in Re Ginger Light and James Justin Light, Relators

• Court: Court of Appeals of Texas
• Decided: August 31, 2021
• Docket: 07-21-00162-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00162-CV

IN RE GINGER LIGHT AND JAMES JUSTIN LIGHT, RELATORS

OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

August 31, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ. Ginger and James Light have filed a petition for writ of mandamus asking that we

vacate an award of attorney’s fees granted by the Honorable Phillip Hays, 99th District

Court. We deny the petition.

Background

This is a garnishment case arising from an underlying judgment that was affirmed

by this Court on June 14, 2021, in Light v. Thoma, No. 07-20-00311-CV, 2021 Tex. App.

LEXIS 4703 (Tex. App.—Amarillo June 14, 2021, pet. filed) (mem. op.). The original

judgment entered on August 11, 2020, awarded damages to Thoma. On February 22,

2021, Thoma filed an Application for Writ of Garnishment in an attempt to collect on the

judgment. The application was granted. On March 8, the Lights filed a motion to vacate that writ. On March 9th, the Court signed an “Agreed Judgment” between Thoma and the

garnishee. On March 12, the Lights filed a motion for new trial and to set aside the

judgment. A hearing on the motion was initially set for March 26, 2021, but then continued

to May 6, 2021.

In the May 6th hearing, the trial court granted Thoma his attorney’s fees. According

to the Lights’ petition, it also “ordered that (1) Mike Thoma return to the Lights the $40,000

he garnished, (2) the Lights keep their $42,000 cash in the registry of the court during the

pendency of the appeal, and (3) Mike Thoma have a judgment against the Lights for his

attorney’s fees.”1 We are further told that after the May 6th hearing, Thoma’s counsel

emailed counsel for the Lights regarding the court’s directive. It resulted in the Lights

refusing to cooperate with Thoma because they (the Lights) were contemplating an

appeal.

Other than grant fees at the May 6th hearing, no action was taken on the underlying

motion for new trial. Consequently, the motions were overruled by operation of law.

On July 6, 2021, the trial court memorialized in writing its earlier decision to grant

Thoma his attorney’s fees. The July 6th order stated:

On May 6, 2021, this Court heard Mike Thoma’s request for attorney’s fees, which the Court granted on the record in open court, during said hearing. The Court HEREBY reduces its May 6, 2021, order to writing.

Plaintiff Mike Thoma IS HEREBY awarded judgment in the amount of $8,420.79 for attorney’s fees from James Light and Ginger Light, which reasonable and necessary attorney fees Mike Thoma would not have incurred if the Lights had timely filed their appellate security. The Court authorizes the issuance of all writs necessary to enforce the judgment.

1 We refer to the Lights’ petition because they did not accompany that petition with the statement of facts transcribing what was actually said at the May 6th hearing. 2 Signed this 6th day of July, 2021.

(Emphasis added).

On June 7, 2021, the Lights attempted to perfect an appeal of the earlier

garnishment judgment. Because they did not pay the requisite filing fee, though, we

dismissed the appeal. Thereafter, the instant petition for writ of mandamus was filed to

attack the trial court’s award of fees incidental to the garnishment action.

Discussion

Mandamus is an extraordinary remedy granted only when a relator shows that 1)

the trial court abused its discretion and 2) that no adequate remedy exists. In re H.E.B.

Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam); In re

Llamas, No. 07-19-00288-CV, 2019 Tex. App. LEXIS 10158, at *3 (Tex. App.—Amarillo

Nov. 22, 2019, orig. proceeding) (per curiam) (mem. op.). Part of that burden also

consists of complying with the requirements of Texas Rule of Appellate Procedure 52.

One such rule obligates the petitioner to accompany the petition with an appendix

containing, among other things, a certified or sworn copy of any order complained of or

any other document showing the matter complained of. TEX. R. APP. P. 52.3(k)(1)(A).

Similarly, the petitioner must also certify that he or she reviewed the petition and

concluded that every factual allegation in it is supported by competent evidence included

in the record or appendix. TEX. R. APP. P. 52.3(j).

Missing from the petition is the certification mentioned in Rule 52.3(j). Moreover,

a reading of that petition clearly reveals the presence of factual allegations. Many of

those factual allegations concern what occurred in the May 6th hearing and what was

said by the trial court when addressing the request for fees.

3 Also missing is a transcript of the May 6th hearing itself. This too is concerning

because we know not what actually transpired there. For example, we can only guess at

whether the trial court “granted on the record in open court” the request for attorney’s fees

as it represented in the July 6th order or whether it simply “orally stated an intent to grant

the request for attorney’s fees” as represented by the Lights in their petition. (Emphasis

added). This distinction is of import because voicing an intent to rule connotes an intent

to act in the future and is not necessarily a final ruling. Luna v. Bennett, No. 05-16-00878-

CV, 2018 Tex. App. LEXIS 9357, at *5 (Tex. App.—Dallas Nov. 15, 2018, no pet.) (mem.

op.) (stating that 1) a judgment is rendered when the trial court officially announces its

decision in open court or by written memorandum filed with the clerk, 2) an intent to render

judgment in the future does not satisfy this test, and 3) the words spoken or written by the

trial court must evince a present, as opposed to future act that effectively decides the

issue before the court); Woods v. Woods, 167 S.W.3d 932, 933 (Tex. App.—Amarillo

2005, no pet.) (stating the same).2

Moreover, if at the May 6th hearing the trial court’s words evinced a final decision,

then another obstacle arises. The issue implicated at bar may have been susceptible to

disposition through the appeal which the Lights say “they elected not to pursue” and which

we dismissed in June of 2021. Glassman v. Goodfriend, 347 S.W.3d 772, 778 (Tex.

2 If the trial court did grant the fee request on May 6th, then the ensuing entry of a written order

further manifesting that is tantamount to a ministerial act. See Dunn v. Dunn, 439 S.W.2d 830, 832–33 (Tex. 1969) (stating that the principle that an oral judgment is valid is predicated upon the supporting principle that the entry of a trial judgment is only a ministerial act); Luna v. Bennett, No. 05-16-00878-CV, 2018 Tex. App. LEXIS 9357, at *5 (Tex. App.—Dallas Nov. 15, 2018 no pet.) (mem. op.) (the same). And, a ministerial act may occur after a trial court’s plenary jurisdiction expired. Wellington v. Wellington, No. 04-16-00707-CV, 2018 Tex. App. LEXIS 670, at *7 (Tex. App.—San Antonio Jan. 24, 2018, no pet.) (mem. op.) (upholding that because entry of the DRO was a ministerial act, it remained valid despite being signed by the court after its plenary jurisdiction expired). 4 App.—Houston [14th Dist.] 2011, pet. denied) (stating that though a garnishment action

is ancillary to an underlying suit, it is a separate proceeding from which an independent

appeal may be taken upon entry of a final judgment in garnishment). And, it is clear that

the failure to timely pursue an adequate legal remedy, like an appeal, does pretermit

mandamus relief. See In re Pannell, 283 S.W.3d 31, 35–36 (Tex. App.—Fort Worth 2009,

orig. proceeding) (denying the petition for writ of mandamus because the relator had an

adequate legal remedy through appeal which he did not pursue).

Simply put, the Lights failed to comply with the rules of appellate procedure

concerning petitions for writ of mandamus. Their omission precludes us from undertaking

an accurate analysis of the purported error committed by the trial court. So too does it

prevent us from assessing whether they had an adequate remedy at law pretermitting

mandamus relief. Therefore, we deny the petition without prejudice.

Brian Quinn Chief Justice