in Re: Bettie Priester and John Priester, Jr.

• Court: Court of Appeals of Texas
• Decided: July 12, 2016
• Docket: 05-16-00737-CV
• Status: Published

Opinion

DENY; and Opinion Filed July 12, 2016.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00737-CV

IN RE BETTIE PRIESTER AND JOHN PRIESTER, JR., Relators

Original Proceeding from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-04751-2014

MEMORANDUM OPINION Before Justices Bridges, Myers, and Schenck Opinion by Justice Bridges This case involves a Rule 736 expedited foreclosure action. TEX. R. CIV. P. 736. In this

petition for writ of mandamus, relators complain that the trial court has not signed a proposed

order vacating that court’s prior order granting expedited foreclosure. Relators ask this Court to

order the trial court to vacate the expedited foreclosure order.

To be entitled to mandamus relief, a relator must show both that the trial court has clearly

abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co.,

148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). When a motion is properly pending

before a trial court, the act of considering and ruling on the motion is a ministerial act. Eli Lilly

and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding). Mandamus relief

generally requires a predicate request for an action and a refusal of that request. Axelson, Inc. v.

McIlhany, 798 S.W.2d 550, 556 (Tex. 1990); In re Villarreal, 96 S.W.3d 708, 710 n. 2 (Tex.

App.—Amarillo 2003, orig. proceeding) (filing something with the District Clerk does not demonstrate that a motion has been brought to the trial court’s attention). Those requirements are

excused when such a request would have been futile and the trial court's refusal little more than a

formality. In re Brown, 277 S.W.3d 474, 482-83 (Tex. App.—Houston [14th Dist.] 2009, orig.

proceeding). A trial court abuses its discretion if it refuses to rule within a reasonable time.

Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig.

proceeding) (court must be given a reasonable time to perform its ministerial duty to rule).

Based on the record presented, we conclude relators have failed to show themselves

entitled to the relief requested. Accordingly, we DENY relators’ petition for writ of mandamus.

TEX. R. APP. P. 52.8(a); Walker v. Packer, 827 S.W.2d 833, 839-844 (Tex.1992) (orig.

proceeding); see also Axelson, Inc., 798 S.W.2d at 556.

/s/ David Bridges DAVID BRIDGES JUSTICE

160737F.P05

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