*1 Accordingly, find no abuse of discretion respondent issuing his order for
interim fees.
We, therefore, set aside our order of 24, 1992, stayed which the trial September 15, 1992,
court’s order grant- Trotter, of interim fees to requested. mandamus relief petition for mandamus is
DENIED. GROUP, INC.; Group
The PRIME Texas, Inc.;
Management of and Prime
Property Texas, Ltd., Management of
Relators, O’NEILL, Judge
The Honorable Jack
the 152nd District Judicial Court of Texas, County, Respondent.
Harris
No. C14-92-01212-CV. Appeals (14th Dist.).
Houston 25, 1993.
Feb.
(1) August Souper Salad’s 1991— Barshick, allegedly depos- president, promised that he to Prime’s Vicki es keep he would a Sou- Whorton that at the mall per Salad restaurant for lease, a modified if the duration of Haworth, Bowers, R. Mike J. Charles the rent. K-P reduced Dallas, relators. for (2) seri- July 1992—Whorton suffers Peterson, Levin, Cynthia R. R. Michael ous, eye injury. incapacitating Houston, respondent. for (3) ready July 31—Both sides announce allegedly trial. Prime and K-P for ROBERTSON, CANNON and Before deposi- rely to intend Barshick’s BOWERS, JJ. the promise tion to establish consti- of K-P’s tuting an essential element MAJORITY OPINION counterclaim. CANNON, Justice. (4) Monday, begins. August 10—Trial original proceeding. is an This Opening statements. Inc.; Relators, Group, The Prime Prime (5) Afternoon, August During Sou- 11— Inc.; Group Texas, Management of and case, presentation of its per Salad’s Management Property Prime his allegedly depo- Barshick recants “Prime”), we or- (collectively Ltd. ask that prom- testimony regarding sition modify der trial court to vacate or a This leads counsel for Prime ise. awarding party in order the real inquire K-P Whor- and to whether Franchises, interest, Souper Inc. Salad testify. to ton available Salad”), $33,624.49 (“Souper in (6) Souper pres- August Salad 11-13— costs. and We the writ. more its case. ents Souper operated a restaurant in a Salad (7) Evening, August for 13—Counsel space shopping Dallas mall. It leased from that Whorton Prime K-P learns mall, Plaza Limited owner K-P not for weeks due will be available Dallas, Partnership and K-P Plaza Inc. eye injury. to her “K-P”). (collectively Prime handled leas- (8) August 14 K-P. arrangements for Prime and K-P obtains —Counsel for K-P Souper Salad sued Prime and for establishing affidavit from Whorton in tortious interference with transaction nonavailability. her Souper which tried to the restau- Salad sell case. —Souper continues its Salad party. rant to a third (9) go Saturday, August 15—Both sides alleging Souper K-P counterclaimed videotape deposition Dallas to agree fraudulently Salad induced it to K-P of a Prime and witness. Ray lease K-P contends that modification. Salad, prom- Barshick, Souper president of (10) Morning, August Salad 17— keep Souper ised Salad restaurant up case. Prime and K-P wraps K-P the rent. Barshick if reduced mall After ar- verdict. move directed promise to a Prime allegedly made this denies the the trial court gument, K-P contends employee, Vicki Whorton. motion.
