In Re Bobcat of Houston, a Division of Berry Companies, Inc. v. the State of Texas ( 2023 )

Petition Dismissed and Memorandum Opinion filed April 13, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00728-CV
IN RE BOBCAT OF HOUSTON, A DIVISION OF BERRY COMPANIES,
INC., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
269th District Court
Harris County, Texas
Trial Court Cause No. 2019-69076
MEMORANDUM OPINION
On October 11, 2022, relator Bobcat of Houston (“BOH”), a division of Berry
Companies, Inc., filed a petition for writ of mandamus in this Court. See Tex. Gov’t
Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, BOH asks this
Court to compel the Honorable Cory Don Sepolio, presiding judge of the 269th
District Court of Harris County, to vacate orders respectively finding a substantial
likelihood of success on the merits for a claim for exemplary damages against BOH,
compelling production of net worth evidence from BOH pursuant to Section 41.0115
of the Texas Civil Practice and Remedies Code, and denying BOH’s motion to strike
allegedly improper evidence used by the real parties in interest to support their
request for exemplary damages.
While the petition was pending, relator’s counsel informed the court that the
underlying trial court proceeding was tried by a jury, and the jury reached a verdict.
Although it does not appear the underlying verdict has been reduced to a final
judgment yet, there is no sign that the parties are contesting the trial court’s pre-trial
discovery orders by mandamus. See Elec. Reliability Council of Tex., Inc. v. Panda
Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 635–36 (Tex. 2021)
(observing that once a trial court enters a final judgment, interlocutory orders
challenged in a mandamus proceeding “merge[] into the final judgment”).
Accordingly, the mandamus challenge to the pre-trial discovery orders appears to be
moot.
On March 24, 2023, notification was transmitted to the parties that the court
lacks jurisdiction over this mandamus proceeding due to mootness and that the
proceeding could be dismissed unless the parties demonstrated this court had
jurisdiction on or before April 3, 2023. No party has since indicated this mandamus
controversy remains live.
Accordingly, we dismiss relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
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