Opinion
10-23-00074-CV
03-14-2023
IN RE TRAXCELL TECHNOLOGIES, LLC
Original Proceeding
From the 170th District Court McLennan County, Texas Trial Court No. 2023-368-4
Before Chief Justice Gray, Justice Johnson, and Justice Smith (Chief Justice Gray concurs without a note)
MEMORANDUM OPINION
STEVE SMITH Justice
In this original proceeding, relator, Traxcell Technologies, LLC, seeks to vacate an order requiring turnover and appointing receiver signed by the respondent, the Honorable Jim Meyer, Presiding Judge of the 170th District Court. We deny relator's petition for writ of mandamus.
In light of our disposition, we dismiss all pending motions as moot.
Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion when there is "no adequate remedy by appeal." In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (citations omitted). "A trial court has no 'discretion' in determining what the law is or applying the law to the facts." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). "Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." Id. (citations omitted). And, generally speaking, an adequate legal remedy exists if the relator can raise the issue on appeal. See id. However, in some extraordinary cases, an appellate remedy may be inadequate when the benefits to mandamus review outweigh the detriments. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462, 468-69 (Tex. 2008) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. Moreover, a relator has the burden of providing this Court with a sufficient record to establish its right to mandamus relief. See TEX. R. APP. P. 52.3, 52.7; see also Walker, 827 S.W.2d at 837.
Here, relator complains about the trial court's turnover order. A turnover order is a statutory procedural device that permits a trial court to order a judgment debtor to turn over nonexempt property that is in the judgment debtor's possession or control. See TEX. CIV. PRAC. &REM. CODE ANN. § 31.002. Further, both turnover orders and orders appointing a receiver are appealable orders. See TEX. CIV. PRAC. &REM. CODE ANN. § 51.014(a)(1) (providing that an interlocutory appeal is permitted from an order appointing a receiver); Burns v. Miller, Hiersche, Martens &Hayward, P.C., 909 S.W.2d 505, 506 (Tex. 1995) (per curiam) (citing Schultz v. Fifth Judicial Dist. Court of Appeals, 810 S.W.2d 738, 738-40 (Tex. 1991)); Bahar v. Lyon Fin. Servs., 330 S.W.3d 379, 385 (Tex. App.- Austin 2010, pet. denied); see also In re Raggio-2204 Jesse Owens, LLC, No. 03-18-00213-CV, 2018 Tex.App. LEXIS 5252., at *4 (Tex. App.-Austin July 12, 2018, orig. proceeding) (mem. op.). Thus, mandamus relief from a turnover order and an order appointing a receiver is not usually available. See In re Hamel, 180 S.W.3d 226, 231 (Tex. App.-San Antonio 2005, orig. proceeding); see also In re Sutton, No. 04-12-00786-CV, 2012 Tex.App. LEXIS 10028, at *1 (Tex. App.-San Antonio Dec. 5, 2012, orig. proceeding) (mem. op.) (per curiam) (denying mandamus relief from an order appointing a receiver because relator had an adequate remedy by interlocutory appeal); In re Raggio-2204 Jesse Owens, LLC, 2018 Tex.App. LEXIS 5252, at *4; In re Watson, No. 2-05-342-CV, 2005 Tex.App. LEXIS 8926, at *5 (Tex. App.-Fort Worth Oct. 27, 2005, orig. proceeding) (mem. op.) (per curiam) ("We conclude that Joe is not entitled to mandamus relief because he has an adequate remedy by normal appeal from the turnover order."). However, "[w]ithout a final judgment, a turnover order is void, and mandamus relief lies to vacate the void order." In re Alsenz, 152 S.W.3d 617, 620 (Tex. App.-Houston [1st Dist.] 2004, orig. proceeding); see In re Hamel, 180 S.W.3d at 231 (granting mandamus relief to vacate a void turnover order); see also In re Raggio-2204 Jesse Owens, LLC, 2018 Tex.App. LEXIS 5252, at *4.
In its petition, relator does not allege that the trial court's turnover order is void due to a lack of a final judgment. Indeed, the trial court's turnover order references Verizon's motion for post-judgment turnover order, which implies that a final judgment exists to support the turnover order. Furthermore, relator has not adequately demonstrated that this is an extraordinary case where a normal appeal or a motion to stay filed in the trial court would be inadequate.
Because turnover overs are final, appealable judgments, we conclude that relator has an adequate remedy by appeal and, thus, is not entitled to mandamus relief. See In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam) (noting that mandamus is an extraordinary remedy and that the relator bears the burden of proving that the trial court abused its discretion and that no adequate appellate remedy exists). Accordingly, we deny relator's petition for writ of mandamus.
We also note that relator references several documents filed in this case; however, in the appendix to its petition for writ of mandamus, relator only included the complained-of turnover order and the trial court's docket sheet. As such, relator has also failed to provide this Court with a sufficient record to establish its right to mandamus relief. See TEX. R. APP. P. 52.3, 52.7; see also Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).
Petition denied.