Court of Appeals of Texas, Fifth District, Dallas
Proceeding from the County Court at Law No. 1 Dallas County,
Texas Trial Court Cause No. CC-13-07017-A
Justices Francis, Evans, and Whitehill Opinion by Justice
original proceeding, relator complains that the trial court
has refused to sign a judgment following a September 2, 2016
default judgment prove-up hearing. We requested responses
from the real parties in interest and respondent, which were
due by March 7, 2017. No responses have been filed. We
conditionally grant relief.
of Mandamus Relief
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. Safety-Kleen Corp. v.
Garcia, 945 S.W.2d 268, 269 (Tex. App.- San Antonio
1997, orig. proceeding). To obtain mandamus relief for the
trial court's refusal to rule on a motion, a relator must
establish: (1) the motion was properly filed and has been
pending for a reasonable time; (2) the relator requested a
ruling on the motion; and (3) the trial court refused to
rule. In re Buholtz, No. 05-16-01312-CV, 2017 WL
462361, at *1 (Tex. App.-Dallas Jan. 31, 2017, orig.
proceeding) (mem. op.); Crouch v. Shields, 385
S.W.2d 580, 582 (Tex. App.-Dallas 1964, writ ref'd
n.r.e.). It is relator's burden to provide the court with
a record sufficient to establish her right to relief.
Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992);
Tex.R.App.P. 52.3(k), 52.7(a).
court is required to consider and rule upon a motion within a
reasonable time. Safety-Kleen Corp., 945 S.W.2d at
269. No litigant is entitled to a hearing at whatever time he
may choose, however. In re Chavez, 62 S.W.3d 225,
229 (Tex. App.-Amarillo 2001, orig. proceeding). A trial
court has a reasonable time within which to consider a motion
and to rule. In re Craig, 426 S.W.3d 106, 107 (Tex.
App.-Houston [1st Dist.] 2012, orig. proceeding); In re
Sarkissian, 243 S.W.3d 860, 861 (Tex. App.-Waco 2008,
orig. proceeding). Whether a reasonable time for the trial
court to act has lapsed is dependent upon the circumstances
of each case and no bright line separates a reasonable time
period from an unreasonable one. In re Shapira, No.
05-16-00184-CV, 2016 WL 1756754, at *1 (Tex. App.-Dallas Apr.
29, 2016, orig. proceeding) (mem. op.). Among the criteria
included are the trial court's actual knowledge of the
motion, its overt refusal to act, the state of the
court's docket, and the existence of other judicial and
administrative matters which must be addressed first.
Id.; In re First Mercury Ins. Co., No.
13-13-00469-CV, 2013 WL 6056665, at *3 (Tex. App.-Corpus
Christi Nov. 13, 2013, orig. proceeding) (mem. op.).
is no question the trial court is aware of the motion and
relator's request for ruling. The court held an
evidentiary hearing for relator to prove up the default
judgment. At the end of the hearing the court directed
relator's counsel to provide the court with unredacted
billing statements for in camera review to determine
relator's reasonable and necessary attorney's fees,
which relator provided to the court on September 15, 2016.
The trial court also told relator's counsel that it was
not necessary to have another hearing because she did not
need additional information on the questions of liability or
damages, and she would rule on the motion after reviewing the
billing statements. Although the trial court no doubt has a
heavy docket, we may presume the trial court took its own
docket and its other judicial and administrative duties into
consideration when it set the motion for hearing and advised
relator of its intention to rule without a further hearing.
See In re First Mercury Ins. Co., 2013 WL 6056665,
underlying case has been on file for more than three years.
The defaulting party answered the lawsuit but then failed to
respond to discovery, failed to appear for hearings on
relator's previously-filed motions for default judgment,
and failed to appear for three trial settings. Relator sought
judgment against the defaulting party multiple times, but
numerous trial court decisions unnecessarily delayed the
resolution of the case. Examples include refusing to set
relator's motion for summary judgment and initial motion
for default judgment for hearing, requiring mediation before
hearing substantive motions against non-answering parties,
resetting default prove-up hearings despite the defaulting
party's failure to appear for trial settings, sua sponte
granting a new trial after ruling in relator's favor
following the second default prove-up hearing, and cancelling
a hearing on relator's second motion for summary judgment
to require a second mediation despite defendants' failure
to attend the first mediation.
default judgment prove-up hearing at issue occurred nearly
six months ago, on September 2, 2016. Relator then filed a
request for entry of final judgment and proposed final
judgment nearly four months ago, on November 1, 2016 and
November 2, 2016 respectively. The trial court has had more
than a reasonable time to rule, and relator has done what is
required to obtain a ruling on her request for default
judgment and request for entry of final judgment.Under these
circumstances, we conclude mandamus relief is appropriate.
See, e.g., In re First Mercury Ins. Co., 2013 WL
6056665 (three-month delay unreasonable).
we conditionally grant the writ of mandamus. We order the
trial court to make written rulings within fifteen (15) days
of the date of this opinion on: (1) relator's request for
default judgment heard at the September 2, 2016 hearing, and
(2) the November 1, 2016 request for entry of final judgment
filed by relator. A ...