Ovidio Garcia, Jr. v. Omar Escobar, Ramon De La Cruz and Unknown Persons and/or Entities

• Court: Court of Appeals of Texas
• Decided: September 8, 2015
• Docket: 13-13-00268-CV
• Status: Published

Opinion

NUMBER 13-13-00268-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

OVIDIO GARCIA JR., Appellant,

v.

OMAR ESCOBAR, RAMON DE LA CRUZ AND UNKNOWN PERSONS AND/OR ENTITIES, Appellees.

On Appellant’s Motion for Enforcement of Judgment.

ORDER Before Justices Rodriguez, Garza, and Perkes Order Per Curiam

On April 15, 2014, this Court handed down a substitute memorandum opinion and

judgment in the above-referenced cause which, in part, reversed the trial court’s summary

judgment in favor of appellees, Omar Escobar et al., in an action brought by appellant

Ovidio Garcia Jr. See Garcia v. Escobar, No. 13-13-00268-CV, 2014 WL 1514288 (Tex.

App.—Corpus Christi Apr. 15, 2014, pet. denied) (substitute mem. op.). Appellant has filed with this Court a verified “Motion for Enforcement of Judgment”

contending that he has filed various motions with the trial court clerk, that he has asked

that those motions be presented to the trial court judge, but that he “ha[s] never received

a response from the district clerk, the 93rd District Court coordinator, or the 93rd District

Court Judge.” Appellant asks that we enter an order, pursuant to Texas Rule of Appellate

Procedure 19.3(c), compelling the trial court to enforce our April 15, 2014 judgment and

to “conduct further proceedings” consistent with that judgment. See TEX. R. APP. P.

19.3(c) (stating that we may, after our plenary power expires, enforce our judgment “as

these rules or applicable law provide”). In particular, appellant complains that there has

been “absolutely no response” to the following motions:

(1) “Motion for court to order Telephonic status report hearing” filed October 6,

2014;

(2) “Motion for court to designate place of production, inspection and copying

of requested documents; request for court order to provide Plaintiffs access

to copying equipment and request for bench warrant,” filed October 6, 2014;

(3) “Motion for court to order designation of place and time of production

inspection and copying of documents subpoena from NON-PARTIES” [sic],

filed October 6, 2014;

(4) “Motion for court to order that the District Clerk and Defendants’ attorney

notify and serve Plaintiffs with all orders and pleadings filed,” filed October

15, 2014; and

(5) “Motion to Recuse Judge” filed April 5, 2015.

Pursuant to our request, appellee Escobar filed a response to appellant’s motion,

2 contending that the trial court had “no duty to hear and rule on” the aforementioned

motions because they were filed before our mandate issued on December 30, 2014. See

TEX. R. APP. P. 51.1(b) (“When the trial court clerk receives the mandate, the appellate

court’s judgment must be enforced.”).1

In the context of a petition for writ of mandamus, to obtain 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 Greater McAllen Star Props., Inc., 444 S.W.3d

743, 748 (Tex. App.—Corpus Christi 2014, orig. proceeding). Here, appellant has not

filed a petition for writ of mandamus; instead, he requests that we enter an order enforcing

our judgment under Texas Rule of Appellate Procedure 19.3(c). But the motions filed by

Garcia do not relate to the substantive issue decided in our 2014 judgment—i.e., the

reversal of the trial court’s summary judgment order. Appellant has cited no authority,

and we find none, establishing that a trial court fails to comply with an appellate court’s

judgment—thereby warranting a Rule 19.3(c) enforcement order—by failing to respond

to motions that are substantively unrelated to the grounds of the judgment.

Having fully considered appellant’s motion and the response thereto, we conclude

that appellant is not entitled to the relief sought. Accordingly, appellant’s motion for

enforcement of judgment is DENIED. All other pending motions are hereby denied as

1 We note that one of Garcia’s motions, the motion to recuse, was filed after our mandate issued. Escobar argues in his response that Garcia “has not proven any of the grounds for recusal” listed in the rules. See TEX. R. CIV. P. 18b. We do not address the merits of the issue because of our conclusion that Garcia is not entitled to an enforcement order under Texas Rule of Appellate Procedure 19.3(c). See TEX. R. APP. P. 19.3(c).

3 moot.

IT IS SO ORDERED.

PER CURIAM

Order delivered and filed the 8th day of September, 2015.