in Re Anthony Welch ( 2018 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed
September 13, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00766-CV
IN RE ANTHONY WELCH, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
458th District Court
Fort Bend County, Texas
Trial Court Cause No. 18-DCV-249193
MEMORANDUM OPINION
On August 30, 2018, relator Anthony Welch filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017); see
also Tex. R. App. P. 52. In the petition, relator asks this court to compel the
Honorable Kenneth S. Cannata, presiding judge of the 458th District Court of Fort
Bend County, to (1) vacate his August 20, 2018 order denying relator’s motion to
vacate the Substitute Trustee’s sale of his property, and (2) sign an order vacating
the Substitute Trustee’s sale. Relator also has filed an emergency motion for
temporary relief, asking for a stay to maintain the status quo pending a decision on
the mandamus petition. See Tex. R. App. P. 52.8(b), 52.10.
With certain exceptions not applicable to this proceeding, to obtain mandamus
relief, a relator must show both that the trial court clearly abused its discretion and
that the relator has no adequate remedy at law, such as an appeal. In re Prudential
Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
Relator has a pending action for wrongful foreclose. Relator has an adequate
remedy at law through his wrongful-foreclosure action and an appeal after final
judgment in that action. See Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d
558, 565 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re Breitling, No. 05-
17-00043-CV, 2017 WL 462363, at *3 (Tex. App.—Dallas Jan. 30, 2017, orig.
proceeding) (mem. op.).
Further, as the party seeking relief, relator has the burden of providing this
court with a sufficient record to establish relator’s right to mandamus relief. See
Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Texas Rule
of Appellate Procedure 52.7(a)(2) requires “[r]elator file with the petition: . . . a
properly authenticated transcript of any relevant testimony from any underlying
proceeding, including any exhibits offered in evidence, or a statement that no
testimony was adduced in connection with the matter complained.” See Tex. R. App.
P. 52.7(a)(2).
Even though relator admits that evidence was adduced at the hearing on his
motion to vacate the Substitute Trustee sale, relator has not provided a transcript of
the hearing, as required by Texas Rule of Appellate Procedure 52.7 (a)(2). Absent a
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transcript of the hearing, our court cannot determine what evidence or testimony was
presented at the hearing. See In re R.G, 14-17-00055-CV, 2017 WL 391022, at *1
(Tex. App.—Houston [14th Dist.] Jan. 25, 2017, orig. proceeding) (per curiam)
(mem. op.) (denying petition for writ of mandamus because relator failed to provide
a complete transcript of the hearing). “This court cannot make a sound decision
based on an incomplete picture” and “[i]n the final analysis, this court cannot and
will not find an abuse of discretion on an incomplete record.” In re Le, 335 S.W.3d
at 813, 814 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding).
For these reasons, we deny relator’s petition for writ of mandamus and motion
for stay.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Boyce and Busby.
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