in Re James C. Fuller ( 2010 )


Menu:
  •  

    IN THE

    TENTH COURT OF APPEALS

     

     

     


    No. 10-10-00299-CV

     

    In re James C. Fuller

     

       


    Original Proceeding

     

     

    MEMORANDUM  Opinion

     

                James C. Fuller seeks a writ of mandamus compelling Respondent, the Honorable Barbara Hale, Judge of the County Court at Law of Walker County, to render a final judgment in his lawsuit.  See Fuller v. Moya, No. 10-09-00294-CV, 2009 Tex. App. LEXIS 9596 (Tex. App.—Waco Dec. 16, 2009, no pet.) (dismissing Fuller’s appeal for lack of final judgment).  We will deny Fuller’s mandamus petition.[1]

                There are three prerequisites for the granting of mandamus relief: (1) the lower court must have a legal duty to perform a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the subject court must refuse that request.  O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding); In re Thirty-Four Gambling Devices, 304 S.W.3d 503, 505 (Tex. App.—Amarillo 2009, orig. proceeding).

    Here, Fuller has not provided a certified or sworn mandamus record indicating that he has requested Respondent to render a final judgment in his suit.  See Tex. R. App. P. 52.7(a)(1) (relator must file with mandamus petition “a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding”).  Because Fuller has not established that he made a demand for performance, we deny his mandamus petition.  See O’Connor, 837 S.W.2d at 97; Thirty-Four Gambling Devices, 304 S.W.3d at 505.

     

    FELIPE REYNA

    Justice

    Before Chief Justice Gray,

    Justice Reyna, and

    Justice Davis

    Petition denied

    Opinion delivered and filed August 25, 2010

    [OT06]


     



    [1]               We apply Rule of Appellate Procedure 2 and disregard numerous deficiencies in Fuller’s mandamus petition.  See Tex. R. App. P. 2, 52.3(j).

    ily:Palatino'>        Justice Vance, and

            Justice Reyna

    Appeal dismissed

    Opinion delivered and filed February 27, 2008

    Do not publish

    [CR25]

Document Info

Docket Number: 10-10-00299-CV

Filed Date: 8/25/2010

Precedential Status: Precedential

Modified Date: 10/16/2015