In Re: Anthony E. Gill--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00018-CV

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IN RE: ANTHONY E. GILL

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Anthony E. Gill has filed a petition for writ of mandamus in which he asks this Court to order the 23rd Judicial District Court of Brazoria County to rule on his request for hearing and trial setting, to change its judgment to include damages, and to issue a final judgment on his Deceptive Trade Practices Act (DTPA) claim. // In the underlying lawsuit, Gill sued Boyd Distribution Center, claiming injury because cans of Ensure that he purchased from the prison commissary were marked "not for retail sale," and were not nutritionally equivalent to the standard retail product.

In the last mandamus brought by Gill, he complained that no judgment had ever been entered in accordance with our opinion and mandate. However, the trial court conducted a hearing with Gill present in December 2002. We were informed by the trial court that it had instructed Gill to submit a proposed judgment, that Gill has never done so, and that it stood ready to sign an appropriate judgment on the matter.

According to allegations in this petition for writ of mandamus, which has no documentation attached, the trial court signed a judgment June 20, 2003, to which Gill takes exception. He contends that the judgment is not final because it did not include liquidated damages and complains that he has been unable to obtain a hearing at which he could offer proof of damages. He further contends the trial court has failed to do its ministerial duty to render damages. Tex. R. Civ. P. 241 provides that, in the context of a default judgment, when a claim is liquidated, the damages are to be assessed by the trial court. Gill states he set out the actual damages in his petition (the cost of the Ensure), thus taking the position he proved his damages under and by an instrument in writing. Gill calculates the maximum amount of damages he is due under the DTPA totals $56.00. However, he also states he is entitled to judgment for a total of $13,810.02, which presumably includes other matters not clearly articulated in this petition.

He therefore seeks two forms of relief either that we order the trial court to hold a hearing on damages, or that we direct the court to award damages pursuant to Rule 241.

Gill also complains because the trial court did not award attorney's fees. Attorney's fees, however, are only recoverable when an attorney is involved, and are not recoverable when a party is acting pro se. Beasley v. Peters, 870 S.W.2d 191 (Tex. App. Amarillo 1994, no writ).

Gill also asks this Court to render the judgment the trial court should have rendered, because the amounts involved are not at issue. We will not render a judgment in response to a petition for writ of mandamus, but can only direct the trial court to take action. We further note that, if the final judgment eventually rendered is unsatisfactory to Gill, his recourse will be through a direct appeal to the court of appeals covering the geographic district of the trial court, not to this Court.

Gill has not provided us with sufficient supporting information to allow us to enter a mandatory ruling. We recognize that, while we may not prescribe the manner in which a trial court exercises its discretion in ruling on a motion, we may, by mandamus, order a trial court to exercise its discretion in some manner. Cooke v. Millard, 854 S.W.2d 134, 135 (Tex. App. Houston [1st Dist.] 1992, orig. proceeding).

We do not have a record of the ruling of the trial court. It is apparent this case should be brought to finality through entry of a damage award as found appropriate by the trial court, but without the underlying information to show what the court has been asked to do, or the nature of the proof provided to the court, we do not know what action has been requested of or taken by the trial court.

Under these circumstances, we cannot issue a mandamus against the trial court.

We deny the petition.

Jack Carter

Justice

Date Submitted: February 10, 2004

Date Decided: February 11, 2004