                                  NO. 07-05-0276-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   AUGUST 11, 2005

                         ______________________________

                      IN RE RANDY MACK LACKEY, RELATOR
                        _______________________________


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


                              MEMORANDUM OPINION


      Relator Randy Mack Lackey has filed a petition seeking a writ of mandamus

directing the Honorable Gordon Green, Judge of the 287th District Court, to rule on a

motion for default judgment and for sanctions in an underlying civil suit relator brought

against attorney Robert McCool. We will deny the petition.


      A writ of mandamus issues only to correct a clear abuse of discretion or the violation

of a duty imposed by law when there is no other adequate remedy at law. Canadian

Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding). It is the

relator's burden to show entitlement to the relief being requested. See generally Johnson

v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).
       Relator alleges he filed a motion seeking default judgment, pursuant to Rule of Civil

Procedure 239, “due to the failure of the Defendant McCool to answer the complaint.”

Attached to relator’s mandamus petition is a copy of the motion relator alleges he filed.

The motion states, though, that McCool did file an answer asserting a general denial.

Rendition of a default judgment under Rule 239 is authorized when the defendant has not

answered. Rule of Civil Procedure 92 provides a general denial is sufficient to place in

issue all matters not required to be denied under oath. Relator has not alleged his petition

asserted claims requiring a verified denial. See TEX . R. CIV . P. 93.


       The motion also states that, on a request from the defense, the trial court abated the

action pending resolution of another suit between the same parties proceeding in another

county. Relator asserts McCool failed to “respond regarding the . . . Order of Abatement”

within the time ordered by the trial court. He seeks to equate the asserted failure to timely

respond to a failure to answer, requiring sanctions by either rendition of default judgment

or as provided in Rule of Civil Procedure 215.2(b)(4).


       There are several reasons relator has failed to show entitlement to the mandamus

relief he seeks. In Stoner v. Massey, 586 S.W.2d 843 (Tex. 1979), our Supreme Court

articulated three elements necessary to show entitlement to a writ of mandamus: first, a

legal duty to perform a nondiscretionary act; second a demand for performance and third

refusal of that demand. Id. at 846. We have no evidence of the instruction relator says the

trial court gave to McCool or the deadline, if any, set for a response. Moreover, the answer

on file prevented rendition of the default judgment relator seeks. TEX . R. CIV . P. 239.

Relator’s reliance on Rule 215.2(b)(4) also is misplaced. That rule authorizes a trial court

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to impose sanctions for abuse of the discovery process. See Tex. R. Civ. P. 215 (“Abuse

of Discovery; Sanctions”). There is no allegation or showing of abuse of discovery here.

       Secondly, the opinion in Barnes v. State, 832 S.W.2d 424 (Tex.App.–Houston [14th

Dist.] 1992) (orig. proceeding), illustrates the importance of the second element of Stoner.

In Barnes, the relator sought a writ of mandamus directing the trial court to rule on his

motions. Id. at 425. While agreeing the trial court had a duty to rule within a reasonable

time,1 the court noted:


       The relator has not provided us with a record that shows that, after he filed
       his motions, relator asked the trial court for a hearing and ruling on his
       motions and the trial court refused to hold a hearing and to rule. From this
       record, it appears the relator did not take any action to alert the trial court that
       it had not yet considered his two motions.


Id. at 426. Based on this failure, the court denied the petition. Id. Compare Safety-Kleen

Corp. v. Garcia, 945 S.W.2d 268 (Tex.App.–San Antonio 1997) (orig. proceeding) (relator

had made repeated written requests to court coordinator to schedule hearings on its

motion). Here, as in Barnes, there is nothing to indicate relator has brought his motion to

the attention of the trial court2 by requesting a hearing or otherwise, or that such request

has been denied. This omission requires denial of relator’s petition. 832 S.W.2d at 426.




       1
         Relator does not address the effect of the trial court’s abatement of the underlying
suit on the reasonable time for ruling on pending motions.
       2
         That a document is filed with a court’s clerk does not necessarily mean that the
judge is aware of it. See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001) (orig.
proceeding).

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      Relator’s petition also fails to meet the mandatory requirements of Rule of Appellate

Procedure 52. Rule 52.3(j)(1) requires the petition to include a certified or sworn copy of

any “document showing the matter complained of.” Relator’s petition includes a copy of

the motion he asserts he filed in the trial court. The document does not bear a file mark

and the unsworn declaration in his petition does not purport to authenticate that document.

We would be unable to conclude the document was properly before the trial court. See

Barnes, 832 S.W.2d at 427. For these reasons, relator’s petition for writ of mandamus

must be, and is, denied.




                                          James T. Campbell
                                              Justice




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