that, despite promise, this Barshick tried lunch, Afternoon, August 17—After (11) third who was sell restaurant to a continu- K-P move for Prime and operate it as going that a grounds ance or mistrial franchise. Whorton, witness, is un- material time that This is the first A available. underlying pending. lawsuit is know Super culminating in the court chronology of events or indis- is unavailable that Whorton follows: sanction order pensible. Hearing deposition mo- serted that on mistrial Barshick’s trial and testimony substantially were the same. tion. argument, August 18—After more response, In argu- and K-P’s basic granted subject to the mistrial is but ment was that their counterclaim trial *3 Souper Salad’s motion for sanctions. strategy initially depend did not on the (13) September Souper injured They planned moves witness. rely Salad 14— deposition of Barshick to establish for the sanction of that promised keep Souper he had a alleges trial. Salad
and costs of It that premises. K-P, restaurant on the leased Defen- Prime, and their counsel dants’ counsel did not consider Whorton’s have known of Whorton’s no- should testimony guarantee critical and so did not navailability trial. It also before availability announcing her at the time of Barshick did not re- contends that ready, beyond assuring that she still was testimony cant his and that Prime employed by Prime. Prime and K-P ar- and K-P could not use that as an that, 11, gued August unex- Barshick indispen- excuse to declare Whorton pectedly deposition testimony recanted his sible. making any promise. and denied Defen- (14) September hearing argu- 29—After dants’ counsel then realized it would need sides, ment from both the trial court testimony Whorton’s after all. It took un- grants Souper motion Salad’s 14, Friday, August til to confirm Whorton’s $33,- sanctions. The sanction is for nonavailability get and her affidavit and attorney’s 624.49 in fees and costs August until 17 to file the affidavit and 11-18, August payable of trial from for continuance or mistrial. move 1, on or December before imposed monetary The trial court (15) 26—Prime moves for recon- October only against Prime and not K-P sanction or sideration of sanction. counsel, presumably because Prime was hearing, November 13—After sanc- employer Whorton’s and the court believed sustained. tion timely that counsel was not informed Souper for sanctions Salad’s motion was Prime that Whorton was unavailable. against directed defendants Prime and K-P extraordinary Mandamus is an Souper argued and their counsel. Salad only in man remedy, available situations of early injured July that Whorton was urgent necessity. and ifest Walker v. 24. Defendants and their counsel knew or 833, (Tex.1992) Packer, 827 840 S.W.2d announcing should have known before (orig. proceeding). only Mandamus issues ready for trial that she would be unavail- or to correct a clear abuse of discretion the trial court able. No one informed duty imposed by violation of a law when nonavailability Souper Salad of Whorton’s adequate remedy there is no other at law. days injury; twenty-five until after the sev- Appeals, v. Fourth 700 Johnson days after defendants announced enteen 916, (Tex.1985) (orig. proceed 917 S.W.2d trial; trial, days ready for seven into the ing). appeals acts in excess of A court of Souper presented its entire after Salad had power grants its writ when it and defended a motion for directed case these circumstances. relief absent verdict; days parties and two after the deposition to Dallas to take the of travelled A tenet of manda fundamental defendants’ witness. Defendants’ coun- practice party seeking mus is that a manda Prime, employ- sel learned from Whorton’s the lack of an mus relief must establish er, Walker, on Au- that Whorton was unavailable adequate remedy by appeal. 827 gust days into the trial. Yet coun- having four delay at 840. The cost or of S.W.2d delayed informing the trial through appellate sel further proceed trial and the Souper days until four later. process appeal court or does not make an inade that manda quate remedy. Salad contended defendants’ Id. at 842. When monetary sanc surprise by sought Barshick’s recanted to vacate a excuse mus is order, uncertainty actual reim- testimony as- tion was ruse.
379 time, protects it winning appeal after an does for the court. At same bursement appeal inadequate. parties render Braden v. be those sanctioned who would (Tex.1991). Downey, 811 S.W.2d required pay out of court if forced appeal. judgment before and sanction However, monetary may party’s it so threatens a be Severe argues that can issue Prime further case, litigation. In that continuation mandamus to “void” order even vacate a remedy only pay if appeal adequate an remedy by ap when there an judgment ment is until final when deferred Snell, peal. In Dikeman v. 490 S.W.2d supersede can (Tex.1973) proceeding), Court is (orig. perfect an Id. at 929. Braden pro nunc a mandamus vacate a sued *4 to procedure for the trial court sets out the judgment. Being entered after the tunc monetary when a contends that a use