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In re ABC Assembly LLC

Court of Appeals of Texas, Fourteenth District

June 18, 2019

IN RE ABC ASSEMBLY LLC, Relator

          ORIGINAL PROCEEDING WRIT OF MANDAMUS 165th District Court Harris County, Texas Trial Court Cause No. 2014-64733

          Panel consists of Justices Christopher, Bourliot, and Zimmerer.

          MEMORANDUM OPINION

          PER CURIAM.

         On May 17, 2019, relator ABC Assembly LLC filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (Supp.); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Ursula A. Hall, presiding judge of the 165th District Court of Harris County, to rule on relator's motion for entry of judgment on the jury's verdict, which was last heard by Judge Hall on October 12, 2018.

         We conditionally grant relief.

         Background

         ABC Assembly filed suit against Microwave Networks, Inc. in November 2014, seeking damages for breach of contract, negligent misrepresentation, promissory estoppel, and fraud. On June 1, 2018, the jury rendered a verdict in favor of ABC Assembly.

         ABC Assembly filed a Motion for Entry of Judgment (the "Motion") on June 14, 2018, with a submission date of June 25, 2018.

         Microwave Networks filed its response and a motion for judgment notwithstanding the verdict on June 21, 2018, which raised issues regarding the jury charge, the verdict, the contract's limitations on damages, ABC Assembly's alleged lack of proof of misrepresentation, and the damage calculations. Microwave Networks set that motion for oral hearing and ABC Assembly did the same on its Motion.

         Judge Hall conducted an oral hearing on the motions on September 20, 2018, and a second oral hearing on October 12, 2018, after which Judge Hall stated that she expected to rule by the end of October.

         ABC Assembly filed a letter with Judge Hall on January 24, 2019, reminding her that the Motion was still pending and requesting a ruling. This letter also included a new proposed judgment with changes regarding the awards for pre- and post-judgment interest. The record also shows that ABC Assembly made three phone calls to the court's clerk or coordinator in March and April of 2019 to ask about the status of the Motion.

         Approximately eight months has passed since the last hearing on the Motion.

         Mandamus Standard

         There are generally three prerequisites for the issuance of a writ of mandamus: (1) the lower court must have a legal duty to perform a nondiscretionary act; (2) the relator must make a demand for performance; and (3) the subject court must refuse that request. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). 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.[1] A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d 381 (Tex. App.- Houston [14th Dist.] 2017, orig. proceeding). A trial court is required to rule on a motion within a reasonable time after the motion has been submitted to the court for a ruling or a ruling on the motion has been requested. In re Foster,503 S.W.3d 606, 607 (Tex. App.-Houston [14th Dist.] 2016, orig. proceeding). The record must show that the motion was filed and brought to the attention of the judge for a ...


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