in Re: John O'Quinn and Charles Musslewhite

• Court: Court of Appeals of Texas
• Decided: June 3, 2009
• Docket: 08-09-00098-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§

§ IN RE: JOHN O’QUINN and No. 08-09-00098-CV CHARLES MUSSLEWHITE, § AN ORIGINAL PROCEEDING Relators. § IN MANDAMUS §

MEMORANDAUM OPINION ON PETITION FOR WRIT OF MANDAMUS

Relators, John O’Quinn and Charles Musslewhite, seek mandamus relief against the

Honorable Linda Y. Chew, Judge of the 327th District Court of El Paso County, Texas. On April 7,

2009, we granted Relators motion for emergency relief and stayed proceedings in the trial court

pending resolution of this mandamus proceeding.

To be entitled to mandamus relief, a relator must meet two requirements. First, the relator

must show that the trial court clearly abused its discretion. In re Prudential Insurance Company of

America, 148 S.W.3d 124, 135 (Tex. 2004). Second, the relator must demonstrate he has no

adequate remedy by appeal. Id. at 136. Based on the record before us, we are unable to conclude

that Relators are entitled to relief. The petition for writ of mandamus is denied. The Real Parties in Interest, Walter L. Boyaki, Miranda & Boyaki, and Ruben P. Hernandez,

have filed a motion to rescind the stay order and a motion for sanctions. We grant the first and deny

the second. We note at the outset that all of the parties are licensed attorneys. Rule 52.11 permits

an appellate court to impose sanctions on a party or attorney who is not acting in good faith as

indicated by any of the following:

(a) filing a petition that is clearly groundless;

(b) bringing the petition solely for delay of an underlying proceeding;

(c) grossly misstating or omitting an obviously important and material fact in the petition or response; or

(d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence of documents.

TEX .R.APP .P. 52.11.

We exercise the discretion afforded us by Rule 52.11 with caution and only after careful

deliberation. In re Lerma, 144 S.W.3d 21, 26 (Tex.App.--El Paso 2004, orig. proceeding). The

record before us reflects allegations of malfeasance by and against all parties. By virtue of our stay

order, a sanctions hearing in the trial court set for April 8, 2009 did not occur. While we do not

condone the behavior of the parties in this litigation, we believe the matter is better addressed by the

trial court’s resolution of the pending sanction issues. We deny the motion for appellate sanctions.

June 3, 2009 ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ. Chew, C.J., not participating