In Re Robert Walsh v. the State of Texas ( 2023 )

Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed July 18, 2023.
In The
Fourteenth Court of Appeals
NO. 14-23-00455-CV
IN RE ROBERT WALSH, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
165th District Court
Harris County, Texas
Trial Court Cause No. 2022-02795
MEMORANDUM OPINION
On June 28, 2023, relator Robert Walsh (“Walsh”) filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App.
P. 52. In the petition, Walsh asks this court to compel the Honorable Ursula Hall,
presiding judge of the 165th District Court of Harris County, to rule on his motion
to compel responses to written discovery and overrule objections. We conditionally
grant the petition.
BACKGROUND
On January 14, 2022, Walsh sued real party in interest Johnson Fence and
Masonry, LLC (“Johnson”) a designer and installer of decorative and functional
residential fencing, for breach of contract and money had and received for Johnson’s
alleged failure to pay Walsh under an employment contract. Johnson answered the
lawsuit and asserted a number of affirmative defenses and subsequently filed
counterclaims for breach of fiduciary duty, breach of contract, fraud by
nondisclosure, knowing participation in intentional tortious conduct, and civil
conspiracy.
On January 20, 2023, Walsh filed a motion to compel responses to written
discovery and overrule objections (“motion to compel”). On February 13, 2023,
Johnson filed its response to Walsh’s motion to compel and, on February 22, 2023,
the trial court conducted a hearing. On February 24, 2023, Walsh filed a post-
hearing reply to Johnson’s response to his motion to compel.
On March 2, 2023, Walsh wrote the trial court asking for a ruling on his
motion to compel. On March 3, 2023, Johnson wrote the trial court requesting that
the court reset the hearing on Walsh’s motion to compel because the court ended the
hearing before Johnson was able present its argument and Johnson wanted the
opportunity to argue its opposition to the motion.
On March 7, 2023, Walsh wrote the trial court a second letter requesting a
ruling on his motion to compel and pointing out that the case was set for trial on
April 17, 2023. The August 1, 2022 docket control order provided the following
deadlines: (1) designate experts by January 16, 2023; (2) complete discovery by
March 13, 2023; and (3) file dispositive motions by March 13, 2023.
2
Walsh also filed a notice of hearing to continue the February 22, 2023 hearing
at 11:45 a.m., on March 13, 2023. At 5:00 p.m., on the day of the March 13, 2023
hearing, Johnson filed a motion to defer ruling on Walsh’s motion to compel because
Johnson was unable to participate in the hearing due to technical issues. Johnson
requested the hearing be reset so that it could present argument on Walsh’s motion
to compel. On March 27, 2023, Walsh wrote the trial court requesting a ruling on
his motion to compel and pointing out that the trial was set for April 17, 2023; the
case was not reached.
The trial court heard Walsh’s motion to compel on May 15, 2023. Johnson
appeared at the hearing and was able to present argument. The trial court stated that
it had heard enough to resolve the motion to compel but did not make a ruling at that
time.
On May 18, 2023, the trial court issued an order to appear for a formal pretrial
conference on July 24, 2023, and a status conference on August 3, 2023. The case
was reset for trial to the two-week period beginning on August 7, 2023. The trial
court has yet to issue a ruling on the motion to compel.
Upon this court’s request for a response to the petition for writ of mandamus,
Johnson filed a “notice of non-opposition” to the petition. Based on Walsh’s
statement that he is not asking this court to rule on the merits of the motion to
compel, Johnson requested that we compel the trial court to rule on Walsh’s motion.
STANDARD OF REVIEW
Generally, to be entitled to mandamus relief, relator must establish that (1) the
trial court abused its discretion; and (2) relator has no adequate remedy by appeal.
3
In re Christianson Air Conditioning & Plumbing, LLC, 639 S.W.3d 671, 681 (Tex.
2022) (orig. proceeding).
The trial courts are required to rule “within a reasonable time” on motions that
are properly filed. In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana
2008, orig. proceeding). 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 court to act. Safety-Kleen Corp. v.
Garcia, 945 S.W.2d 268, 269 (Tex. App.—San 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 Pollet, 281
S.W.3d 532, 534 (Tex. App.—El Paso 2008, orig. proceeding).
“The test for determining what time period is reasonable is not subject to exact
formulation, and no ‘bright line’ separates a reasonable time period from an
unreasonable one.” In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748
(Tex. App.—Corpus Christi 2014, orig. proceeding). What is considered a
reasonable amount of time is dependent upon the circumstances of each case. In re
Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex.—El Paso 2006, orig. proceeding).
