In Re: Landmark Organization, L.P. , Durrant Architect, Inc. and Zarate Suspended Ceiling, Inc.--Appeal from 404th District Court of Cameron County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2004 » In Re: Landmark Organization, L.P. , Durrant Architect, Inc. and Zarate Suspended Ceiling, Inc.--Appeal from 404th District Court of Cameron County

State: Texas

Court: Texas Northern District Court

Docket No: 13-04-00527-CV

Case Date: 11/01/2004

Plaintiff: Michael Sanchez

Defendant: The State of Texas--Appeal from 390th District Court of Travis County

Preview:In Re: Landmark Organization, L.P. , Durrant
Architect, Inc. and Zarate Suspended Ceiling, Inc.--
Appeal from 404th District Court of Cameron County
NUMBER 13-04-00527-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE LANDMARK ORGANIZATION, L.P., ET AL.
On Petition for Writ of Mandamus ___________________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Wittig //
Per Curiam Memorandum Opinion //
Cameron County brought suit against relators Landmark Organization, L.P., et al., alleging defects in the construction
and maintenance of a prison facility. Through this original proceeding, relators seek a writ of mandamus requiring the
trial court to rule on their motions to compel arbitration. We conditionally grant the relief requested as further specified
herein.
The facts of this original proceeding are known to the parties so we do not recite them here. Further, because all
dispositive issues are clearly settled in law, we issue this memorandum opinion and order pursuant to Texas Rules of
Appellate Procedure 47.1 and 52.8(d). See Tex. R. App. P. 47.1, 52.8(c), (d).
Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and when there is
no adequate remedy on appeal. Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992); In re Kellogg Brown & Root,
7 S.W.3d 655, 657 (Tex. App. Houston [1st Dist.] 1999, orig. proceeding). An appellate remedy may be adequate even
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though it involves more delay or cost than mandamus. Walker, 827 S.W.2d at 842. An appellate remedy is adequate
when any benefits to mandamus review are outweighed by the detriments; when the benefits outweigh the detriments,
appellate courts must consider whether the appellate remedy is adequate. In re Prudential Ins. Co., 47 Tex. Sup. J.
1104, 2004 Tex. LEXIS 789, *26 (Tex. Sept. 3, 2004) (on reh g).
When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon
that motion is a ministerial act, and mandamus may issue to compel the trial judge to act. See, e.g., Safety-Kleen Corp.
v. Garcia, 945 S.W.2d 268, 269 (Tex. App. San Antonio 1997, orig. proceeding). Further, a trial court is required to
consider and rule upon a motion within a reasonable time. See id. Accordingly, if a court unnecessarily delays ruling,
mandamus will lie in appropriate situations.
Whether a reasonable time has lapsed is dependent upon the circumstances in each case because no bright-line rule
exists. Ex parte Bates, 65 S.W.3d 133, 135 (Tex. App. Amarillo 2001, orig. proceeding). Many indicia are influential,
not the least of which are the trial court's actual knowledge of the motion, its overt refusal to act on same, the state of
the court's docket, and the existence of other judicial and administrative matters which must be addressed first. Id. We
further consider the trial court s inherent power to control its docket. See id.
In the instant case, the trial court heard the pending motions to compel arbitration on August26, 2004. At that time, the
court stated that it would render a ruling during the week of September 7, 2004. By letter dated September 3, 2004, the
court informed counsel that it would defer ruling on the motions to compel arbitration until the end of September. The
court required the parties to continue with discovery. At a hearing on October 5, 2004, the trial court again deferred
ruling on the motions. Trial in this matter is set for November 29, 2004. Given these circumstances, we conclude that
the trial court has had a reasonable time to act on the motions to arbitrate but has failed to do so. See id.
Accordingly, we conditionally grant the writ of mandamus. The writ will issue only if the trial court fails to rule on the
motions to arbitrate. Whether the motions should be granted or denied is within the trial court s discretion.
By previous order, we denied the relators motions for emergency relief in part and allowed discovery and other
underlying proceedings to continue, and granted the motions for emergency relief in part and entered a stay of the trial
date itself. That order is hereby MODIFIED and all proceedings are ordered STAYED until such time as the trial court
rules on the pending motions to arbitrate. All pending motions are denied as moot.
PER CURIAM
Memorandum Opinion delivered and filed
this 1st day of November, 2004.
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