in Re: Stephen Roliard, National Biker Memorial Foundation, Inc., and Dawgs on Hawgs Productions, Inc. ( 2007 )

MARY'S OPINION HEADING

                                                NO. 12-07-00089-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: STEPHEN ROLIARD,        §         

NATIONAL BIKER MEMORIAL  §                      ORIGINAL PROCEEDING

FOUNDATION, INC., AND DAWGS       

ON HAWGS PRODUCTIONS, INC.          §                     

MEMORANDUM OPINION

            Relators Stephen Roliard, National Biker Memorial Foundation, Inc., and Dawgs on Hawgs Productions, Inc. petition for writ of mandamus directing the Respondent to rescind a declaratory judgment that Relators describe as a final order in the underlying lawsuit and directing Respondent to set the cause for a new trial after an appropriate period for discovery. ¹  We deny the petition.

Background

            On March 10, 2005, Stephen J. Roliard, acting for the National Biker Memorial Foundation, signed an agreement for the purchase of the majority interest in Rose Hill Enterprises L.L.C. (Rose Hill Amphitheater) from Ken and Rosemary Walton.  After the execution of the agreement, Roliard replaced Ken Walton as managing director of Rose Hill Enterprises, L.L.C.  In his capacity as manager, Roliard became embroiled in disputes with the owners of minority interests who filed suit on July 31, 2006 against Roliard, National Biker Memorial Foundation, Inc., and Dawgs on Hawgs Productions, Inc. for declaratory judgment, breach of fiduciary duty, and injunctive relief.  On February 6, 2007, Ken and Rosemary Walton filed their petition for declaratory judgment “as an intervention in the ongoing lawsuit against Stephen Roliard d/b/a National Biker Memorial Foundation, Inc.” seeking a declaration that the purchase agreement was of no effect because of the purchaser’s failure to comply with the terms of the purchase agreement.  Respondent set a hearing on the Walton declaratory judgment action for February 14, 2007, the date on which a hearing in the original lawsuit was already scheduled.  On February 16, 2007, the trial court conducted a hearing and found that Relators had failed to comply with most of the terms of the purchase agreement. On February 20, 2007, Respondent signed a declaratory judgment setting aside the purchase agreement and placing the Waltons in the same legal position they held before the execution of the purchase agreement.  Relators did not file a motion for new trial, but seek a writ of mandamus ordering a new trial because they maintain that they were not afforded forty-five days notice of the first trial setting of the Walton declaratory judgment action as required by Texas Rule of Civil Procedure 245.

Availability of Mandamus

            Mandamus is appropriate if the trial court has abused its discretion and the relator has no adequate remedy by appeal.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A writ of mandamus is appropriate only in situations involving “manifest and urgent necessity,” and not for grievances that may be addressed by other remedies.  Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989).  The requirement that persons seeking mandamus relief establish the lack of an appellate remedy is a “fundamental tenet” of mandamus practice.  Id.  An appellate remedy is not inadequate because it may involve more expense or delay than obtaining an extraordinary writ.  Walker, 827 S.W.2d at 842.

            The failure to give the required notice of a trial setting can be remedied by appeal.  See Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139, 140-41 (Tex. App.–Texarkana 1993, writ denied) (after holding that failure to give required notice of trial setting was harmful, court  reversed and remanded for new trial).  Relators do not explain why appeal of the declaratory judgment is inadequate here. Therefore, Relators have not shown they are entitled to mandamus relief.

Conclusion

            Relators have not shown that they have no adequate remedy by appeal.  Therefore, we need not address whether they have shown an abuse of discretion by Respondent.  Relators’ petition for writ of mandamus is denied.

                                                                                                    BILL BASS   

                                                                                                            Justice

Opinion delivered March 30, 2007.

Panel consisted of Griffith, J., Hoyle, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(PUBLISH)

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¹  The real parties in interest are Rose Hill Enterprises, L.L.C., Ken Walton, and Rosemary Walton.  The respondent is the Honorable J. Clay Gossett, Judge of the 4th Judicial District Court, Rusk County, Texas.