                                   NO. 07-09-0090-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                     APRIL 20, 2009

                          ______________________________

           IN RE BRYN DUFFY, M.D., AND SUSANNE MATTSON-DUFFY,
          INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN,
                GUSTAF DUFFY AND HENRIK DUFFY, RELATORS
                    _________________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Relators Bryn Duffy, M.D. and Susanne Mattson-Duffy, individually and on behalf

of their minor children, Gustaf Duffy and Henrik Duffy, seek a writ of mandamus directing

the trial court to sustain their pending plea to its jurisdiction and dismiss the underlying

case without prejudice. For the reasons that follow, we will deny relators’ petition.


                                       Background


       On September 12, 2008, relators filed an original petition in the 99th District Court

of Lubbock County alleging witness tampering, commercial bribery, breach of fiduciary
duty, and civil conspiracy by real party in interest, Texas Medical Liability Trust (“TMLT”).

Without being served, TMLT filed a responsive pleading.1


       Relators filed a notice of non-suit on October 14.2 But on October 16, a visiting

judge signed an order that dismissed the case for want of prosecution. By order signed

November 25, the case was transferred to the 237th District Court of Lubbock County. In

an order signed February 6, 2009, the judge of the 237th District Court withdrew the

October 16 dismissal order. Relators filed a plea to the jurisdiction and motion to dismiss

on March 17. On March 19, relators filed their petition in this court seeking a writ of

mandamus.3


                                          Analysis


       Relators seek this court’s writ of mandamus “directing the 237th District Court to

promptly enter an Order of Dismissal Without Prejudice for Lack of Jurisdiction and take




       1
        TMLT’s responsive pleading was entitled Defendant Texas Medical Liability Trust’s
Motion to Consolidate, Original Answer and Counterclaim to Plaintiffs’ Original Petition.
The mandamus record indicates the parties disagree whether TMLT asserted a
counterclaim that survived the trial court’s October 16 dismissal order. We express no
opinion on this question.
       2
        Relators aver they mistakenly e-filed their suit in Lubbock County rather than
Travis County. They further aver that the suit was filed in Travis County on September 19,
2008, where it is presently abated pending resolution of the proceedings in Lubbock
County.
       3
        Relators accompanied their petition for writ of mandamus with a motion for
temporary relief, asking that we stay a hearing the 237th District Court scheduled for March
23, 2009, on motions filed by TMLT. We denied the temporary relief.

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no further action on the case.” Relators predicate their request on an argument that the

plenary power of the trial court expired thirty days after the October 16 dismissal order.


       Mandamus will issue only to correct a clear abuse of discretion or the violation of

a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer,

827 S.W.2d 833, 839-40 (Tex. 1992); see In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 135-36 (Tex. 2004) (explicating adequate remedy by appeal). By their plea and

motion, relators have asked the trial court to determine its jurisdiction. But the trial court

has not ruled on their plea and motion, which had been pending only two days when

relators filed in this court their petition for mandamus, containing the same arguments as

those made to the trial court. Thus, relators have not come to this court complaining of an

order by the trial court.


       A court may abuse its discretion by failing to execute a ministerial task for which no

discretion attaches, such as refusing to conduct a hearing or rule on a properly pending

motion. See Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). A trial court,

however, has a reasonable time to perform such a duty. In re Blakeney, 254 S.W.3d 659,

661 (Tex.App.–Texarkana 2008, orig. proceeding); Ex parte Bates, 65 S.W.3d 133, 135

(Tex.App.–Amarillo 2001, orig. proceeding). At this stage of the proceedings in the trial

court a hearing and ruling would not be expected since the motion to dismiss was served

on March 18 and the petition filed in this court on March 19. See Tex. R. Civ. P. 21 (a

motion and notice of hearing “shall be served upon all other parties not less than three

days before the time specified for the hearing unless otherwise provided by these rules or



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shortened by the court”). Relators have not shown a clear abuse of discretion in the trial

court’s failure to rule on a motion so recently filed. Cf. In re Gonzales, No. 07-06-0324-CV,

2006 WL 2588696, at *1, 2006 Tex. App. Lexis 8057, at *3, (Tex.App.–Amarillo Sept. 6,

2006, orig. proceeding) (mem. op.) (pendency of motion for three months not unreasonable

delay).


       But relators do not merely ask us to direct the trial court to rule; they ask that we

direct its ruling. We have repeatedly held that we may not direct a trial court’s decision on

a matter on which it has not ruled. See, e.g., In re Minnfee, No. 07-09-0005-CV, 2009 WL

127851, at *1, 2009 Tex. App. Lexis 332, at *1-2 (Tex.App.–Amarillo Jan. 16, 2009, orig.

proceeding) (per curiam); In re Rey, No. 07-02-0104-CV, 2002 WL 350473, at *1, 2002

Tex. App. Lexis 1673, at *1-2 (Tex.App.–Amarillo Mar. 6, 2002, orig. proceeding) (per

curiam) (not designated for publication). Accord In re Blakeney, 254 S.W.3d at 661; In re

Castle Tex. Prod. Ltd. P’ship, 189 S.W.3d 400, 403 (Tex.App.–Tyler 2006, orig.

proceeding); In re Ramirez, 994 S.W.2d 682, 684 (Tex.App.–San Antonio 1998, orig.

proceeding). That holding is applicable to relator’s request.


                                        Conclusion


       Finding relators have not demonstrated the trial court has committed an abuse of

its discretion or failed in performance of a ministerial duty, we need not consider whether

they have shown they have no adequate remedy by appeal. Accordingly, relators’ petition

for writ of mandamus is denied.


                                                  James T. Campbell
                                                      Justice


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