in Re Edward S. Hodges III ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00268-CV
IN RE EDWARD S. HODGES III
Original Proceeding
MEMORANDUM OPINION
Relator, Edward S. Hodges, III, asserts that he has filed the following:
1. A notice of appeal;
2. Motion to Amend Judgment and/or motion requesting nunc pro tunc;
3. Motion Requesting Findings of Fact and Conclusions of Law; and
4. Notice of Past Due Findings of Fact and Conclusions of Law.
Relator asks this Court to compel the trial court judge to rule on each.
As to the notice of appeal, the Clerk of the Court has asked the trial court clerk to
search the file for a notice of appeal filed around the date relator alleges one was filed,
that being, November 30, 2017. If any such notice was filed, the trial court clerk has been
requested to immediately forward it to this Court and an appeal will be docketed. Relief
by mandamus is not appropriate for this issue.
Relator’s request to compel the trial court to rule on the motion described as a
“Motion to Amend Judgment and/or motion requesting nunc pro tunc” is not
appropriate for mandamus relief because a motion to modify the judgment is overruled
by operation of law 75 days after the date the judgment is signed. See TEX. R. CIV. P.
329b(c). The judgment was signed on November 20, 2017. Accordingly the motion, if not
expressly ruled upon by the trial court has been ruled on by operation of law.
Relator’s request to compel the trial court to rule on his motions related to findings
of fact and conclusions of law is also inappropriate for relief by mandamus. The trial
court’s failure to file properly requested findings of fact and conclusions of law may be
presented as an issue on appeal. Because the relator would thus have available another
legal remedy, mandamus relief is not available for the trial court’s failure, if any, to file
findings of fact and conclusions of law when properly requested and reminded to do so.
See In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig. proceeding) (“To be entitled to
the extraordinary relief of a writ of mandamus, [relators] must show that the trial court
abused its discretion and there is no adequate remedy by appeal.”).
Accordingly, because mandamus relief is inappropriate for any of the relief
requested, Relator’s petition for writ of mandamus is denied.
TOM GRAY
Chief Justice
In re Hodges Page 2
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition denied
Opinion delivered and filed August 22, 2018
[OT06]
In re Hodges Page 3