in Re: Tunad Enterprises, Inc.

Denied and Opinion Filed October 15, 2018
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01157-CV
IN RE TUNAD ENTERPRISES, INC., Relator
Original Proceeding from the 417th Judicial District Court
Collin County, Texas
Trial Court Cause No. 417-00618-2016
MEMORANDUM OPINION
Before Justices Lang-Miers, Fillmore, and Stoddart
Opinion by Justice Stoddart
In this original proceeding, relator complains of the trial court’s September 12, 2018 order
awarding monetary sanctions against relator and requiring relator to pay those sanctions before
trial. Relator also seeks a determination of whether the trial court and this Court have subject
matter jurisdiction over the contract claim in the underlying proceeding. Relator maintains that
the designated plaintiff lacked capacity and standing to file the lawsuit and, as a result, neither the
trial court nor this Court have subject matter jurisdiction over the case. The trial court has not yet
ruled on relator’s Rule 91a motion to dismiss in which relator asserts his jurisdictional arguments.
To be entitled to mandamus relief, a relator must show both that the trial court has clearly
abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co.,
148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). When a trial court imposes monetary
sanctions, the party generally has an adequate remedy by appeal after final judgment. Street v.
Second Court of Appeals, 715 S.W.2d 638, 639–40 (Tex. 1986) (orig. proceeding) (per curiam).
Appeal will not afford an adequate remedy, however, if the imposition of monetary sanctions
threatens a party’s continuation of the litigation and the trial court orders the party to pay the
sanctions before trial. Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991). “The party opposing
the sanctions has the burden to show that the pre-judgment payment of sanctions threatens his
willingness or ability to continue the litigation.” In re Duncan, No. 05-18-00674-CV, 2018 WL
3301600, at *1 (Tex. App.—Dallas July 5, 2018, orig. proceeding) (mem. op.).
Here, relator argues it lacks an adequate remedy on appeal because the trial court ordered
relator to pay the monetary sanctions before trial and requiring such a payment will substantially
harm relator and have a preclusive effect on relator’s ability to continue to prosecute the case.
Relator did not make this argument in the trial court and presented no evidence of the alleged harm.
Accordingly, relator has not established that it lacks an adequate remedy on appeal. See In re
Cannon, No. 04-04-00111-CV, 2004 WL 1732452, at *1 (Tex. App.—San Antonio Aug. 4, 2004,
orig. proceeding) (mem. op.) (denying mandamus where relator failed to show sanctions
threatened his willingness or ability to continue the litigation); see also In re Knox, No. 03-13-
00614-CV, 2014 WL 538758, at *1 (Tex. App.—Austin Feb. 7, 2014, orig. proceeding) (mem.
op.) (relator’s conclusory statement that payment of sanctions would preclude her access to court
was insufficient to meet burden of proof).
Relator also has an adequate remedy on appeal regarding the trial court’s subject matter
jurisdiction because relator may seek mandamus relief if the trial court denies the Rule 91a motion.
In re Essex Ins. Co., 450 S.W.3d 524, 526 (Tex. 2014) (denial of a Rule 91a motion to dismiss is
subject to mandamus review). Moreover, it is premature to seek a writ of mandamus without the
trial court first ruling on the very matters upon which relief is sought. Diocese of Galveston-
Houston v. Stone, 892 S.W.2d 169, 173 (Tex. App.—Houston [14th Dist.] 1994, no writ)
(mandamus relief on jurisdictional issue premature where trial court has not yet ruled on it).
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Based on the record before us, we conclude relator has an adequate appellate remedy on
each of the issues asserted. Accordingly, we deny relator’s petition for writ of mandamus. See
TEX. R. APP. P. 52.8(a) (the court must deny the petition if the court determines relator is not
entitled to the relief sought).
/Craig Stoddart/
CRAIG STODDART
JUSTICE
181157F.P05
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