in Re: Staff Care, Inc.

Opinion

GRANT; and Opinion Filed August 21, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00987-CV

IN RE STAFF CARE, INC., Relator

On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. 11-03615

MEMORANDUM OPINION Before Justices O'Neill, Lang-Miers, and Evans Opinion by Justice Lang-Miers Relator filed this petition for writ of mandamus after the trial judge denied its motion for

continuance and stated he would not rule on relator’s pending motions to compel and appeal of

the associate judge’s decision on a motion to strike prior to trial. In order to obtain mandamus

relief, relator must show both that the trial judge has abused his discretion and that relator has no

adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.

proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Relator

has met this burden.

Relator filed suit against real parties in interest, former employees of relator, for, inter

alia, breach of contract, breach of fiduciary duty, theft of trade secrets, tortious interference with

contract and tortious interference with prospective business relationships. In September 2012,

relator filed a motion to compel discovery, for which a hearing was held on November 2, 2012.

The trial court declined to rule on the motion at that time. Over the next several months, relator filed additional motions to compel discovery and motions to compel depositions, and set

hearings for those motions in May 2013 and July 2013. The hearings were canceled by the trial

court. Finally, an associate judge heard and granted real parties in interest’s motion to strike, and

relator timely appealed that ruling to the trial court. On July 12, 2013, the trial court denied

relator’s motion to continue the July 22, 2013 trial date without ruling on any of the outstanding

motions or the appeal. Relator was informed by the court that no hearing dates were available

for any of these matters prior to trial.

A trial court has a duty to conduct hearings and render decisions on motions that are

properly filed and brought to the court’s attention, and a failure to do so is an abuse of discretion.

See Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding). In this

case, relator timely filed several motions and sought hearings from the trial court. Despite

relator’s requests for rulings on the motions, the court failed to hold hearings on the motions

prior to trial and, when a hearing was held, failed to rule. Similarly, the court failed to set a

hearing on the appeal of the associate judge’s ruling prior to the date of trial. Because the trial

court had a legal duty to perform the nondiscretionary act of ruling on the motions, was asked to

rule on the motions, and failed to do so, mandamus will issue. See In re Shredder Co., L.L.C.,

225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). However, “[a]lthough we

have jurisdiction to direct the trial court to exercise its discretion in some manner, under no

circumstances may we tell the trial court what its decision should be.” Id. We therefore express

no opinion on the merits of any of relator’s motions or its appeal of the associate judge’s order.

We conditionally grant relator’s petition for writ of mandamus. A writ will issue only in

the event the trial court fails to render an order: 1) resolving all of the parties’ motions to compel

that were pending as of July 18, 2013; 2) ruling on relator’s appeal of the Associate Judge’s

–2– Order granting Defendants’ Motion to Strike, and 3) setting a date for trial not less than thirty

days from the date of the last of the orders resolving these motions.

/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE

130987F.P05

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