1 

### NUMBER 13 - 12 - 00 678 - CV 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

IN RE KENNETH FOX SUPPLY COMPANY

D/B/A FOX PACKAGING

On Petition for Writ of Mandamu s



## MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Vela Memorandum Opinion Per Curiam Relator, Kenneth Fox Supply Company d/b/a Fox Packaging (“Fox”) , has filed a petition for writ of mandamus in which it contends that respondent, the Honorable Bobby Flores , p residing j udge of the 139 th Judicial District Court of Hidalgo County, Texas, abused his discretion, leaving Fox without an adequate appellate remedy, by refusing to rule on Fox ’s motion to compel arbitration

. On November 5, 2012, we
ordered real party i n interest , Damien Hernandez, to file any response to Fox ’s petition with this Court on or before Friday , November 16 , 2012

. No response has been filed.2

The unde rlying case is a personal injury suit filed by Hernandez against Fox, his employer, in January 2011

. Fox answere d the suit on February 10, 2011 and requested
that the trial court abate the case and compel the parties to participate in arbitration. Fox alleged that, pursuant to the terms of the employment agreement between the parties, Hern andez agreed to arbitrate all employment

- related disputes , including any
work

- related injury suffered by Hernandez in the course and scope of his employment. On March 29, 2011, Fox filed a motion to compel arbitration

. On August 12, 2011, the
trial court rendered an order stating in its entirety as follows: IT IS HEREBY ORDERED that the parties exchange the names of three (3) arbitrators by September 2 nd , 2011. IT IS FURTHER ORDERED that the parties reach an agreement as to the arbitrator and if no agreement is reached by and between the parties, the Court will name the arbitrator.
IT IS FURTHER ORDERED that the Clerk of the Court notify all parties of this ruling. SIGNED FOR ENTRY this 12th day of August 2011

. Noting that the August 12, 2011 orde r did not explicitly rule on Fox’s motion to compel arbitration, Fox filed a motion to clarify the order. The trial court held a hearing on the motion to clarify but did not rule on the motion. A trial court has a ministerial duty to consider and rule on motions properly filed and pending before the court within a reasonable time and mandamus may issue to compel the judge to act. In re Layton , 257 S.W.3d 794, 795 (Tex. App.

— Amarillo 2008, orig. proceeding); see In re Mission Consol. Indep. Sch. Dist ., 990 S.W.2d 459, 461 (Tex. App.

— Corpus Christi 1999, orig. proceeding) ( “ [C]ourts of appeals have the power to compel the trial judge by mandamus to rule on pending motions.” ). Here , the record3

provided by Fox shows that the motion to compel arbitration has been pending since March 29, 2011. Accordingly, more than a reasonable amount of time has passed since
the motion was filed. M oreover, Fox h as demanded that the trial court rule on the
motion and the trial court has not done so. S ee O’Connor v. First Court of Appeals , 83 7 S.W.2d 94, 97 (Tex. 1992) ( “ Mandamus will issue when there is a legal duty to perform

a non - discretionary act, a demand for performance, and a refusal. ” ). Having fully reviewed Fox’s petition for writ of mandamus and the record documents provided by Fox , we CONDITIONALLY GRANT the relief requested by Fox
and direct the trial court to rule on Fox’s motion to compel arbitration in writing within thirty (30) days from the date of this order. The writ of mandamus will issue only if the trial court fails to comply with our directive. Any relief requested by Fox but not expressly granted herein is denied.

PER CURIAM
D elivered and filed the 20 th day of November , 201 2

.