in Re Harvey Bramlett, Relator

NO. 07-09-0113-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 30, 2009

______________________________

IN RE HARVEY BRAMLETT, RELATOR

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER OF ABATEMENT

          Relator, Harvey Bramlett, proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the Honorable Abe Lopez to rule on motions pending in the 108th District Court of Potter County, Texas. The motions are dated February 19, 2009. On our own motion, we take judicial notice that, effective January 1, 2009, the Honorable Douglas Woodburn now holds the office as Judge Lopez’s successor.

          A writ of mandamus is an order directed personally to the respondent. In re Roseland Oil & Gas, Inc., 68 S.W.3d 784, 786 (Tex.App.–Eastland 2001, orig. proceeding) (“[m]andamus is personal to the judge”). Accordingly, “[m]andamus will not issue against a new judge for what a former one did.” In re Baylor Med. Ctr. at Garland, No. 06-0491, 2008 WL 3991132, at *1(Tex. Aug. 29, 2008) (orig. proceeding) (citing State v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962) (orig. proceeding)). Rule 7 of the Texas Rules of Appellate Procedure pertains to the substitution of parties in pending appeals and original proceedings. Tex. R. App. P. 7. In part, Rule 7 provides that during an original proceeding against a public officer in an official capacity, if the officer ceases to hold office, the officer’s successor is automatically substituted as a party and “the court must abate the proceeding to allow the successor to reconsider the original party’s decision.” See Tex. R. App. P. 7.2(a) and (b). See also In re Whitfield, 134 S.W.3d 314, 315 (Tex.App.–Waco 2003, orig. proceeding).

          Accordingly, we order the substitution of Judge Woodburn as Respondent in this original proceeding, see Tex. R. App. P. 7(a), and abate the case for sixty days from the date of this order. During the period of abatement, Relator shall present to Judge Woodburn the requests made the subject of his pending petition for writ of mandamus, obtain a ruling on each, and amend his petition to comply with Rule 53.2 of the Texas Rules of Appellate Procedure.

          It is so ordered.

     Per Curiam  

 

.

Nor does the record afford us evidence upon which to conclude that Placid somehow acted less than diligently in pursuing the matter once a hearing was sought. Nor can one reasonably attribute non-feasance to the company simply because 32 months lapsed before the trial court ruled on the motion. A myriad of things could have caused that delay. It is quite possible that Placid did nothing. Equally possible is that Placid diligently pursued resolution of its motion but that the trial court's docket did not permit determination of the request. Or, it could be that the trial court awaited Bristol's response to the motion, which response was not filed until five weeks before the matter was formally submitted to the court. In any case, the burden lay with Bristol to present us with an appellate record supporting his contention that Placid was less than diligent, In re Spiegel, 6 S.W.3d 643, 646 (Tex. App.-Amarillo 1999, no pet.), and it did not. Thus, to impute non-feasance to the oil company would be to act upon mere speculation, something we cannot do.

Furthermore, it may be that delay in obtaining a hearing provides grounds for the trial court to deny a motion to transfer. Yet, such a delay does not mean that the trial court must deny it. It remains within its discretion to nevertheless entertain the motion on the merits if it so chooses. Kerrville State Hosp. v. Clark, 900 S.W.2d 425, 430 n.2 (Tex. App.-Austin 1995), rev'd on other grounds, 923 S.W.2d 582 (Tex. 1995). Here, the court chose to entertain it, and, we cannot hold that it abused its discretion in doing so. This is especially so given that Bristol nowhere asserts that the delay impaired his ability to defeat the motion.

Invocation of Trial Court's Jurisdiction

Lastly, Bristol asserts that the trial court was obligated to deny the motion because Placid invoked "the judicial power of the Tarrant County Court in a manner inconsistent with a continuing intention to transfer venue." The manner in which it allegedly invoked that power was through filing a motion for summary judgment. Yet, Placid expressly made its request for summary judgment subject to its motion to transfer venue. Under that circumstance, seeking relief from the court did not result in waiver of the pending motion to change venue. General Motors Corp. v. Castaneda, 980 S.W.2d 777, 783 (Tex. App.--San Antonio 1998, pet. denied) (holding that GM did not waive its motion to transfer because it stated in its later motions that same were subject to its venue motion).

Next, the authorities cited by Bristol as support for his contention are inapposite. For instance, the court in Kohut v. Mrs. Baird's Bakeries, Inc., 478 S.W.2d 139 (Tex. Civ. App.--Houston [14th Dist.] 1972, no writ) was faced with a situation where Baird's pursued summary judgment after its motion to transfer venue had been sustained. That did not occur here. Nor was the case at bar actually tried on the merits before the venue issue was heard; that is what distinguishes Gentry v. Tucker, 891 S.W.2d 766 (Tex. App.--Texarkana 1995, no writ) from the dispute before us. Finally, Dossey v. Oehler, 359 S.W.2d 624 (Tex. Civ. App.--Eastland 1962, writ dism'd w.o.j.) is readily distinguishable since the plea of privilege filed there was made subject to a plea in abatement. That is, the defendant in Dossey first moved to abate the proceeding and then to transfer venue, stating that the latter was subject to the former. In doing so, it ignored the concept of due order of pleadings. Nothing like that happened here.

Accordingly, we overrule the three issues asserted by Bristol and affirm the judgment entered below.

Brian Quinn

Justice

Publish.

1.

The version of §15.011 in existence at the time suit was filed stated that:

[a]ctions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located.

Tex. Civ. Prac. & Rem. Code Ann. §15.011 (Vernon 1986).

2.

To the extent that Bristol sought a constructive trust via an amended pleading filed after the cause was transferred from Tarrant to Yoakum County, the amendment would have entitled Placid to again seek transfer, assuming the Tarrant County district court had initially refused to transfer the proceedings. Gold v. Insall, 8 S.W.2d 542, 543 (Tex. Civ. App.-Galveston 1928, writ dism'd w.o.j.) (stating that one who has previously waived an opportunity to transfer venue may regain such opportunity when the plaintiff amends his pleading to allege a new cause of action implicating a different venue provision). Thus, irrespective of whether the demand for the trust had been asserted in Bristol's initial pleading and retained throughout the cause or first mentioned in his last pleading, venue still lay in Yoakum County, i.e. the county wherein the land was located.