In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-20-00261-CV
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IN RE L&S PRO-LINE, LLC AND LEE BURKETT
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Original Proceeding
457th District Court of Montgomery County, Texas
Trial Cause No. 18-06-07704-CV
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MEMORANDUM OPINION
L&S Pro-Line, LLC and Lee Burkett, Relators, filed a petition for a writ of
mandamus, asking this Court to order the trial court to vacate orders denying
Relators’ amended pleas to the jurisdiction. In their petition, L&S and Burkett argue
the trial court lacks subject-matter jurisdiction over a third-party action brought by
one of the real parties in interest, Garrett Gagliano. Gagliano sued Burkett for
allegedly breaching a fiduciary duty to him. Relators argue that because Gagliano’s
claim is a derivative claim based on his status as an L&S shareholder, Gagliano lost
the standing he had when he filed his suit when Burkett purchased his membership
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interest in L&S. According to Relators, the trial court also lacks subject-matter
jurisdiction over counterclaims filed by Tactical Automation, Inc., another real party
in interest, because Tactical lacks standing because it is neither a party or third-party
beneficiary to any agreements between L&S, Gagliano and Burkett, members who
owned an interest in L&S, and because Tactical lacks standing to sue Burkett based
on the alleged acts and omissions of L&S. Relators argue that mandamus is an
appropriate remedy because otherwise they will be required to participate in a trial
over which the trial court lacks subject-matter jurisdiction.
Mandamus will issue only when the petition and record establishes a clear
abuse of discretion for which the relator does not have an adequate remedy through
an ordinary appeal.1 After reviewing the petition, the response filed by the Real
Parties in Interest Gagliano, Tactical, and Snook Holdings, LLC, Relators’ reply to
the response, and the documents included in the appendices to the petition, the
response, and the reply, we conclude that Relators have not shown that they are
entitled to mandamus relief. We deny Relators’ petition.2
PETITION DENIED.
PER CURIAM
Submitted on December 14, 2020
Opinion Delivered December 30, 2020
Before McKeithen, C.J., Kreger and Horton, JJ.
1In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig.
proceeding).
2 See Tex. R. App. P. 52.8(a).
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