in Re: Richard Kleven, II

• Court: Court of Appeals of Texas
• Decided: June 12, 2003
• Docket: 06-03-00072-CV
• Status: Published

Opinion

6-96-028-CV Long Trusts v. Dowd

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00072-CV ______________________________

IN RE: RICHARD KLEVEN, II

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Original Mandamus Proceeding

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Before Morriss, C.J., Ross and Cornelius,* JJ.

Memorandum Opinion by Justice Ross

*William J. Cornelius, C.J., Retired, Sitting by Assignment

MEMORANDUM OPINION

Richard Kleven, II, has filed a petition for writ of mandamus in which he asks this Court to order the 5th Judicial District Court of Bowie and Cass Counties to rule on two motions: a motion concerning discovery requests and a request for sanctions that, according to Kleven's petition, was filed May 16, 2002, and a motion to compel production of documents, filed April 23, 2003. This case has already been before this Court once on direct appeal and in a previous mandamus. The underlying lawsuit is presently set for trial June 24, 2003.

We requested a response from the trial court, which has now arrived. In its response, the trial court specified the rulings which it had made on the various motions filed by Kleven, many of which were ruled on during the course of a pretrial hearing at which Kleven was present. ⁽¹⁾ The trial court further affirmatively stated in its response as follows: "Moreover, Petitioner [Kleven] was asked whether he had any additional matters for Respondent [trial court] to consider at the close of the hearing, and Petitioner said he did not."

While this Court may not prescribe the manner in which a trial court exercises its discretion in ruling on a motion, we may, by mandamus, order a trial court to exercise its discretion in some manner. Cooke v. Millard, 854 S.W.2d 134, 135 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding). When this Court cannot take any action that can effect the requested relief, and thus the order will have no practical result, we will deny the petition for writ of mandamus as moot. Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995).

The relief sought by Kleven in his petition for writ of mandamus has either already been given or was not timely requested. We therefore cannot take any action that can effect the requested relief.

The petition is denied as moot.

Donald R. Ross

Justice

Date Submitted: June 11, 2003

Date Decided: June 12, 2003

1. No reporter's record of this hearing has been provided to this Court.

ed a notice of appeal May 6, 2005.

          The clerk's record and reporter's record were due to be filed with this Court on or before June 10, 2005. See Tex. R. App. P. 26.1, 35.3. Northern Texas does not claim to be indigent and was thus responsible for paying or making adequate arrangements to pay the costs for preparing the records. See Tex. R. App. P. 35.3(a), (b); 37.3(b), (c). The record is now more than thirty days overdue. On June 24, 2005, we contacted Northern Texas by letter. We gave appellants an opportunity to cure the defect and warned them that, if we did not receive an adequate response within ten days, this appeal would be subject to dismissal for want of prosecution. See Tex. R. App. P. 42.3(b), (c).

          No record has been filed, and despite our warning, Northern Texas has provided this Court with no information to indicate that a record will be provided.

          Pursuant to Tex. R. App. P. 42.3(b), we dismiss the appeal for want of prosecution.

Date Submitted:      July 25, 2005

Date Decided:         July 26, 2005