in Re: Steven K. Topletz ( 2019 )

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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