In Re: State Farm Mutual Automobile Insurance Company, Todd Joseph Dauper, and Armando De Diego v. the State of Texas

Conditionally Grant and Opinion Filed August 23, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00229-CV

IN RE STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
TODD JOSEPH DAUPER, AND ARMANDO DE DIEGO, Relators

Original Proceeding from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-23-00225-D

MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Breedlove
Opinion by Justice Molberg

In this mandamus proceeding, relators include State Farm Mutual Automobile

Insurance Company and Todd Joseph Dauper (collectively, “State Farm”),1 as well

as their attorney, Armando De Diego. Relators challenge three sanctions orders

requiring De Diego to pay up to $88,240 before final judgment to counsel for

plaintiff and real party in interest, Alexander Nicastro. After the trial court signed

those sanctions orders, relators filed in our Court a petition for writ of mandamus

and an emergency motion for stay of those orders, contending in their petition that

1
Relator Dauper is a State Farm adjuster. For simplicity, and as is consistent with relators’ own
petition, we refer to State Farm and Dauper together as State Farm.
the trial court abused its discretion in requiring De Diego to pay the sanctions award

before the rendition of final judgment and that State Farm and De Diego have no

adequate remedy by appeal because the sanctions orders have a preclusive effect on

State Farm’s access to the courts and ability to retain the counsel of its choice. By

our order of February 29, 2024, we granted in various respects relators’ emergency

motion and stayed portions of the challenged orders.2

Below, without addressing the merits of the sanctions orders, we conditionally

grant the petition and direct the trial court, within seven days of the date of this order,

to sign a new order either (1) providing that the amounts ordered to be paid by De

Diego in its February 19, 2024 and February 26, 2024 orders are payable only at a

date that coincides with or follows entry of a final order terminating the litigation

and vacating the portions of its February 19, 2024 and February 26, 2024 orders

providing earlier deadlines or (2) promptly setting a hearing and making express

written findings explaining why ordering De Diego to pay the amounts ordered in

its February 19, 2024 and February 26, 2024 orders before entry of a final judgment

2
Specifically, our February 29, 2024 order stayed enforcement of the portion of two of the trial court’s
February 19, 2024 orders whereby the trial court ordered De Diego, in each of the two orders, to pay any
“monetary fees within fifteen (15) days of the signing of this Order” and the portion of the trial court’s
February 26, 2024 Order Granting Plaintiff’s Requests for Sanctions (Contained In Plaintiff’s Response to
Defendants’ Motion to Abate Trial Pending Results of Appeal) whereby the trial court ordered [De Diego]
to pay any “monetary fees within seven (7) days of the signing of this Order.”
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will not significantly impair State Farm’s willingness or ability to continue the

litigation.3

I. BACKGROUND

We will briefly summarize only the pertinent facts because the merits of the

underlying litigation are not at issue in this original proceeding,

In three orders signed in February 2024, the trial court granted certain motions

for sanctions filed by real party in interest and plaintiff Alexander Nicastro. In each

order, the trial court found De Diego had acted in bad faith and ordered De Diego to

pay to Nicastro’s counsel up to $88,240 within a short time frame and before final

judgment.4

3
Also within seven days of the date of this order, the trial court shall file in this Court a written
notification informing this Court of the action taken in compliance with this order. A writ will issue only
if the trial court fails to comply within seven days of the date of this opinion.
4
Trial was scheduled to begin August 13, 2024. The three orders required De Diego to pay as follows:
(1) one February 19, 2024 order required De Diego to pay Nicastro’s counsel, within fifteen days of
the date of that order, $3,685 as reimbursement for Nicastro’s attorneys’ fees, $10,000 in sanctions,
$7,500 if defense counsel filed and was unsuccessful in an appeal or mandamus proceeding in this
Court, and $10,000 if defense counsel filed and was unsuccessful in an appeal or mandamus proceeding
in the Texas Supreme Court;
(2) another February 19, 2024 order required De Diego to pay Nicastro’s counsel, within fifteen days
of the date of that order, $3,975 as reimbursement for Nicastro’s attorneys’ fees, $10,000 in sanctions,
$7,500 if defense counsel filed and was unsuccessful in an appeal or mandamus proceeding in this
Court, and $10,000 if defense counsel filed and was unsuccessful in an appeal or mandamus proceeding
in the Texas Supreme Court; and
(3) the February 26, 2024 order required De Diego to pay Nicastro’s counsel, within seven days of the
date of that order, $3,080 as reimbursement for Nicastro’s attorneys’ fees, $5,000 in sanctions, $7,500
if defense counsel filed and was unsuccessful in an appeal or mandamus proceeding in this Court, and
$10,000 if defense counsel filed and was unsuccessful in an appeal or mandamus proceeding in the
Texas Supreme Court.
In their petition in our Court, relators describe the sanctions as requiring De Diego to pay $35,740
before an appealable judgment, not the $88,240 figure we describe elsewhere in the opinion. The difference
in the two figures is $52,500, which consists of the total amount the trial court ordered if defense counsel
filed and was unsuccessful in an appeal or mandamus proceeding in this court or in the Texas Supreme

