in Re: Le Thi Pho Conry ( 2022 )

DENY and Opinion Filed December 2, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01279-CV
IN RE LE THI PHO CONRY, Relator
Original Proceeding from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF21-14764
MEMORANDUM OPINION
Before Justices Myers, Nowell, and Goldstein
Opinion by Justice Nowell
An apparent error by the trial court coordinator caused relator Le Thi Pho
Conry to miss a trial setting in her divorce suit, and the trial court rendered a default
judgment. On Conry’s motion, the trial court granted a new trial, but at the same
time, it assessed her $6,094 in attorney’s fees as a sanction. Conry seeks mandamus
relief from the sanction and moves for temporary relief.
“Mandamus relief is warranted when a trial court clearly abuses its discretion
and the relator has no adequate remedy by appeal.” In re YRC Inc., 646 S.W.3d 805,
808 (Tex. 2022) (orig. proceeding). “[W]hen a trial court imposes monetary
sanctions, the party generally has an adequate remedy by appeal after final
judgment.” In re Daugherty, No. 05-18-00290-CV, 2018 WL 3031658, at *4 (Tex.
App.—Dallas June 19, 2018, orig. proceeding) (mem. op.). An exception to this rule
exists: “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).
However, to prevail under this exception, a litigant must assert and prove that
a monetary sanction will preclude her access to the court. In re Duncan, No. 05-18-
00674-CV, 2018 WL 3301600, at *1 (Tex. App.—Dallas July 5, 2018, orig.
proceeding) (mem. op.); Susman Godfrey, L.L.P. v. Marshall, 832 S.W.2d 105, 108
(Tex. App.—Dallas 1992, no writ). Conry did not contend in her mandamus petition
that the sanction affects her willingness or ability to proceed. See, e.g., In re United
Med. Ctrs., P.A., No. 04-18-00257-CV, 2018 WL 2418447, at *1 (Tex. App.—San
Antonio May 30, 2018, orig. proceeding) (per curiam) (mem. op.) (denying
mandamus relief on this basis). Moreover, there is no mandamus record to show
that such a contention was made—let alone proved—in the trial court. See TEX. R.
APP. P. 52.7; In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig.
proceeding). Finally, even if Conry had supplied a mandamus record to substantiate
the assertions in her petition, a $6,094 sanction would not put the economics of
Conry’s case in jeopardy under the facts alleged here. See, e.g., In re Supportkids,
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Inc., 124 S.W.3d 804, 808–09 (Tex. App.—Houston [1st Dist.] 2003, no pet.)
(concluding there was an adequate remedy by appeal for a sanction of $10,000 in
attorney’s fees).
Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.
52.8(a). We deny relator’s motion for stay as moot.
/Erin A. Nowell/
221279f.p05 ERIN A. NOWELL
JUSTICE
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