
 
 











  



 OPINION


No. 04-09-00151-CV

In re ROMERO, GONZALEZ & BENAVIDES, L.L.P.

Original Mandamus Proceeding (1)

Opinion by:	Sandee Bryan Marion, Justice
 
Sitting:	Sandee Bryan Marion, Justice
		Rebecca Simmons, Justice
		Steven C. Hilbig, Justice		

Delivered and Filed:	May 20, 2009

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

	Relator Romero, Gonzalez & Benavides, L.L.P. ("RG&B") seeks a writ of mandamus
compelling the trial court to order the clerk of the court to release to relator funds held in the court's
registry.  We conditionally grant the writ.
BACKGROUND
	RG&B represented the Gonzalez family in a products liability and wrongful death lawsuit
against Reliance Water Heater Co. and other defendants ("Reliance").  Mark A. Cantu d/b/a the Law
Office of Mark Cantu ("Cantu") intervened in the lawsuit claiming, among other things, that RG&B
had interfered with his contract to represent the Gonzalez family.  RG&B mediated and settled the
Gonzalez family's claims against Reliance.  Pursuant to an Agreed Order between RG&B and Cantu,
a percentage of the attorney's fees awarded to RG&B was placed in the court's registry for Cantu. 
Following subsequent litigation, the trial court signed a judgment concluding the legal services
contract between Cantu and the Gonzalez family was void and RG&B was entitled to the funds held
in the court's registry.  RG&B filed a post-judgment motion to release the funds.  After a hearing,
the trial court denied RG&B's motion and stated it would not release the funds while Cantu's appeal
of its judgment was pending.  RG&B filed a petition for a writ of mandamus asking this court to
instruct the trial court to issue an order to the clerk of the court to disburse the funds held in the
court's registry.  We conditionally grant RG&B's writ.
DISCUSSION
	The sole issue in this petition for writ of mandamus is whether the trial court abused its
discretion in denying RG&B's motion to enforce the judgment and release the funds in the court's
registry to RG&B when no supersedeas bond has been filed by Cantu.  Mandamus will issue only
to correct a clear abuse of discretion for which the relator has no adequate remedy at law. 
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding); Walker v.
Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).  A trial court has no discretion in
determining what the law is or in applying the law to the facts, and a clear failure to analyze or apply
the law correctly will constitute an abuse of discretion.  Walker, 827 S.W.2d at 840.  "To satisfy the
clear abuse of discretion standard, the relator must show 'that the trial court could reasonably have
reached only one decision.'"  Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996)
(quoting Walker, 827 S.W.2d at 840).
 A trial court has an affirmative duty to enforce its judgment. Tex. R. Civ. P. 308; In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex. 2003) (orig. proceeding).  And, the prevailing
party has a statutory right to obtain execution of the judgment pending appeal unless and until the
judgment debtor properly supersedes the judgment.  Mercantile Bank & Trust v. Cunov, 733 S.W.2d
717, 718 (Tex. App.--San Antonio 1987, no writ).  The Rules of Appellate Procedure allow a
judgment debtor to supersede a judgment, thereby suspending enforcement, by posting security set
by the trial court, not by merely filing an appeal. Tex. R. App. P. 24.1, 24.2(a)(3); In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d at 179.  Unless the judgment debtor files a supersedeas bond
to delay the enforcement of the final judgment, the trial court has no discretion to suspend the
enforcement of the final judgment pending appeal.  See Tex. Employers' Ins. Ass'n v. Engelke, 790
S.W.2d 93, 95 (Tex. App.--Houston [1st Dist.] 1990, no writ); Merrell v. Fanning & Harper, 597
S.W.2d 945, 950 (Tex. Civ. App.--Tyler 1980, no writ); Bryan v. Luhning, 106 S.W.2d 403, 404
(Tex. Civ. App.--Galveston 1937, no writ).  Here, Cantu did not post a supersedeas bond with the
trial court that would suspend the enforcement of the final judgment.
	"A party is entitled to mandamus relief to vacate an order that wrongly denies a prevailing
party's attempt to enforce an unsuperseded judgment."  In re Crow-Billingsley Air Park, Ltd., 98
S.W.3d at 179.  Therefore, we conclude the trial court erred in denying RG&B's post-judgment
motion to release the funds. 	
CONCLUSION
	 Accordingly, we conditionally grant the writ of mandamus.  The writ will issue only if the
trial court fails to withdraw its orders denying RG&B's motion to release funds and enter an order
releasing the funds within ten days.  


							Sandee Bryan Marion, Justice


1. This proceeding arises out of Cause No. 2005CVQ000954-D2, styled Guerra & Moore, Ltd., LLP. v. Mark
Cantu d/b/a Law Office of Mark Cantu v. Glen Romero et al.,  in the 111th Judicial District Court, Webb County, Texas,
the Honorable Raul Vasquez presiding. 
