in Re Pedison USA, Inc. and Dickson Ewemade ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00252-CV
IN RE PEDISON USA, INC. AND RELATORS
DICKSON EWEMADE
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ORIGINAL PROCEEDING
TRIAL COURT NO. 048-263530-13
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DISSENTING MEMORANDUM OPINION1
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A trial court possesses a ministerial duty to rule upon a motion filed and
pending before it; mandamus may issue to compel the trial court to rule. See,
e.g., In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig.
proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004,
orig. proceeding); Safety–Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.
App.—San Antonio 1997, orig. proceeding). A trial court abuses its discretion by
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See Tex. R. App. P. 47.4.
failing to rule when the trial court had a legal duty to perform a nondiscretionary
act, was asked to perform the act, and failed or refused to do so. See Shredder
Co., 225 S.W.3d at 679; Hearn, 137 S.W.3d at 685; Safety–Kleen Corp., 945
S.W.2d at 269.
Relators Pedison USA, Inc. and Dickson Ewemade are third-party
defendants in the underlying litigation. They seek mandamus relief based, in
part, on the trial court’s failure to rule on their motion to sever and transfer
venue.2 Despite the fact that Relators’ motion has been pending over six
months, despite two written requests by Relators that the trial court rule on their
motion, and despite an upcoming August 1, 2016 trial setting, the trial court has
not ruled on Relators’ motion to sever and transfer venue. The trial court’s failure
to rule and to sign a written order prevents this court from considering the merits
2
To the extent Real Parties in Interest claim that the trial court verbally
ruled on Relators’ motion to sever and transfer venue, the trial court still possess
a ministerial duty to sign a written order. Rendition occurs when the judge’s
decision is officially announced, orally or in a docket notation. See W.C. Banks,
Inc. v. Team, Inc., 783 S.W.2d 783, 785 (Tex. App.––Houston [1st Dist.] 1990, no
writ). The subsequent reduction of a ruling to a written order signed by the court
is a purely ministerial act. See, e.g., Flores v. Onion, 693 S.W.2d 756, 757–58
(Tex. App.––San Antonio 1985, orig. proceeding) (conditionally granting writ of
mandamus requiring trial court to sign a “formal, typed decree” in accordance
with previously rendered handwritten consent decree because signing of formal
decree was merely ministerial act). A trial court’s refusal to sign a written order
reflecting its ruling is mandamusable when the trial court has been specifically
asked to do so and fails to do so within a reasonable time. See, e.g., In re Nixon,
No. 05-15-00263-CV, 2015 WL 1346137, at *2 (Tex. App.––Dallas Mar. 25,
2015, orig. proceeding) (mem. op.) (conditionally granting writ of mandamus
requiring trial court to sign a written order even though trial court had verbally
ruled and had made docket entry); see also Shredder Co., 225 S.W.3d at 679;
Hearn, 137 S.W.3d at 685; Safety–Kleen Corp., 945 S.W.2d at 269.
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of Relators’ petition for writ of mandamus. See Tex. R. App. P. 52.3(k)(1)(A)
(requiring relator to attach a certified or sworn copy of order complained of); In re
Reynolds, 369 S.W.3d 638, 647 (Tex. App.—Tyler 2012, orig. proceeding)
(recognizing denial of motion to sever and transfer venue is reviewable by
mandamus).
After reviewing Relators’ petition for writ of mandamus and the response of
Real Parties in Interest, I would conditionally grant a writ of mandamus––to the
extent Relators seek a written order reflecting a ruling on their motion to sever
and transfer venue––requiring the trial court to sign a written order ruling on
Relators’ motion to sever and transfer venue on or before July 29, 2016. See
Tex. R. App. 52.8(b). Because the majority does not, I respectfully dissent.
/s/ Sue Walker
SUE WALKER
JUSTICE
DELIVERED: July 27, 2016
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