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In re Vega

Court of Appeals of Texas, First District

May 23, 2017

IN RE CHERI VEGA, Relator

         Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Justices Higley, Bland, and Brown.

          MEMORANDUM OPINION

          PER CURIAM

         Relator, Cheri Vega, filed a petition for writ of mandamus seeking to vacate the respondent trial judge's "Order on Motion to Compel Payment of Amicus Fees, Awarding Attorney's Fees and Sanction" and the "Order on Motion to Disqualify Amicus Attorney, " in the underlying post-divorce proceeding.[1] This Court's orders had requested a response to the petition from any real parties in interest. This Court received responses from Karleana Farias, the amicus attorney, and Arturo Lira, relator's ex-husband.

         Generally, to be entitled to mandamus relief, a relator must establish that the trial court clearly abused its discretion and that she lacks an adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). The relator bears the burden of proving both of these two requirements. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

         "We may take judicial notice of our own records involving the same parties and subject matter." Douglas v. Am. Title Co., 196 S.W.3d 876, 877 n.1 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citation omitted). On January 20, 2017, relator filed a pro se notice of appeal from the trial court's "Order on Third Motion to Compel Payment of Amicus Fees, " signed by the respondent on December 21, 2016, in the same underlying trial court cause number 2008-11473. This order, among other things, granted real party in interest Farias's motion for $7, 269.10 in amicus attorney's fees because relator had failed to pay Farias's amicus fees even after being ordered to so on several prior occasions, and permitted Farias to be removed as amicus attorney due to lack of payment. The district clerk assigned relator's appeal to this Court and the Clerk of this Court assigned it to appellate cause number 01-17-00054-CV.

         On March 1, 2017, the district clerk filed a clerk's record in this Court under appellate cause number 01-17-00054-CV. Included in the clerk's record is an "Agreed Order in Suit to Modify Parent-Child Relationship, " signed on February 9, 2017. This February 9, 2017 Agreed Order is a final order because it stated that, among other things, "IT IS ORDERED that all relief requested in this case and not expressly granted is denied. All other terms of the prior orders not specifically modified in this order shall remain in full force and effect." See, e.g., In re Vaishangi, Inc., 442 S.W.3d 256, 259 (Tex. 2014) ("A judgment is final 'if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.'") (quoting, inter alia, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001)).

         Although the Agreed Order was signed by the associate judge, it was a final order because it was an agreed order signed by both relator and Lira, and they approved and consented to it as to both form and substance. See Tex. Fam. Code Ann. § 201.007(a)(14)(A) (West 2007) ("Except as limited by an order of referral, an associate judge may: . . . (14) without prejudice to the right of appeal under Section 201.015, render and sign: (A) a final order agreed to in writing as to both form and substance by all parties."); cf. Gerke v. Kantara, 492 S.W.3d 791, 793 (Tex. App.-Houston [1st Dist.] 2016, no pet.) (noting that "[a]ssociate judges do not have the power to render final judgment outside the context of certain limited exceptions listed in section 201.007 of the Family Code.") (internal quotation marks omitted).

         Thus, because a final agreed order has issued and relator has filed a notice of appeal, which remains pending under appellate cause number 01-17-00054-CV, relator has an adequate appellate remedy to challenge the respondent's orders that were the subject of this petition. See Walker, 827 S.W.2d at 840 (mandamus relief is not available when adequate appellate remedy exists); see also In re Esparza, No. 14-16-00748-CV, 2016 WL 5947445, at *1 (Tex. App.-Houston [14th Dist.] Oct. 13, 2016, orig. proceeding) (per curiam) (mem. op.) ("Except in unusual circumstances, not applicable here, mandamus relief is not available after a final judgment has been issued because relator then has an adequate remedy by direct appeal."); see, e.g., In re Portillo, No. 14-11-00520-CV, 2011 WL 5118982, at *1 (Tex. App.-Houston [14th Dist.] Oct. 27, 2011, orig. proceeding) (granting motion to dismiss mandamus petition after final order superseded order that was subject of petition, rendering petition moot).

         Accordingly, we deny the petition for writ of mandamus because relator has an adequate appellate remedy. See Tex. R. App. P. 52.8(a).

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Notes:

[1] The underlying case is Cheri Vega v. Arturo Lira, Cause No. 2008-11473, pending in the 309th District Court of Harris County, Texas, the Honorable ...


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