In Re: Rickey Leach--Appeal from County Court at Law of Smith County

NO. 12-07-00247-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: RICKEY LEACH, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Rickey Leach filed a petition for writ of mandamus challenging the trial court s order sanctioning him for discovery violations. The respondent is the Honorable Thomas A. Dunn, Judge of the County Court at Law of Smith County. Georganna Vickers is the real party in interest. We deny the petition.

Background

Leach and Vickers are the parents of a son, S.L. Vickers filed a petition to modify the child custody order governing the conservatorship of S.L. On March 28, 2006, Vickers served Leach with a request for production of documents. This document included a request for [a]ll . . . tape or electronic recordings, and audio/video recordings that constitute or contain matters relevant to the subject matters of this lawsuit . . . . On May 22, 2006, Leach responded to this request, stating [n]o items have been identified after diligent search that are responsive to the request. On March 16, 2007, Leach s wife secretly recorded a conversation with Vickers in which Vickers admitted that she had been beaten by her new husband in front of S.L. and that a registered sex offender lived within fifty yards of her home. On April 23, 2007, Leach s attorney informed Vickers s attorney that the recording existed. Because Leach s attorney disclosed the recording so near the impending trial setting, he agreed to a continuance of that setting. On April 25, 2007, Vickers s attorney traveled to Leach s attorney s office and listened to the recording. On May 16, 2007, Leach s attorney formally supplemented Leach s response to Vickers s request for production to include the recording.

On May 18, 2007, Leach s attorney again supplemented Leach s response to Vickers s request for production, stating that additional recordings existed, but did not provide them. In response to this revelation, Vickers filed a motion to compel production and for sanctions. Vickers also subpoenaed the additional recordings, seeking that they be produced at the hearing on her motion. At the hearing, Leach s wife testified that she had been secretly recording her conversations with Vickers since 2002. Nonetheless, with the exception of the March 16 recording, none had been supplied to Vickers in response to the request for production. Leach also testified, alleging that the other recordings had not been supplied because they were not relevant.

Following the hearing, the respondent trial judge ordered Leach to pay $2,500 to Vickers for discovery expenses and court costs. He also ordered Leach to pay Vickers s attorney $5,000 in attorney s fees. Finally, he ruled that Leach s failure to pay these amounts by July 7, 2007, a date that was twenty-four days before the trial setting, would result in Leach s pleadings being stricken. Leach now brings this original proceeding seeking reversal of the respondent s order. On Leach s motion, we stayed further proceedings in the trial court pending our disposition in this proceeding.

Availability of Mandamus

Leach filed a motion for rehearing and a supplemental motion for rehearing. In his motion for rehearing, Leach argued that he had not engaged in sanctionable conduct and that the monetary sanctions ordered by the respondent were excessive. In this original proceeding, Leach asserts these grounds in his first, second, and third issues. In his supplemental motion for rehearing, Leach added a new ground, asserting that being ordered to pay $7,500 in sanctions would destroy his ability to continue the litigation because he would not be able to pay his attorney. Leach asserts this new ground as his fourth issue in this original proceeding.

Mandamus is an extraordinary remedy and was intended to be available only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). For Leach to be entitled to relief by mandamus, he must meet two requirements. First, he must show that the trial court clearly abused its discretion. Id. Second, he must show that he lacks an adequate remedy at law, such as an ordinary appeal. See id.

The right to an ordinary appeal is generally an adequate remedy for redressing allegedly erroneous monetary discovery sanctions. See Braden v. Downey, 811 S.W.2d 922, 928 (Tex. 1991) (orig. proceeding). If the imposition of monetary sanctions threatens a party s continuation of the litigation, ordinary appeal affords an adequate remedy only if payment of the sanctions is deferred until final judgment is rendered. Id. at 929. Leach has an adequate remedy by ordinary appeal for the complaints he raises in his first, second, and third issues. Id. at 928-29. Therefore, Leach is not entitled to mandamus relief regarding these issues. See Walker, 827 S.W.2d at 840.

As to Leach s fourth issue, that being ordered to pay $7,500 in sanctions would destroy his ability to continue the litigation, Vickers argues that Leach has failed to preserve his complaint for review.

Rule 33.1(a) of the Texas Rules of Appellate Procedure states as follows:

(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Tex. R. App. P. 33.1(a). This rule applies equally to mandamus review and review by ordinary appeal. See In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 936 (Tex. App. Tyler 2005, orig. proceeding). It ensures that the trial court has the opportunity to rule on matters for which parties later seek review in the appellate court. Id. Equity is generally not served by issuing an extraordinary writ against a trial court on a ground that was never presented to the court and that the court thus had no opportunity to address. In re Bank of Am., N.A., No. 01-02-00867-CV, 2003 WL 22310800, at *2 (Tex. App. Houston [1st Dist.] Oct. 9, 2003, orig. proceeding) (mem. op. on reh g).

Here, Leach failed to raise the ground in question before the trial court issued its sanction order. Therefore, Leach failed to initially preserve this ground for review. See In re E. Tex. Med. Ctr. Athens, 154 S.W.3d at 936; see also Tex. R. App. P. 33.1(a). Leach asserts that he did preserve the ground because it was raised in his supplemental motion for rehearing. However, Leach failed to secure a ruling on his rehearing motions.

Leach alleges that the trial court refused to set his rehearing motions for a hearing. But there is nothing in the record that shows Leach ever objected to the trial court s failure to rule. Instead, it appears from the record that Leach chose to file this original proceeding in lieu of making further protests to the trial court.

Where a motion is not ruled on, the complaining party must object to the refusal to rule to preserve the matter for mandamus review. See In re E. Tex. Med. Ctr. Athens, 154 S.W.3d at 936; see also Tex. R. App. P. 33.1(a). Although the record shows that Leach objected to the trial court s refusal to grant a hearing, it does not show that he objected to its failure to rule on his motions. Further, Leach does not raise either failure as an issue here. Therefore, Leach has not preserved his fourth issue for review in this proceeding. See In re E. Tex. Med. Ctr. Athens, 154 S.W.3d at 936; see also Tex. R. App. P. 33.1(a).

Disposition

Leach s petition for writ of mandamus is denied, and our stay of July 5, 2007 is lifted.

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 15, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)