Samuel R. Mares, Sr. v. Victor R. Blaine ( 2008 )

Opinion issued July 24, 2008

  In The  

Court of Appeals  

For The  

First District of Texas  

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  NO. 01-07-00620-CV

  __________

SAMUEL R. MARES, SR., Appellant  

V.

VICTOR R. BLAINE, Appellee  

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On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 2006-69900  

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MEMORANDUM OPINION

          Samuel R. Mares appeals from the trial court’s dismissal of his suit for want of prosecution. In a single issue, Mares complains that the trial court abused its discretion in failing to perform its ministerial duty to timely rule upon his properly filed pretrial motions. We affirm.  

Background

          Victor R. Blaine represented Mares in a criminal prosecution. Following the representation, Mares sued Blaine for return of attorney’s fees and breach of contract. Blaine filed a general denial. The trial court dismissed the cause for want of prosecution. Mares now appeals.

Dismissal for Want of Prosecution

          In his sole issue, Mares asserts that the trial court abused its discretion in failing to rule on his pretrial motions. In support of his issue, Mares argues that a trial court has a ministerial duty to consider and rule upon a properly filed motion, and any failure to perform a ministerial act is a violation of a duty imposed by law. See In re Taylor, 39 S.W.3d 406, 411–12 (Tex. App.—Waco 2001, orig. proceeding) (quoting In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.—San Antonio 1998, orig. proceeding)).  

          Mares claims that he properly filed the following pretrial requests:

          ∙        request for a bench warrant;

          ∙        request for ad testificandum;

          ∙        request for a hearing;

          ∙        request for admissions and interrogatories;

          ∙        request for production of documents;

          ∙        request for dispute resolution; and

          ∙        request for continuance.

          However, the record only shows that Mares filed a request for continuance for additional discovery.   Therefore, we have no basis for determining whether the trial court abused its discretion in failing to rule upon Mares’s other alleged requests.

          As for Mares’s request for continuance, the trial court implicitly overruled the request by dismissing Mares’s suit for want of prosecution. See also In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (“By proceeding to trial without issuing the bench warrant, it is clear that the trial court implicitly denied [movant]’s request”). Accordingly, Mares’s argument that the trial court erred in failing to rule on his request is without merit.   

          We overrule Mares’s sole issue.  

Conclusion  

          We affirm the judgment of the trial court.

                                                                        George C. Hanks, Jr.

                                                                        Justice

Panel consists of Justices Nuchia, Alcala, and Hanks.