Summary
denying relief when relator filed pro se petition for writ of mandamus complaining about trial court's refusal to rule on his will contest and other motions pending in the probate court when his petition did not comply with rules 9.5, 10.1, 52.3(k), and 52.7
Summary of this case from In re HarrisOpinion
NO. 01-11-00910-CV
01-26-2012
IN RE DONALD RAY MITCHELL, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Mitchell identifies the underlying suit as a contest to the Will and Probate of the Estate of Willie Benton that he filed in Probate Court One of Harris County, the Honorable Kathy Stone presiding.
Relator, Donald Ray Mitchell, filed a pro se petition for writ of mandamus, complaining that the trial court "refuses" to rule on his "Will Contest, Declaratory Judgment suit and several other motions" challenging the authentication and probate of the Will of the Estate of Willie Benton. His suit and various motions, some of which he contends were filed as long as twenty-eight months ago, are pending before Probate Court One of Harris County, Texas, the Honorable Kathy Stone presiding.
A writ of mandamus will issue to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy at law. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding). To establish that the trial court refused to rule on a pending motion, the relator must provide a record demonstrating that he asked the trial court for a ruling on his motion and that the trial court refused to rule. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); see also Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). The mandamus record must show that the motion was presented to the trial court and that the trial court refused to rule on it. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App-Amarillo 2001, orig. proceeding).
Relator's petition does not comply with the Texas Rules of Appellate Procedure. See, e.g., TEX. R. APP. P. 9.5 (requiring relator to serve a copy of petition on all parties to proceeding, i.e., the respondent and the real parties in interest); TEX. R. APP. P. 52.3(k) (requiring relator to file appendix that includes a certified or sworn copy of any document showing matter complained of); TEX. R. APP. P. 52.7 (requiring relator to file mandamus record containing all documents material to claim for relief); TEX. R. APP. P. 10.1(a)(5) (requiring civil motions contain or be accompanied by certificate stating that filing party conferred, or made reasonable attempt to confer, with all other parties about merits of motion— except respondent judge in original proceeding—and whether those parties oppose motion).
Accordingly, the petition for writ of mandamus is denied.
PER CURIAM Panel consists of Justices Jennings, Sharp and Brown.