In re Ramirez

• Decision Date: 16 September 1998
• Docket Number: No. 04-98-00625-CV,04-98-00625-CV
• Parties: (Tex.App.-San Antonio 1998) IN RE ISIDRO MARTINEZ RAMIREZ
• Court: Texas Court of Appeals

Page 682

994 S.W.2d 682 (Tex.App.-San Antonio 1998)

IN RE ISIDRO MARTINEZ RAMIREZ

No. 04-98-00625-CV

Court of Appeals, Fourth District of Texas

September 16, 1998

Original Proceeding from the County Court at Law No. 2, Bexar County, Texas Trial Court No. 235163 Honorable H. Paul Canales, Judge Presiding

Alma L. Lopez, Justice Sarah B. Duncan, Justice Karen Angelini, Justice

OPINION

Angelini, Justice

Relator, Isidro Martinez Ramirez, is an inmate at the Bexar County Jail. On November 25, 1996, he filed suit against his ex-girlfriend, Angela Orozco, in County Court at Law No. 2, Bexar County, Texas. In his original petition, Ramirez claimed that Orozco, after learning that Ramirez had been arrested and jailed, entered his apartment and took over $4,000 worth of his personal property.

The record reflects that Orozco was served with Ramirez's petition on December 3, 1996. The record further reflects that Orozco has failed to file an answer or otherwise respond to the petition. On January 2, 1997, Ramirez filed a motion for judgment by default. He also filed what amounts to a motion to set the motion for default judgment for hearing. Ramirez received no response from the trial court or the county clerk. On March 30, 1998, he filed an amended motion for judgment by default. The fiat attached to Ramirez's amended motion indicates that the matter was set for hearing on May 15, 1998. However, there is no indication in the record that such a hearing was held. Ramirez subsequently wrote letters to the county clerk, the trial court, and the chief justice of this court requesting that his motion be heard and disposed and that he be notified of any such disposition. No action on his motion has been taken.

On July 14, 1998, Ramirez filed this petition for writ of mandamus directing the trial court to hear and rule on his motion for judgment by default. Mandamus is an extraordinary remedy, and it will lie 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, 841 (Tex. 1992). In this case, Ramirez contends that the trial court has violated a duty imposed by law in failing to consider his motion for default judgment.

In determining whether or not a default judgment should be entered, the trial judge is required to ascertain the sufficiency of the petition as well as the service of process. Palacios v. Rayburn, 516 S.W.2d 292, 294 (Tex. Civ. App.--Houston [1st Dist.] 1974)(orig. proceeding); see Tex. R. Civ. P. 239. Because the determination of whether a plaintiff is entitled to a default judgment requires the exercise of the trial court's discretion, this court is without authority to compel by mandamus the entry of a default judgment. Weber v. Snell, 539 S.W.2d 363, 366 (Tex. Civ. App.--Houston [1st Dist.] 1976)(orig. proceeding). However, the trial court has no discretion to refuse to hear and rule on a motion for default judgment because a refusal to timely rule on a motion frustrates the judicial system and constitutes a denial of due course of law. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston. [1st Dist.] 1992)(orig. proceeding).

A trial court is required to consider and rule upon a motion within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992)(orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265, 266-67 (Tex. Civ. App.-- Tyler 1976)(orig. proceeding). "When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act." Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.-- San Antonio 1997)(orig. proceeding); see also Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (holding trial court abused its discretion by refusing to conduct hearing and render decision on motion); Chiles v. Schuble, 788 S.W.2d 205, 207 (Tex. App.--Houston [14th Dist.] 1990)(orig. proceeding) (finding mandamus appropriate to require trial judge to hold hearing and exercise discretion). 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. Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex. 1962); O'Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex. App.--Tyler 1993)(orig. proceeding).

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