                                  NUMBER 13-13-00469-CV

                                      COURT OF APPEALS

                           THIRTEENTH DISTRICT OF TEXAS

                              CORPUS CHRISTI - EDINBURG


                 IN RE FIRST MERCURY INSURANCE COMPANY


                             On Petition for Writ of Mandamus.


                                  MEMORANDUM OPINION

            Before Chief Justice Valdez and Justices Garza and Perkes
                    Memorandum Opinion1by Justice Perkes

        By petition for writ of mandamus, First Mercury Insurance Company (“First

Mercury”) contends that the trial court erred in refusing to timely rule on its plea to the

jurisdiction.2 We conditionally grant mandamus relief.




        1
          See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so. When granting relief, the court must hand down an opinion as in any other case.”);
see id. R. 47.4 (distinguishing opinions and memorandum opinions).
        2
          As stated in more detail herein, the underlying lawsuit was originally filed in County Court at Law
No. 2 of Hidalgo County, Texas, the Honorable Jay Palacios presiding. The lawsuit was thereafter
transferred to County Court at law No. 8 of Hidalgo County, Texas, the Honorable Rolando Cantu
presiding. Judge Cantu is the respondent in this original proceeding. See TEX. R. APP. P. 52.2.

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                                     I. BACKGROUND

       Real parties in interest, Estaban Hurtado, Gerardo Hurtado, San Juanita Davila,

and Cristela Hurtado individually and as next friend of Juan Luis Huerta III, Misael

Alejandro Huerta, and Britney Anaid Huerta, brought suit against Adrian Garcia d/b/a

Magnum Force Security, First Mercury, and the administratrix of the estate of Juan Jose

Gamez, deceased, and the heirs at law (the “Gamez parties”) for the wrongful deaths of

Alma Rosa Huerta and Juan Jose Gamez. This suit was filed in the County Court at

Law No. 2 of Hidalgo County, Texas.

       According to the real parties’ third amended petition, Juan Luis Huerta shot and

killed his wife and Gamez with the service weapon that Garcia provided to Huerta as

part of Huerta’s employment as a security guard for Magnum Force Security. The real

parties alleged that Garcia was negligent in hiring Huerta and providing him with a

weapon because Huerta was a convicted felon. The real parties’ causes of action

against Garcia included, inter alia, negligence, negligence per se, strict liability, and

negligent entrustment. The real parties brought a cause of action for fraud against First

Mercury and the Gamez parties on grounds that First Mercury and the Gamez parties

had “secretly made arrangements to settle” their claims without including the real parties

and First Mercury had “engaged in fraudulent conduct by inducing [p]laintiffs to believe

their claims were going to be properly handled.” First Mercury insured Magnum Force

Security for the relevant policy period and had previously paid the policy proceeds to the

Gamez parties, thereby exhausting the insurance coverage available to satisfy the real

parties’ claims.




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         On January 25, 2013, First Mercury filed a plea to the jurisdiction and motion to

dismiss for lack of jurisdiction.    First Mercury contended that the trial court lacked

subject matter jurisdiction over the lawsuit because: First Mercury was not directly

liable to the real parties, Texas law prohibits joining an insurer in the same lawsuit in

which a plaintiff seeks damages from the insured, and the insurance policy at issue

prohibits any actions against the insurance company until the underlying tort suit is

completed.

         On February 4, 2013, the trial court heard the plea and took it under

consideration. The trial court informed the parties that it would allow the parties to

submit additional authorities for its consideration by February 14, 2013.

         On February 15, 2013, First Mercury filed a supplemental letter brief regarding its

plea and including issues pertaining to the real parties’ newly added cause of action for

fraud.

         On February 28, 2013, the trial court transferred the underlying case from County

Court at Law No. 2 to County Court at Law No. 8, the Honorable Rolando Cantu

presiding, “as part of the reassignment of civil cases” between the courts.

         On April 9, 2013, First Mercury filed a supplemental plea to the jurisdiction and

motion to dismiss to address the real parties’ new fraud claim and to provide the new

trial court with a transcript of the February 4, 2013 hearing on the plea.

         On May 21, 2013, the new trial court held a hearing on the plea. Rather than

ruling on the plea, the trial court ordered the parties to mediation. On June 14, 2013,

the parties mediated the case but did not settle.