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Before those orders were signed, relators opposed requiring payment of

sanctions before final judgment on the ground that doing so would prevent the

litigation from going forward. Specifically, in a February 2, 2024 hearing, De Diego

argued:

First of all, requiring the payment of sanctions within 15 days from the
date of the order is essentially a – something that the court cannot do
because you are essentially preventing the litigation from going
forward. There’s case law on that point.

If you make it so that it’s after the trial of the case, you eliminate that
potential problem. But sanctions that you’re awarding is essentially
something that can stop the litigation. And the Supreme Court has said
that’s not an appropriate thing to do.

Despite relators’ argument, which they raised again shortly after the February

2, 2024 hearing,5 the trial court signed its two February 19, 2024 orders and its

February 26, 2024 order requiring De Diego to pay Nicastro’s counsel up to $88,240

Court. We describe the sanctions as we do because each of the sanctions orders state that De Diego “shall
pay the above monetary fees” after describing the amounts included in paragraphs (1) through (3) above.
5
In written objections filed by State Farm on February 6, 2024, De Diego argued that “[r]equiring the
payment of sanctions before the conclusion of the case has a chilling effect on [State Farm’s] defense . . .
and is therefore improper under Texas law.” The next day, in a letter to the trial court with a courtesy copy
of those written objections, De Diego argued:
[I]f the Court is considering awarding the sanctions announced during the [February 2,
2024] hearing . . . my clients and I request that instead of being due within 15 days from
the date the order is signed, the sanctions be due after a judgment in this case. First, the
timing of the payment of sanctions within 15 days of the date of the order is an abuse of
discretion since it does not give my clients and me the opportunity to appeal the sanctions
order before the award is due. In re Casey, 589 S.W.3d 850, 854–55 (Tex. 2019). The
Supreme Court noted in In re Casey that the payment of $8,521.50 was such a sizable
sanctions award that making it payable before rendition of an appealable order could have
a “preclusive effect on access to the courts” and should not be used to dispose of litigation.
Id. at 855, [citing] Braden v. Downey, 811 S.W.2d 922 (Tex. 1991) as additional support.
In Braden v Downey, the Supreme Court similarly found the timing of the payment of
sanctions before there was an opportunity to appeal was an abuse of discretion. Id. at 930.

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within a short time frame and before final judgment. None of those orders include

findings explaining why ordering De Diego to pay the amounts ordered before entry

of final judgment does not preclude State Farm’s access to the courts. This

mandamus proceeding followed.

II. ISSUES AND ANALYSIS

To be entitled to mandamus relief, a relator must show both that the trial court

has clearly abused its discretion and that relator has no adequate remedy by appeal.

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding).

Relators argue the trial court abused its discretion in requiring De Diego to

pay the sanctions award before the rendition of final judgment and that State Farm

and De Diego have no adequate remedy by appeal because the sanctions orders have

a preclusive effect on State Farm’s access to the courts and ability to retain the

counsel of its choice. Nicastro disputes both arguments.

In Braden, the Texas Supreme Court recognized that, “[i]f the imposition of

monetary sanctions threatens a party’s continuation of the litigation, appeal affords

an adequate remedy only if payment of the sanctions is deferred until final judgment

is rendered and the party has the opportunity to supersede the judgment and perfect

his appeal.” 811 S.W.2d at 929. To address the harsh, inequitable scenario that may

arise when the imposition of monetary sanctions threatens a party’s continuation of

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the litigation, Braden adopted the procedure used in Thomas v. Capital Security

Services, Inc., 836 F.2d 866 (5th Cir. 1988), which provides:

[I]f a litigant contends that a monetary sanction award precludes access
to the court, the [trial] judge must either (1) provide that the sanction is
payable only at a date that coincides with or follows entry of a final
order terminating the litigation; or (2) makes express written findings,
after a prompt hearing, as to why the award does not have such a
preclusive effect.

Braden, 811 S.W.2d at 929 (quoting Thomas, 836 F.2d at 882–83 n.23 and stating,

“We adopt this same procedure for future cases.”).

