COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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IN RE: NEW CENTURY MORTGAGE CORP. OF CA., Relator. |
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NO. 08-03-00521-CV AN ORIGINAL PROCEEDING IN MANDAMUS |
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MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS
This is an original proceeding in mandamus. New Century Mortgage Corp. of CA., relator, seeks a writ of mandamus requiring that the Honorable Linda Chew, Judge of the 327th District Court, set aside a temporary restraining order. For the reasons stated below, we deny relief.
STANDARD OF REVIEW
Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Moreover, there must be no other adequate remedy at law. Id.
1. Clear abuse of discretion
An appellate court rarely interferes with a trial court=s exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). With respect to resolution of factual issues or matters committed to the trial court=s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839-40. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court=s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court=s determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no Adiscretion@ in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.
2. No adequate remedy by appeal
An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex. 1986) (orig. proceeding). Mandamus will not issue where there is A>a clear and adequate remedy at law, such as a normal appeal.=@ Walker, 827 S.W.2d at 840 (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue A>only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.=@ Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas, in Appellate Procedure in Texas, Sec. 1.4(1)(b) at 47 [2d Ed. 1979]).
APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT
Respondent issued a temporary restraining order prohibiting relator from repossessing and selling certain real property at a public sale scheduled for January 6, 2004 because relator did not provide thirty days= notice as required by Article 16, Section 50 of the Texas Constitution.[1] Respondent=s order also set the matter for a hearing at 11 a.m. on January 6, 2004. Relator has not notified the Court of the outcome of the hearing. Further, relator did not file a motion for emergency relief with its petition for writ of mandamus. Because the time and date scheduled for the public sale
has expired, the issue raised by the mandamus petition has become moot. Consequently, we deny the relief requested in the petition for mandamus.
SUSAN LARSEN, Justice
January 22, 2004
Before Panel No. 4
Barajas, C.J., Larsen, and McClure, JJ.
[1]Tex. Const. art. 16, ' 50 (pertaining to homestead; protection from forced sale; mortgages, trust deeds and liens).