ANALYSIS
The trial court has been aware of the motion to compel since at least February
22, 2023, when it held the first hearing on the motion. The trial court held two more
hearings so that Johnson could present argument. At the conclusion of the third
hearing, the trial court stated that it had what it needed to rule on the motion to
compel. Walsh made three requests of the trial court to rule on his motion to compel.
4
When Walsh filed his petition in this court, his motion to compel had been
pending for over five months, the trial court had been aware of the motion for over
four months, and the trial setting was less than one and one-half months away. We
conclude that the trial has had a reasonable time in which to rule on the motion to
compel and therefore the trial court abused its discretion by failing to rule on the
motion.
CONCLUSION
We take judicial notice that our court and the First Court of Appeals have
repeatedly been petitioned for mandamus relief against the Honorable Ursula A. Hall
for failure to rule, including the more than thirty petitions set forth below, which
were either granted, or dismissed as moot when the Honorable Ursula A. Hall ruled
after the petition for writ of mandamus was filed. See In re Wal-Mart Stores Tex.,
LLC, No. 01-23-00340-CV, 2023 WL 3743089, at *1 (Tex. App.—Houston [1st
Dist.] June 1, 2023, orig. proceeding) (per curiam) (mem. op.); In re Hunter-Kelsey
II, LLC, No. 01-23-00276-CV, 2023 WL 3311468, at *4 (Tex. App.—Houston [1st
Dist.] May 9, 2023, orig. proceeding) (per curiam) (mem. op.); In re Intercontinental
Terminals Co., No. 01-21-00610-CV, 2022 WL 3363950, at *1 (Tex. App.—
Houston [1st Dist.] Aug. 16, 2022, orig. proceeding) (per curiam) (mem. op.); In re
Prosperity Bank, No. 01-22-00382-CV, 2022 WL 2919941, at *1 (Tex. App.—
Houston [1st Dist.] July 26, 2022, orig. proceeding) (per curiam) (mem. op.); In re
Freeport LNG, LLC, No. 01-21-00701-CV, 2022 WL 2251649, at *3 (Tex. App.—
Houston [1st Dist.] June 23, 2022, orig. proceeding) (per curiam) (mem. op.); In re
Eagle Ship Mgmt., LLC, No. 01-21-00427-CV 2022 WL 479926, at *3 (Tex. App.—
Houston [1st Dist.] Feb. 17, 2022, orig. proceeding) (per curiam) (mem. op.); In re
5
Hoffman, No. 14-21-00697-CV, 2022 WL 288046, at *1 (Tex. App.—Houston [14th
Dist.] Feb. 1, 2022, orig. proceeding) (per curiam) (mem. op.); In re Josefberg, No.
01-21-00179-CV, 2021 WL 2149831, at *3 (Tex. App.—Houston [1st Dist.] May
27, 2021, orig. proceeding) (per curiam) (mem. op.); In re Princeton Capital Corp.,
No. 01-20-00652-CV, 2021 WL 2006471 at *1 (Tex. App.—Houston [1st Dist.]
May 20, 2021, orig. proceeding) (per curiam) (mem. op.); In re Robbins, 622 S.W.3d
600, 602 (Tex. App.—Houston [14th Dist.] 2021, orig. proceedings) (per curiam);
In re Advantage Cars.com, No. 01-20-00863-CV, 2021 WL 1217326, at *1 (Tex.
App.—Houston [1st Dist.] Apr. 1, 2021, orig. proceeding) (per curiam) (mem. op.);
In re Estate of Burnett, No. 14-20-00757-CV, 2020 WL 6878564, at *1 (Tex. App.—
Houston [14th Dist.] Nov. 24, 2020, orig. proceeding) (per curiam) (mem. op.); In
re First Am. Title Ins. Co., No. 14-20-00563-CV, 2020 WL 5186622, at *1 (Tex.
App.— Houston [14th Dist.] Sept. 1, 2020, orig. proceeding) (per curiam) (mem.
op.); In re Nomarco, Inc., No. 14-20-00129-CV, 2020 WL 1181705, at *1 (Tex.
App.— Houston [14th Dist.] Mar. 12, 2020, orig. proceeding) (per curiam) (mem.
op.); In re SMS Fin. XV, L.L.C., No. 01-19-00850-CV, 2020 WL 573247, at *2 (Tex.
