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In re Invum Three, LLC

Court of Appeals of Texas, Fourteenth District

July 5, 2017

IN RE INVUM THREE, LLC, Relator

         ORIGINAL PROCEEDING WRIT OF MANDAMUS Co Civil Ct at Law No 1 Harris County, Texas Trial Court Cause No. 1091333

          Panel consists of Justices Boyce, Donovan, and Jewell.

          OPINION

          Kevin Jewell Justice.

         The underlying proceeding is forcible detainer suit to gain possession of real property. Relator is Invum Three, LLC, who is the plaintiff below. Real party-in-interest is Ronald T. Ricks, who is defendant below (Ricks).

         On June 7, 2017, Relator filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, Relator asks this court to compel the Honorable George Barnstone, presiding judge of the County Civil Court at Law No. 1 of Harris County, to vacate his May 5, 2017 order staying execution of a writ of possession signed on May 1, 2017.

         We conditionally grant the petition for writ of mandamus.

         I. Factual and Procedural Background

         On January 26, 2015, Ricks executed a deed of trust collateralizing property known as 20334 Bishops Gate, Houston, Texas for the repayment of a loan. On December 6, 2016, a creditor foreclosed on the subject property. Relator purchased the property at the foreclosure sale.

         Relator brought the underlying eviction suit by filing a complaint with the Harris County Justice of the Peace, Precinct 4, Place 1. At the trial, the Justice Court ruled in Relator's favor. Ricks appealed to the County Court for a trial de novo. Trial was held on April 18, 2017, but Ricks failed to appear. At trial, Relator presented documentary and testimonial evidence, and upon the close of evidence the County Court rendered judgment awarding Relator possession of the property.

         On April 26, 2017, Relator requested and paid for a writ of possession from the county clerk. On May 1, 2017, the clerk issued the writ of possession. On or about May 4, 2017, a Harris County Deputy Constable posted the writ of possession at the subject property. The same day, Ricks filed a motion to stay the writ of possession or alternatively to recall the writ of possession, and filed a motion for new trial.

         The following day, on May 5, 2017, the trial court held a hearing on the motion to recall the writ of possession, and signed an order staying the writ of possession. Additionally, the court ordered the Constable to not set the lockout date, and to hold the writ in the Constable's possession, until further instructions from the court. The motion for new trial remains pending.

         II. Mandamus Standard

         To obtain mandamus relief, a relator generally must show both that the trial court clearly abused its discretion and that relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The appellate court reviews the trial court's application of the law de novo. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

         Relator has no adequate remedy by appeal because the rules do not provide for a right to appeal an order staying ...


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