in Re: Landmark Organization, L.P. , Durrant Architect, Inc. and Zarate Suspended Ceiling, Inc. ( 2004 )

  NUMBER 13-04-00527-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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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 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.