in Re: Sunoco Retail LLC and Derrick Ray Lewis ( 2022 )

DENIED and Opinion Filed November 18, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01225-CV
IN RE SUNOCO RETAIL LLC AND DERRICK RAY LEWIS, Relators
Original Proceeding from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-18306
MEMORANDUM OPINION
Before Justices Myers, Nowell, and Goldstein
Opinion by Justice Myers
Before the Court is relators’ November 15, 2022 Petition for Writ of
Mandamus challenging the trial court’s November 14, 2022 Order Granting
Plaintiffs’ Motion to Compel Settlement Amounts and Assess Costs Against
Defendant Sunoco Retail, LLC. Also before the Court is relators’ November 15,
2022 Emergency Motion for Temporary Relief Pursuant to Texas Rule of Appellate
Procedure 52.10.
Entitlement to mandamus relief requires relators to show that the trial court
clearly abused its discretion and that relators lack an adequate appellate remedy. In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). It is relators’ burden to provide a sufficient record to show they are
entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig.
proceeding). We conclude that relators failed to meet their burden.
Rule 52.7 requires relators to file with their petition a properly authenticated
transcript of any relevant testimony, including exhibits offered in evidence, or a
statement that no testimony was adduced in connection with the matter complained
of. TEX. R. APP. P. 52.7(a)(2). The record reflects that a hearing took place on
October 14, 2022, that appears relevant to relators’ claim for relief. But relators
neither provided a transcript of that hearing nor provided a statement that no
testimony was adduced in connection with the matter complained of at that hearing.
See id.The record further reflects that a hearing took place on November 14, 2022,
on real parties in interest’s motion to compel. Relators did not provide a transcript
of this hearing, and they did not state that a transcript has been requested and will be
provided. Instead, relators include a statement in their petition that “[n]o testimony
was presented and no exhibits were offered into evidence at the hearing.”
We conclude that, on this record, relators’ rule 52.7(a)(2) statement did not
relieve relators of their obligation to provide a transcript of the November 14, 2022
hearing. See In re Quintana, No. 02-15-00305-CV, 2015 WL 6395639, at *2 (Tex.
App.—Fort Worth Oct. 22, 2015, orig. proceeding) (mem. op.). In the order granting
real parties in interest’s motion to compel, the trial court stated that it had considered
“the pleadings, evidence, affidavits, and argument of counsel.” [Emphasis added.]
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Thus, the trial court’s order indicates that the November 14, 2022 hearing was
evidentiary, see Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 783
(Tex. 2005), despite relators’ statement to the contrary.
In cases in which a trial court has received evidence at the hearing giving rise
to a mandamus challenge, as indicated by the trial court’s order in this case, the party
seeking mandamus has an obligation to provide a transcript of the hearing. See TEX.
R. APP. P. 52.7(a)(2); In re Lowery, No. 05-14-01401-CV, 2014 WL 5862199, at *2
(Tex. App.—Dallas Nov. 13, 2014, orig. proceeding) (mem. op.). Because the trial
court’s order indicates that the November 14, 2022 hearing was evidentiary, we must
presume that there was evidence to support the trial court’s order in the absence of
a transcript of that hearing. See Lowery, 2014 WL 5862199, at *1; In re Bill Heard
Chevrolet, Ltd., 209 S.W.3d 311, 316 (Tex. App.—Houston [1st Dist.] 2006, orig.
proceeding).
Further, all factual statements in the petition must be supported by competent
evidence included in the appendix or record. See TEX. R. APP. P. 52.3(j). Here,
relators make factual statements about what transpired at the November 14, 2022,
and they rely upon these statements when arguing the trial court abused its
discretion. We cannot evaluate relators’ argument without a record of the hearing.
Operative facts going directly to the propriety of the trial court’s action that relators
rely upon to establish entitlement to mandamus relief should be revealed by the
record. See Quintana, 2015 WL 6395639, at *2.
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We cannot conclude that the trial court abused its discretion in the absence of
a sufficient record upon which to do so. See id. at *2–3. Accordingly, we conclude
that relators failed to demonstrate their entitlement to mandamus relief and deny the
petition for writ of mandamus. See TEX. R. APP. P. 52.8(a). We also deny relators’
emergency motion for temporary relief as moot.
/Lana Myers/
LANA MYERS
JUSTICE
221225F.P05
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