                                                 3
       First Mercury set its plea for a third hearing on June 19, 2013. The real parties in

interest filed a motion for continuance of the hearing on the plea to the jurisdiction. The

trial court heard and granted the motion for continuance on June 17, 2013. At the

hearing, the trial court ordered that the plea would be determined by written submission

on July 17, 2013. The reporter’s record of the hearing on the motion for continuance

makes it clear that the court’s docket was busy, but the trial court nevertheless assured

the parties that he would “rule that day or a couple of days after that.”

       On July 22, 2013, court staff indicated that the trial court would rule by the end of

the week. On July 31, 2013, court staff indicated that the judge had the file but was in

trial. On August 2, 2013, First Mercury sent a letter to the trial court to “respectfully

request a ruling,” setting out the chronology of events relating to its plea, and noting that

the case was set for trial on October 21, 2013 and they were “almost sixty days out from

trial.” Nevertheless, the trial court did not rule on First Mercury’s plea to the jurisdiction

and motion to dismiss.

       This original proceeding ensued on August 26, 2013. On August 27, 2013, this

Court requested that the real parties in interest file a response to the petition for writ of

mandamus within ten days, or by September 6, 2013.              On August 30, 2013, First

Mercury filed a motion to stay the trial court proceedings pending resolution of this

petition for writ of mandamus. On September 4, 2013, the real parties filed a motion for

extension of time to file their response to the petition, seeking an extension of time until

October 7, 2013. On September 5, 2013, this Court granted the real parties’ motion for

extension of time and concomitantly granted First Mercury’s motion for stay. This Court

received the real parties’ response on October 7, 2013. On October 14, 2013, First



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Mercury filed a motion for extension of time to file a reply. The reply was filed on

October 21, 2013.

       By one issue, First Mercury contends that the trial court violated its ministerial

duty by failing to rule on its pending plea to the jurisdiction and motion to dismiss. The

real parties contend, in response, that First Mercury has failed to present a sufficient

record to predicate mandamus relief because it has “completely failed to demonstrate

other business which might be delaying a ruling,” and in “light of all the fog created by

[First Mercury’s] irrelevant legal arguments and authorities, the trial court has acted

reasonably.”

                                 II. STANDARD OF REVIEW

       Mandamus relief is proper to correct a clear abuse of discretion when there is no

adequate remedy by appeal. In re Frank Motor Co., 361 S.W.3d 628, 630–31 (Tex.

2012) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36

(Tex. 2004) (orig. proceeding). “A trial court has no discretion in applying the law to the

facts or determining what the law is.” In re Prudential Ins. Co. of Am., 148 S.W.3d at

135. We assess the adequacy of an appellate remedy by balancing the benefits of

mandamus review against the detriments. In re State, 355 S.W.3d 611, 614–15 (Tex.

2011) (orig. proceeding); In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008)

(orig. proceeding).   In performing this balancing, we look at a number of factors,

including whether mandamus review “will spare litigants and the public ‘the time and

money    utterly   wasted   enduring    eventual    reversal   of   improperly   conducted

proceedings.’” In re State, 355 S.W.3d at 615 (quoting In re Prudential Ins. Co. of Am.,

148 S.W.3d at 136).



                                                5
      Consideration of a motion that is properly filed and before the trial court is a

ministerial act, and mandamus may issue to compel the trial court to act. See Eli Lilly &

Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.1992) (orig. proceeding); In re Blakeney,

254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). There is no

adequate remedy at law for a trial court’s failure to rule because “[f]undamental

requirements of due process mandate an opportunity to be heard.”              See In re

Christensen, 39 S.W.3d 250, 251 (Tex. App.—Amarillo 2000, orig. proceeding) (citing

Creel v. Dist. Atty. for Medina Cnty., 818 S.W.2d 45, 46 (Tex. 1991)). Thus, in proper

cases, mandamus may issue to compel the trial court to act. See In re Blakeney, 254

S.W.3d at 661.

                                  III. APPLICABLE LAW

      To obtain mandamus relief for the trial court’s refusal to rule on a motion, a

relator must establish: (1) the motion was properly filed and has been pending for a

reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court

refused to rule. In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig.

proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.

proceeding); In re Keeter, 134 S.W.3d 250, 252 (Tex. App.—Waco 2003, orig.

proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.

proceeding); see also In re Dallas Nat. Ins. Co., No. 13-09-00674-CV, 2010 WL

2432097, at *4 (Tex. App.—Corpus Christi June 17, 2010, orig. proceeding) (mem. op.

on reh’g). The relator must show that the trial court received, was aware of, and was

asked to rule on the motion. In re Blakeney, 254 S.W.3d at 661; In re Villarreal, 96

S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding).



