Opinion
NUMBER 13-14-00111-CV
02-25-2014
IN RE BURNS MOTORS, LTD.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion Per Curiam
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Relator, Burns Motors, Ltd., filed an amended petition for writ of mandamus in the above cause on February 21, 2014, contending that the trial court erred in granting a motion for new trial because the affidavit attached to the motion was not "sufficient verification" to extend the trial court's jurisdiction.
To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court abused its discretion and that there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). The relator has the burden of establishing both prerequisites to mandamus relief and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). When a trial court erroneously reinstates a case after its plenary power has expired, there is no adequate remedy by appeal and mandamus is the appropriate remedy. Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) (orig. proceeding); proceeding); In re CAS Cos., LP, No. 13-14-00003-CV, 2014 WL 346046, at *2 (Tex. App.—Corpus Christi Jan. 30, 2014, orig. proceeding); In re Gen. Motors Corp., 296 S.W.3d 813, 830 (Tex. App.—Austin 2009, orig. proceeding).
The Court, having examined and fully considered the amended petition for writ of mandamus, is of the opinion that relator has not shown itself entitled to the relief sought. Accordingly, the amended petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM