In Re Karen J. Avery v. the State of Texas

Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed January 4, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00864-CV

IN RE KAREN J. AVERY, Relator

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
246th District Court
Harris County, Texas
Trial Court Cause No. 2015-02907

MEMORANDUM OPINION

On November 14, 2023, relator Karen J. Avery filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this Court to compel the Honorable Angela
Graves-Harrington, presiding judge of the 246th District Court of Harris County, to
render judgment in the underlying divorce case. We conditionally grant the
petition.1

BACKGROUND

The bench trial in the underlying divorce commenced on May 6, 2019, and
concluded on December 11, 2019. At the conclusion of the trial, the trial court
orally pronounced that the parties were divorced. On November 15, 2021, relator
filed a motion to sign decree of divorce and proposed final decree of divorce. On
that same day, relator also filed a community inventory and appraisement “based
on evidence produced at trial, testimony of parties, testimony of fact witnesses.”
The next day, relator filed a notice of submission for December 6, 2021, of her
motion to sign the divorce decree. Real party in interest filed a response opposing
relator’s motion, arguing that it would be improper for the trial court to sign the
final divorce decree because the trial court had not made a final decision as to the
characterization of the various community asserts. The submission date passed
without a ruling.

On January 3, 2022, relator filed a motion for a status conference regarding
the trial court’ rendition in the matter. Shortly thereafter, relator filed a notice of
remote hearing set for February 2, 2022. The parties appeared for the hearing on
February 2, 2022, but were informed after docket call that the trial court could not
hear relator’s motion and the remote hearing on relator’s motion was rescheduled
for February 11, 2022. At the February 11, 2022 hearing, the trial court advised

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The court requested a response to the petition for writ of mandamus from the real party in
interest by November 30, 2023. However, he did not file one.
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the parties that it would have a rendition the following Monday. The trial court did
not render judgment.

On March 8, 2022, relator filed another motion for status conference
regarding rendition. Two days later, relator filed a notice of remote hearing on
relator’s motion for status conference set for April 6, 2022. At the hearing, the
trial court told the parties that it would issue a rendition soon.

Relator filed a motion for a status conference on June 21, 2022, but no
hearing was held. On December 5, 2022, relator filed another motion for a status
conference. The trial court granted an in-person hearing for January 18, 2023. At
that hearing, the trial court indicated that a rendition would be coming within a
week. The trial court did not render a judgment. Thus, on March 22, 2023, relator
filed her original petition for writ of mandamus, which this Court conditionally
granted on July 11, 2023. In re K.J.A., No. 14-23-00192-CV, 2023 WL 4446508
(Tex. App.—Houston [14th Dist.] July 11, 2023, orig. proceeding) (mem. op.) (per
curiam).

On July 13, 2023, the trial court issued a rendition in the underlying matter
and noticed entry for July 28, 2023. According to relator, the rendition failed to
address the award of real property funds for the “Hockley property” sale proceeds.
Additionally, relator maintained that she was awarded 75% of her attorney’s fees
to be paid by the real party in interest, but no dollar amount was specified. Thus,
on July 26, 2023, relator filed a proposed final decree which conformed to the
rendition issued on July 13, 2023. The following day, on July 27, 2023, relator
filed a motion to divide property not divided and for clarification.

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On July 28, 2023, at the hearing, the trial court held that the “Hockley
property” was the separate property of relator, and entry was reset for October 6,
2023. On October 2, 2023, relator filed an amended final decree which included
the previously undivided “Hockley property” based on the trial court’s July 28,
2023 ruling.

On October 6, 2023, at the hearing, the trial court requested that relator’s
attorney’s file a brief with certified documents admitted during the trial,
confirming relator’s separate property and attorney’s fees. According to relator,
the trial court indicated that upon receipt of the brief with the certified documents,
the trial court would sign the decree. Relator filed the brief along with the certified
documents on October 10, 2023. On October 25, 2023, relator filed a motion to
sign final decree of divorce.

As of the time relator filed this, her second petition for writ of mandamus,
the trial court had not rendered judgment.

ANALYSIS

Generally, to be entitled to mandamus relief, relator must establish that (1)
the trial court abused its discretion; and (2) relator has no adequate remedy by
appeal. In re Christianson Air Conditioning & Plumbing, LLC, 639 S.W.3d 671,
681 (Tex. 2022) (orig. proceeding).

A writ of mandamus will lie to compel a trial court to proceed to judgment
within a reasonable time. In re Black, 640 S.W.3d 894, 897 (Tex. App.—Amarillo
2022, orig. proceeding) (citing Tex. State Bd. of Examiners in Optometry v. Carp,
388 S.W.2d 409, 417 (Tex. 1965)). While it is a basic premise that an appellate

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court lacks the power to compel a trial judge to do a particular act involving or
requiring discretion on his part, this court is empowered to order a trial judge to
exercise her discretion in some manner. O’Donniley v. Golden, 860 S.W.2d 267,
270 (Tex. App.—Tyler 1993, orig. proceeding). However, while we have
jurisdiction to direct the trial court to exercise its discretion, we may not tell the
trial court how to rule on a particular matter. In re ReadyOne Indus., Inc., 463
S.W.3d 623, 624 (Tex. App.—El Paso 2015, orig. proceeding).

The trial court has a reasonable time in which to render judgment. In re
Mesa Petroleum Partners, LP, 538 S.W.3d 153, 157 (Tex. App.—El Paso 2017,
orig. proceeding). “The test for determining what time period is reasonable is not
subject to exact formulation, and no ‘bright line’ separates a reasonable time period
from an unreasonable one.” In re Greater McAllen Star Props., Inc., 444 S.W.3d
743, 748 (Tex. App.—Corpus Christi 2014, orig. proceeding). What is considered
a reasonable amount of time is dependent upon the circumstances of each case. In
re Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex.—El Paso 2006, orig.
proceeding).

The bench trial concluded on December 11, 2019. Although relator filed
multiple motions requesting that the trial court render judgment, it was only after
this Court conditionally granted mandamus relief on July 11, 2023 that the trial
court entered a rendition. However, as described above, the rendition was
incomplete and required clarification. Over the last several months, relator filed a
motion to divide property not divided and for clarification, an amended final
decree, and briefing and certified documents requested by the trial court.
Notwithstanding, the final decree of divorce remains unsigned. The trial court has
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had a reasonable time to sign the final divorce decree. Therefore, the trial court
has abused its discretion by not signing a final divorce decree.

A trial court’s discretion extends to its decision on how to rule on a matter
properly before it, and an appellate court then reviews the rulings produced by that
judicial power in the normal appellate process. In re Maasoumi, No. 05–08–
01074–CV, 2008 WL 4881328, at *3 (Tex. App.—Dallas Nov. 13, 2008, orig.
proceeding) (mem. op.). The refusal to rule within a reasonable time frustrates that
purpose and constitutes a denial of due course of law. Id. Thus, the failure to enter
a judgment deprives a party of an adequate remedy at law, including the right to
accept or appeal a judgment entered. Black, 640 S.W.3d at 897. We conclude
relator does not have an adequate remedy by appeal. See id.

CONCLUSION

Having determined that the trial court abused its discretion and relator does
not have an adequate remedy by appeal, we conditionally grant relator’s petition
for writ of mandamus and direct the trial court to enter a final divorce decree.
However, we do not instruct the trial court on how to rule on the divorce decree.
We are confident the trial court will act in accordance with this opinion and a writ
will issue only if the trial court fails to comply.

PER CURIAM

Panel consists of Justices Bourliot, Hassan, and Poissant.

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