in Re James G. Strachan

Memorandum Opinion Issued June 19, 2008 Withdrawn; Motion for Rehearing Granted; Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed September 11, 2008

Memorandum Opinion Issued June 19, 2008 Withdrawn; Motion for Rehearing Granted; Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed September 11, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-00299-CV

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IN RE JAMES G. STRACHAN, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N   ON   R E H E A R I N G

Relator=s motion for rehearing is granted. The memorandum opinion issued on June 19, 2008 is withdrawn.  This memorandum opinion is substituted in its place. 

In this original proceeding, relator, James G. Strachan, seeks a writ of mandamus ordering the Honorable P.K. Reiter, visiting judge of the 434th District Court of Fort Bend County, to grant the motion to dismiss filed by real party in interest, Solum Engineering, Inc. (ASolum@).  We conditionally grant the writ.

On July 30, 2007, Solum filed a motion to dismiss all of its claims against relator with prejudice.  On August 24, 2007, the Honorable James Shoemake, presiding judge of the 434th District Court, granted the motion to dismiss.  However, Judge Shoemake subsequently withdrew his signature from the order granting Solum=s motion to dismiss its claims against relator.  On November 20, 2007, Judge Shoemake was recused from the underlying proceeding.  The Honorable P.K. Reiter was assigned to the case as a visiting judge.  On December 17, 2007, relator filed a motion to reconsider the trial court=s refusal to grant Solum=s motion to dismiss.  After a hearing on January 7, 2008, Judge Reiter failed to grant Solum=s motion to dismiss. 

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court clearly abused its discretion, and it has no adequate remedy on appeal.  In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding).  A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). 

Relator correctly contends that a plaintiff has an unqualified and absolute right to take a nonsuit at any time until the plaintiff has introduced all evidence other than rebuttal evidence, as long as the defendant has not made a claim for affirmative relief.  See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854 (Tex. 1995) (per curiam); BHP Petroleum, Inc. v. Millard, 800 S.W.2d 838, 840 (Tex. 1990).  Therefore, the trial court generally has no discretion to refuse to dismiss a suit, and its order is ministerial.  Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam).  Here, however, Solum did not file a nonsuit, but a motion to dismiss with prejudice.^[1]  The trial court, nonetheless, has not ruled on the motion. 

AWhen 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.@  Safety‑Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.CSan Antonio 1997, orig. proceeding). To establish that the trial court abused its discretion by failing to rule, the relator must show that the trial court:  (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and (3) failed or refused to do so.  In re Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex. App.CEl Paso 2006, orig. proceeding). 

At the hearing, relator=s attorney informed the trial court that its motion to dismiss was pending.  It is not clear from the record why the trial court did not sign an order granting or denying Solum=s motion to dismiss, but relator=s counsel raised the issue with the trial court.  Relator presented the motion to the trial court; and the trial court failed to rule on  the motion.  See id.

We hold that the trial court abused its discretion in failing to rule on the motion to dismiss.  However, while we have jurisdiction to direct the trial court to rule on a motion, we may not tell the trial court how to rule.  In re Martinez Ramirez, 994 S.W.2d 682, 684 (Tex. App.CSan Antonio 1988, orig. proceeding).

We therefore conditionally grant the petition for a writ of mandamus and direct the trial court rule on the motion to dismiss filed by Solum on July 30, 2007. The writ will issue only if the trial court fails to act in accordance with this opinion. 

PER CURIAM

Petition Conditionally Granted and Memorandum Opinion filed September 11, 2008.

Panel consists of Justices Frost, Seymore, and Guzman. 

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^[1]  Solum=s motion to dismiss requested that its claims against relator be dismissed Awith prejudice.@ A dismissal with prejudice is a ruling on the merits.  Sommers v. Concepcion, 20 S.W.3d 27, 39 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  In performing its ministerial duty to dismiss an action upon a motion for nonsuit, the trial court does not adjudicate the merits of the case; instead, the dismissal merely places the parties in the position they were in before the action was brought.  Yanez v. Milburn, 932 S.W.2d 725, 728 (Tex. App.CAmarillo 1996, writ denied).