In Re SpawGlass Civil Construction, Inc. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 17, 2023
• Docket: 01-23-00696-CV
• Status: Published

Opinion

Opinion issued October 17, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00696-CV ——————————— IN RE SPAWGLASS CIVIL CONSTRUCTION, INC., Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator SpawGlass Civil Construction, Inc. filed a petition for writ of

mandamus asking this Court to compel Respondent, the Honorable Ursula A. Hall,

to rule on its Motion to Compel Arbitration and Stay of Proceedings.1

1 The underlying case is SpawGlass Civil Construction, Inc. v. Horizon Excavating, Inc. and The Hanover Insurance Company, Cause No. 2023-22284, pending in the 165th District Court of Harris County, Texas, the Honorable Ursula A. Hall presiding. We deny the petition without prejudice to the relief sought.

Background

This case arises from a contract dispute between the parties. On June 26,

2023, Relator filed its Motion to Compel Arbitration and Stay of Proceedings

(“Motion”) on the ground “there [wa]s a binding agreement to arbitrate between [the

parties].” On July 19, 2023, Relator filed a Notice of Hearing, setting its Motion for

hearing on August 7, 2023. On August 4, 2023, Real Parties in Interest Horizon

Excavating, Inc. and The Hanover Insurance Company filed a Response in

Opposition to Relator’s Motion. Relator filed a Reply.

On August 7, 2023, Respondent held a telephonic hearing to consider

Relator’s Motion. The following month, on September 26, 2023, Relator filed the

instant petition for writ of mandamus requesting we compel Respondent to rule on

the pending Motion.

Analysis

Mandamus is an extraordinary remedy. In re Ford Motor Co., 165 S.W.3d

315, 317 (Tex. 2005) (orig. proceeding). To obtain mandamus relief, Relator must

show that (1) the trial court clearly abused its discretion or violated a duty imposed

by law; and (2) there is no adequate remedy by way of appeal. Id.; Walker v. Packer,

827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).

2 A trial court abuses its discretion when (1) it has a legal duty to perform a

nondiscretionary act; (2) it is asked to perform the nondiscretionary act; and (3) it

fails to do so. In re Josefsberg, No. 01-21-00179-CV, 2021 WL 2149831, at *2

(Tex. App.—Houston [1st Dist.] May 27, 2021, orig. proceeding) (mem. op.) (citing

In re Robbins, 622 S.W.3d 600, 601 (Tex. App.—Houston [14th Dist.] 2021, orig.

proceeding)). Mandamus may be granted to compel a trial court to perform the

nondiscretionary or ministerial act2 of ruling on a properly filed, pending motion

“within a reasonable time.” In re SMS Fin. XV, L.L.C., No. 01-19-00850-CV, 2020

WL 573247, at *1 (Tex. App.—Houston [1st Dist.] Feb. 6, 2020, orig. proceeding)

(mem. op.); In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex.

App.—Corpus Christi–Edinburg 2014, orig. proceeding); see also Barnes v. State,

832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding)

(“When a motion is properly filed and pending before a trial court, the act of giving

consideration to and ruling on that motion is a ministerial act.”).

“The test for determining what time period is reasonable is not subject to exact

formulation, and no ‘bright line’ separates a reasonable time from an unreasonable

one.” In re Greater McAllen Star Props., 444 S.W.3d at 748; see also In re

2 “An act is ministerial, or nondiscretionary, when ‘the law clearly spells out the duty to be performed with sufficient certainty that nothing is left to the exercise of discretion.’” Bd. of Trs. of Hous. Firefighters’ Relief & Ret. Fund v. City of Houston, 466 S.W.3d 182, 187 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (citation omitted).

3 Cunningham, 454 S.W.3d 139, 143 (Tex. App.—Texarkana 2014, orig. proceeding)

(“There is no bright-line rule establishing a reasonable time period” for trial court to

rule on properly filed, pending motion) (citing Ex parte Bates, 65 S.W.3d 133, 135

(Tex. App.—Amarillo 2001, orig. proceeding)). This Court may consider factors

such as the state of the trial court’s docket, the trial court’s actual knowledge of the

motion, any overt refusal to act on it, and other judicial and administrative matters

that must be addressed first. Ex parte Bates, 65 S.W.3d at 135. In addition, the trial

court’s “inherent power to control its own docket [must] be included in the mix.”

Id. (citing Ho v. Univ. of Texas at Arlington, 984 S.W.2d 672, 694–695 (Tex. App.—

Amarillo 1998, pet. denied)).

Relator seeks an order from this Court compelling Respondent to rule on its

Motion filed on June 26, 2023 on the ground that “[t]he Motion has been pending

for approximately three months.” While it is true the Motion was filed on June 26,

2023, the Motion was set and considered at a hearing on August 7, 2023, the very

day on which Relator set the Motion for hearing. Thus, the record reflects that at the

time Relator filed its present petition for writ of mandamus, the motion had been

pending for less than two months. Relator has not shown Respondent’s delay in

ruling on its Motion is unreasonable.

4 Conclusion

We deny Relator’s petition for writ of mandamus without prejudice to Relator

re-urging the writ should the Motion remain pending without ruling. Any pending

motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.