in the Matter of the Marriage of Lybby L. Baggett and Larry K. Baggett

NO. 07-02-0087-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 19, 2002

______________________________



IN THE MATTER OF THE MARRIAGE OF LYBBY L. BAGGETT AND LARRY K. BAGGETT

_________________________________

FROM THE 286^TH DISTRICT COURT OF HOCKLEY COUNTY;

NO. 01-04-18,365; HONORABLE ANDY KUPPER, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ON MOTION TO DISMISS

Larry K. Baggett (Larry) and Lybby L. Baggett (Lybby) have both appealed from a divorce decree entered by the trial court on November 16, 2001. The reporter's and clerk's records have been filed. We now have before us a motion filed by Lybby in which she requests that we dismiss Larry's appeal because he has "voluntarily accepted benefits from the divorce decree." She cites no authority in support of her request. We also have before us Larry's request for an extension of time to file his appeal brief until May 2, 2002, due to his need to respond to the motion to dismiss and other trial commitments of his counsel.

It has been held that a litigant may not treat a judgment as both right and wrong by voluntarily accepting benefits awarded by it and also prosecuting an appeal from it. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). However, the rule does not apply when a reversal of the judgment on the grounds asserted by the appellant could not possibly affect the benefits received. Demler v. Demler, 836 S.W.2d 696, 697 (Tex.App.-- Dallas 1992, no writ); see also Matter of Marriage of Beavers, 648 S.W.2d 729, 732 (Tex.App.--Amarillo 1983, no writ).

In support of her motion to dismiss, Lybby references testimony by Larry at a hearing on post-judgment motions in which he states he took some of his clothes and some barrels, bullets, primers, and powder that he needed to compete with his target rifles, which were allegedly awarded to him in the final divorce decree. However, Larry's notice of appeal does not give any indication of the issues he intends to assert on appeal and, since he has not yet filed his brief, we have no way of knowing what those issues might be and whether reversal of the divorce decree based on those issues could possibly have an effect on the award of those items.

Accordingly, we overrule Lybby's motion to dismiss at this time. Further, Larry is hereby granted until May 2, 2002, to file his brief in this appeal.

Per Curiam

Do not publish.

left to the exercise of discretion. Medina County Com'rs Court v. Integrity Group, Inc., 21 S.W.3d 307, 309 (Tex.App.--San Antonio 1999, pet. denied); Skeen v. Kent, 932 S.W.2d 585, 588 (Tex.App.--Tyler 1995, no writ). For purposes of a petition for mandamus relief, consideration of a motion properly filed and before the court is ministerial. Kozacki v. Knize, 883 S.W.2d 760, 762 (Tex.App.--Waco 1994, no writ).

However, relator is required to file with his petition a certified or sworn copy of every document that is material to the his claim for relief and which was filed in any underlying proceeding. Tex. R. App. P. 52.7(a). No clerk's record has been provided, so we have nothing before us other than relator's statement and verification, without witness by a notary public, that the trial court has failed to act upon his motions for summary judgment and for preliminary injunction, or that relator filed his motion for judicial notice of adjudicative facts prior to October 22, 2001. ⁽²⁾ Thus, in the record before us, there is nothing to show a refusal on the part of the trial court to consider relator's motions. Indeed, the record before us shows that the trial court will consider those motions, and even if we assume that the trial court has not yet ruled on those matters as relator asserts, the mere fact that the court has not entered a ruling within two or three weeks of the date upon which the court indicated it would begin its consideration does not demonstrate its refusal to do so.

Thus, relator has at this time failed to meet his burden to establish an entitlement to mandamus relief. Therefore, his motion for leave to file his petition for writ of mandamus is denied.

Per Curiam

Do not publish.

1. None of the copies contain a file stamp showing they have been filed with the court clerk.

2.

Relator's first motion for judicial notice of adjudicative facts essentially requests the trial court to judicially notice all of the facts asserted in his motion for summary judgment, as well as some facts which may be relevant to the motion for summary judgment, but which are not asserted therein.