of Texas Appeal from 263rd District Court of Harris County AFFIRMED: Opinion by Justice Mirabal Before 14-08-01059-CR John C. Philip v. The State of Texas Appeal from Co Crim Ct at Law No 12 of Harris County DISMISSED: Per Curiam Before 14-09-01038-CR The State of Texas v. Penny Rae Sage Appeal from 400th District Court of Fort Bend County January 20, 2010 Civil Causes Decided: MOTION OR WRIT DENIED: Per Curiam Before 14-10-00045-CV In Re David Buren Wilson Appeal from of County Criminal Causes Decided: January 14, 2010 Civil Causes Decided: DISMISSED: Per Curiam Before 14-09-00875-CV Patricia Potts v. Jimmy Wayne Newcomb, Et Al Appeal from Co Civil Ct at Law No 1 of Harris County DISMISSED: Per Curiam Before 14-09-00877-CV Shirley Jean Essman, Trustee of the Testamentary Trust Established under the Will of Lee C. Essman v. Robert Smith and wife, Ingrid Smith Appeal from 506th Judicial District Court of Grimes County DISMISSED: Per Curiam Before 14-09-00934-CV In the Interest of S.M.J Appeal from 313th District Court of Harris County Criminal Causes Decided: AFFIRMED: Per Curiam Before 14-09-00598-CR Mickerson Chery v. The State of Texas Appeal from 174th District Court of Harris County DISMISSED: Per Curiam Before 14-09-01060-CR Delfino Ruben Morales v. The State of Texas Appeal from 339th District Court of Harris County DISMISSED: Per Curiam Before 14-09-01090-CR Alexander Martinez v. The State of Texas Appeal from 180th District Court of Harris County January 12, 2010 Civil Causes Decided: In Re Dorman (Tex.App.- Houston [14th Dist.] Jan 12, 2009)(Boyce) (election law mandamus) (law prohibiting candidate from running for two offices at the same time enforced by injunction) MOTION OR WRIT DENIED: Opinion by Justice Boyce Before Justices Frost, Boyce, and Sullivan. 14-10-00024-CV In Re Steven Dorman Appeal from of Harris County (Judge Al Bennett) Criminal Causes Decided: AFFIRMED: Opinion by Justice Anderson Before 14-08-01078-CR Ronnie Ray Dimmer v. The State of Texas Appeal from 176th District Court of Harris County January 7, 2010 Civil Causes Decided: DISMISSED: Per Curiam Before 14-07-00353-CV Patrick William Keys and all other Occupants v. U.S. Bank, N.A., As Trustee Appeal from Co Civil Ct at Law No 3 of Harris County DISMISSED: Per Curiam Before 14-07-00388-CV Ernest E. Leavitt and Company, P.C. v. Bill W. Henderson, DDS., Inc., and Bill W. Henderson, Individually Appeal from 295th District Court of Harris County SWP Remic Properties II LP v. HCAD (Tex.App.- Houston [14th Dist.] Jan. 7, 2010) (Sullivan) (trial court’s order granting Harris County Appraisal District’s (“HCAD”) plea to the jurisdiction affirmed; ad valorem tax protest appeal judicial review suit not brought by owner of property. Rule 28 inapplicable) AFFIRMED: Opinion by Justice Sullivan Before 14-08-00425-CV SWP Remic Properties II LP as the Property Owners and the Property Owners v. Harris County Appraisal District Appeal from 55th District Court of Harris County Trial Court Judge: Jeff Shadwick DISMISSED: Per Curiam Before 14-09-00304-CV Janette M. Alba and Fabian O. Alba v. Passage Realty, Inc. Appeal from 152nd District Court of Harris County DISMISSED: Per Curiam Before 14-09-00414-CV Sharon Yasin v. Boardwalk Apartments Appeal from Co Civil Ct at Law No 2 of Harris County DISMISSED: Per Curiam Before 14-09-00451-CV Vashaun Xavier Scott v. Alicia Maeshun Wilson-Scott Appeal from 245th District Court of Harris County DISMISSED: Per Curiam Before 14-09-00540-CV Trans Gulf Transportation, Inc and Christopher Swanson v. Technology Transfer Inc., dba RSA Corporation Appeal from 405TH District Court of Galveston County DISMISSED: Per Curiam Before 14-09-00684-CV Yvonne Thomas v. My Le Mgmt Appeal from Co Civil Ct at Law No 3 of Harris County DISMISSED: Per Curiam Before 14-09-00694-CV Unitex