Petition for Writ of Mandamus Denied and Memorandum Opinion filed September 3, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-09-00653-CV
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IN RE KRISTOPHER THOMAS KASTNER, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
M E M O R A N D U M O P I N I O N
Relator, Kristofer Thomas Kastner, has 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 asked this court to compel the Honorable William R. Burke, Jr., presiding judge of the 189th District Court of Harris County, to lift the order staying discovery and set a hearing on relator=s amended affidavit of indigence.
Relator filed suit against The Kroger Company, and its manager, Melinda Coombs over one year ago, on or about July 28, 2008, in cause number 2008‑45365 in the 189th District Court. According to relator, his petition was accompanied by an affidavit of indigence, which is not included in the record filed with this petition. According to relator, the trial court sustained a contest to relator=s affidavit by order signed October 3, 2008. The order sustaining the contest is also not a part of this mandamus record. Relator attempted to bring an interlocutory appeal of that order, but the appeal was dismissed for want of jurisdiction. See Kaster v. The Kroger Co., No. 14-08-01001-CV, 2009 WL 943941 (Tex. App.CHouston [14th Dist.] April 9, 2009, pet. filed).
Relator asserts that he has filed amended affidavits of indigency on June 19, 2009, and July 13, 2009, but the trial court has not considered the amended affidavits. Relator asserts that the trial court has ordered discovery stayed, and therefore, no contest to the amended affidavits may be filed during the abatement period. The record before this court does not contain a sworn copy of the discovery stay order about which relator complains. See Tex. R. App. P. 52.3(k)(1) (requiring the appendix to the petition for writ of mandamus to contain a certified or sworn copy of any order made the basis of the complaint). A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184‑85 (Tex. 1978). This court cannot review relator=s complaint in the absence of the challenged order.
Mandamus relief is an extraordinary remedy that issues only if the court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Sw. Bell Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007). An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135‑36 (Tex. 2004) (orig. proceeding). We are to carefully balance jurisprudential considerations to determine when to use original mandamus proceedings to review the actions of lower courts. Id. at 136. Whether an appellate remedy is adequate so as to preclude mandamus review depends heavily on the circumstances presented. Id. at 137.
Incidental pre‑trial rulings are rarely subject to interlocutory review by an appellate court. See Abor v. Black, 695 S.W.2d 564, 566 (Tex. 1985). Generally, appellate courts have considered the erroneous grant of a stay to be an incidental trial ruling for which there is an adequate remedy by appeal. See, e.g., In re Smart, 103 S.W.3d 515, 521 (Tex. App.CSan Antonio 2003, orig. proceeding); see also In re Kastner, No. 01-09-00727-CV (Tex. App.CHouston [1st Dist.] Aug. 27, 2009) (orig. proceeding) (mem. op.)(denying relief from similar stay order).
When the trial court has sustained a contest to an affidavit of indigence filed pursuant to Texas Rule of Civil Procedure 145, the court typically dismisses the case, finding the allegation of poverty is false and/or the case is frivolous. See Tex. Civ. Prac. & Rem. Code Ann. '13.001 (Vernon 2002). The court may make its determination and dismiss the action sua sponte, either before or after service. Id. '13.001(c). The purpose of section 13.001 is to ensure that limited resources are employed as efficiently as possible to resolve arguable claims and that claims without merit are dismissed at an early stage in the proceedings. Black v. Jackson, 82 S.W.3d 44, 53 (Tex. App.CTyler 2002, no pet.); Pedraza v. Tibbs, 826 S.W.2d 695, 698 (Tex. App.CHouston [1st Dist.] 1992, writ dism=d w.o.j.).
Thus, the legislature has provided a procedure for appellate review of indigence claims. In this case, relator has not demonstrated that an appeal is inadequate to review the trial court=s ruling. We conclude that relator has not established that he is entitled to an extraordinary remedy.
Accordingly, we deny relator=s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Yates, Frost and Brown.