                                               6
        The trial court has a reasonable time within which to perform its ministerial duty.

See In re Blakeney, 254 S.W.3d at 661; In re Shredder Co., 225 S.W.3d 676, 679 (Tex.

App.—El Paso 2006, orig. proceeding). Whether a reasonable time for the trial court to

act has lapsed is dependent upon the circumstances of each case. See In re Blakeney,

254 S.W.3d at 662; In re Chavez, 62 S.W.3d at 228. 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 Blakeney, 254 S.W.3d at 661;

In re Keeter, 134 S.W.3d at 253; In re Chavez, 62 S.W.3d at 228. We examine a

“myriad” of criteria including the trial court’s actual knowledge of the motion, its overt

refusal to act, the state of the court’s docket, and the existence of other judicial and

administrative matters which must be addressed first. In re Blakeney, 254 S.W.3d at

661; see Ex parte Bates, 65 S.W.3d 133, 135 (Tex. App.—Amarillo 2001, orig.

proceeding); In re Chavez, 62 S.W.3d at 228–29.3


        3
           There are a plethora of cases in which courts have determined that various periods of delay in
ruling have been unreasonable. See, e.g., In re Shredder Co., 225 S.W.3d 676, 679–80 (Tex. App.—El
Paso 2006, orig. proceeding) (holding that an eight-month delay on ruling on a motion to compel
arbitration after hearing was an abuse of discretion); In re Greenwell, 160 S.W.3d 286, 288 (Tex. App.—
Texarkana 2005, orig. proceeding) (holding that a six-month delay in ruling on a partial summary
judgment motion warranted mandamus relief); In re Kleven, 100 S.W.3d 643, 644–45 (Tex. App.—
Texarkana 2003, orig. proceeding) (holding that five and six-month delays on ruling on discovery motions
was an abuse of discretion); City of Galveston v. Gray, 93 S.W.3d 587, 592 (Tex. App.—Houston [14th
Dist.] 2002, orig. proceeding) (holding that a thirteen-month delay on ruling on a plea to the jurisdiction
was an abuse of discretion); In re Tasby, 40 S.W.3d 190, 191 (Tex. App.—Texarkana 2001, orig.
proceeding) (holding that a delay of thirteen months in ruling on a petition for writ of mandamus was
unreasonable); In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.—San Antonio 1998, orig. proceeding)
(holding that a trial court’s failure to rule on a motion for default judgment for over eighteen months was
an abuse of discretion); Safety–Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio
1997, orig. proceeding) (holding that a ten-month delay in setting a hearing on a motion to compel
discovery was an abuse of discretion); O’Donniley v. Golden, 860 S.W.2d 267, 270 (Tex. App.—Tyler
1993, orig. proceeding) (holding that a thirteen-month delay in ruling on a motion for appointment was an
abuse of discretion); Kissam v. Williamson, 545 S.W.2d 265, 266–67 (Tex. App.—Tyler 1976, orig.
proceeding) (per curiam) (holding that a trial court’s delay in ruling on an election of incorporation for
more than thirteen months was an abuse of discretion); see also In re Hays Cnty. Sheriff’s Dep’t, No. 03-
12-00343-CV, 2012 WL 6554815, at *4 (Tex. App.—Austin Dec. 12, 2012, orig. proceeding) (mem. op.)
(holding that a thirteen-month delay in ruling on plea to the jurisdiction was an abuse of discretion); In re
Dallas Nat. Ins. Co., No. 13-09-00674-CV, 2010 WL 2432097, at **4–5 (Tex. App.—Corpus Christi June

                                                         7
                                             IV. ANALYSIS

        In the instant case, First Mercury has demonstrated that its pleadings were

presented to the respondent and the respondent did not rule on them. See In re Dimas,

88 S.W.3d 349, 351 (Tex. App.—San Antonio 2002, orig. proceeding); In re Chavez, 62

S.W.3d at 228. Based on this record, First Mercury’s plea was properly filed and was

brought to the trial court’s attention with a request for a ruling. Therefore, the only

remaining issue before us is whether the trial court had a reasonable time to act on the

plea given the specific circumstances of this case. See In re Blakeney, 254 S.W.3d at

662; In re Chavez, 62 S.W.3d at 228. In examining the alleged period of delay in this

case, the record reflects the following chronology of events:

        January 25, 2013—First Mercury filed its plea and motion to dismiss in
        County Court at Law No. 2.