Resources, Inc., Brave Heart Resources, Inc., and United Energy Group Holdings, Inc. v. Lenard Goss, Ollie Goss and Mason Peterson Appeal from 129th District Court of Harris County DISMISSED: Per Curiam Before 14-09-00853-CV Ralph C. Arcemont v. Joe Sims and Electro Biometrics, LLP Appeal from 113th District Court of Harris County DISMISSED: Per Curiam Before 14-88-00375-CV McVay, Earl v. Kahla, Joe, Et Al Appeal from 10th District Court of Galveston County DISMISSED: Per Curiam Before 14-93-00483-CV Energy Technology, Inc., d/b/a Entec v. Mannesmann Pipe & Steel Corporation Appeal from 129th District Court of Harris County DISMISSED: Per Curiam Before 14-93-00952-CV Debbie Pin Ya Chin a/k/a Debbie Pin Ya Sieh v. Kuo Kung Ko Appeal from 334th District Court of Harris County DISMISSED: Per Curiam Before 14-94-00654-CV Mark Gasaway, D.V.M. D/B/A Yale Animal Clinic v. Hill's, Inc./Veterinary Companies of America, Inc. Appeal from Co Civil Ct at Law No 4 of Harris County DISMISSED: Per Curiam Before 14-95-00061-CV Richard H. Parker v. Donald M. Lancon Appeal from 151st District Court of Harris County DISMISSED: Per Curiam Before 14-95-00133-CV Dorothy Bibby v. John S. McKown, Theresa McKown and Bobby Bibby Appeal from 122nd District Court of Galveston County DISMISSED: Per Curiam Before 14-96-00990-CV Investment Choices Corporation, Dov Avni Kaminetzky, and Howard Weiss v. Cullen Center Bank & Trust, A State Banking Association Appeal from 129th District Court of Harris County DISMISSED: Per Curiam Before 14-97-00435-CV Newport Partners, Ltd. v. Crosby Independent School District Appeal from 164th District Court of Harris County DISMISSED: Per Curiam Before 14-97-00954-CV Nola Swift v. Jay Bargar and Monica Warren Barger Appeal from 246th District Court of Harris County DISMISSED: Per Curiam Before 14-97-01288-CV Dr. Gerald W. Johnson and Lana Davis v. Earl and Gail Newsome Appeal from 133rd District Court of Harris County Criminal Causes Decided: AFFIRMED: Per Curiam Before 14-08-00869-CR Willie Jones v. The State of Texas Appeal from 184th District Court of Harris County VACATED AND REMANDED: Opinion by Justice Boyce Before 14-08-01011-CR Julio Cesar Puente v. The State of Texas Appeal from 262nd District Court of Harris County AFFIRMED: Per Curiam Before 14-08-01058-CR Alexis Rene Obreagon v. The State of Texas Appeal from 178th District Court of Harris County AFFIRMED: Per Curiam Before 14-09-00137-CR Juan Doroteo Rivas v. The State of Texas Appeal from 339th District Court of Harris County AFFIRMED: Per Curiam Before 14-09-00138-CR Juan Doroteo Rivas v. The State of Texas Appeal from 339th District Court of Harris County AFFIRMED: Per Curiam Before 14-09-00140-CR Andrew Jamon Session v. The State of Texas Appeal from 209th District Court of Harris County AFFIRMED: Per Curiam Before 14-09-00167-CR Mark Mynnzie Wicker v. The State of Texas Appeal from 300th District Court of Brazoria County MOTION OR WRIT DENIED: Opinion by Justice Brown Before 14-09-00796-CR In Re Romarcus Deon Marshall Appeal from 179th District Court of Harris County Criminal Causes Decided: January 6, 2010 Civil Causes Decided: Ex Parte Davis (Tex.App.- Houston [14th Dist.] Jan. 6, 2010) (habeas corpus petition denied) (SAPCR contempt order based on health care provisions in SAPCR order found partially void) MOTION OR WRIT DENIED: Per Curiam Before Justices Yates, Frost, and Brown. 14-09-00943-CV Ex Parte Stephanie Davis Appeal from 245th District Court of Harris County Trial Court Judge: Judge Annette Kuntz Criminal Causes Decided: January 5, 2010 Civil Causes Decided: Alexander v. Johnson (pdf) (Tex.App.