in Re: Leo Bienati, Theresa Pham, Carlos Lacayo and Andres Ruzo ( 2022 )

DENY and Opinion and Order Filed November 7, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01064-CV
IN RE LEO BIENATI, THERESA PHAM, CARLOS LACAYO, AND
ANDRES RUZO, Relators
No. 05-22-00324-CV
LEO BIENATI, THERESA PHAM, CARLOS LACAYO, AND ANDRES
RUZO, Appellants
V.
HOLY KOMBUCHA, INC. AND CLOISTER HOLDINGS, LLC, Appellees
Original Proceeding and Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-17448
MEMORANDUM OPINION
Before Chief Justice Burns and Justices Partida-Kipness and Smith
Opinion by Justice Smith
Before the Court is relators’ October 10, 2022 “Rule 29.3 Motion or,
Alternatively, Petition for Writ of Mandamus” in which relators seek an order from
this Court (1) compelling the trial court to rule on relators’ emergency supplemental
motion to dissolve the amended temporary injunction, and (2) setting a bond in the
amount of $2,259,775 pursuant to rule 29.3 of the Texas Rules of Appellate
Procedure. On October 11, 2022, relators notified the Court the trial court had ruled
on their emergency supplemental motion, so that portion of their request for relief
was moot. However, relators clarified they continue to seek a $2,259,775 bond
pursuant to rule 29.3.
Because the trial court has ruled on relators’ emergency supplemental motion,
we conclude relators’ request for mandamus relief regarding the trial court’s failure
to rule is moot. See In re Martinez, No. 04-14-00293-CR, 2014 WL 2548571, at *1
(Tex. App.—San Antonio June 4, 2014, orig. proceeding) (per curiam) (mem. op.)
(holding that “failure to rule” issue becomes moot once the trial court has acted).
Accordingly, we dismiss relators’ petition for writ of mandamus.
With respect to relators’ request for this Court to set a bond pursuant to rule
29.3, after reviewing the record provided in support of relators’ request, we conclude
relators have failed to show the trial court abused its discretion by denying their
request to increase the bond. See Bone v. Moss, No. 05-21-00436-CV, 2022 WL
484312, at *6 (Tex. App—Dallas Feb. 17, 2022, no pet.) (mem. op.) (citing IAC,
Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 203 (Tex. App.—Fort Worth
2005, no pet.), in which it was held that the trial court did not abuse its discretion in
setting temporary injunction bond at $350,000 when appellant presented no evidence
its damages would exceed that amount); Connell Chevrolet, Inc. v. Carter, No. 01-
94-00595-CV, 1994 WL 525902, at *6 (Tex. App.—Houston [1st Dist.] Sept. 29,
1994, no writ) (not designated for publication) (concluding trial court did not abuse
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its discretion in setting temporary injunction bond at $1000 when appellant asserted
amount was “patently an abuse of discretion” but failed to introduce any evidence
to show possible damages from injunction); see also Taylor v. Parker, No. 01-87-
00393, 1988 WL 10770, at *4 (Tex. App.—Houston [1st Dist.] Feb. 11, 1988, no
writ) (not designated for publication) (stating, in appeal from interlocutory order
appointing receiver, “appellant bore the burden of showing that the circumstances
dictated a more substantial bond”). We therefore deny relators’ motion to increase
the bond.
/Craig Smith/
CRAIG SMITH
JUSTICE
221064F.P05
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