in Re: Gregory D. Duncan

• Court: Court of Appeals of Texas
• Decided: July 5, 2018
• Docket: 05-18-00674-CV
• Status: Published

Opinion

Denied and Opinion Filed July 5, 2018

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00674-CV

IN RE GREGORY D. DUNCAN, Relator

Original Proceeding from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-08535

MEMORANDUM OPINION Before Chief Justice Wright, Justice Myers, and Justice Stoddart Opinion by Chief Justice Wright In this original proceeding, relator Gregory D. Duncan complains of a sanctions order that

requires him to pay monetary sanctions before trial. He seeks a writ of mandamus directing the

trial court to vacate the sanctions order. We stayed the sanctions order and requested a response

to the petition. After reviewing the petition, the response of the real party in interest, Duncan’s

reply, and the record, we conclude Duncan is not entitled to the relief requested because he has not

shown a clear abuse of discretion.

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). In Braden v. Downey, 811 S.W.2d 922

(Tex. 1991), the Texas Supreme Court adopted a procedure regarding when a trial court may order

monetary sanctions payable prior to entry of a final, appealable order. If a party contends that a

monetary sanction award precludes its access to the court, then a trial court must either (1) order the sanction payable at a date coinciding with or after entry of final order terminating the litigation,

or (2) make express written findings after a prompt hearing as to why the award does not preclude

the party’s access to the court. Id. at 929. “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.” Id. 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. 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) (citing Braden, 811

S.W.2d at 928); 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 required by

Braden).

Here, the only evidence presented regarding the impact of an order requiring immediate

payment of sanctions was relator’s conclusory testimony that an order making sanctions

immediately payment would “render my defense impossible” and “make it impossible for me to

continue” with the litigation. Duncan’s conclusory statements are insufficient to meet his burden

of proof under Braden. See In re Cannon, 2004 WL 1732452, at *1; see also In re Knox, 2014

WL 538758, at *1.

Based on the record before us, we conclude relator has not shown he is entitled to the relief

requested. Accordingly, we deny relator’s petition for writ of mandamus.

–2– 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).

/Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE

180674F.P05

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