Opinion issued February 6 , 2020

In The 

## Court of App eals For The 

## First District of Texas

———————————— NO. 01
- 19
- 00850
- CV

——————————— IN RE SMS FINANCIAL XV, L.L.C. , Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION
Rela to r, SMS Financial X V, L.L.C., filed a petition for wr it of mandamus, seeking to compel the respondent trial court judge to rule on relator’s pending
“Motion to R evive Ju dgment.” 1 , 2

1 The underlying case is SMS Financial XV, L.L.C., Successor

- in

- Interest to Texa s Commerce Medical Bank v. Alton Adams , C ause No. 1986

- 03488 , pending in the 165th District Court of Harris Co unt y, Texas, the Honorable Ursula Hall presi ding.
2 The Court requested a response to the petition but real party in interest did not file one. See T EX

. R. A PP

. P. 52.4.2

We conditionally grant the petition. Background The underly ing proceeding i s a debt

- collectio n case. A default judgment for $44 ,869.70 in actual damages , $231 .00 in per diem costs, $4,150 .00 in attorney fees , and post

- judgment interest at the rate of ten percent per annum was entered against real party in inte rest, Alton Adams, o n February 9, 1987 . On May 25, 2007, the judgment an d judgment lien were assigned to relator. An order reviving the judgment was signed on July 25, 2008 by the Honorable Elizabeth Ray, then judge of the 165 th D istrict C ourt of Harr is County, Texas . The
ord er said the judgme nt was revived “pursuant to Sectio n 31.006 of the Tex. Civ. Prac. & Rem. Code, for 10 years from the date of the signing of th [e] Order

. . . .” On July 18, 2018 , relator requested a writ of execution , which was issued on July 27, 2018. O n October 23, 2018 , relator filed a motion to revive the judgment with respondent trial court judge , which stated in part : “The Judgment is valid, subsisting and unpaid, so [relator] seeks to revive the Judgment for 10 more years from the date on which th e Judgment became dormant.” The default judgment, th e July 25, 2008 order reviving judgment, and the assignment of the judgment to relator
were attached to the motion.
The October 23 , 2018 motion was noticed for subm ission on November 5,
2018. On December 5 , 2018, relator sent a letter to the clerk of the 165 th D istrict3

C ourt inquiring as to the status of the respondent trial court judge ’s ruling on the motion. Relator sent a second letter inquiring as to the status of the ruling on May 6,
2019. On Novembe r 1, 2019, relator filed the instant petition for ma ndamus relief, asking this Court to order the trial court to issue a ruling on the October 2 3, 2018
motion.
Standard of Review
Mandamus is an extraordi nary remedy, available only when the relator can
show t hat (1) the tria l court clearly abused its discret ion or violated a duty imposed by law and (2) there is no adequate remedy by way of appeal. In re Ford Motor Co ., 165 S.W.3d 315, 317 (Tex. 2005) ( orig. proceeding); Walker v. Packer , 827 S.W.2d 833, 839 (T ex. 1992) (orig. proceeding). Trial courts are required to rule “within a reasonable time” on motions that are properly filed. In re Blakeney , 254 S.W.3d 659,
66 1 (Tex. App.

—

Texarkana 2008, ori g. proceeding). “ When a motion is properly filed and pending be fore a trial cou rt, the act of giving considera tion to and ruling
on that motion is a ministerial act. ” Barnes v. State , 832 S.W.2d 424, 426 (Tex. App.

— Houston [1st Dist.] 1992 , orig

. proce eding ) . Mandamus relief is available to compel a trial court to p er form the ministe rial act of ruling on a properl y filed, pending motion. In re Greenwell , 160 S.W.3d 286, 288 (Tex. App.

— Texarkana 2005, orig

. proceeding ) ; s ee also In r e Baylor Coll. of Med. , No. 01

- 19

- 00105

- CV, 2019 WL 3418504, at *1 (Tex. App.

— Houston [1 st Dist.] July 3 0, 2019, orig.4

proceeding ) (mem . op.) ; In re Greater McAllen Star Prop s. , Inc. , 444 S.W.3d 743, 748 (Tex. App.

— Corpus Christi

– Edin burg 2014, orig. proceeding )

. Analysis The trial court has a duty “ to rule on all motions on which a ruling ha s been sought wi thin a reasonable time, conside ring all the surrounding circumstances.” In

re Foster , 503 S.W.3d 606, 607 (Tex. App.

— Houston [14th Dist.] 2016, orig. proceeding) (citing Barnes , 832 S.W.2d at 426)

. “ To establish that the trial court
abuse d its discretion b y failing to rule on a properly pending motion, the relator must
establish the trial court (1) had a legal duty to perform a nondiscretionary act , (2) was

as ked to perform the act , and (3) failed or refused to do so within a reasonable ti me. ” Baylor , 2019 WL 3418504, at * 2 ; s ee also O’ C onnor v. First Court of Appeals , 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding) (“ Mandamus will issue when there is
a le gal duty to perform a non

- discretionary act, a demand for performance, and a
refusal

. ”). The determinat ion of whether a reasonable ti m e has lapsed “depends on
the circumstances of the case. ” Baylor , 2019 WL 3418504, at * 2 (citing Blakeney , 254 S.W.3d at 66 2)

