Mukesh Bhakta v. Krisu Hospitality, LLC

• Court: Court of Appeals of Texas
• Decided: May 18, 2018
• Docket: 07-18-00156-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-18-00156-CV ________________________

MUKESH BHAKTA, APPELLANT

V.

KRISU HOSPITALITY, LLC, APPELLEE

On Appeal from the 223rd District Court Gray County, Texas Trial Court No. 38,934; Honorable Phil N. Vanderpool, Presiding

May 18, 2018

ORDER DENYING APPELLANT’S MOTION FOR TRAP 24 PRELIMINARY RELIEF Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Pending before this court is Appellant’s Motion for TRAP 24 Relief, filed by Mukesh

Bhakta, Appellant herein and the judgment debtor in the proceeding below, seeking (1)

an order from this court directing the trial court, or its district clerk, to accept the filing of

Bhakta’s Notice of Deposit in Lieu of Bond, including as an attachment to that notice a

copy of Bhakta’s affidavit concerning his net worth, (2) a stay of any proceedings designed

to enforce the judgment the subject of this appeal, and (3) a stay of an ancillary lawsuit (Cause No. 39,041, 223rd District Court, Gray County, Texas) brought by Appellee, Krisu

Hospitality, LLC, pursuant to the Texas Uniform Fraudulent Transfer Act. See TEX. BUS.

& COM. CODE ANN. § 24.001-.013 (West 2015 & West Supp. 2017). The relief requested

is denied.

Bhakta’s request that this court direct the trial court, or its district clerk, to accept

the filing of Bhakta’s Notice of Deposit in Lieu of Bond and Bhakta’s affidavit concerning

his net worth is a request in the nature of a proceeding seeking mandamus relief. The

requirements for a petition for mandamus relief are set forth in Rule 52.3 of the Texas

Rules of Appellate Procedure. See TEX. R. APP. P. 52.3. Even if we were to liberally

construe Bhakta’s motion as a petition seeking such relief, the motion falls woefully short

because it fails to satisfy the requirements of Rule 52.3. Furthermore, as a general rule,

mandamus is not available to compel a trial court to perform an act if the action has not

first been requested and then refused by the trial court. See In re Perritt, 992 S.W.2d

444, 446 (Tex. 1999) (orig. proceeding) (holding that a party’s right to mandamus relief

generally requires a predicate request for action and a refusal of that request). Moreover,

this court does not have mandamus jurisdiction to direct the district clerk to accept

Bhakta’s filing as such an order would have to originate from the trial court. In re

Coronado, 980 S.W.2d 691, 692-93 (Tex. App.—San Antonio 1998, orig. proceeding)

(recognizing that for a district clerk to fall within appellate court’s jurisdictional reach, a

relator must show that issuance of a writ of mandamus is necessary to enforce the

appellate court’s jurisdiction).

Bhakta’s request that this court “stay” proceedings to enforce the judgment the

subject of this appeal and that it “stay” proceedings in the ancillary lawsuit brought

pursuant to the Texas Uniform Fraudulent Transfer Act are likewise inappropriate. The 2 procedure by which a judgment debtor may supersede the enforcement of a judgment

are well defined in Rule 24.1 of the Texas Rules of Appellate Procedure. Where, as here,

the judgment creditor has filed a contest of the judgment debtor’s claimed net worth, this

court’s authority is limited to reviewing the trial court’s ruling. See TEX. R. APP. P. 24.4(a).

Because Bhakta has requested relief that this court cannot grant at this time,

Appellant’s Motion for TRAP 24 Relief is denied.

It is so ordered.

Per Curiam