in Re Saddle Brook West Apartments ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00103-CV

In re Saddle Brook West Apartments

Original Proceeding

MEMORANDUM  Opinion

            Saddle Brook West Apartments seeks a writ of mandamus compelling Respondent, the Honorable Michael B. Gassaway, Judge of the County Court at Law No. 2 of McLennan County, to set aside an order granting Ramiro Quiroga a stay of proceedings under the Servicemembers Civil Relief Act in Saddle Brook’s suit against Quiroga for breach of contract.  We will deny the relief requested.

Background

            Saddle Brook filed suit against Quiroga in December 2004.  Quiroga was not served until March 2007.  He promptly answered the suit with a general denial and later amended his answer to include several counterclaims.  On July 12, 2007, the Department of the Army issued memoranda authorizing Quiroga to report to Fort Benning, Georgia, for service in the Persian Gulf region as a civilian contractor, and he responded accordingly.

            One month later, Quiroga’s counsel filed a request for a stay under the Servicemembers Civil Relief Act.  See 50 U.S.C.S. app. §§ 501-596 (LexisNexis 1996 & Supp. 2007).  Respondent held a hearing on the request for stay then signed an order granting the request on November 27.

            Saddle Brook filed this mandamus petition on March 26, 2008.

Mandamus Relief

            “Mandamus relief is an extraordinary remedy that issues only if the court clearly abused its discretion and the relator has no adequate remedy by appeal.”  In re Sw. Bell Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007).  Generally, appellate courts have considered the erroneous grant of a stay or continuance to be an incidental trial ruling for which there is an adequate remedy by appeal.  See, e.g., In re Smart, 103 S.W.3d 515, 521 (Tex. App.—San Antonio 2003, orig. proceeding).  In these circumstances, mandamus relief is not available.  Id.

            However, mandamus relief is sometimes granted when an erroneous continuance operates to deny a litigant of a peculiar right not available to litigants in general or directly interferes with the jurisdiction of another court or administrative body.  See, e.g., City of Galveston v. Gray, 93 S.W.3d 587, 590-93 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding) (mandamus relief granted where trial court granted plaintiff’s continuance motion and refused to rule on city’s and county’s pleas to the jurisdiction premised on governmental immunity); In re Bishop, 8 S.W.3d 412, 421 (Tex. App.—Waco 1999, orig. proceeding) (mandamus relief granted where trial court erroneously granted an extension of the dismissal deadline provided by section 263.401 of the Family Code for parental-rights termination suits); Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821, 824 (Tex. App.—San Antonio 1994, orig. proceeding) (mandamus relief granted where trial court granted continuance of eminent domain proceedings which interfered with statutory duty of special commissioners to set and conduct such proceedings).

Application

            The general rule is that mandamus relief is not available to review the granting of a continuance motion.  See Smart, 103 S.W.3d at 521.  Saddle Brook’s case does not present any exceptional circumstances which would lead us to conclude that it has no adequate remedy by appeal.  Cf. City of Galveston, 93 S.W.3d at 592; Bishop, 8 S.W.3d at 421; Gulf Energy Pipeline, 884 S.W.2d at 824.  Therefore, we deny Saddle Brook’s petition for writ of mandamus.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

            (Chief Justice Gray concurs in the judgment denying the petition for writ of mandamus.  A separate opinion will not issue.  He notes, however, that the majority issued an order dated March 31, 2008 in which a response was requested.  The order includes the statement “Chief Justice Gray not participating.”  This statement is erroneous.  Rather than order a response I voted as follows:  “Saddle Brook West Apartments seeks relief of an order granting a stay for eight months under the Service Members Civil Relief Act. The stay was granted four months ago.  There are four months remaining in the stay as ordered.  I would deny the petition for mandamus because of Saddle Brook’s delay in seeking relief.  Even if the Act does not apply, I cannot say the trial court abused his discretion in granting the requested delay.”)

Petition denied

Opinion delivered and filed May 21, 2008

[OT06]

0;    By filing a motion for new trial and properly perfecting his appeal, Hanners had until November 4 to timely file a record. Tex. R. App. P. 5(a), 54(a,c). Under Rule of Appellate Procedure 54(c), Hanners was allowed an additional fifteen days from November 4 in which to move for an extension of time to file his record on showing a reasonable explanation for his failure to file the record timely. Id. 54(c). When no motion was filed by November 19, we sent the parties a letter on November 21 notifying them that the cause was subject to dismissal for failure to timely file a record. See id. 83.

      In a motion postmarked November 20, 1996, and filed November 22, 1996, Hanners requested that we extend the time in which to file the record. The deadline for filing or mailing the motion, however, was November 19. Id. 4(f), 54(a,c). Therefore, Hanners mailed it one day late. Id. We do not have authority to grant an untimely motion to extend the time to file the transcript. Texas Instruments v. Teletron Energy Management, 877 S.W.2d 276, 278 (Tex. 1994); B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982); Jarrell v. Serfass, 916 S.W.2d 719, 720 (Tex. App.—Waco 1996, no writ); Nueces Canyon Consol. Ind. v. Cent. Educ., 900 S.W.2d 417, 419 (Tex. App.—Austin 1995, no writ). Therefore, Hanners' motion to extend the time in which to file the record must be dismissed as untimely.

      Without a timely filed record and with this court lacking the authority to grant an untimely filed motion to extend the time to file the record, this court has no authority to consider Hanners' appeal. Tex. R. App. P. 54(a); B.D. Click Co. v. Safari Drilling Corp., 625 S.W.2d 364, 367 (Tex. App.—Eastland 1981), aff'd, 638 S.W.2d 860 (Tex. 1982); see Jarrell, 916 S.W.2d at 720. Therefore, his appeal is dismissed.

                                                                               PER CURIAM

Before Chief Justice Davis,

         Justice Cummings, and

         Justice Vance

Dismissed for failure to file transcript

Opinion delivered and filed December 18, 1996

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