Twila Aufill, Independent of the Estate of Jack L. Aufill v. V'Rhett Williams ( 2005 )

NO. 07-05-0001-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JANUARY 6, 2005

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KENNETH KENNEDY AND TWILA AUFILL, INDEPENDENT EXECUTRIX OF THE ESTATE OF JACK L. AUFILL, DECEASED, APPELLANTS

V.

V'RHETT WILLIAMS, APPELLEE



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FROM THE 72ND DISTRICT COURT OF CROSBY COUNTY;

NO. 5670; HONORABLE J. BLAIR CHERRY, JUDGE

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Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

MEMORANDUM OPINION

Appellant Twila Aufill, Independent Executrix of the Estate of Jack L. Aufill, Deceased, and Kenneth Kennedy filed separate notices of appeal challenging the trial court's judgment in favor of appellee V'Rhett Williams. Pending before this Court is Aufill's motion to dismiss her appeal by which she represents that all matters in controversy between her and Williams have been compromised and settled. Aufill represents, however, that appellant Kenneth Kennedy is not a party to the motion to dismiss. Pursuant to Aufill's request, by order of severance in cause number 07-04-0498-CV that portion of the appeal between her and Williams was severed into this cause to consider the motion to dismiss.

Without passing on the merits of the appeal between Aufill and Williams, we grant the motion and dismiss the appeal. Tex. R. App. P. 42.1(a). That portion of the appeal between Kenneth Kennedy and V'Rhett Williams remains pending in cause number 07-04-0498-CV and will proceed in due course. Having dismissed the appeal between Aufill and Williams at their request, no motion for rehearing will be entertained and our mandate will issue forthwith. Aufill and Williams have agreed to bear their own costs in this appeal.

It is so ordered.

Per Curiam

M>, 65 S.W.3d 133, 134-35 (Tex. App.-Amarillo 2001, orig. proc.). And, whether that period lapsed depends upon the circumstances of each case. Id. at 135. In other words, no bright line demarcates the boundaries of a reasonable time period. Id. Many indicia are influential, not the least of which are the date upon which the relief was sought, the length of time which has since lapsed, the trial court's knowledge of the matter, its overt refusal to act on same, the state of the court's docket, and the existence of other judicial and administrative matters which must be addressed first. Id. So too must the trial court's inherent power to control its own docket be included in the mix. In re Bates, 65 S.W.2d at 135; see Ho v. University of Texas at Arlington, 984 S.W.2d 672, 694-95 (Tex. App.- Amarillo 1998, pet. denied) (holding that a court has the inherent authority to control its own docket). Because that power is discretionary, Hoggett v. Brown, 971 S.W.2d 472, 495 (Tex. App.-Houston [14th Dist.] 1997, no pet.), we must be wary of interfering with its exercise without legitimate basis. And, given that the party requesting mandamus relief has the burden to provide us with a record sufficient to establish his right to it, In re Bates, 65 S.W.2d at 135; Walker v. Packer, 827 S.W.2d 833 (Tex. 1992), Garrett had the obligation to provide us with a record establishing as a matter of law that the trial court's delay, if any, was and is unreasonable.

To satisfy this burden, Garrett does little else than insinuate that simply because the trial court acted immediately upon the State's motion to dismiss, it was obligated to similarly rule upon his motion for rehearing. While he may so believe, we cannot so hold as a matter of law. This is especially true given that a trial judge has at least 75 days from the date a final order is signed to act upon a motion for new trial or a motion to modify a final order before the motion is overruled by operation of law. Tex. R. Civ. P. 329b(c). If that rule contemplates a 75-day period, we are hard-pressed to say, as a matter of law, that withholding action before the expiration of that time constitutes an unreasonable delay. And, that period has yet to lapse here.

Third, and assuming arguendo that a trial court's refusal to act upon a motion of the kind at bar before it is overruled by operation of law constitutes an abuse of discretion (something Garrett does not address), Garrett also failed to illustrate that he had no adequate remedy at law. That no such remedy exists must be established before mandamus can issue. Walker v. Packer, 827 S.W.2d at 840. Nowhere does he argue that allowing his motion to be overruled by operation of law, per rule 329b(c), irreparably harms him. Indeed, he can always attack the supposed final order of dismissal via an appeal. ⁽¹⁾

For these reasons, we deny, without prejudice, the petition for writ of mandamus.

Brian Quinn

Justice

1.

Garrett also failed to provide us with a certified copy of the order purporting to dismiss his appeal.