Later, the Texas Supreme Court further explained,

Subject to good-faith pleading requirements, when a litigant
. . . “contends that a monetary sanction award precludes access to the
court,” the court “must either (1) provide that the sanction is payable
only at a date that coincides with or follows entry of a final order
terminating the litigation; or (2) make[ ] express written findings, after
a prompt hearing, as to why the award does not have such a preclusive
effect.”

In re Casey, 589 S.W.3d 850, 855 (Tex. 2019) (orig. proceeding) (per curiam)

(quoting Braden, 811 S.W.2d at 929). Courts shall presume that pleadings, motions,

and other papers are filed in good faith. TEX. R. CIV. P. 13.

Additionally, the court explained,

Braden concerns are implicated based on a sanction order’s
requirement that the sanction be paid in advance of an appealable
judgment, and when properly invoked, the Braden process favors
deferral by making that the default unless the trial court supports the
requirement of an upfront payment by (1) holding a “prompt hearing”
and (2) making “express written findings” that the immediate-payment
requirement will not significantly impair a party’s willingness or ability
to continue the litigation. Braden, 811 S.W.2d at 929–30 (requiring
deferral when a party contends prepayment will have a preclusive effect
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unless the court holds a prompt hearing and makes express fact
findings).

In re Casey, 589 S.W.3d at 856.

Here, during the February 2, 2024 hearing, relators effectively contended in

the trial court that requiring De Diego to make the payments before entry of final

judgment would preclude State Farm’s access to court. See In re Harvey, No. 02-

23-00401-CV, 2023 WL 8643022, at *5 (Tex. App.—Fort Worth Dec. 14, 2023,

orig. proceeding) (mem. op.); see also TEX. R. CIV. P. 13 (“Courts shall presume that

pleadings, motions, and other papers are filed in good faith.”).

In light of relators’ presumptively good faith contention that requiring De

Diego to make the payments before entry of final judgment would preclude State

Farm’s court access, under both Braden and Casey, the trial court should have either

(1) provided that the sanctions are payable only at a date that coincides with or

follows entry of a final order terminating the litigation; or (2) made express written

findings, after a prompt hearing, as to why the award does not have such a preclusive

effect. See In re Casey, 589 S.W.3d at 856; Braden, 811 S.W.2d at 929; see also In

re Harvey, 2023 WL 8643022, at *6.

Because the trial court did neither, we conclude the trial court abused its

discretion by ordering De Diego to pay the monetary sanctions prior to final

judgment without making express written findings concerning why the monetary

sanctions did not have a preclusive effect on State Farm’s access to the court, and

that, by doing so, the trial court effectively prevented relators from having an
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adequate remedy by appeal. See In re Casey, 589 S.W.3d at 856; Braden, 811

S.W.2d at 929; see also In re Harvey, 2023 WL 8643022, at *6.6 The trial court

erred not by making the wrong call on the Braden analysis but instead by failing to

do what Braden and In re Casey required when faced with the presumptively good-

faith contentions relators made in this case.

III. CONCLUSION

Without addressing the merits of the sanctions orders, we conditionally grant

relators’ petition and direct the trial court, within seven days of the date of this order,

to sign a new order either (1) providing that the amounts ordered to be paid by De

Diego in its February 19, 2024 and February 26, 2024 orders are payable only at a

date that coincides with or follows entry of a final order terminating the litigation

and vacating the portions of its February 19, 2024 and February 26, 2024 orders

providing earlier deadlines or (2) promptly setting a hearing and thereafter making

express written findings explaining why ordering De Diego to pay the amounts

ordered in its February 19, 2024 and February 26, 2024 orders before entry of a final

judgment will not significantly impair State Farm’s willingness or ability to continue

the litigation. Also within seven days of the date of this order, the trial court shall

file in this Court a written notification informing this Court of the action taken in

6
While we reached a different conclusion as to the inadequate remedy element in In re Conry, No. 05-
22-01279-CV, 2022 WL 17369354, at *1 (Tex. App.—Dallas Dec. 2, 2022, orig. proceeding) (mem. op.),
that case is materially distinguishable, as Conry did not contend the sanction affected her willingness or
ability to proceed and provided no mandamus record to show such a contention was made in the trial court.
Id.
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compliance with this order. The writ will issue only if the trial court fails to comply

within seven days of the date of this opinion.

The temporary stay that this Court issued on February 29, 2024, is ordered

dissolved upon the trial court’s compliance with this Court’s order accompanying

this opinion.

/Ken Molberg/
KEN MOLBERG
JUSTICE
240229F.P05

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