in Re L&S Pro-Line, LLC and Lee Burkett

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-20-00261-CV __________________

IN RE L&S PRO-LINE, LLC AND LEE BURKETT

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Original Proceeding 457th District Court of Montgomery County, Texas Trial Cause No. 18-06-07704-CV __________________________________________________________________

MEMORANDUM OPINION

L&S Pro-Line, LLC and Lee Burkett, Relators, filed a petition for a writ of

mandamus, asking this Court to order the trial court to vacate orders denying

Relators’ amended pleas to the jurisdiction. In their petition, L&S and Burkett argue

the trial court lacks subject-matter jurisdiction over a third-party action brought by

one of the real parties in interest, Garrett Gagliano. Gagliano sued Burkett for

allegedly breaching a fiduciary duty to him. Relators argue that because Gagliano’s

claim is a derivative claim based on his status as an L&S shareholder, Gagliano lost

the standing he had when he filed his suit when Burkett purchased his membership

1 interest in L&S. According to Relators, the trial court also lacks subject-matter

jurisdiction over counterclaims filed by Tactical Automation, Inc., another real party

in interest, because Tactical lacks standing because it is neither a party or third-party

beneficiary to any agreements between L&S, Gagliano and Burkett, members who

owned an interest in L&S, and because Tactical lacks standing to sue Burkett based

on the alleged acts and omissions of L&S. Relators argue that mandamus is an

appropriate remedy because otherwise they will be required to participate in a trial

over which the trial court lacks subject-matter jurisdiction.

Mandamus will issue only when the petition and record establishes a clear

abuse of discretion for which the relator does not have an adequate remedy through

an ordinary appeal.1 After reviewing the petition, the response filed by the Real

Parties in Interest Gagliano, Tactical, and Snook Holdings, LLC, Relators’ reply to

the response, and the documents included in the appendices to the petition, the

response, and the reply, we conclude that Relators have not shown that they are

entitled to mandamus relief. We deny Relators’ petition.2

PETITION DENIED. PER CURIAM Submitted on December 14, 2020 Opinion Delivered December 30, 2020 Before McKeithen, C.J., Kreger and Horton, JJ.

1In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). 2 See Tex. R. App. P. 52.8(a).