in Re: Jeffrey Don Alford and Angela Drew Alford, Relator ( 2003 )

NO. 07-03-0428-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

DECEMBER 16, 2003 ______________________________

IN RE: JEFFREY DON ALFORD and ANGELA DREW ALFORD,

Relators _______________________________ Original Proceeding -- Memorandum Opinion ________________________________

Before JOHNSON, C.J., QUINN and CAMPBELL, JJ.

Pending before the court is the petition for a writ of mandamus filed by Jeffrey Don Alford and Angela Drew Alford (the Alfords). They request that we order the Hon. Patrick A. Pirtle, 251st Judicial District, "to vacate the Order Severing the underlying case into two causes of action" and "to revise its order to clearly reflect that a Writ of Possession shall not issue until a final judgment has been obtained." Also sought is an order directing "Jo Carter, Clerk of the 251^st District Clerk [sic] to vacate her Writ of Possession which was issued prematurely." We deny the petition.

Background

The dispute arises from the performance of a contract for deed. The Alfords, as purchaser of the realty in question, and Cynthia Jean Roberts Mays, as seller, executed one. Thereafter, a question arose as to the Alfords' performance of their contractual obligations. The Alfords sued Mays alleging that she violated provisions of the Texas Property Code and the Texas Deceptive Trade Practices Act. Mays counterclaimed and sought possession of the property and damages represented by the sums allegedly due under the contract.

Eventually, both sides moved for summary judgment. After conducting a hearing, the trial court sent the parties a letter, dated August 27, 2003. Therein, it 1) determined that Mays elected to and rescinded the contract in conformance with statute, 2) denied the Alfords their claim of title, 3) declared that Mays was entitled to immediate possession of the property, 4) declared that Mays was entitled to a writ of possession, and 5) concluded that Mays had violated nine provisions of the Texas Property Code. So too did it "sever[] those claims pertaining to [Mays'] . . . forcible entry and detainer action" from the remaining allegations and "remand[ed] that issue to the appropriate justice of the peace court."

Several days later, the trial court also executed an order entitled "Partial Summary Judgment and Order of Severance." Therein, it declared that the Alfords' interest in the property was "properly terminated on or about August 12, 2002," awarded Mays ownership and "immediate possession" of the land, and "severed from the action by [Mays] . . . to obtain declaratory relief to quiet title and remove cloud from her title" the "damage claims asserted by" the Alfords. Also, the clerk was ordered to issue a writ of possession directing that the Alfords be removed from the property. Thereafter, the Alfords filed the instant petition for writ of mandamus with the court.

Issues One, Two and Three -- Finality of Summary Judgment and Severance

Through each issue, the Alfords question 1) whether a writ of possession could issue since the summary judgment was not final, and 2) whether their causes of action were properly severed from those of Mays. It is beyond dispute that mandamus is an extraordinary remedy. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994). One is not entitled to it simply because he may ask for it. In re Thorton-Johnston, 65 S.W.3d 137, 138 (Tex. App.--Amarillo 2001, orig. proc.). Instead, the applicant has a heavy burden to meet. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d at 305. Not only must he prove that the trial court abused its discretion, but also that the remedy offered by a later ordinary appeal is inadequate. Id.; Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992); In re Thorton-Johnson, 65 S.W.3d at 138. And, regarding the second prong, an appellate remedy is not inadequate simply because it may involve more delay or expense than obtaining an extraordinary writ. Walker v. Packer, 827 S.W.2d at 842. Instead, it must be shown that the relator stands to lose a substantial right if the appellate court does not intercede immediately. Id.

In attempting to establish their right to extraordinary relief, the Alfords do no more than purport to illustrate why the trial court erred or abused its discretion. They do not allege in their petition that they lack any remedy at law, that a later appeal would be inadequate, or that they would lose a substantive right if immediate relief were withheld. ⁽¹⁾ Nor do they attempt to explain why presenting their complaints through an appeal would be inadequate. Furthermore, it is not an appellate court's duty to draft a relator's contentions for him or read into the petition that which he omits. This is especially so here given the Alfords' complaint that the trial court already afforded Mays "a pre-judgment right . . . that was neither pled nor proven . . . ."

Having failed in toto to address the second element of their burden, the Alfords did not prove their entitlement to the extraordinary relief sought. Accordingly, we deny the petition for mandamus.

Brian Quinn

Justice

1. Indeed, our records illustrate that they have filed two notices of appeal from the underlying cause of action.

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                                                            NO. 07-11-0208-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL E

                                                                  JUNE 8, 2011

                                            ______________________________

                                                              STEVEN AVILES,

Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

Appellee

                                           _______________________________

                      FROM THE 137th DISTRICT COURT OF LUBBOCK COUNTY;

                         NO. 2006-414,317; HON. JOHN McCLENDON, PRESIDING

                                           _______________________________

                                                        ORDER OF DISMISSAL

                                           _______________________________

Before QUINN, C.J., PIRTLE, J., and BOYD, S.J.^[1]

            Appellant Steven Aviles appeals his conviction for possession of marijuana.  Appellant, his attorney, and the trial court judge signed a waiver of right to appeal that states that A[t]he Defendant in the above-entitled and –numbered cause, with advice of his attorney, after having been found guilty, judgment accordingly having been entered and Defendant having filed a Notice of Appeal in this cause, does hereby withdraw his Notice of Appeal and abandon and withdraw his right of appeal.”  This circumstance was brought to the attention of appellant and opportunity was granted him to obtain an amended certification entitling him to appeal.  No such certification was received within the time we allotted.  Having received no amended certification, we dismiss the appeal per Texas Rule of Appellate Procedure 25.2(d).

Per Curiam

Do not publish.

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^[1]John T. Boyd, Senior Justice, sitting by assignment.