John W. Mitchell v. Richard Jason Lyders--Appeal from Co Civil Ct at Law No 2 of Harris County

Opinion issued April 14, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00694-CV

IN RE JOHN W. MITCHELL, Relator

Original Proceeding on Petition for Writ of Mandamus

NO. 01-04-00036-CV

JOHN W. MITCHELL, Appellant

V.

RICHARD JASON LYDERS, Appellee

On Appeal from the County Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 775, 509

MEMORANDUM OPINION

This case involves both a petition for writ of mandamus and an appeal arising out of a forcible entry and detainer action. We deny the petition for writ of mandamus and affirm the judgment in the appeal.

BACKGROUND

Appellee, Richard Jason Lyders ( the landlord ), brought a forcible entry and detainer suit by filing a petition for eviction against John W. Mitchell ( the tenant ), in justice court. After an adverse ruling against the tenant, he appealed for a trial de novo in the county court at law.

After a jury trial on August 15, 2002, the jury found that (1) a lease existed between the landlord and the tenant, (2) the tenant had breached the lease, (3) the tenant was a tenant in sufferance, and (4) the landlord did not provide written notice to vacate to the tenant at least 30 days before filing suit for possession. The trial court s docket sheet for that same date indicates that it granted a judgment notwithstanding the verdict on question 4, in which the jury had determined that the landlord did not give 30 days notice before filing suit. The docket sheet also indicates that a writ of possession would issue within one week.

On August 16, 2002, the landlord filed a motion for summary judgment, which was never ruled on.

On August 20, 2002, the landlord requested that a writ of possession issue.

On September 16, 2002, the tenant filed a motion for new trial, as well as a premature notice of appeal.

On October 24, 2002, the trial court notified the parties that the case was set for entry of judgment on November 11, 2002. This notice provided as follows:

Pursuant to a judgment being rendered, the above styled and numbered case has been set for entry of judgment by the court for the 11th day of November, 2002 at 09:00 A.M.

Your judgment or dismissal must be filed before this entry date or you must appear on the above date and time to show good cause why this case should not be dismissed.

Failure to appear on the date set will subject this case to being dismissed for want of prosecution.

On November 13, 2002, the trial court dismissed the case for want of prosecution.

The tenant has filed both a mandamus and an appeal challenging (1) an order by the trial court to pay $400 in connection with a motion for continuance, (2) the propriety of the jury s verdict.

THE MANDAMUS

In the petition for mandamus, which the tenant filed before the case was dismissed for want of prosecution, he complains that the trial court did not enter a final, appealable written judgment. This argument is moot because the trial court entered a final judgment dismissing the case for want of prosecution.

In his other mandamus arguments, appellant complains about an interlocutory ruling on a motion for continuance and the jury s verdict. However, appellant has a remedy for addressing these complaints by way of his appeal.

Accordingly, we DENY the tenant s petition for writ of mandamus because he has an adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

THE APPEAL

In his first issue on appeal, the tenant contends that the trial court erred by ordering him to pay $400 in connection with a motion for continuance. However, there is no reporter s record from the hearing on the motion for continuance and no order explaining why, or indeed if, such an order was entered. Conceivably, the $400 was a sanction for the delay caused by the tenant s motion for continuance. However, without a record of the proceeding, we cannot review the trial court s alleged order for abuse of discretion, and nothing is presented for review. See Birnbaum v. Law Offices of G. David Westfall, P.C.,120 S.W.3d 470, 476 (Tex. App. Dallas 2003, pet. denied).

Accordingly, we overrule the tenant s first point of error.

In his second through fourth issues, the tenant complains that the jury verdict was erroneous and unsupported by sufficient evidence. However, the record shows that a judgment was never rendered in connection with the jury verdict. In fact, the record shows that the landlord s suit against the tenant was dismissed for want of prosecution. As such, the jury verdict, even if unsupported by sufficient evidence, did not cause the rendition of an improper verdict. There is simply no adverse judgment against the tenant. As such, error, if any, is harmless. See Tex. R. App. 44.1(a)(1).

We overrule issues two through four.

We affirm the judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.