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In re Cholick

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Feb 6, 2018
NUMBER 13-18-00076-CV (Tex. App. Feb. 6, 2018)

Opinion

NUMBER 13-18-00076-CV

02-06-2018

IN RE SYLIVA CHOLICK


On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa

See TEX. R. APP. P. 52.8(d) ("When granting relief, the court must hand down an opinion as in any other case," but 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).

By pro se petition for writ of mandamus, relator Sylvia Cholick seeks emergency relief to vacate a forcible detainer judgment rendered on October 27, 2017 and an order granting the issuance of a writ of possession on February 2, 2018, or alternatively, to stay all proceedings pending resolution of her appeal, Sylvia Cholick v. TSPC Bros., LLC, currently pending in our cause number 13-17-00622-CV. Relator has further filed a notice of correction regarding her petition for writ of mandamus.

Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator bears the burden of proving both of these requirements. In re H.E.B. Grocery Co., 492 S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). An abuse of discretion occurs when a trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).

The Court, having examined and fully considered the petition for writ of mandamus, the correction to the mandamus, and the applicable law, is of the opinion that relator has not shown herself entitled to the relief sought. Under the Texas Property Code, a "judgment of a county court in an eviction suit may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in any amount set by the county court." TEX. PROP. CODE ANN. § 24.007 (West, Westlaw through 2017 1st C.S.); see TEX. R. CIV. P. 510.13 ("The writ of possession, or execution, or both, will be issued by the clerk of the county court according to the judgment rendered, and the same will be executed by the sheriff or constable, as in other cases. The judgment of the county court may not be stayed unless within 10 days from the judgment the appellant files a supersedeas bond in an amount set by the county court pursuant to Section 24.007 of the Texas Property Code."). The record and briefing provided by relator fails to show that she filed a supersedeas bond within ten days of the judgment, and thus, we may not stay the order of eviction. See TEX. PROP. CODE ANN. § 24.007; TEX. R. CIV. P. 510.13; In re Invum Three, LLC, 510 S.W.3d 748, 750 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding). Accordingly, we DENY the petition for writ of mandamus. See TEX. R. APP. P. 52.8(a). We note that relator's appeal remains pending in this Court at this time.

LETICIA HINOJOSA

Justice Delivered and filed the 6th day of February, 2018.


Summaries of

In re Cholick

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Feb 6, 2018
NUMBER 13-18-00076-CV (Tex. App. Feb. 6, 2018)
Case details for

In re Cholick

Case Details

Full title:IN RE SYLIVA CHOLICK

Court:COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Date published: Feb 6, 2018

Citations

NUMBER 13-18-00076-CV (Tex. App. Feb. 6, 2018)

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