in Re: Steven K. Topletz

• Court: Court of Appeals of Texas
• Decided: March 11, 2019
• Docket: 05-19-00293-CV
• Status: Published

Opinion

Denied and Opinion Filed March 11, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00293-CV

IN RE STEVEN K. TOPLETZ, Relator

Original Proceeding from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-04120-2012

MEMORANDUM OPINION Before Justices Bridges, Osborne, and Carlyle Opinion by Justice Bridges This original proceeding arises from post-judgment discovery efforts in the underlying

proceeding. Relator complains of a February 28, 2019 order requiring relator to produce certain

documents and to pay $3,500.00 in attorney’s fees by 5:00 p.m., March 11, 2019. The February

28 order requires relator to produce documents previously-ordered to be produced by the trial court

in a June 27, 2018 order. In the February 28 order, the trial court ruled in part on the real party in

interest’s motion for contempt and other sanctions. The trial court, however, deferred ruling on

the contempt portion of the motion and reset the show cause hearing for March 18, 2019. In this

original proceeding, relator complains that the trial court abused its discretion by ordering relator

to produce documents outside relator’s possession, custody, or control and pay attorney’s fees.

Relator seeks a writ of mandamus ordering the trial court to vacate the February 28 order.

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). “An adverse ruling by the trial court is

a fundamental prerequisite for any mandamus proceeding.” In re Rogers, 200 S.W.3d 318, 324–

25 (Tex. App.—Dallas 2006, orig. proceeding). No such ruling is present here. The February 28

order states that relator “is to produce to Plaintiff all documents ordered by the Court as per the

[June 27, 2018 order].” The order does not, however, order relator to produce documents that are

not within his possession, custody, or control. As such, mandamus relief is not available because

there is not a clear, adverse ruling by the trial court to review. See id. (order to “produce the

requested documents” within thirty days of the order contained “no such clear ruling on the issue

of possession, custody, and control” of the documents). As for the fees award, relator has an

adequate remedy by appeal. See In re Smith, 192 S.W.3d 564 (Tex. 2006) (party had adequate

remedy by appeal for review of sanctions imposed for failing to respond to judgment creditors’

requests for post-judgment discovery).

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. 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).

/David L. Bridges/ DAVID L. BRIDGES JUSTICE

190293F.P05

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