GRANT; and Opinion Filed August 21, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00987-CV
IN RE STAFF CARE, INC., Relator
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 11-03615
MEMORANDUM OPINION
Before Justices O'Neill, Lang-Miers, and Evans
Opinion by Justice Lang-Miers
Relator filed this petition for writ of mandamus after the trial judge denied its motion for
continuance and stated he would not rule on relator’s pending motions to compel and appeal of
the associate judge’s decision on a motion to strike prior to trial. In order to obtain mandamus
relief, relator must show both that the trial judge has abused his discretion and that relator has no
adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Relator
has met this burden.
Relator filed suit against real parties in interest, former employees of relator, for, inter
alia, breach of contract, breach of fiduciary duty, theft of trade secrets, tortious interference with
contract and tortious interference with prospective business relationships. In September 2012,
relator filed a motion to compel discovery, for which a hearing was held on November 2, 2012.
The trial court declined to rule on the motion at that time. Over the next several months, relator
filed additional motions to compel discovery and motions to compel depositions, and set
hearings for those motions in May 2013 and July 2013. The hearings were canceled by the trial
court. Finally, an associate judge heard and granted real parties in interest’s motion to strike, and
relator timely appealed that ruling to the trial court. On July 12, 2013, the trial court denied
relator’s motion to continue the July 22, 2013 trial date without ruling on any of the outstanding
motions or the appeal. Relator was informed by the court that no hearing dates were available
for any of these matters prior to trial.
A trial court has a duty to conduct hearings and render decisions on motions that are
properly filed and brought to the court’s attention, and a failure to do so is an abuse of discretion.
See Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding). In this
case, relator timely filed several motions and sought hearings from the trial court. Despite
relator’s requests for rulings on the motions, the court failed to hold hearings on the motions
prior to trial and, when a hearing was held, failed to rule. Similarly, the court failed to set a
hearing on the appeal of the associate judge’s ruling prior to the date of trial. Because the trial
court had a legal duty to perform the nondiscretionary act of ruling on the motions, was asked to
rule on the motions, and failed to do so, mandamus will issue. See In re Shredder Co., L.L.C.,
225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). However, “[a]lthough 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.” Id. We therefore express
no opinion on the merits of any of relator’s motions or its appeal of the associate judge’s order.
We conditionally grant relator’s petition for writ of mandamus. A writ will issue only in
the event the trial court fails to render an order: 1) resolving all of the parties’ motions to compel
that were pending as of July 18, 2013; 2) ruling on relator’s appeal of the Associate Judge’s
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Order granting Defendants’ Motion to Strike, and 3) setting a date for trial not less than thirty
days from the date of the last of the orders resolving these motions.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
130987F.P05
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in Re: Staff Care, Inc.
Combined Opinion