In Re: Vega Street 1, LLC Vega Street 2, LLC and Vega Street 3, LLC v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 12, 2023
• Docket: 05-23-00160-CV
• Status: Published

Opinion

DENIED and Opinion Filed April 12, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00160-CV

IN RE VEGA STREET 1, LLC VEGA STREET 2, LLC AND VEGA STREET 3, LLC, Relators

Original Proceeding from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-06391

MEMORANDUM OPINION Before Justices Pedersen, III, Smith, and Kennedy Opinion by Justice Smith Before the Court are relators’ February 21, 2023 petition for writ of

mandamus, respondent’s March 8, 2023 response, and relators’ April 6, 2023 reply

to respondent’s response. In their petition, relators seek an order from this Court

compelling respondent to render judgment following a trial before the court in 2019

and a ruling on relators’ motion for judgment filed in March 2022. Under the

particular circumstances of this case, we deny relators’ petition.

Mandamus is an “extraordinary remedy, not issued as a matter of right, but at

the discretion of the court.” In re Reece, 341 S.W.3d 360, 374 (Tex. 2011) (orig.

proceeding) (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding)). To obtain relief by mandamus, a relator must establish a

clear abuse of discretion by the trial court and that no adequate appellate remedy

exists. In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding). The act of

giving consideration to and ruling on a motion that is properly filed and pending

before a trial court is a ministerial act, and mandamus may issue to compel the trial

judge to act. In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex.

App.—Corpus Christ—Edinburg 2014, orig. proceeding); Barnes v. State, 832

S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). To obtain

mandamus relief for a trial judge’s refusal to rule on a motion, the relator must

establish the motion was properly filed and has been pending for a reasonable time;

the relator requested a ruling on the motion; and the trial judge refused to rule.

Greater McAllen Star Props., Inc., 444 S.W.3d at 748.

“It is well established Texas law that an appellate court may not deal with

disputed areas of fact in an original mandamus proceeding.” In re Walton, No. 11-

16-00230-CV, 2017 WL 922418, at *1 (Tex. App.—Eastland Feb. 28, 2017, orig.

proceeding) (mem. op.) (quoting In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006)

(orig. proceeding)). In other words, in a mandamus proceeding we “may not

legitimately reconcile disputed factual matters.” Id. (citing Hooks v. Fourth Court of

Appeals, 808 S.W.2d 56, 60 (Tex. 1991) (orig. proceeding)); see also Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

–2– Here, the record shows respondent provided a path to obtain a judgment by

requesting that relators provide a proposed judgment to her. The record contains e-

mails showing that relators e-mailed proposed judgments to respondent at her

official e-mail address for her consideration. However, in her response, respondent

stated that she had not received the proposed judgments. And the record does not

contain file-stamped copies of any proposed judgments. Under these circumstances,

we cannot conclude the record conclusively shows respondent actually received the

proposed judgments or that she has refused to rule on the motion for judgment.

Based on the particular facts of this case, we deny relators’ petition for

mandamus. See TEX. R. APP. P. 52.8(a).

/Craig Smith/ CRAIG SMITH JUSTICE 230160F.P05

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