NO. 07-06-0370-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B OCTOBER 13, 2006

______________________________ IN RE MIC HAEL E. GEIGER , RELATOR

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORA NDUM OPIN ION
Relator Michael E. Geiger, pr

oceeding pro se, seeks a w rit of mandamus directing the Honorable Abe L opez, Judg e of the 108th District Court of Potter County , to hold a hearing and rule on hi s motion for default judgment and motion for “request of judgment” in a civ il action. We will deny rela tor’s petit ion.
Relator alleges hefiled a civil action in the 108th Distri ct Court on M arch 28, 2005, and that the defend ants failed to answer. He further al leges he filed a motion for def ault judgment

on January 6, 2 00 6, and a “motion for request of judg ment” on April 17, 2006, neither of which were rul ed on b y the tri al court. N o certified or sworn copies of the motions were included with the petition for writ of mandam us a s required by Rule 52.3(j)(1) (A) of the Texas Rules of Appell ate Procedure.2

Relator maintains the trial court abus ed its discretion by refusing to hear and rule on hi s mot ions . He al so as sert s he h as no adeq uate reme dy by la w.
“Mandamus issues only to correct a clear abuse of discretion or the viola tion of a duty imposed by

law when there is no other adequate remedy by law.” Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Four th Court of Appeals , 700 S.W .2d 916, 917 (Tex. 1985 ) ( orig. proceeding) . To show enti tlement to mandamus relief in ci rcumstances su ch as those pre sented by r elator’s peti tion, he must sati sfy thr ee elements: first , a legal du ty to perform anon-discret ionary ac t; second, a demand for performance; and th ird, refusal of that demand. Stoner v. Mas sey , 586 S.W.2d 843, 846 (Tex. 1979). When a motion is properly pending before a t rial court, the actof considering and ruling on the motio n is a ministeri al act. Eli Lilly and Co. v. Marshall , 829 S.W .2d 157, 158 (Tex. 1992 ). (orig. proceeding). However, the trial court has a reasonable time within which to perform that ministerial duty. Safety-Kleen Corp. v. Garcia , 945 S.W.2d 268, 269 (Tex.App.–San Antoni o 199 7) (orig. proceeding). Wh ether a reasonable period of

tim e has lapsed is

dependent on the ci rcumstances of each case. Barnes v. State , 832 S.W.2d 424, 426 (Tex.App.–Hous ton [1st Dist.] 19 92) (orig. proceeding).
Addi tion ally, the party seeking r elief has the burde n to provi de a sufficient record to establish entitlement to mandamus relief. Walker

, 827 S.W.2d at 837. See also In re Bates , 65 S.W .3d 133, 135 (Tex.App. –Amarillo 2001) (ori g. proceedi ng). The record must show the moti on waspresented to the trial cour t and it refused toact. In re Villarr eal , 963

S.W.3d 708, 710 n.2 (Tex .App.–Amarillo2003) (orig. proceeding) (filing s omething w ith the DistrictClerk doesnot demonstrate tha t a m otion has been brought to the trial court’s attention).
Relator ass erts that on M ay 19, 2005, he inquired ab out his case, and the District Clerkacknowled ged the case had been docketed and s ubmitted. He does not all ege, or demonstrate, that his motions were pr esented to the trial court and it refused to ac t on them. We must conclude relator has not satisfied hi s burden to prov ide a sufficient record demonstrating that a properly pending motion has awaited disposition f or an unreasonable length of time or

that the trial court has r efused to perform a mini sterial act

. Moreover, as noted, rela tor’s petit ion for writ of mandamus does no t substantially complywith the requirements of Rule 52.3 of the Texas Rules of Appel late Procedur e. For these reasons, relator’s petition for w rit of mandamus is denied.

James T. Campbell Justice