Bobby B. Dash v. Parc Lake Estates Homeowners Association Inc. and Carl Edward Bovermann, John Mgbere, Tracy Herrmann ( 2018 )

Opinion issued June 21, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00338-CV
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BOBBY B. DASH, Appellant
V.
PARC LAKE ESTATES HOMEOWNERS ASSOCIATION INC., AND
CARL EDWARD BOVERMANN, JOHN MGBERE, TRACY HERRMANN,
Appellees
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2017-16096
MEMORANDUM OPINION
Appellant, Bobby B. Dash, proceeding pro se, filed in the district court a
document titled “Plaintiff’s Notice of Appeal to Issue Writ of Mandamus.” The
Harris County District Clerk treated the document as a notice of appeal. To the
extent this was a notice of appeal, we dismiss the appeal for want of jurisdiction.
The document in question stated:
Pursuant to Texas Government Code § 22.201(m),
§ 22.221(b)(1) and Texas Rules of Appellate Procedure 52,
Plaintiff and Relator Bobby B. Dash, hereby gives this Notice of
Appeal for the appellate court to issue a Writ of Mandamus for
the 152nd District Court (Respondent) to rule on Motions for
Summary Judgment still pending a ruling for over three (3)
months since the hearing, and five (5) months since filing. This
appeal will be taken to either the First or Fourteenth Court of
Appeals for the State of Texas.
Thus, while labeled a “notice of appeal,” the substance of the document states an
intent to seek a writ of mandamus, references statutes and rules pertinent only to
original proceedings, and refers to Dash as the relator and the district judge as the
respondent. Moreover, the document does not conform to the requirements for a
notice of appeal, as it fails to identify “the date of the judgment or order appealed
from.” TEX. R. APP. P. 25.1(d)(2).
This Court generally has appellate jurisdiction over appeals from signed, final
judgments or orders authorized by statute as appealable. See TEX. CIV. PRAC. & REM.
CODE ANN. §§ 51.012, 51.014(a)(1)–(13) (West 2014); see also Lehmann v. Har-
Con Corp., 39 S.W.3d 191, 192–93 (Tex. 2001). The trial court’s failure to rule
within a reasonable time is not appealable, but may constitute an abuse of discretion
for which the remedy of a writ of mandamus may be available. See, e.g., In re Lee,
2
411 S.W.3d 445, 450 n.7 (Tex. 2013) (orig. proceeding) (recognizing that mandamus
relief is available to remedy trial court’s erroneous refusal to enter judgment on
mediated settlement agreement); see also In re Granite Shop, No. 02-08-00410-CV,
2009 WL 485696, at *3 (Tex. App.—Fort Worth Feb. 24, 2009, orig. proceeding)
(per curiam) (mem. op.) (granting mandamus relief to compel respondent to vacate
order that earlier judgment was final and to proceed to rule on relator’s partial
summary judgment motion).
This Court’s May 15, 2018 Order and Notice of Intent to Dismiss for Want of
Jurisdiction took judicial notice that appellant had recently filed a pro se mandamus
petition and record on May 3, 2018, in this Court seeking the same relief as in this
appeal, and the mandamus petition has been assigned to appellate cause number 01-
18-00350-CV. See Douglas v. Am. Title Co., 196 S.W.3d 876, 877 n.1 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (citation omitted) (“We may take judicial notice
of our own records involving the same parties and subject matter.”). That Order also
notified appellant that this appeal was subject to dismissal for want of jurisdiction
unless he timely responded within ten days and showed how this Court had
jurisdiction. See TEX. R. APP. P. 42.3(a), (c). Appellant failed to timely respond.1
1
Although the Clerk of this Court’s May 31, 2018 notice warned the pro se appellant
that, because the clerk’s record has not been filed due to his lack of payment, this
appeal might be dismissed for want of prosecution unless he pays for that record’s
fee by July 2, 2018, this appeal must be dismissed regardless of whether the
3
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.
P. 42.3(a), 43.2(f).
PER CURIAM
Panel consists of Justices Keyes, Bland, and Massengale.
appellant responds to the notice because we lack jurisdiction. See TEX. R. APP. P.
42.3(a), (b).
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