        February 4, 2013—County Court at Law No. 2 held a hearing on the plea
        and took it under submission.

        February 28, 2013—The case was transferred from County Court at Law
        No. 2 to the newly created County Court at Law No. 8 “as part of the
        reassignment of civil cases” between the courts.

        April 9, 2013—First Mercury raised the issue of jurisdiction in County
        Court at Law No. 8 by filing a supplemental plea to the jurisdiction and
        motion to dismiss.

        May 21, 2013—County Court at Law No. 8 held a hearing on the plea but
        did not rule on the plea, instead ordering the parties to mediation.

        June 14, 2013—The parties mediated the case but did not settle.

17, 2010, orig. proceeding) (mem. op. on reh’g) (holding that a delay of more than three years in ruling on
a plea to the jurisdiction was an abuse of discretion); In re Armstrong, No. 06-11-00100-CV, 2011 WL
5561705, at **2–3 (Tex. App.—Texarkana Nov. 16, 2011, orig. proceeding) (mem. op.) (holding that a
delay of thirteen months in ruling on several pending motions was an abuse of discretion); In re Reeves
Cnty., No. 08-09-00227-CV, 2009 WL 2623355, at *2 (Tex. App.—El Paso Aug. 26, 2009, orig.
proceeding) (mem. op.) (holding that a trial court’s failure to rule on a motion to compel arbitration for
nineteen months was an abuse of discretion); In re Mitchell, No. 10-07-00250-CV, 2008 WL 191477, at *2
(Tex. App.—Waco Jan. 23, 2008, orig. proceeding) (mem. op.) (holding that a trial court’s failure to rule
on a motion for default judgment for fifteen months was an abuse of discretion).

                                                        8
      June 17, 2013—County Court at Law No. 8 held a hearing on real parties’
      motion for continuance of a hearing set for June 19 on First Mercury’s plea
      and motion, granted the motion for continuance, and determined the plea
      would be determined by written submission on July 17, 2013.

      July 22, 2013—Court staff indicated that the judge would rule by the end
      of the week.

      July 31, 2013—Court staff indicated that the judge had the file but was in
      trial.

      August 2, 2013—First Mercury sent a letter to the trial court to
      “respectfully request a ruling,” setting out the time line relating to the plea,
      and noting that the case was set for trial on October 21, 2013 and they
      were “almost sixty days out from trial.”

      In considering the alleged period of delay, we note that the trial court has broad

discretion in managing its docket, but that discretion is not unlimited. See In re Allied

Chem. Corp., 227 S.W.3d 652, 654 (Tex. 2007) (orig. proceeding); Clanton v. Clark,

639 S.W.2d 929, 931 (Tex. 1982); In re Blakeney, 254 S.W.3d at 663; Ho v. Univ. of

Tex. at Arlington, 984 S.W.3d 672, 694–95 (Tex. App.—Amarillo 1998, pet. denied).

Furthermore, since the trial court’s power to control its own docket is discretionary, a

reviewing appellate court may not arbitrarily interfere with it. See Ex parte Bates, 65

S.W.3d at 135; see also In re Dallas Nat. Ins. Co., 2010 WL 2432097, at *4.

      In the instant case, First Mercury’s plea to the jurisdiction and motion to dismiss

had been on file for eight months. We conclude that the period of time when the case

was pending before County Court at Law No. 2 cannot be held against the respondent

in this case with regard to our analysis of the delay in ruling. We further conclude that

the period of time that elapsed in County Court at Law No. 8 prior to the hearing on the

plea on May 21 does not apply in this analysis because the record does not reflect that

First Mercury presented its plea and motion to the new trial court before that date.



                                                9
Neither period of time is relevant given the mandamus requirements for a request for a

ruling and the trial court’s refusal to rule. Mandamus will not issue unless: (1) the

relator has made a demand on the respondent, and (2) the respondent has denied relief

or otherwise refused to act. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig.

proceeding); Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig. proceeding);

Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) (orig. proceeding).

