in Re Michael E. Geiger, Relator

• Court: Court of Appeals of Texas
• Decided: December 21, 2006
• Docket: 07-06-00462-CV
• Status: Published

Opinion

NO. 07-06-0462-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

DECEMBER 21, 2006

______________________________

IN RE MICHAEL E. GEIGER, RELATOR

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Relator, Michael E. Geiger, proceeding pro se, seeks a writ of mandamus to compel

the Honorable Abe Lopez, Judge of the 108th District Court of Potter County to hold a

hearing on motions pending in his civil action and issue judgment in the case. We deny

the relief sought.1

On March 28, 2005, Relator filed a civil suit against Donna Salana, Wayne J.

Nance, and the Texas Department of Criminal Justice. According to an exhibit included

with the petition for writ of mandamus, the District Clerk of Potter County notified Relator

1 By memorandum opinion dated October 13, 2006, this Court denied relator’s petition for writ of mandamus against the Honorable Abe Lopez in cause number 07-06- 0370-CV, by which Relator sought the same relief he seeks herein. that his suit was filed among the records of the 108th District Court of Potter County. In

his petition for writ of mandamus, Relator alleges that all defendants refused to answer his

suit. He also asserts he filed a “Motion for Notice and Default Judgment” in January 2006.

However, no copy of the motion is included in the exhibits accompanying the petition. A

copy of a “Motion for Judgment on the Pleading,” which Relator alleges he filed on April 17,

2006, is included. It is not, however, certified nor sworn, which is a mandatory requirement

of Rule 52.3 (j)(1)(A) of the Texas Rules of Appellate Procedure. Also included as an

exhibit to the petition is correspondence from the Potter County District Clerk dated May

19, 2005, responding to Relator’s inquiry for a case history and providing the mailing

address of this Court.

Relying on numerous authorities, Relator contends the trial court has violated his

constitutional rights in refusing to perform the ministerial duty of hearing his motions and

issuing default judgment. He maintains mandamus relief is appropriate because he has

no available relief by appeal.

“Mandamus issues only to correct a clear abuse of discretion or the violation of a

duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to

mandamus relief, Relator must satisfy three elements: first, a legal duty to perform a non-

discretionary act; second, a demand for performance; and third, refusal of that demand.

2 Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). 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). However,

the trial court has a reasonable time within which to perform that ministerial duty. Safety-

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

proceeding). Whether a reasonable period of time has lapsed is dependent on the

circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.–Houston

[1st Dist.] 1992) (orig. proceeding).

Additionally, the party seeking relief has the burden to provide a sufficient record to

establish entitlement to mandamus relief. Walker, 827 S.W.2d at 837. See also In re

Bates, 65 S.W.3d 133, 135 (Tex.App.–Amarillo 2001) (orig. proceeding). The record must

show the motion was presented to the trial court and that it refused to act. 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).

The scant record before us does not demonstrate that Relator presented his

motions to the trial court and that it refused to act. We conclude he has not satisfied his

burden to provide a sufficient record demonstrating that a properly filed motion has awaited

disposition for an unreasonable length of time nor that the trial court has refused to perform

a ministerial act. Additionally, Relator did not substantially comply with the requirements

3 of Rule 52.3 of the Texas Rules of Appellate Procedure. See Mansfield State Bank v.

Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) (noting that litigants who represent themselves

must comply with the applicable procedural rules or they would be given an unfair

advantage over litigants represented by counsel).

Consequently, Relator’s petition for writ of mandamus is denied.

Patrick A. Pirtle Justice