in Re Burns Motors, LTD

• Court: Court of Appeals of Texas
• Decided: February 25, 2014
• Docket: 13-14-00111-CV
• Status: Published

Opinion

NUMBER 13-14-00111-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE BURNS MOTORS, LTD.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion Per Curiam1

Relator, Burns Motors, Ltd., filed an amended petition for writ of mandamus in the

above cause on February 21, 2014, contending that the trial court erred in granting a

motion for new trial because the affidavit attached to the motion was not “sufficient

verification” to extend the trial court’s jurisdiction.

To be entitled to the extraordinary relief of a writ of mandamus, the relator must

show that the trial court abused its discretion and that there is no adequate remedy by

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). The relator has the burden of establishing both prerequisites to mandamus

relief and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003)

(orig. proceeding). When a trial court erroneously reinstates a case after its plenary power

has expired, there is no adequate remedy by appeal and mandamus is the appropriate

remedy. Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) (orig.

proceeding); proceeding); In re CAS Cos., LP, No. 13-14-00003-CV, 2014 WL 346046,

at *2 (Tex. App.—Corpus Christi Jan. 30, 2014, orig. proceeding); In re Gen. Motors

Corp., 296 S.W.3d 813, 830 (Tex. App.—Austin 2009, orig. proceeding).

The Court, having examined and fully considered the amended petition for writ of

mandamus, is of the opinion that relator has not shown itself entitled to the relief sought.

Accordingly, the amended petition for writ of mandamus is DENIED. See TEX. R. APP. P.

52.8(a).

PER CURIAM

Delivered and filed the 25th day of February, 2014.