       Thus, we are left with a delay from May 21 until August 26, when this original

proceeding ensued. During this period, the trial court was clearly aware of the plea, had

held a hearing on the plea, had held a hearing on continuing the submission date for the

plea, and had set a self-imposed deadline to issue a ruling. The trial court nevertheless

did not rule on the plea. It is clear from the colloquy between the trial court and the

attorneys that the court’s docket was crowded and the trial court was giving the older

criminal cases precedence; however, neither the real parties in interest nor the

respondent provided this Court with any specific data indicating that other judicial or

administrative matters prevented the trial court from issuing a ruling on the plea. While

the real parties contend that First Mercury failed to present a record illustrating the trial

court’s docket and administrative duties, we note that the court’s docket is only one of

the many factors we consider in determining the reasonableness of the delay in ruling.

See In re Blakeney, 254 S.W.3d at 661; Ex parte Bates, 65 S.W.3d at135; In re Chavez,

62 S.W.3d at 228–29. Moreover, we presume the trial court took its own docket under

consideration in setting the plea for submission on July 17, 2013, with “[n]o more

continuances” and the assertion that he would rule “that day or a couple of days after

that.” Finally, in considering the circumstances of the case, we consider the subject



                                                10
matter of the pending motion to be a pivotal factor in our analysis. In this case, First

Mercury’s pending plea to the jurisdiction and motion to dismiss concerned threshold

issues regarding standing and the trial court’s subject matter jurisdiction over the case.

The Texas Supreme Court has instructed us that jurisdictional determinations should be

made “as soon as practicable.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 227 (Tex. 2004); see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.

2000); see also In re Tex. Dep’t of Ins., No. 13-10-00471-CV, 2010 WL 3596844, at *2

(Tex. App.—Corpus Christi Sept. 14, 2010, orig. proceeding) (mem. op.). There is

nothing in the record before us suggesting that the jurisdictional determination sought

by First Mercury’s plea required the examination of further evidence or a fuller

development of the case. See Bland, 34 S.W.3d at 554. In this regard, the parties were

fewer than sixty days out from trial. See City of Galveston v. Gray, 93 S.W.3d 587, 591

(Tex. App.—Houston [14th Dist.] 2002, pet. denied) (combined appeal & orig.

proceeding) (“The city and the county argue a governmental unit’s entitlement to be free

from suit is effectively lost if the trial court erroneously assumes jurisdiction and subjects

the governmental unit to pre-trial discovery and the costs incident to litigation; therefore

the trial court abuses its discretion and there is no adequate remedy at law.”). We

conclude that First Mercury was entitled to a timely ruling on its plea to the jurisdiction.

                                      VI. CONCLUSION

       First Mercury has met its burden to show that the trial court abused its discretion

in failing to rule on its plea to the jurisdiction. In so holding, however, we do not reach

the merits of First Mercury’s plea or direct the trial court regarding how to rule on it. See

In re Blakeney, 254 S.W.3d at 661 (“While we have jurisdiction to direct the trial court to



                                                 11
make a decision, we may not tell the court what that decision should be.”); In re

Shredder Co., 225 S.W.3d at 680 (“Although we have jurisdiction to direct the trial court

to exercise its discretion in some manner, under no circumstances may we tell the trial

court what its decision should be.”); In re Ramirez, 994 S.W .2d at 684 (“However, while

we have jurisdiction to direct the trial court to proceed to judgment, we may not tell the

court what judgment it should enter.”); O’Donniley, 860 S.W.2d at 269 (“While it is a

basic premise that an appellate court lacks the power to compel a trial judge to do a

particular act involving or requiring discretion on his part, this Court is empowered to

order a trial judge to exercise his discretion in some manner.”).

       The Court, having examined and fully considered the petition for writ of

mandamus, the response, the reply, and the applicable law, is of the opinion that the

petition for writ of mandamus should be conditionally granted. Accordingly, we lift the

stay previously imposed in this case. We conditionally grant the petition for writ of

mandamus and direct the trial court to rule on the plea to the jurisdiction. The writ will

issue only if the trial court fails to take appropriate action in accordance with this

opinion.

                                                    GREGORY T. PERKES
                                                    Justice


Delivered and filed the
13th day of November, 2013.




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