Opinion
No. 06-17-00048-CV
04-19-2017
IN RE BAYVIEW LOAN SERVICING, LLC
Original Mandamus Proceeding Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
This is an original proceeding brought by Bayview Loan Servicing, LLC, relator, seeking issuance of a writ of mandamus requiring the respondent, the Honorable Robert Newsom, judge of the County Court of Hopkins County, to conduct a hearing on its motion to issue a writ of possession and to direct respondent to correctly apply the law in its ruling. Bayview states that a judgment in its forcible detainer action was signed on January 5, 2017, that the real party in interest, Carol Paselk, has appealed that judgment but has not filed a supersedeas bond, and that the Hopkins County clerk refuses to issue a writ of possession to Bayview. Bayview complains that although it filed a motion in the county court requesting the issuance of a writ of possession, the respondent failed to act on the motion and that the county clerk has stated that the respondent would not rule on the motion. Bayview also states that it filed a brief with the county court, but that the county clerk again stated that the respondent would not rule on its motion.
To be entitled to mandamus relief, the relator must show (1) that it has no adequate remedy at law and (2) that the action it seeks to compel is ministerial, not one involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). The relator is obligated to provide this Court with a record sufficient to establish its right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Pilgrim's Pride Corp., 187 S.W.3d 197, 198-99 (Tex. App.—Texarkana 2006, orig. proceeding); see TEX. R. APP. P. 52.3. Bayview did not attach to its mandamus petition certified or sworn, file-marked copies of its motion and its brief filed in the lower court. See TEX. R. APP. P. 52.7(a)(1) (requiring relator file with its 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"). Nevertheless, a copy of its brief is contained in the supplemental clerk's record filed in the underlying appeal, our cause number 06-17-00012-CV. Although Bayview characterizes that document as a brief, it is in substance a motion requesting the issuance of a writ of possession, and we will construe it as the motion for which Bayview requests a writ of mandamus.
In In re Estate of Velvin, we held that a petitioner's reference to documents which would be filed in the future when the clerk's record in his underlying appeal was filed was insufficient to satisfy Rule 52.7's requirement that "[r]elator must file with the petition: (1) 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 . . . ." TEX. R. APP. P. 52.7; see In re Estate of Velvin, 398 S.W.3d 426, 428 n.4 (Tex. App.—Texarkana 2013, orig. proceeding). We noted,
The filing of a record in one case does not operate to compensate for the deficiency of the record in another. A party does not have any right to use an appellate record in one case to compensate for a deficient record in another case even though an appellate court does have the authority (but rarely does) to take judicial notice of its own records.Velvin, 398 S.W.3d at 428 n.4. However, in Velvin, the record in the underlying appeal had not yet been filed when the petitioner sought the writ of mandamus. In the present case, the pleading which petitioner seeks enforcement of is filed as part of the clerk's record which is already on file in the underlying appeal.
In In re Spiller, the Waco Court of Appeals held that it would consider the petitioner's three letters to the court reporter requesting the trial court record in order to justify his delay in filing his petition for writ of mandamus even though the letters were not included in his appendix as required by Rule 52.7(a). In re Spiller, 303 S.W.3d 426, 430 (Tex. App.—Waco 2010, orig. proceeding). The Court of Appeals held, "Because such a defect may be corrected, and given the exigency of a petition for writ of mandamus, we will disregard Spiller's failure to comply with Rule 52.3(k) and 52.7(a)." Id. In the present case, because (1) the pleading at issue is already on file before this court in the underlying appeal and (2) Petitioner's failure to comply with Rule 52.7(a) is capable of being corrected and (3) given the exigency of a petition for a writ of mandamus, we will take judicial notice of Petitioner's brief requesting the issuance of a writ of possession which is on file in the underlying appeal in this case.
However, before mandamus may issue, the relator must show that the trial court had a legal duty to perform a ministerial act, was asked to do so, and failed or refused to act. In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). Unless a motion is brought to the trial court's attention, it has no duty to consider it. In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding). (citing In re Smith, No. 01-06-00532-CV, 2006 WL 2640617 (Tex. App.—Houston [1st Dist.] Sept. 14, 2006, orig. proceeding) (mem. op.); Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—Houston [1st Dist.] 1994, writ denied)). "Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court's attention or presented to the trial court with a request for a ruling." Id. (citing In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding)). Although it apparently checked with the county clerk on the status of its motion, Bayview does not state or provide other evidence that it has requested a hearing on the motion, that it has brought the motion to the trial court's attention, or that it has presented the motion to the trial court with a request for a ruling. Since it has not established that it has brought the motion to the respondent's attention and requested a ruling on the motion, Bayview has failed to demonstrate that it is entitled to mandamus relief. We deny its petition.
Ralph K. Burgess
Justice Date Submitted: April 18, 2017
Date Decided: April 19, 2017