Opinion
No. 08-17-00064-CV
03-17-2017
IN RE: WINDY CITIES COBBLESTONE, LLC, AND TVO COBBLESTONE GP, LLP, Relators.
AN ORIGINAL PROCEEDING IN MANDAMUS MEMORANDUM OPINION
Relators, Windy Cities Cobblestone, LLC, and TVO Cobblestone GP, LLC, have filed a mandamus petition against the Honorable Angie Juarez Barill, Judge of the 346th District Court of El Paso County, Texas, and against Susan Forbes, the receiver appointed by the trial court pursuant to the Texas Turnover Statute. See TEX.CIV.PRAC.&REM.CODE ANN. § 31.002(b)(3) (West 2015)(authorizing a court to appoint a receiver with the authority to take possession of the nonexempt property, sell it, and pay the proceeds to the judgment creditor to the extent required to satisfy the judgment). Relators ask the Court to order Respondent Forbes to instruct USBank to release the hold on four bank accounts owned and operated by TVO Cobblestone. Alternatively, Relators ask the Court to compel Respondent Barill to assign the matter to another judge for immediate action. Relators have also filed a motion seeking emergency relief. The requested relief is denied.
JURISDICTION
Relators assert that we have jurisdiction of this original proceeding pursuant to Section 22.221 of the Texas Government Code which establishes a court of appeals' mandamus jurisdiction. TEX.GOV'T CODE ANN. § 22.221 (West 2004). Under Section 22.221(b), a court of appeals may issue a writ of mandamus against a: (1) judge of a district or county court in the court of appeals' district; or (2) judge of a district court who is acting as a magistrate at a court of inquiry in the court of appeals' district. See TEX.GOV'T CODE ANN. § 22.221(b). A court of appeals may also issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court. See TEX.GOV'T CODE ANN. § 22.221(a).
The Court has jurisdiction to issue the writ of mandamus against Respondent Barill because she is a district court judge. The more difficult question is whether the Court has jurisdiction to issue the writ against a person appointed to serve as a receiver under the Texas Turnover Statute. Relators assert in the petition that Respondent Forbes is an "arm" of the district court and subject to mandamus jurisdiction, but they do not cite any cases supporting the argument and we are aware of none. This leaves only Section 22.221(a) as a source of mandamus jurisdiction.
Under Section 22.221(a), a court of appeals has jurisdiction to issue the writ of mandamus when it is necessary to protect the court's jurisdiction. See TEX.GOV'T CODE ANN. § 22.221(a). There are no pending appeals and there is nothing in the mandamus record to indicate that issuance of the writ against Respondent Forbes is necessary to protect the Court's jurisdiction. Accordingly, the Court lacks jurisdiction to grant mandamus relief against Respondent Forbes. Relators' remedy is to seek relief from the trial court.
MANDAMUS AGAINST DISTRICT JUDGE
Relators contends that Respondent Barill clearly abused her discretion by refusing to conduct an expedited hearing on their motion, and alternatively, by refusing to assign the matter to another judge for an emergency hearing.
Mandamus Standard
To be entitled to mandamus relief, a relator must generally meet two requirements. First, the relator must show that the trial court clearly abused its discretion. In re Prudential Insurance Company of America, 148 S.W.3d 124, 135 (Tex. 2004). A trial court abuses its discretion when it acts arbitrarily, capriciously, and without reference to guiding principles. In re Green, --- S.W.3d ---, 2016 WL 7031055 at *2 (Tex.App.--El Paso December 2, 2016, orig. proceeding); In re Mid-Century Insurance Company of Texas, 426 S.W.3d 169, 178 (Tex.App.--Houston [1st Dist.] 2012, orig. proceeding). Second, the relator must show that it does not have an adequate remedy by appeal. In re Prudential, 148 S.W.3d at 135-36.
No Clear Abuse of Discretion
Mandamus relief is available to compel a trial judge to rule on a pending motion. To establish that the trial court abused its discretion by failing to rule, the relator must show that the trial court: (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and (3) failed or refused to do so. In re Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex.App.--El Paso 2006, orig. proceeding); In re Sepeda, 143 S.W.3d 871, 872 (Tex.App.--El Paso 2004, orig. proceeding). When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial court to act. In re Shredder, 225 S.W.3d at 679. Under the proper circumstances, mandamus relief is also available to compel a trial court to set a hearing on a motion. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.--San Antonio 1997, orig. proceeding)(holding that a ten-month delay in setting a hearing on a motion to compel discovery was an abuse of discretion). Whether a reasonable period of time has lapsed is dependent upon the circumstances of each case. In re Blakeney, 254 S.W.3d 659, 662 (Tex.App.--Texarkana 2008, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex.App.--Amarillo 2001, orig. proceeding). The appellate court must examine several factors, including the trial court's actual knowledge of the motion, its overt refusal to act, the state of the court's docket, and the existence of other judicial and administrative matters which must be addressed first. In re Blakeney, 254 S.W.3d at 661. Consideration must also be given to the trial court's inherent power to control its own docket. In re Chavez, 62 S.W.3d at 228.
On March 8, 2017, Relators filed their amended motion to compel Respondent Forbes to release the hold on the bank accounts in question, and they made their request for a hearing on that same date. Respondent Barill did not set the motion for an immediate hearing because she is out of the office from March 10 through March 17, 2017. She instead set it for March 22, 2017. According to Respondent Forbes, the hearing was initially set for March 20, 2017, but she requested that it be moved to another date because she is unavailable on March 20. After reviewing the mandamus petition and record, we conclude that Relators have failed to establish that Respondent Barill clearly abused her discretion. Accordingly, we deny the motion for emergency relief and the petition for writ of mandamus. March 17, 2017
/s/_________
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Palafox, JJ.