App.—Houston [1st Dist.] Feb. 6, 2020, orig. proceeding) (per curiam) (mem. op.);
In re Maltz, No. 01-19-00749-CV, 2019 WL 5792193, at *1 (Tex. App.—Houston
[1st Dist.] Nov. 7, 2019, orig. proceeding) (per curiam) (mem. op.); In re City of
Houston, No. 01-19-00700-CV, 2019 WL 4677367, at *1 (Tex. App.—Houston [1st
Dist.] Sept. 26, 2019, orig. proceeding) (per curiam) (mem. op.); In re Elizon Master
Participate Tr. I, No. 14-19-00593-CV, 2019 WL 3727364, at *1 (Tex. App.—
Houston [14th Dist.] Aug. 8, 2019, orig. proceeding) (per curiam) (mem. op.); In re
Tomball Tex. Hosp. Co., LLC, No. 01-19-00242-CV, 2019 WL 3418569, at *5 (Tex.
App.—Houston [1st Dist.] July 30, 2019, orig. proceeding) (per curiam) (mem. op.);
6
In re Baylor Coll. of Med., No. 01-19-00105-CV, 2019 WL 3418504, at *4 (Tex.
App.—Houston [1st Dist.] July 30, 2019, orig. proceeding) (per curiam) (mem. op.);
In re Univ. of Tex. MD Anderson Cancer Ctr., No. 01-19-00201-CV, 2019 WL
3418567, at *3 (Tex. App.—Houston [1st Dist.] July 30, 2019, orig. proceeding)
(per curiam) (mem. op.); In re Univ. of Tex. MD Anderson Cancer Ctr., No. 01-19-
00202-CV, 2019 WL 3418568, at *4 (Tex. App.—Houston [1st Dist.] July 30, 2019,
orig. proceeding) (per curiam) (mem. op.); In re ABC Assembly LLC, No. 14-19-
00419-CV, 2019 WL 2517865 (Tex. App.—Houston [14th Dist.] June 18, 2019,
orig. proceeding) (per curiam) (mem. op.); In re Harris Ct.y Appraisal Dist., No. 14-
19-00078-CV, 2019 WL 1716274, at *1 (Tex. App.—Houston [14th Dist.] Apr. 18,
2019, orig. proceeding) (per curiam) (mem. op.); In re Underwriters at Lloyds of
London, No. 01-18-00760-CV, 2018 WL 6318509, at *1 (Tex. App.—Houston [1st
Dist.] Dec. 4, 2018, orig. proceeding) (per curiam) (mem. op.); In re Coffey, No. 14-
18-00124-CV, 2018 WL 1627592, at *2 (Tex. App.—Houston [14th Dist.] Apr. 5,
2018, orig. proceeding) (per curiam) (mem. op.); In re Socie, No. 01-18-00414-CV,
2018 WL 3625443, at *1 (Tex. App.—Houston [1st Dist.] July 31, 2018, orig.
proceeding) (per curiam) (mem. op.); In re Underwriters at Lloyds of London, No.
01-18-00196-CV, 2018 WL 1597480, at *1 (Tex. App.—Houston [1st Dist.] Apr. 3,
2018, orig. proceeding) (per curiam) (mem. op.); In re Fiesta Mart, L.L.C., No. 14-
18-00180-CV, 2018 WL 1476261, at *1 (Tex. App.—Houston [14th Dist.] Mar. 27,
2018, orig. proceeding) (per curiam) (mem. op.); In re PDVSA Servs., Inc., No. 14-
17-00824-CV, 2017 WL 6459227, at *1 (Tex. App.—Houston [14th Dist.] Dec. 19,
2017, orig. proceeding) (per curiam) (mem. op.).
7
Having determined that the trial court abused its discretion by not ruling on
Walsh’s motion to compel, we conditionally grant relator’s petition for writ of
mandamus and direct the trial court to rule on Walsh’s motion to compel. However,
we do not instruct the trial court on how to rule on the motion to compel.1 We are
confident the trial court will act in accordance with this opinion and a writ will issue
only if the trial court fails to comply.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Zimmerer and Poissant.
1
While we have jurisdiction to direct the trial court to exercise its discretion, we are not
permitted to tell the trial court how to rule on the motion to compel. See In re ReadyOne Indus.,
Inc., 463 S.W.3d 623, 624 (Tex. App.—El Paso 2015, orig. proceeding).
8