jurisdiction, judgment trial court lost to precludes party’s access held, on its face.” The Court was “void court: proclaims upon it “An order which voidness (1) pro- judge district must either [T]he appellate pro needs no action to its face payable only vide that the sanction is at 186, invalidity.” quoting at claim its entry that coincides with or follows date Finch, 351, Fulton v. 162 Tex. 346 S.W.2d terminating litigation; a final order of 823, (1961) (orig. proceeding); also 830 see express findings, makes written Lozano, Millsap rel. v. 692 ex State hearing, why as prompt after a to 470, (Tex.Crim.App.1985)(orig. 482 S.W.2d preclusive award does not have such a find or proceeding). We that the sanction effect. its present in the case is not void on der Servs., Id., quoting Capital Thomas v. Sec. face. 866, (5th Inc., n. 836 F.2d 882-883 23 Cir. Constr., In Inc. v. Hob D.A. Buckner 1988). son, 74 (Tex.App. S.W.2d 793 — Houston pre Prime does not contend that 1990) proceeding), this (orig. Dist.] [14th of payment the sanction would issued court vacated a sanction order litigation. prevent continuing it from notice sponte the trial court sua without Therefore, staying of the monetary any and without motion for and Prime necessary, sanction is has an contrast, on Au Id. at 76. In sanction. adequate remedy by In such cir appeal. 18, hearing, gust at the motion for mistrial cumstance, power are without to issue that the mistrial be requested Johnson, supra. writ of mandamus. recovery on its of conditioned argues pro Prime that the Braden 24, Souper September fees and costs. On Equal cedure is unconstitutional under the Defen filed its motion for sanctions. Rights provision of the Texas Constitution. trial responded to the motion. The dants I, Const, art. 3. Prime maintains § Tex. hearing The court held a pay require parties that to mon well-off argument from both sides trial court heard permit etary immediately sanctions while motion. granting Souper Salad’s before ting poor parties delay payment violates 26, filed a motion Prime On October However, principles. equal protection hear the sanction and another reconsider authority cited us to no that the has Prime held 13. The was on November suspect or that a funda well-off are class sponte did not issue order sua but court Therefore, the right implicated. mental response motion. We in Salad’s applies. relation standard See rational had notice and find that Prime University Interscholastic Sullivan sanc heard and that the opportunity be 170, (Tex.1981). 172 616 League, S.W.2d for want of due order was not void tion procedure rationally related The Braden Fiberglas process. Owens-Corning state interest the order legitimate to the Cf. Caldwell, 150 S.W.2d Corp. v. 822 system. ly management of court 1991) (orig. (Tex.App. procedure preserves Dist.] the effectiveness [1st — Houston (due and sane- process violated monetary proceeding) as a control mechanism sanctions 380
tion order void when trial court lievmg orderly failed to jus- administration of implement procedure). less, Braden requires tice no I respectfully dissent. argues that the sanction order is void because the trial court exceeded its However,
authority. Braden held that the
issue of a sanction whether was authorized law,
by rule or well factual basis propriety
for and prop the sanction are Braden,
erly matters for 930; at Godfrey,
S.W.2d
see also Susman
Marshall,
L.L.P. v.
832 S.W.2d
MALOY,
Ray
Ricky
Hill,
Charlotte
Lee
1992)
(Tex.App.
(orig. proceeding)
— Dallas
Johnny
Hall, Bradley Craig
Allen
$25,-
(inquiry
authority
into
for sanction of
Shaw,
Zalk, Danny
Hanna Elaine
Carl
appeal).
000 fine is matter
Even Dike-
Roberts, Felipe Saldivar,
Lara,
Hector
man, which issued mandamus to vacate a
Condron, Johnny Lovett,
Walter Davis
judgment,
“void
its face”
counseled that
Jr.,
Hoiten, Appellants,
and Keith
practice
seeking
the better
relief from
*5
allegedly invalid orders is
appel
to use the
Dikeman,
process.
late
This is so when there is doubt Texas, Appellee. void, as to whether the is disputed where there are fact issues. No. 2-92-177-CV. We believe that Braden now instructs Appeals adequate when relator has an reme- Fort Worth. dy by appeal, then the issue of whether a trial court abused its discretion exceed- Feb. authority its properly a matter for Absent a “void on its face” process, order or clear violation of due fur- inquiry by proceeding
ther
premature.
We find that Prime has an rem-
edy by appeal, that the sanction order is face,
not void its and that Prime was process.
afforded due We the writ staying payment
and rescind our order
the sanction.
ROBERTSON, Justice, dissenting. 29, 1992, judge
On sanctions, pay,
ordered that relators as 1, 1992, plaintiffs
or before December at- $26,357.50,
torney’s the sum of
$5,31699 expenses and an additional
$1,950 attorney’s fees in connection with proceeding.
the sanctions recognize
IWhile that relators have not
alleged that the of this sum will courts,
restrict access to the I believe
this is a “more severe sanction” that appealable an
should be deferred until
judgment is rendered. Braden at 929. Be-