. “ The test for determining what t ime period is reasonable is not subject to exact formulation, and n o ‘ bright line ’ separates a rea sonable time from
an unreasonable on e. ” Baylor , 2019 WL 3418504, at * 2 (quoting In re Greater McAllen Star Props., Inc. , 444 S.W.3d at 748 ).5

In Baylor , this Court granted mandamus relief in light of the fa ilure by the
trial court judge

—

the respondent in the instant case

— to rule on motions to dismiss
that had been pen ding for more than ten months. 20 19 WL 3418504, at *4. In that

case , this Court took judicial notice of numerous grants of mandamus relief by t he
First and Fourt eenth Court of Appeals in re sponse to re spondent trial court judge ’s
fail ure to rule on moti ons and pleas that had be en pending from approximately four
to nineteen months. 3 Here, the record shows that relator’s motion was properly filed

3 See In re Baylor Coll. of Med. , No. 01

- 19

- 00105

- CV, 2019 WL 3418504, at * 3 (Tex. App

. — Houston [1s t Dist.] July 30, 2019, orig . proceeding) ; In re Tomball Tex. Hosp. Co., LLC d/b/a Tomball Region Med. Ctr. , No. 01

- 19

- 00242

- CV , 2 019 WL 3418569 , a t * 5 (Tex. App.

— Houston [1st Dist.] July 30, 2019, orig. proceeding) (mem. op.) (granting man dam us relief to direct respondent trial cour t judge to rule on relator ’ s motion to dismiss and real party in interest ’ s motion for interlocutory s ummary judgment, pending over nineteen months, and relator ’ s amended summary
-

judgment motion , pending more than fou rte en month s); In re The Univ. of Tex. MD Anderson Cancer Ctr. , No. 01

- 19

- 00201

- CV , 2019 WL 3418567 , at * 3 (Tex. App.

— Houston [1st Dist.] Jul y 30, 2019, orig. proceeding) (mem. op.) (granting mandamus relief to direct respondent trial court judge to rule o n r elator ’ s plea to jurisdiction p ending more than one year); In re The Univ. of Tex. MD Anderson Cancer Ctr. , No. 01

- 19

- 00202

- CV , 2019 WL 34 18568 , at * 4 (Tex. App.

— Houston [1st Dist.] July 30, 2019, orig. proceeding) (mem. op.) (granting mandamus relief to dir ect re spondent trial cou rt judge to rule on relator ’ s motion to dismiss pending more than one year); In re ABC Assembly LLC , No. 14

- 19

- 0 0419

- CV, 2019 WL 2517865, at *3 (Tex. App.

— Houston [14th Dist.] June 18, 2019, orig. proceeding) (mem. op.) (granting mandamu s r el ief to di rect respondent trial court judge to rule on relator ’ s motion for entry of judgment pending about eight months); In r e Harris Cty. Appraisal Dist. , No. 14

- 19

- 00078

- CV, 2019 WL 1716274, at *3

– 4 (Tex. App.

— Houston [14th Dist.] Apr. 18 , 2019, or i g. proceeding ) (mem. op.) (granting mandamus relief to direct respondent trial court judge to rule on relator ’ s plea to jurisdicti on pending more than six months); In re Coffey , No. 14

- 18

- 00124

- CV, 2018 WL 1627592, at *2 (Tex. App.

— Hou ston [14th Dist.] Apr . 5, 20 1 8, orig. proceeding) (mem. op.) (granting mandamus relief to direct respondent trial court judge to rule on relator ’ s moti on to confirm arbitration award pending more than four months); In re6

a nd has been pendin g for more than a year. Desp ite two inquiries from relator as to
the status of respondent tr ial court judge’s rul ing, respondent has yet to rule on the
motion. This continued failure to rule on the motion will prejudice relator in its

att empt to keep its j udgment enforceable

. 4
Conclu sion Accordingly, we conditionally grant relator’s petition for man damus relief
and direct the trial court to rule on relator’s October 23 , 2018 motion to revive judgment. Our writ of mandamus will issue only i f the trial court does not comply
within 30 da ys of the date of this opinion

.

Julie Countiss J us t ice Panel consists of Justices Keyes, Goodman, and Countiss.

PDVSA Servs., Inc. , No. 14

- 17

- 00824

- CV, 2017 WL 6459227, at *4 (T ex. App.

— Houston [14th Dist.] Dec. 19, 2017, orig. proceeding) (mem. op.) ( granting mandamus relief, in part, to direct r espondent trial court judge to rule on relator ’ s motion to submit appeal of order of appraisal review board to nonbinding arbi tra tion, pen ding more than eight months)

. 4 This Court has previously found that there is no adequate remedy by appeal when respo ndent trial court judge has failed to rule on a motion wi thin a reasonable amount of time after it was submitted. See, e.g. , I n re Tomball T

ex. Hosp. Co., LLC , 2019 WL 3418569, at *5; Baylor , 2019 WL 3418504, at *4; In re The Univ. of Tex. MD Anderson Canc er Ctr. , 2019 WL 3418567, at *3; In re The Uni v. of Tex. MD Anderson Cancer Ctr. , 2019 WL 3418568, at *4

.