IN THE TENTH COURT OF APPEALS

No. 10-19-00302-CV IN RE PAULA NICHOLS

Original Proceeding

MEMORANDUM OPINION Relator’s Petition for Writ of Mandamus is denied. Relator’s Motion for Emergency Stay is dismissed as moot.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Neill (Chief Justice Gray dissenting with opinion) (Justice Neill concurring with a note)* Petition denied; motion dismissed Opinion delivered and filed September 18, 2019 [OT06] *(Justice Neill concurs in the denial of the petition for writ of mandamus. A separate opinion will not issue. He provides the following note. A petition for writ of mandamus is reserved for extraordinary situations when a litigant is left without remedy in the trial court. In this proceeding, on August 29, 2019, Relator properly and timely filed an “Emergency Motion to Set Aside Default Judgment Pertaining to Temporary Orders” rendered on August 28, 2019. However, there is nothing in the record before us to indicate Relator requested that the trial court set the emergency motion for hearing and there is no order or fiat to set the emergency motion for hearing attached to the motion.

Relator filed the emergency motion on August 29, 2019, and then filed a petition for writ of mandamus in this Court on August 30, 2019. There is nothing before this Court to show the trial court ruled upon the emergency motion or even had an opportunity to rule upon the emergency motion before Relator filed the petition for writ of mandamus in this Court. I believe it is incumbent on the Relator to exhaust this possible remedy in the trial court before seeking relief from this Court. With this note, I concur in the denial of the petition for writ of mandamus.)

In re Nichols Page 2