in Re Joseph Di Ruzzo

• Court: Court of Appeals of Texas
• Decided: December 16, 2014
• Docket: 13-14-00710-CV
• Status: Published

Opinion

NUMBER 13-14-00710-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE JOSEPH ANDREW DI RUZZO

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion Per Curiam1

Relator, Joseph Andrew Di Ruzzo, proceeding pro se, filed a petition for writ of

mandamus in the above cause on December 15, 2014 requesting that we compel the trial

court to rule on relator’s motions to dismiss the underlying civil forfeiture case, The State

of Texas v. Bellanca Fixed Wing Aircraft, Model #17-31-A, Tail No. N88765V, filed in trial

court cause number 14-03-76142-D in the 377th Judicial District Court of Victoria County,

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). Texas. Relator further seeks mandamus relief on grounds that the trial court has failed

to ensure that “the laws are faithfully and impartially administered.”

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

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). “A trial court has no discretion in applying the law to the facts or

determining what the law is.” In re Prudential Ins. Co. of Am., 148 S.W.3d at 135. We

assess the adequacy of an appellate remedy by balancing the benefits of mandamus

review against the detriments. In re State, 355 S.W.3d 611, 614–15 (Tex. 2011) (orig.

proceeding); In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.

proceeding). In performing this balancing, we look at a number of factors, including

whether mandamus review “will spare litigants and the public ‘the time and money utterly

wasted enduring eventual reversal of improperly conducted proceedings.’” In re State,

355 S.W.3d at 615 (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d at 136).

It is relator’s burden to properly request and show entitlement to mandamus relief.

Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.

proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled

to the extraordinary relief he seeks.”). In addition to other requirements, relator must

include a statement of facts supported by citations to “competent evidence included in the

appendix or record,” and must also provide “a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the appendix or record.”

2 See generally TEX. R. APP. P. 52.3. In this regard, it is clear that relator must furnish an

appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k)

(specifying the required contents for the appendix); R. 52.7(a) (specifying the required

contents for the record).

Consideration of a motion that is properly filed and before the trial court is a

ministerial act, and mandamus may issue to compel the trial court to act. See Eli Lilly &

Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding); In re Blakeney, 254

S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). There is no adequate

remedy at law for a trial court’s failure to rule because “[f]undamental requirements of due

process mandate an opportunity to be heard.” See In re Christensen, 39 S.W.3d 250,

251 (Tex. App.—Amarillo 2000, orig. proceeding) (citing Creel v. Dist. Atty. for Medina

Cnty., 818 S.W.2d 45, 46 (Tex. 1991)). Thus, in proper cases, mandamus may issue to

compel the trial court to act. See In re Blakeney, 254 S.W.3d at 661.

To obtain mandamus relief for the trial court’s refusal to rule on a motion, a relator

must establish: (1) the motion was properly filed and has been pending for a reasonable

time; (2) the relator requested a ruling on the motion; and (3) the trial court refused to

rule. In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding);

In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding); In

re Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig. proceeding); In re Chavez,

62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); see also In re Dallas

Nat. Ins. Co., No. 13-09-00674-CV, 2010 WL 2432097, at *4 (Tex. App.—Corpus Christi

June 17, 2010, orig. proceeding) (mem. op. on reh’g). The relator must show that the trial

court received, was aware of, and was asked to rule on the motion. In re Blakeney, 254

3 S.W.3d at 661; In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig.

proceeding). The trial court has a reasonable time within which to perform its ministerial

duty. See In re Blakeney, 254 S.W.3d at 661; In re Shredder Co., 225 S.W.3d 676, 679

(Tex. App.—El Paso 2006, orig. proceeding). Whether a reasonable time for the trial

court to act has lapsed is dependent upon the circumstances of each case. See In re

Blakeney, 254 S.W.3d at 662; In re Chavez, 62 S.W.3d at 228.

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

and the applicable law, is of the opinion that relator has not met his burden to obtain relief.

In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36. First, the petition for writ of

mandamus fails to comply with the Texas Rules of Appellate Procedure. See generally

TEX. R. APP. P. 52.3. Second, relator has not demonstrated that the trial court has been

presented with and expressly refused to rule on relator’s motions to dismiss, or that an

unreasonable amount of time has passed since the motions were filed. See In re Dimas,

88 S.W.3d 349, 351 (Tex. App.—San Antonio 2002, orig. proceeding); In re Chavez, 62

S.W.3d at 228; Barnes, 832 S.W.2d at 426; accord O'Connor v. First Ct. of App., 837

S.W.2d 94, 97 (Tex. 1992) (orig. proceeding). Third, relator has not provided any

evidence in support of his contention that the trial court has failed to properly apply the

laws. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36. Accordingly, the

petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).

PER CURIAM

Delivered and filed the 15tth day of December, 2014.