in Re: Budget Car Wash ( 2010 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed July 1, 2010,

In The

Fourteenth Court of Appeals

NO. 14-10-00518-CV

In Re: Budget Car Wash, Relator

  ORIGINAL PROCEEDING

  WRIT OF MANDAMUS

MEMORANDUM OPINION

On June 14, 2010, relator, Budget Car Wash filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator asks this court to compel the Honorable Tom Holden, presiding judge of the County Court at Law No. 2 of Brazoria County to vacate his order requiring relator to pay the real party’s attorney’s fees incurred in procuring an order to compel production of documents.

Relator, Budget Car Wash, leases property to Buc-ee’s in Lake Jackson, Texas.  After Hurricane Ike, Buc-ee’s made repairs to a canopy on the property, and asked relator for reimbursement because they alleged the repairs were the responsibility of the landlord.  Relator refused to pay for the repairs, and Buc-ee’s filed suit in May, 2009.  On July 30, 2009, Buc-ee’s served requests for production on relator requesting production of several documents in connection with the suit.  On October 22, 2009, because relator failed to comply with Buc-ee’s request, Buc-ee’s filed a motion to compel responses to production.  On November 12, 2009, the respondent signed an order granting the motion to compel in which he ordered relator to produce the documents and pay Buc-ee’s attorney’s fees of $500 as reimbursement for expenses of obtaining the order.  Relator filed this petition for writ of mandamus alleging the respondent abused its discretion in ordering sanctions in an unreasonable amount.

Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law where there is no adequate remedy at law.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).  Because mandamus is an extraordinary remedy, we may not issue mandamus to supervise or correct a trial court’s incidental rulings when there is an adequate remedy at law, such as an appeal.  See Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex. 1994); Walker, 827 S.W.2d at 839–40.

Texas Rule of Civil Procedure 215.1(d) permits the trial court to award the moving party reasonable expenses incurred in obtaining an order on a motion to compel.  Under Rule 215, sanctions for abuse of discovery, including an award of attorney’s fees, are subject to review on appeal from the final judgment.  Tex. R. Civ. P. 215.1(d); In re Ford Motor Co., 988 S.W.2d 714, 722 (Tex. 1998).  The rule specifically states that “such an order shall be subject to review on appeal from the final judgment.” Because relator has an adequate remedy by appeal, it has not established its entitlement to the extraordinary relief of a writ of mandamus. 

Accordingly, we deny relator’s petition for writ of mandamus.

                                                                                    PER CURIAM

Panel consists of Justices Anderson, Frost, and Seymore.