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Opinion filed July 31, 2008
In The
Eleventh Court of Appeals
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No. 11-08-00185-CV
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IN RE JACK WATSON AND DONALD L. ANDERSON, JR.
Original Mandamus Proceeding
M E M O R A N D U M O P I N I O N
This is a petition for writ of mandamus complaining of the trial court=s order sanctioning Jack Watson and Donald L. Anderson attorney=s fees of $5,000.
I. Background Facts
This dispute arises out of a will contest. Eddie Edington submitted a will executed by Merl Dean Koenig in 2003 for probate. Watson contested Edington=s application contending that Koenig lacked testamentary capacity or, alternatively, that the 2003 will was procured by undue influence. Watson also applied to probate a will that Koenig executed in 2000.
Edington served requests for production on Watson. These included a request for the original of the 2000 will. Watson responded that he did not have the original will. Edington deposed Watson and asked him what steps he had taken to locate the original. Edington also asked about envelopes that Watson may have given to Mr. Gilliland with the West Texas Rehabilitation Center. Watson responded that he assumed the envelopes contained wills and said that he did not ask Gilliland to return them when he received Edington=s request for production. Edington filed a motion for sanctions, contending that Watson=s failure to inquire into the whereabouts of the 2000 will violated Tex. R. Civ. P. 215.2(b). Watson filed a response asserting that he and his counsel had been advised prior to filing their application for probate that the West Texas Rehabilitation Center no longer had Koenig=s original 2000 will. The trial court conducted a hearing and found that Watson and his counsel abused the discovery process and sanctioned them $5,000 in attorney=s fees.
II. Issues on Appeal
Watson and Anderson=s petition raises two issues: did the trial court abuse its discretion by sanctioning them and do they have an adequate remedy by ordinary appeal.
III. Analysis
To obtain mandamus relief, a relator must show not only that the trial court clearly abused its discretion but also that the relator has no adequate remedy by appeal. In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding). Watson and Anderson complain that they have no adequate remedy by ordinary appeal because they were denied fundamental due process when the trial court did not require Edington to proffer sufficient evidence to support a finding of abuse of discovery or to support the amount of sanctions awarded.
This argument impermissibly compresses the two preconditions for a writ of mandamus. No matter how meritorious their position may have been below, when considering whether they have an adequate remedy by appeal, the question is whether the trial court=s error affected a substantive right. See In re McAllen Med. Ctr., Inc., No. 05-0892, 2008 WL 2069837, at *3 (Tex. May 16, 2008) (orig. proceeding). Texas courts have held that an ordinary appeal is an adequate remedy for a monetary discovery sanction. See, e.g., TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 920 (Tex. 1991); Braden v. Downey, 811 S.W.2d 922, 928 (Tex. 1991). An exception to this rule lies when the imposition of monetary sanctions threatens a party=s continuation of the litigation and its payment is not deferred until rendition of final judgment. See Braden, 811 S.W.2d at 929. Watson and Anderson do not contend that this exception applies. Consequently, we find that they have an adequate remedy by direct appeal.
IV. Holding
The petition for writ of mandamus is denied without prejudice to relators= right to challenge the discovery sanction by direct appeal.
RICK STRANGE
JUSTICE
July 31, 2008
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.