- Houston [14th Dist.] Jan. 5, 2010)(Hedges) (denial of bill of review relief affirmed, challenge to paternity, genetic testing) Appellant, Larry Alexander, appeals from an order denying his petition for bill of review to set aside a default order in a suit affecting the parent-child relationship (“default SAPCR order”). The default SAPCR order appointed appellant possessory conservator of J.A., a child, and ordered appellant to pay child support. In two issues, appellant contends that he was entitled to bill-of-review relief because he was fraudulently induced to sign an acknowledgment of paternity (“AOP”), preventing him from presenting a meritorious defense to the trial court’s default SAPCR order. AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00778-CV Larry Alexander v. Tiffany Johnson Appeal from 311th District Court of Harris County Criminal Causes Decided: AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-01021-CR Otoniel Rangel v. The State of Texas Appeal from 209th District Court of Harris County Released Opinions January 4, 2010 Civil Causes Decided: In re Gawlikowski (Tex.App.- Houston [14th Dist.] Jan. 4, 2010)(per curiam) (sanctions order attorney and client sanctioned)(setting of trial improperly conditioned on payment of sanctions) The order at issue imposes monetary sanctions requiring relator and relator’s attorney to pay $45,000 and $5,000, respectively, in attorney’s fees to the real party in interest. “If the imposition of monetary sanctions threatens a party's continuation of the litigation, appeal affords an adequate remedy only if payment of the sanctions is deferred until final judgment is rendered and the party has the opportunity to supersede the judgment and perfect his appeal.” Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991). As this court held in Prime Group, Inc. v. O’Neill, 848 S.W.2d 376, 379 (Tex. App. — Houston [14th Dist.] 1993, orig. proceeding), if a party does not contend that pre-judgment payment of the sanction would prevent it from continuing the litigation, staying the payment of the sanction is not necessary and the party has an adequate remedy by appeal. See also Ex parte Conway, 843 S.W.2d 765, 766-67 (Tex. App. — Houston [14th Dist.] 1992, orig. proceeding) (holding the trial court did not abuse its discretion by making the sanctions payable on a date prior to final judgment where no contention had been made that payment would preclude continuation of the litigation.) Relator does not claim the monetary sanction threatens his ability to continue the litigation. Moreover, the record does not reflect relator contended to the trial court that payment of the monetary sanction would preclude his access to the court. See Susman Godfrey, L.L.P. v. Marshall, 832 S.W.2d 105, 108-09 (Tex. App. — Dallas 1992, orig. proceeding). Accordingly, he has waived his right to make that claim. Id. at 109. With respect to the monetary sanction, relator has an adequate remedy at law by appeal and is not entitled to mandamus relief. See Elec. Data Sys. Corp. v. Tyson, 862 S.W. 2d 728, 736 (Tex. App. — Dallas 1993, orig. proceeding). The trial court’s order, however, sets a trial date of June 7, 2010, “or the next available trial date following payment of the fees in full as ordered herein.” A sanctions award that impedes the prosecution of the case warrants extraordinary relief. See In re Dynamic Health, Inc., 32 S.W.3d 876, 881 (Tex. App. — Texarkana 2000, orig. proceeding). We therefore conditionally grant a writ of mandamus ordering the trial court to delete the language in its order of October 22, 2009, that conditions setting a trial date on the payment of the monetary sanction. GRANTED IN PART AND DENIED IN PART: Per Curiam Before Justices Brock Yates, Anderson and Boyce 14-09-00985-CV In Re Daniel Gawlikowski Appeal from 247th District Court of Harris County Trial Court Judge: Judge Bonnie Crane Hellums Criminal Causes Decided: None this day |
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