In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00382-CV
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IN RE MUJTABA ALI KHAN
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Original Proceeding
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MEMORANDUM OPINION
Mujtaba Ali Khan seeks mandamus relief from an interlocutory trial court
order enforcing a partial summary judgment. The case in the trial court is a dispute
over the ownership and control of Xenon Anesthesia of Texas, P.L.L.C. (“Xenon
Texas”). Haroon Chaudhry and Xenon Health L.L.C. (“Xenon Health”) sued Khan
and Xenon Texas for breach of contract, tortious interference with existing
contract, and specific performance. Khan and Xenon Texas have been enjoined
from making any expenditures or incurring any indebtedness outside the ordinary
course of business or from transferring or encumbering any ownership interests of
Xenon Texas. See Xenon Anesthesia of Tex. P.L.L.C. v. Xenon Health L.L.C., No.
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09-12-00553-CV, 2013 WL 1279408, at *4 (Tex. App.—Beaumont Mar. 28, 2013,
no pet.).
On June 20, 2013, the trial court signed an order granting Chaudhry’s
motion for summary judgment on Chaudhry’s claims against Khan, ordered Khan
to transfer Xenon Texas to Chaudhry “as soon as practicable,” and required Khan
to provide certain information to Chaudhry within thirty days. After an
enforcement hearing, the trial court on August 9, 2013, ordered Khan to execute an
Equity Interest Assignment Agreement that assigns to Chaudhry all of Khan’s
interest in Xenon Texas and replaces Khan with Chaudhry as the sole member and
manager of the company. The trial court denied Khan’s request for a severance or
for permission to appeal.
Khan contends that the trial court abused its discretion by ordering
compliance with a partial summary judgment before the final judgment is signed.
Generally, a party has a right to suspend the enforcement of a judgment during an
appeal. See Tex. R. App. P. 24.1; In re Tarrant Cnty., 16 S.W.3d 914, 918 (Tex.
App.—Fort Worth 2000, orig. proceeding). The party’s right to supersede the
judgment and maintain the status quo for purposes of appeal may be lost forever
where the trial court allows partial enforcement of the judgment before final
judgment is entered. Id. at 919. Specific performance of an agreement to transfer
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ownership and control of Xenon Health from Khan to Chaudhry is a significant
part of the ultimate relief being sought in this case. By compelling Khan to
effectuate the transfer before an appealable judgment has been signed, the trial
court has deprived Khan of his right to obtain appellate review before the judgment
is enforced. The trial court abused its discretion and the relator lacks an adequate
remedy by appeal. Id. at 920.
We conditionally grant the petition for writ of mandamus . We are confident
the trial court will vacate its order of August 9, 2013. The writ shall issue only if
the trial court fails to comply.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on September 3, 2013
Opinion Delivered September 26, 2013
Before Gaultney, Kreger, and Horton, JJ.
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