in Re Invum Three, LLC

Petition for Writ of Mandamus Conditionally Granted and Corrected Opinion
filed August 1, 2017.
In The
Fourteenth Court of Appeals
NO. 14-17-00449-CV
IN RE INVUM THREE, LLC, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
Co Civil Ct at Law No 1
Harris County, Texas
Trial Court Cause No. 1091333
OPINION
We withdraw our opinion of July 5, 2017, and issue this corrected opinion.
The underlying proceeding is forcible detainer suit to gain possession of real
property. Relator is Invum Three, LLC, who is the plaintiff below. Real party-in-
interest is Ronald T. Ricks, who is defendant below (Ricks).
On June 7, 2017, Relator filed a petition for writ of mandamus in this court.
See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the
petition, Relator asks this court to compel the Honorable George Barnstone,
presiding judge of the County Civil Court at Law No. 1 of Harris County, to vacate
his May 5, 2017 order staying execution of a writ of possession signed on May 1,
2017.
We conditionally grant the petition for writ of mandamus.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 26, 2015, Ricks executed a deed of trust collateralizing property
known as 20334 Bishops Gate, Houston, Texas for the repayment of a loan. On
December 6, 2016, a creditor foreclosed on the subject property. Relator purchased
the property at the foreclosure sale.
Relator brought the underlying eviction suit by filing a complaint with the
Harris County Justice of the Peace, Precinct 4, Place 1. At the trial, the Justice Court
ruled in Relator’s favor. Ricks appealed to the County Court for a trial de novo. Trial
was held on April 18, 2017, but Ricks failed to appear. At trial, Relator presented
documentary and testimonial evidence, and upon the close of evidence the County
Court rendered judgment awarding Relator possession of the property.
On April 26, 2017, Relator requested and paid for a writ of possession from
the county clerk. On May 1, 2017, the clerk issued the writ of possession. On or
about May 4, 2017, a Harris County Deputy Constable posted the writ of possession
at the subject property. The same day, Ricks filed a motion to stay the writ of
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possession or alternatively to recall the writ of possession, and filed a motion for
new trial.
The following day, on May 5, 2017, the trial court held a hearing on the
motion to recall the writ of possession, and signed an order staying the writ of
possession. Additionally, the court ordered the Constable to not set the lockout date,
and to hold the writ in the Constable’s possession, until further instructions from the
court. The motion for new trial remains pending.
II. MANDAMUS STANDARD
To obtain mandamus relief, a relator generally must show both that the trial
court clearly abused its discretion and that relator has no adequate remedy by appeal.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). A trial court clearly abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if
it clearly fails to analyze the law correctly or apply the law correctly to the facts. In
re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (per curiam). The appellate court reviews the trial court’s application of
the law de novo. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding).
Relator has no adequate remedy by appeal because the rules do not provide
for a right to appeal an order staying the execution of a writ of possession.
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III. ANALYSIS
“Forcible-entry-and-detainer actions provide a speedy, summary, and
inexpensive determination of the right to immediate possession of real property.”
Hong Kong Dev. Inc. v. Nguyen, 229 S.W.3d 415, 433 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). “It was created to provide a speedy, simple, and inexpensive
means for resolving the question of the right to possession of premises.” Rice v.
Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). Accordingly, we
interpret the rules governing forcible-entry-and-detainer actions consistent with this
purpose.
The appellate jurisdiction of the county court is confined to the jurisdictional
limits of the justice court. Salaymeh v. Plaza Centro, LLC, 264 S.W.3d 431, 435
(Tex. App.—Houston [14th Dist.] 2008, no pet.).
Texas Rule of Civil Procedure 510.13, applicable here,1 states:
The writ of possession, or execution, or both, will be issued by the clerk
of the county court according to the judgment rendered, and the same
will be executed by the sheriff or constable, as in other cases. The
judgment of the county court may not be stayed unless within 10
days from the judgment the appellant files a supersedeas bond in
an amount set by the county court pursuant to Section 24.007 of the
Texas Property Code.
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Tex. R. Civ. P. 510.3(d) (“[e]viction cases are governed by Rules . . . and 510 of Part V of the
Rules of Civil Procedure”). Further, Rule 500.3(e) provides: “The other Rules of Civil Procedure and the
Rules of Evidence do not apply except: (1) when the judge hearing the case determines that a particular rule
must be followed to ensure that the proceedings are fair to all parties; or (2) when otherwise specifically
provided by law or these rules.” Tex. R. Civ. P. 500.3(e).
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Tex. R. Civ. P. 510.13 (emphasis added). Consistent with Rule 510.13, a writ of
possession was issued in accordance with the judgment rendered. Rule 510.13
prohibits a stay of the judgment in a forcible-entry-and-detainer action, absent the
filing of a supersedeas bond within ten days of the judgment. Ricks did not file a
supersedeas bond within ten days of the judgment or thereafter. Accordingly, the
trial court’s order staying the writ of possession, through which Relator seeks to
execute the judgment granting it possession, violates Rule 510.13’s unambiguous
language, and therefore constitutes a clear abuse of discretion.
IV. CONCLUSION
We therefore conditionally grant the petition for writ of mandamus. We direct
the trial court to immediately vacate its May 5, 2017 order staying execution of the
writ of possession. We are confident the trial court will act in accordance with this
opinion. The writ of mandamus shall issue only if the trial court fails to do so.
/s/ Kevin Jewell
Justice
Panel consists of Justices Boyce, Donovan, and Jewell.
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