In re Ronald J. Holleman--Appeal from 218th Judicial District Court of Karnes County

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 23, 2004

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

In his second petition for a writ of mandamus, relator, Ronald J. Holleman, seeks mandamus relief directing the trial court to render a default judgment against Dr. Joseph Vadas. "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." In re Martinez Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio 1998, orig. proceeding). "However, the trial court has no discretion to refuse to hear and rule on a motion for default judgment [within a reasonable time] because a refusal to timely rule on a motion frustrates the judicial system and constitutes a denial of due course of law." Id.

"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). "A trial court is required to consider and rule upon a motion within a reasonable time." In re Martinez Ramirez, 994 S.W.2d at 683. Whether a reasonable time has lapsed is dependent upon the circumstances in each case because no bright-line rule exists. Ex parte Bates, 65 S.W.3d 133, 135 (Tex. App.-Amarillo 2001, orig. proceeding). "Many indicia are influential, not the least of which are the trial court's actual knowledge of the motion, its overt refusal to act on same, the state of the court's docket, and the existence of other judicial and administrative matters which must be addressed first." Id.

On March 15, 2004, Holleman filed his first petition seeking mandamus relief directing the trial court to render a default judgment against Dr. Joseph Vadas. In re Holleman, No. 04-04-00183-CV, 2004 WL 624584 (Tex. App.-San Antonio Mar. 31, 2004, orig. proceeding). The exhibits attached to Holleman's first petition reveal that Dr. Vadas was served with a copy of Holleman's petition on January 6, 2004, and proof of service was filed in the district clerk's office on January 9, 2004. On February 13, 2004, Holleman filed a motion for default judgment in the district clerk's office and sent a letter to the Office of the Attorney General notifying it of his intent to seek a default judgment. Finally, on March 3, 2004, Holleman filed a letter with the district clerk's office, informing the district clerk that notice was sent to the Office of the Attorney General and requesting that the default judgment be granted.

On March 31, 2004, this court denied Holleman's first petition for writ of mandamus and sent a copy of the opinion to the trial judge. In the opinion, we reasoned, "only a little over one month has lapsed since the motion for default judgment was filed, and only a few weeks have passed since Holleman informed the district clerk's office that the Office of the Attorney General had been notified that he intended to pursue a default judgment. Given these circumstances, we are unable to conclude that the trial court has failed to consider and rule upon Holleman's motion within a reasonable time." In re Holleman, No. 04-04-00183-CV, 2004 WL 624584, at *1.

On May 17, 2004, Holleman filed his second petition seeking mandamus relief directing the trial court to render a default judgment against Dr. Joseph Vadas. In response, the Attorney General argues solely that Holleman failed to exercise effective service of process on Dr. Vadas. The Attorney General has failed to address whether the trial court has had a reasonable time to rule upon Holleman's motion. In this proceeding, we must consider whether mandamus relief is now appropriate given the trial court's continued failure to rule on the requested default judgment even after the issuance of our March 31, 2004 opinion. Holleman's motion for default judgment has been on file for four months, and the trial judge should have knowledge of the pending motion since a copy of our prior opinion was sent to her. Given these circumstances, we conclude that the trial court has had a reasonable time to act upon Holleman's motion but has failed to do so. Ex parte Bates, 65 S.W.3d at 135.

Because the trial court has failed to rule on Holleman's motion within a reasonable time, we conditionally grant the writ of mandamus. The writ will issue only if Judge Saxon fails to rule on

Holleman's motion for default judgment within ten days from the date of our opinion and order. Whether the motion should be granted or denied is within the trial court's discretion.

Alma L. L pez, Chief Justice

1. This proceeding arises out of Cause No. 03-02-00028-CVK, styled Ronald J. Holleman v. Dr. Joseph Vadas, et al., pending in the 218th Judicial District Court, Karnes County, Texas, the Honorable Stella Saxon presiding.