In re Pedison Usa, Inc., 072716 TXCA2, 02-16-00252-CV

Docket Nº:02-16-00252-CV
Opinion Judge:BONNIE SUDDERTH, JUSTICE.
Party Name:IN RE PEDISON USA, INC. AND DICKSON EWEMADE RELATORS
Judge Panel:PANEL: WALKER, MEIER, and SUDDERTH, JJ. WALKER, J., filed a dissenting opinion. SUE WALKER JUSTICE
Case Date:July 27, 2016
Court:Court of Appeals of Texas
 
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IN RE PEDISON USA, INC. AND DICKSON EWEMADE RELATORS

No. 02-16-00252-CV

Court of Appeals of Texas, Second District, Fort Worth

July 27, 2016

ORIGINAL PROCEEDING TRIAL COURT NO. 048-263530-13

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

MEMORANDUM OPINION 1

BONNIE SUDDERTH, JUSTICE.

The court has considered relators' petition for writ of mandamus and motion for temporary stay and is of the opinion that relief should be denied. Accordingly, relators' petition for writ of mandamus and motion for temporary stay are denied.

WALKER, J., filed a dissenting opinion.

DISSENTING MEMORANDUM OPINION 1

SUE WALKER JUSTICE

A trial court possesses a ministerial duty to rule upon a motion filed and pending before it; mandamus may issue to compel the trial court to rule. See, e.g., In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App.-El Paso 2006, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.-San Antonio 2004, orig. proceeding); Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.-San Antonio 1997, orig. proceeding). A trial court abuses its discretion by failing to rule when the trial court had a legal duty to perform a nondiscretionary act, was asked to perform the act, and failed or refused to do so. See Shredder Co., 225 S.W.3d at 679; Hearn, 137 S.W.3d at 685; Safety-Kleen Corp., 945 S.W.2d at 269.

Relators Pedison USA, Inc. and Dickson Ewemade are third-party defendants in the underlying litigation. They seek mandamus relief based, in part, on the trial court's failure to rule on their motion to sever and transfer venue.2 Despite the fact that Relators' motion has been pending over six months, despite two written requests by Relators that the trial court rule on their motion, and despite an upcoming August 1, 2016 trial setting, the trial court has not ruled on Relators' motion to sever and transfer venue. The trial court's failure to rule and to sign a written order prevents this court from considering the merits of Relators' petition for writ of mandamus. See Tex. R. App. P. 52.3(k)(1)(A) (requiring relator to attach a certified or sworn copy of order complained of); In re Reynolds...

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