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In re Bonner

Court of Appeals of Texas, First District
Nov 9, 2021
No. 01-21-00109-CV (Tex. App. Nov. 9, 2021)

Opinion

01-21-00109-CV

11-09-2021

IN RE CHARLES BONNER, Relator


Original Proceeding on Petition for Writ of Mandamus

Panel consists of Justices Kelly, Hightower, and Farris.

MEMORANDUM OPINION

PER CURIAM

Relator, Charles Bonner, has filed a petition for writ of mandamus complaining of the trial court's failure to rule on his motion for summary judgment.We deny relief. 1

The underlying case is Charles Bonner v. Jose Villatoro, cause number 85286-CV, pending in the 239th District Court of Brazoria County, Texas, the Honorable Pat Sebesta presiding.

A trial court has a ministerial duty to consider and rule on motions properly filed and pending and mandamus may issue to compel the trial court to act when the trial court has refused to do so. See In re Alpert, 276 S.W.3d 592, 595 (Tex. App.- Houston [1st Dist.] 2008, orig. proceeding). To obtain mandamus relief for the trial court's refusal to rule on the motion, the relator must establish that the trial court had a legal duty to perform a ministerial act, relator made a demand for performance, and the trial court refused to perform. See Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).

Relator has attached a file-stamped copy of a motion for summary judgment. But even if relator has established that his motion is properly pending, he has not demonstrated that this motion was properly presented to the trial court for ruling. See In re Clewis, No. 14-09-00272-CV, 2009 WL 909569, at *1 (Tex. App.- Houston [14th Dist.] April 7, 2009, orig. proceeding) (mem. op.). Merely filing a motion with the district clerk does not impute knowledge of the filing to the trial court. See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.-Houston [14th Dist.] 2004, orig. proceeding). Although relator provided a purported copy of a motion urging the trial court to rule on his motion for summary judgment, this motion bears no file stamp and the record fails to establish that relator presented the motion for summary judgment by setting it for a hearing. See Tex. R. Civ. P. 166a(c). Thus, relator has not established his entitlement to mandamus relief. 2 We deny the petition. See Tex. R. App. P. 52.8(a). Any pending motions are dismissed as moot. 3


Summaries of

In re Bonner

Court of Appeals of Texas, First District
Nov 9, 2021
No. 01-21-00109-CV (Tex. App. Nov. 9, 2021)
Case details for

In re Bonner

Case Details

Full title:IN RE CHARLES BONNER, Relator

Court:Court of Appeals of Texas, First District

Date published: Nov 9, 2021

Citations

No. 01-21-00109-CV (Tex. App. Nov. 9, 2021)