in Re: Violette Brown ( 2007 )

NUMBER 13-07-218-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

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IN RE VIOLETTE BROWN

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On Petition for Writ of Mandamus ____________________________________________________________

MEMORANDUM OPINION

Before Justices Yañez, Benavides, and Vela Per Curiam Memorandum Opinion ⁽¹⁾

Relator, Violette Brown, pro se, has filed a petition for writ of mandamus seeking to compel the trial court to rule on her pending motion for summary judgment against John Boudreaux, plaintiff below. We deny the writ.

Traditionally, mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Relator has the heavy burden of establishing both an abuse of discretion by the trial court and an inadequate appellate remedy. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam). Relator has the further burden of providing this court with a sufficient record to establish a right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); see Tex. R. App. P. 52.3(j)(1)(A); 52.7(a).

A trial court has a ministerial duty to consider and rule on motions properly filed and pending before the court and mandamus may issue to compel the judge to act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.-San Antonio 1997, orig. proceeding) (citing O'Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex. App.-Tyler 1993, orig. proceeding)); see In re Mission Consol. Ind. Sch. Dist., 990 S.W.2d 459, 461 (Tex. App.-Corpus Christi 1999, orig. proceeding) (courts of appeals have the power to compel a trial judge to rule on pending motions).

To establish entitlement to the issuance of a writ of mandamus compelling a trial court to consider and rule on a pending motion, the relator bears the burden to establish that (1) the trial court had a legal duty to perform, (2) relator made a demand for performance of this duty, and (3) the trial court refused to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979); In re Torres, 130 S.W.3d 409, 413 (Tex. App.-Corpus Christi 2004, orig. proceeding). The trial court has a "reasonable" time within which to rule upon a motion. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio 1998, orig. proceeding); Safety-Kleen Corp., 945 S.W.2d at 269. Whether a reasonable period of time has lapsed is dependent on the circumstances of each case. Ex parte Bates, 65 S.W.3d 133, 135-36 (Tex. App.-Amarillo 2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.--Houston [1st Dist.] 1992, orig. proceeding). Factors relevant to whether a reasonable time has lapsed include: the trial court's actual knowledge of the motion, its overt refusal to act, the state of its docket, and other judicial and administrative duties which it must address. In re Villarreal, 96 S.W.3d 708, 711 (Tex. App.-Amarillo 2003, orig. proceeding).

As a general rule, however, mandamus is available only when it is conclusively shown that a judge has a clear legal duty to act and has refused to do so. In re Am. Media Consol., 121 S.W.3d 70, 72 (Tex. App.-San Antonio 2003, orig. proceeding). In other words, the relator must show that the matter was brought to the attention of the trial court and the trial court refused to rule. Barnes, 832 S.W.2d at 426; see In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001, orig. proceeding). A court is not required to consider a motion not called to its attention. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.-Houston [1st Dist.] 1994, writ denied). Showing that a motion was filed with a clerk does not constitute proof that the motion was brought to the trial court's attention or presented to the trial court with a request for a ruling. In re Davidson, 153 S.W.3d 490, 491 (Tex. App.-Amarillo 2004, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.-San Antonio 2004, orig. proceeding); Chavez, 62 S.W.3d at 228.

In the instant case, the record fails to include any file-stamped copies of the documents at issue. The mandamus petition includes a copy of relator's motion for summary judgment, which indicates that it was served on November 3, 2006, and the real party's response, which indicates that it was served on December 6, 2006. Documents in the record indicate that the matter was submitted to the trial court on December 13, 2006. However, there is no indication in the mandamus petition or record that, after filing the motion, relator asked the trial court to rule on the motion or otherwise did anything to bring the motion to the trial court's attention. Accordingly, the record does not show that the trial court has actual knowledge of relator's motion and has refused to act on it. See Bates, 65 S.W.3d at 136; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 424.

To the extent that relator's petition for writ of mandamus may be construed as a request for this Court to direct the trial court to issue a ruling in her favor on the motion for summary judgment, we would note that, even if we were granting mandamus relief, we would not issue a direction to the trial court regarding the substance of its ruling on the motion for summary judgment. See O'Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex. App.-Tyler 1993, orig. proceeding).

We conclude that relator has not satisfied her burden to show entitlement to mandamus relief. Walker, 827 S.W.2d at 837. Accordingly, the petition for writ of mandamus is denied. Tex. R. App. P. 52.8(a).

   PER CURIAM

Memorandum Opinion delivered and

filed this 12th day of April, 2007.

1. See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).