in Re James C. Fuller ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00395-CV
IN RE JAMES C. FULLER
Original Proceeding
MEMORANDUM OPINION
This is James C. Fuller’s second attempt to obtain a writ of mandamus
compelling Respondent, the Honorable Barbara Hale, Judge of the County Court at Law
of Walker County, to render a final judgment in his lawsuit. See Fuller v. Moya, No. 10-
09-00294-CV, 2009 WL 4852425 (Tex. App.—Waco Dec. 16, 2009, no pet.) (dismissing
Fuller’s appeal for lack of final judgment). We will again deny Fuller’s mandamus
petition.1
We denied Fuller’s first mandamus petition because he failed to provide a
certified or sworn mandamus record indicating that he had requested Respondent to
1
We apply Rule of Appellate Procedure 2 and disregard numerous deficiencies in Fuller’s
mandamus petition. See TEX. R. APP. P. 2.
render a final judgment in his suit. See In re Fuller, No. 10-10-00299-CV, 2010 WL
3342192, at *1 (Tex. App.—Waco Aug. 25, 2010, orig. proceeding). Fuller has attached a
“Motion for Final Judgment” to his second mandamus petition which he prepared and
delivered to the county clerk at the same time as his second mandamus petition.
Fuller acknowledges in his mandamus petition that he must provide “a certified
or sworn copy of every document that is material to [his] claim for relief and that was
filed in [the] underlying proceeding.” See TEX. R. APP. P. 52.7(a)(1). Though we have
noted that Fuller’s petition contains “numerous deficiencies,” we take a moment to
address his attempt to comply with Rule 52.7(a)(1). The preferred method of complying
with this requirement is to provide a file-stamped copy of any document relied on and
certify or swear that (1) it is a true and correct copy and (2) it was filed in the underlying
proceeding. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.
proceeding) (stating preference for file-stamped copies of pleadings in mandamus
record). As we will discuss, the timing of Fuller’s filing of his Motion for Final
Judgment is important, so this certification should also state the date on which the
motion was filed in the trial court, especially if a file-stamped copy is not provided.
Fuller attached an unsworn declaration to the Motion for Final Judgment which
states in pertinent part “that the forgoing is true and correct. The trial court has been
given ampell [sic] amount of time to rule on the above cause number. And that the trial
court has been put on notice that a Mandamus is in the Court of Appeals.” We may
infer from this declaration that Fuller has provided us a “true and correct” copy of this
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motion and that it was filed in the underlying proceeding, but it would be better for
him to say so directly.
As we stated in the prior mandamus petition, “[t]here are three prerequisites for
the granting of mandamus relief: (1) the lower court must have a legal duty to perform
a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the
subject court must refuse that request.” Fuller, 2010 WL 3342192, at *1.
Merely filing a motion with the trial court clerk is not sufficient to establish that a
“demand for performance” has been made.
The trial court is not required to consider a motion unless it is called to the
court’s attention. Showing that a motion was filed with the court clerk
does not constitute proof that the motion was brought to the trial court’s
attention or presented to the trial court with a request for a ruling.
Blakeney, 254 S.W.3d at 662 (citations omitted); see In re Chavez, 62 S.W.3d 225, 228 (Tex.
App.—Amarillo 2001, orig. proceeding). Here, Fuller has arguably shown that he filed
the Motion for Final Judgment with the county clerk. However, there is nothing in the
record to indicate that he has called the motion to Respondent’s attention.
A trial court has a ministerial duty to rule on a pending motion within a
reasonable period of time. In re State, 304 S.W.3d 581, 583 (Tex. App.—El Paso 2010,
orig. proceeding); In re Allied Chem. Corp., 287 S.W.3d 115, 131 (Tex. App.—Corpus
Christi 2009, orig. proceeding). What is a “reasonable period of time” depends on the
circumstances of a particular case. Allied Chem. Corp., 287 S.W.3d at 131; Blakeney, 254
S.W.3d at 662. Here, Fuller filed the Motion for Final Judgment with the county clerk
on the same date that he filed his mandamus petition. Thus, Respondent has not had a
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“reasonable period of time” to consider and rule on the motion. See State, 304 S.W.3d at
583-84 (5 days not reasonable period of time); In re Tasby, 40 S.W.3d 190, 191-92 (Tex.
App.—Texarkana 2001, orig. proceeding) (30 days not reasonable period of time).
For these reasons, we deny Fuller’s second mandamus petition.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Petition denied
Opinion delivered and filed November 17, 2010
[OT06]
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