In Re: Nicholas D. Mosser v. the State of Texas ( 2023 )

DENIED and Opinion Filed August 2, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00737-CV
IN RE NICHOLAS D. MOSSER, Relator
Original Proceeding from the 471st Judicial District Court
Collin County, Texas
Trial Court Cause No. 471-06006-2019
MEMORANDUM OPINION
Before Justices Molberg, Goldstein, and Breedlove
Opinion by Justice Molberg
Before the Court is relator’s July 26, 2023 petition for writ of mandamus.
Relator asks this Court to “instruct Respondent to vacate her orders, grant his
continuance, rule on the pending discovery motions, [and] compel Real Parties in
Interest’s responses to discovery.” He also asks this Court to “direct Respondent to
vacate her order, strike Real Party in Interest’s Summary Judgment and enter orders
permitting Relator to conduct any discovery.”
Entitlement to mandamus relief requires relator to show that the trial court
clearly abused its discretion and that relator lacks an adequate appellate remedy. In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). Relator bears the burden of providing the Court with a sufficient record
to show he is entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)
(orig. proceeding); see also TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a).
To the extent relator (1) argues that the trial court purportedly refused to
continue a July 21, 2023 summary-judgment hearing, (2) asks this Court to strike
real parties in interest’s summary-judgment evidence, and (3) asks this Court to
vacate a purported ruling on a motion to compel, after reviewing relator’s petition
and the record before us, we conclude that relator has failed to meet his burden to
provide a sufficient record. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1)–(2). In any
event, we further conclude that relator has failed to demonstrate entitlement to
mandamus relief based on the petition and record before us. See TEX. R. APP. P.
52.8(a). We also note that it appears relator may have identified the wrong
respondent with respect to his motion for continuance, but it is not clear on the record
before us. See TEX. R. APP. P. 52.3(a), (d)(2); see also In re Read, 05-22-01247-CV,
2022 WL 17828925, at *1 (Tex. App.—Dallas Dec. 21, 2022, orig. proceeding)
(mem. op.).
To the extent relator asks this Court to vacate the trial court’s summary-
judgment ruling, we conclude relator has failed to demonstrate entitlement to
mandamus relief. See TEX. R. APP. P. 52.8(a).
To the extent relator asks this Court to vacate any other orders or for any other
relief, relator’s petition does not comply with the Texas Rules Appellate Procedure.
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See TEX. R. APP. P. 52.3(d)(3), (f)–(i). Thus, the remainder of relator’s petition does
not meet the requirements of the Texas Rules of Appellate Procedure for
consideration of mandamus relief; therefore, we deny the remainder of relator’s
petition. See In re Jones, No. 05-23-00492-CV, No. 05-23-00493-CV, 2023 WL
4101440, at *1 (Tex. App.—Dallas June 21, 2023, orig. proceeding) (mem. op.).
Also before the Court is relator’s August 1, 2023 motion for emergency stay.
We deny the motion as moot.
/Ken Molberg//
230737f.p05 KEN MOLBERG
JUSTICE
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