in Re RT Soncy Partnership, LTD and RT Soncy Management, LLC and Cory Strickland, Relators ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-14-00196-CV
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IN RE RT SONCY PARTNERSHIP, LTD., RT SONCY
MANAGEMENT, LLC, AND CORY STRICKLAND, RELATORS
ORIGINAL PROCEEDING
May 29, 2014
ON PETITION FOR WRIT OF MANDAMUS
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
RT Soncy Partnership, Ltd., RT Soncy Management, LLC, and Cory Strickland
(collectively referred to as Soncy) petitioned this court for a writ of mandamus. They
ask that we order the Honorable Don Emerson, 320 th District Court judge (the district
court) to vacate an order directing that approximately $46,924 be deposited by them
into the court’s registry. The underlying dispute involves a suit by Charles and Sara
Lovett against Soncy to recover their share of the proceeds from a sale of realty. The
Lovetts moved the district court to order that their share should be deposited into the
court’s registry to prevent its disposition elsewhere by Soncy. The latter contended that
the trial court could not do that since the suit had to be abated and the dispute resolved
via arbitration. The trial court ordered that the sum be deposited into its registry and,
once that was done, the cause be abated for arbitration. Soncy now argues that the
decision constituted an instance of abused discretion. We conditionally grant the writ of
mandamus.
Because mandamus is an extraordinary remedy available only in limited
circumstances, its issuance is dependent upon the relator illustrating that 1) the trial
court clearly abused its discretion or the violation of a duty imposed by law and 2) there
exists no adequate remedy by appeal. See In re Crow-Billingsley Air Park, Ltd., 98
S.W.3d 178, 179 (Tex. 2003) (orig. proceeding). A trial court abuses its discretion when
it acts in an arbitrary or unreasonable manner without reference to any guiding rules or
principles. See In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig.
proceeding) (per curiam) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985)).
As previously mentioned, Soncy contends that the trial court abused its discretion
in ordering that the monies be deposited into its registry because “there [was] a material
danger that the fund in controversy will be lost or depleted.” This was allegedly so
because no evidence supported the decision and the trial court lacked the jurisdiction to
enter the order since the dispute was subject to arbitration.
Regarding the jurisdictional matter, statute provides that “[b]efore arbitration
proceedings begin, in support of arbitration a party may file an application for a court
order, including an order to . . . invoke the jurisdiction of the court over an ancillary
proceeding in rem, including by attachment, garnishment, or sequestration, in the
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manner and subject to the conditions under which the proceeding may be instituted and
conducted ancillary to a civil action in a district court” and to “obtain other relief, which
the court can grant in its discretion, needed to permit the arbitration to be conducted in
an orderly manner and to prevent improper interference or delay of the arbitration.”
TEX. CIV. PRAC. & REM. CODE ANN. § 171.086(a)(2), (6) (West 2011). Given this statute,
the obligation to arbitrate does not divest the trial court of the authority or jurisdiction to
consider requests, like that at bar, to protect funds from depletion pending arbitration
and otherwise permit arbitration to continue in an orderly manner.
As for the remaining matter, where the record is devoid of evidence "that funds
are actually in danger of being lost or depleted," a trial court abuses its discretion by
ordering them paid into the court's registry. N. Cypress Med. Ctr. Operating Co. v. St.
Laurent, 296 S.W.3d 171, 179-80 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
Here, a hearing was convened at which the litigants, through their respective legal
counsel, proffered argument to the district court. Aside from that argument, though, the
record fails to illustrate that anyone offered or the trial court received evidence
supporting the argument. Thus, the decision to order the deposit constituted an abuse
of discretion.
Furthermore, writs and orders issued to aid judgment creditors in collecting on
their judgments generally are not appealable. See Schultz v. Fifth Judicial Dist. Court of
Appeals, 810 S.W.2d 738, 740 (Tex. 1991) (orig. proceeding), abrogated on other
grounds, In re Sheshtawy, 154 S.W.3d 114, 124 (Tex. 2004) (orig. proceeding); see
also In re Noteboom, 111 S.W.3d 794 (Tex. App.—Fort Worth 2003, orig. proceeding)
(holding that the law firm partner had no adequate remedy by appeal from the trial
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court’s order requiring him to deposit, with the court, a percentage of fees earned).
Consequently, Soncy lacks an adequate legal remedy.
In sum, the elements for issuing a writ of mandamus were established here. We,
therefore, conditionally grant Soncy’s petition for writ of mandamus and direct the
Honorable Don Emerson of the 320th Judicial District to vacate its order dated
September 10, 2013, in which it directed the relators to “pay into the registry of the
Court . . . the sum of $46,924.81.” We are confident that the district court will comply
with this directive, and we direct the Clerk of this Court to issue the writ only in the event
the district court fails to do so within thirty days.
Brian Quinn
Chief Justice
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