in Re Rahul K. Nath, M.D. ( 2019 )

Emergency Motion for Reconsideration Denied; Memorandum Opinion filed
October 31, 2019 Withdrawn; Petition for Writ of Mandamus Denied and
Substitute Memorandum Opinion filed November 26, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00757-CV
IN RE RAHUL K. NATH, M.D., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
215th District Court
Harris County, Texas
Trial Court Cause No. 2006-10826
SUBSTITUTE MEMORANDUM OPINION1
On September 30, 2019, relator Rahul K. Nath, M.D. filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this court to compel the respondent, the
Honorable Elaine H. Palmer, presiding judge of the 215th District Court of Harris
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We withdraw the memorandum opinion issued in this case on October 31, 2019, and we deny
relator’s Emergency Motion for Reconsideration.
County, to vacate her September 12, 2019 order that relator “must notify this Court,
and all parties in the above-referenced cause, via e-filing, under seal of any contract
for the sale of the real property located at 6515 Belmont Street, Houston, Texas
77005 within three (3) business days of the entry of such a contract” and “produce a
copy of the contract for sale of the real property . . . as an attachment to the above
referenced filing of notice.”
Nath bears the burden of demonstrating his entitlement to mandamus relief.
See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).
Generally, to obtain mandamus relief, a relator must show both that the trial court
clearly abused its discretion and that the relator has no adequate remedy at law, such
as an appeal. In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per
curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). In his petition, Nath asserts that he is entitled to mandamus relief
because the trial court clearly abused its discretion in issuing the September 12, 2019
order (“Order”) and because Nath has no adequate remedy at law. Nath does not
assert in his mandamus petition that the Order is void, nor does Nath assert that he
need not show that he has no adequate remedy at law. In his petition, Nath does not
assert or demonstrate that he is excused from showing that he has no adequate
remedy at law.
We conclude that the trial court’s order is a mandatory temporary injunction
that may be appealed under section 51.014(a) of the Texas Civil Practice and
Remedies Code because it requires relator to take action—“to notify the Court and
all parties “of any contract for the sale of the real property … within three (3)
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business days of the entry of such a contract” and “produce a copy of the contract
for sale of the real property[.]” See Qwest Communications Corp. v. AT & T Corp.,
24 S.W.3d 334, 335 (Tex. 2000); Helix Energy Sols. Group, Inc. v. Howard, 452
S.W.3d 40, 44 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
An interlocutory appeal provides an adequate remedy. See In re Henry, 274
S.W.3d 185, 189 n. 2 (Tex. App.–Houston [1st Dist.] 2008, orig. proceeding). In
both In re Sewell, No. 14-12-00044-CV, 2012 WL 254004, at *1 (Tex. App.–
Houston [14th Dist.] Jan. 26, 2012, orig. proceeding) (per curiam) (mem. op.) and
In re Williard Capital Corp., No. 14-16-00613-CV, 2016 WL 4205806, at *1 (Tex.
App.—Houston [14th Dist.] Aug. 9, 2016, orig. proceeding) (mem. op.), our court
denied a petition for writ of mandamus seeking to vacate a temporary injunction
because the relator had an adequate remedy by appeal of the injunction as provided
for by section 51.014(a)(4) of the Texas Civil Practice and Remedies Code. Nath
has not shown that he has no adequate remedy by interlocutory appeal of the trial
court’s mandatory injunction under section 51.014(a)(4).
In his petition, Nath states that if this court determines that the Order is a
temporary mandatory injunction, then we should consider his mandamus petition to
be an interlocutory appeal under section 51.014(a)(4), as well as a mandamus
petition. We deny this request. See Raymond Overseas Holding, Ltd. v. Curry, 955
S.W.2d 470, 471–72 (Tex. App.—Fort Worth 1997, no pet.); Fleming & Associates,
L.L.P. v. Kirklin, No. 14-16-00752-CV, 2016 WL 6885967, at *1 (Tex. App.—
Houston [14th Dist.] Nov. 22, 2016, pet. denied) (per curiam) (mem. op.).
In his emergency motion for reconsideration, Nath asserts that the Order is
void for various reasons and that therefore Nath need not show that he lacks an
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adequate remedy at law. In his mandamus petition, Nath did not assert that the Order
is void or that he is entitled to mandamus relief without any need to show he lacks
an adequate remedy at law. Nath’s petition contains no argument, analysis, or legal
authority that would support the arguments he makes in his motion for
reconsideration. So, Nath waived these arguments in this proceeding by not briefing
them in the mandamus petition. See Tex. R. App. P. 52.3(h) (stating that the
mandamus petition “must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the appendix or record”); In re
TCW Global Project Fund II, Ltd., 274 S.W.3d 166, 169–71 (Tex. App.—Houston
[14th Dist.] 2008, orig. proceeding [mand. denied]) (holding that relators waived an
argument by not briefing the argument in their mandamus petition); In re Akin Gump
Strauss Hauer & Feld, LLP, 252 S.W.3d 480, 495 (Tex. App.—Houston [14th Dist.]
2008, orig. proceeding) (holding that relator waived an argument by not briefing the
argument in its mandamus petition).
Concluding that Nath has not shown his entitlement to mandamus relief on
any basis asserted in his mandamus petition, we deny Nath’s petition for writ of
mandamus without prejudice to Nath’s ability to file a subsequent mandamus
petition based on arguments not contained in his mandamus petition in this case.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Wise and Hassan.
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