In re Clayton Homes, Inc., et al.--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION

No. 04-05-00526-CV

IN RE CLAYTON HOMES, INC., CMH Homes, Inc.,

Vanderbilt Mortgage and Finance, Inc., Benjamin Joseph Frazier,

Kevin T. Clayton, and John Wells

Original Mandamus Proceeding //

PER CURIAM

Sitting: Karen Angelini, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: August 10, 2005

PETITION FOR WRIT OF MANDAMUS DENIED

On July 29, 2005, relators filed a petition for writ of mandamus and motion for temporary relief, arguing that the trial court has refused to rule upon Relator Kevin T. Clayton s special appearance and relators motion for continuance. A trial judge has a legal, nondiscretionary duty to consider and rule on properly filed motions within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App. San Antonio 1998, orig. proceeding). However, a trial judge abuses his discretion only if the motion has been brought to his attention and he refuses to rule on it within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App. Houston [1st Dist.] 1992, orig. proceeding); see also In re Chavez, 62 S.W.3d 225, 228 (Tex. App. Amarillo 2001, orig. proceeding).

Here, on April 27, 2005, by letter, relators requested a hearing on Kevin T. Clayton s special appearance by May 13, 2005. However, that same day, plaintiffs counsel, also by letter, informed the court that pursuant to an agreement by all parties, everything has been stayed, including court hearings, . . . until after mediation, which is scheduled to begin May 31, 2005 and continu[e] until Saturday, June 4, 2005. The trial court, therefore, did not set the hearing. At a judicial conference on July 7, 2005, relators argued that the trial court should hear the special appearance and motion for continuance, but the trial court refused, explaining that those motions had not been set for hearing. That same day, relators asked the court coordinator to set the motions before August 1, 2005, the day the case is set for trial. The court coordinator explained that because the judge would be on vacation during July, the court would not be in session until August 1, 2005. On July 22, 2005, by letter, relators requested that the court set the two motions for hearing on July 29, 2005.

We cannot find that the trial court refused to rule upon relators two motions, because the court could hear the two motions on August 1, 2005, as a pretrial matter. We, therefore, DENY relators motion for temporary relief and petition for writ of mandamus. Tex. R. App. P. 52.8(a).

PER CURIAM