                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-19-00302-CV

                            IN RE PAULA NICHOLS


                                Original Proceeding



                          MEMORANDUM OPINION

      Relator’s Petition for Writ of Mandamus is denied.      Relator’s Motion for

Emergency Stay is dismissed as moot.



                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
       (Chief Justice Gray dissenting with opinion)
       (Justice Neill concurring with a note)*
Petition denied; motion dismissed
Opinion delivered and filed September 18, 2019
[OT06]
*(Justice Neill concurs in the denial of the petition for writ of mandamus. A separate
opinion will not issue. He provides the following note. A petition for writ of mandamus
is reserved for extraordinary situations when a litigant is left without remedy in the trial
court. In this proceeding, on August 29, 2019, Relator properly and timely filed an
“Emergency Motion to Set Aside Default Judgment Pertaining to Temporary Orders”
rendered on August 28, 2019. However, there is nothing in the record before us to
indicate Relator requested that the trial court set the emergency motion for hearing and
there is no order or fiat to set the emergency motion for hearing attached to the motion.
Relator filed the emergency motion on August 29, 2019, and then filed a petition for writ
of mandamus in this Court on August 30, 2019. There is nothing before this Court to
show the trial court ruled upon the emergency motion or even had an opportunity to rule
upon the emergency motion before Relator filed the petition for writ of mandamus in this
Court. I believe it is incumbent on the Relator to exhaust this possible remedy in the trial
court before seeking relief from this Court. With this note, I concur in the denial of the
petition for writ of mandamus.)




In re Nichols                                                                         Page 2
