in Re: Christina Sharp ( 2005 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 24, 2005

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 24, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00042-CV

____________

IN RE CHRISTINA SHARP, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On January 19, 2005, relator filed a petition for writ of mandamus in this court.  See Tex. Gov=t. Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  Relator complains that, after trial on the merits before an associate judge, the referring court dismissed her appeal de novo without hearing.  One of the real parties in interest argued successfully that relator waived her appeal to the referring court because relator failed to object to the associate judge presiding over trial on the merits.

The standards applied in a mandamus proceeding have been clearly set by the Texas Supreme Court in Walker v. Packer, 827 S.W.2d 833 (Tex. 1992).  Mandamus is an extraordinary remedy.  Id.  at 840. To be entitled to the remedy of mandamus, a relator must meet two requirements. First, relator must show that the trial court clearly abused its discretion.  Id. at 839-40.  Second, the relator must have an inadequate remedy by appeal.  Id.  This court has no power to issue a writ of mandamus in the absence of these conditions. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).

Although real party in interest=s argument has been rejected in  Vaughan v. Vaughan, 805 S.W.2d 913 (Tex. App.CCorpus Christi 1991, writ denied), relator has an adequate remedy by appeal. See Santikos v. Santikos, 920 S.W.2d 731, 731 (Tex. App.CHouston [1st Dist.] 1996, writ denied) (dismissing mandamus because referring court=s failure to conduct a hearing de novo may be resolved by direct appeal). Relator has not established that she is entitled to mandamus relief.  Accordingly, we deny relator=s petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed January 24, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.