in Re Rickey Fantroy

• Court: Court of Appeals of Texas
• Decided: January 9, 2009
• Docket: 10-09-00008-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00008-CV

IN RE RICKEY FANTROY

Original Proceeding

MEMORANDUM OPINION

By this mandamus proceeding, Rickey Fantroy asks for the following relief:

1. To enjoin his eviction;

2. To reverse a no-evidence summary judgment rendered against him in his suit against multiple defendants involved in the finance and mortgage of the house; and

3. To reverse a severance order which severed the defendants who obtained the above referenced judgment from the other defendants who had not obtained summary judgment.

Because the validity of the eviction proceeding was the subject of another appeal and

because he has an adequate remedy by appeal of the judgment and severance order,

Fantroy’s petition for writ of mandamus is denied.

PROCEDURAL ISSUES

Fantroy is acting as his own attorney. He is not unfamiliar with the process. Since 2002, he has been before this Court as a party in seven proceedings. Although

several of those proceedings related to family law matters, at least one was related

directly to the property and mortgage thereon, which mortgage is the subject of the suit

underlying this mandamus proceeding. Notwithstanding his frequent appearance

before this Court, Fantroy has demonstrated a lack of understanding of the rules and

laws by which we are bound. Notwithstanding that we give the pleadings of a person

representing themselves substantial latitude, we cannot give them a procedural

advantage because they are acting as their own attorney. See Wheeler v. Green, 157

S.W.3d 439, 444 (Tex. 2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.

1978); Baughman v. Baughman, 65 S.W.3d 309, 312 (Tex. App.—Waco 2001, pet. denied);

Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex. App.—Amarillo 1998, pet. denied).

Fantroy’s petition bears little resemblance to a petition for writ of mandamus and

injunction that is compliant with the rules of appellate procedure. See generally, TEX. R.

APP. P. 52, et seq. Nevertheless, because we have been able to determine that we must

deny the petition in its entirety on its merits, we use Rule 2 to lift these procedural

requirements and, thus, expedite the final disposition of this proceeding. TEX. R. APP. P.

2.

BACKGROUND

Fantroy has previously suffered a judgment against him for forcible entry and

detainer from the house at 405 Trinity Street, Cleburne, Texas. He appealed that

judgment which had been rendered by the County Court at Law No. 2 in Johnson

County. His initial brief was stricken “because it did not comply with the rules

In re Fantroy Page 2 regarding briefing,” and we “allowed Fantroy time to file a compliant brief. No brief

was filed. We then warned Fantroy that if we did not receive a response showing

grounds for continuing the appeal within 21 days, his appeal may be dismissed for

want of prosecution.” Fantroy v. AMC Mortgage Services, Inc., No. 10-07-00167-CV, 2008

Tex. App. LEXIS 4083 (Tex. App.—Waco June 4, 2008, no pet.) (mem. op.). His appeal

was dismissed by a memorandum opinion on June 4, 2008. Id.

In a proceeding in the 413th District Court of Johnson County, Fantroy had sued

various entities connected with making, extending, or servicing the mortgage on the

property. One or more of those defendants moved for summary judgment, under Rule

166a(i), generally referred to as a no-evidence motion for summary judgment. The

motion was granted and judgment was rendered that Fantroy take nothing from those

defendants. The judgment was final as to those defendants but, because there were

other defendants, it was not final for all purposes. See Lehmann v. Har-Con Corp., 39

S.W.3d 191, 195 (Tex. 2001). To make it final for all purposes, the defendants moved for

severance of the suit against them from the remainder of the defendants. That motion

was granted, and the trial court proceeding was severed; thus, the take nothing

judgment as to those defendants that moved for and obtained summary judgment is

now a final judgment for purposes of appeal.

APPLICATION OF LAW

The propriety of the right to immediate possession of the house was the subject

of the County Court at Law proceeding and the prior appeal; it is not an issue before the

trial court in the district court action. Mitchell v. Wells Fargo Bank, No. 10-07-00296-CV,

In re Fantroy Page 3 2008 Tex. App. LEXIS 7311 (Tex. App.—Waco Sept. 3, 2008, no pet.) (mem. op.). The

County Court at Law’s judgment regarding the right to immediate possession is now

final for all purposes, and this Court’s mandate issued December 1, 2008. We cannot

now review the propriety of the eviction of Fantroy from the house and, thus, deny his

petition and motion for emergency relief to the extent it seeks to enjoin his being

evicted.

To be entitled to relief by mandamus, the Relator must not have an adequate

remedy by direct appeal. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig.

proceeding). Fantroy has not presented, and we do not perceive, any reason why

Fantroy cannot address his complaints about the severance and take nothing judgment

in a direct appeal from the severed proceeding. Accordingly, to the extent the petition

seeks reversal of the order of severance and the take nothing judgment by mandamus, it

is denied.

CONCLUSION

For the reasons stated above, Fantroy’s petition for writ of mandamus and

injunction and request for emergency relief is denied.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Petition denied Opinion delivered and filed January 9, 2009 [OT06]

In re Fantroy Page 4