Date: 11-24-2022

Case Style:

In re Joyce Reece and Zachary Petitt

Case Number: 01-21-00685-CV

Judge:

PER CURIAM Panel consists of Chief Justice Radack and Justices Countiss and Farris

Court:

First Court of Appeals Houston, Texas

On appeal from the

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Defendant's Attorney: MeaghanL L Dickerson

Description:

Houston, Texas – Civil Litigation lawyer represented Relators with filing a petition for a writ of mandamus.

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In his first amended petition, Roy, acting as next friend for Clarice A. Thomas,
brought claims against relators for fraud, false imprisonment, conversion, theft,
unjust enrichment, and civil conspiracy. According to Roy, Thomas “has been
medically diagnosed with anxiety, depression, and mental retardation.” Roy also
states that Thomas lived with, and was cared for by, her grandmother, Dorothy Marie
Smith, until the time of her death.
Upon Smith’s death, Thomas moved into the home of relators, who were
“verbally and physically” abusive to Thomas, “took possession of Thomas’[s]
property and forced Thomas to remain in the [relators’] household against” her will.
disqualifying relators’ counsel. We denied relators’ petition for writ of mandamus
on March 2, 2021. See In re Reece, No. 01-21-00014-CV, 2021 WL 785332, at *1
(Tex. App.—Houston [1st Dist.] Mar. 2, 2021, orig. proceeding) (mem. op.).
2 The underlying case is Clarence Roy as next friend of Clarice A. Thomas v. Zachary
Pettit and Joyce Reece, Cause No. 2017-49867, in the 281st District Court of Harris
County, Texas, the Honorable Christine Weems presiding.
3
Roy further alleges that relators “coerced and threatened Thomas to sign documents
transferring her property” to relators and “fraudulently notarized” those documents.
On October 13, 2020, relators filed a plea to the jurisdiction, arguing that the
trial court lacks subject-matter jurisdiction over the Roy’s suit because Roy “does
not have the requisite standing to pursue this litigation” in the capacity “as next
friend” of Thomas. According to relators, Roy lacks standing because Thomas “has
never been declared mentally incompetent by a court exercising probate
jurisdiction.” The mandamus record reflects that on October 13, 2020,
contemporaneously with the filing of their plea to the jurisdiction, relators filed a
notice of submission, setting their plea to the jurisdiction on the trial court’s
October 26, 2020 submission docket.
On November 10, 2020, relators filed a “Request for a Ruling on [Relators’]
Plea to the Jurisdiction,” stating that their plea to the jurisdiction “was set for
submission to the [trial court] without an oral hearing on October 26, 2020[] and said
date has now passed” without a ruling from the trial court. On January 7, 2021,
relators filed a petition for writ of mandamus with this Court, asserting, in part, that
the trial court abused its discretion by failing to dismiss Roy’s causes of action
against relators for lack of standing. On March 2, 2021, the Court denied relators’
January 7, 2021 petition for writ of mandamus.3
3 See In re Reece, 2021 WL 785332, at *1.
4
On September 29, 2021, relators filed a “Third Request for a Ruling on
[Relators’] Plea to the Jurisdiction.”4
Relators’ third request stated that, as of
September 29, 2021, the trial court had “not yet made a ruling” on their plea to the
jurisdiction which was set on the trial court’s submission docket approximately
eleven months earlier. On December 6, 2021, relators filed the current petition for
writ of mandamus pending before this Court. The mandamus record reflects that, as
of the date the mandamus petition was filed, the trial court had yet to rule on relators’
plea to the jurisdiction. A response was requested by the Court, and on January 11,
2022, Roy filed a response to relators’ mandamus petition.
Standard of Review
Mandamus is an extraordinary remedy that is only available in limited
circumstances. See Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).
Mandamus relief is only appropriate where the relator establishes that the trial court
has abused its discretion or violated a legal duty, and the party has no adequate
remedy by appeal. See id. A trial court abuses its discretion where “it reaches a
decision so arbitrary and unreasonable as to amount to a clear and prejudicial error
of law.” Id.; see also In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003).
4 We note that while relators’ September 29, 2021 filing is captioned a “Third Request
for a Ruling” on their plea to the jurisdiction, the mandamus record does not include
a “second” request for a ruling from the trial court on relators’ plea to the
jurisdiction. For ease, we will refer to relators’ September 29, 2021 filing as their
“third request.”
5
Refusal to Rule
In a portion of their mandamus petition, relators argue that the trial court has
abused its discretion in refusing to rule on their plea to the jurisdiction because
“[m]andamus is available to compel a trial court to make a ruling within a reasonable
time” and the plea to the jurisdiction was “properly presented to the trial court.”
“[T]he need to consider and rule upon a motion is not a discretionary act.” In
re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). “A
trial court has a ministerial duty to consider and rule on motions properly filed and
pending before the court and mandamus may issue to compel the [trial court] to act.”
In re Layton, 257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding).
To establish an abuse of discretion for failure to rule, relators must show that:
(1) the trial court had a legal duty to rule on their plea to the jurisdiction, (2) relators
made a demand for the trial court to rule, and (3) the trial court failed or refused to
rule within a reasonable time. See In re Chavez, 62 S.W.3d at 228. While a trial
court “has a reasonable time within which to perform” its ministerial duty to rule on
a properly filed motion or pleading, there is no “bright-line” rule regarding what
constitutes a “reasonable time,” and the determination is dependent on the
circumstances of each case. See id. at 228–29; see also In re Amir-Sharif, 357
S.W.3d 180, 181 (Tex. App.—Dallas 2012, orig. proceeding).
6
Applying this standard to the circumstances here, the Court concludes that
“reasonable time” has passed. The mandamus record reflects that relators filed their
plea to the jurisdiction on October 13, 2020 and set it on the trial court’s
October 26, 2020 submission docket. On November 10, 2020, relators filed a
request for a ruling with the trial court, noting that the October 26, 2020 submission
date had passed without a ruling by the trial court.
After several more months passed without a ruling, relators filed their third
request for ruling with the trial court on September 29, 2021. Despite this request,
an additional two months passed without a ruling from the trial court, and on
December 6, 2021, relators filed their petition for writ of mandamus with this Court.
At the time of the filing of their mandamus petition, more than thirteen months had
passed since relators filed their plea to the jurisdiction and initially set it on the trial
court’s submission docket.
Under these circumstances, we conclude that the trial court has abused its
discretion by failing to perform its ministerial duty to rule on relators’ plea to the
jurisdiction despite multiple requests to do so. See In re Harris Cty. Appraisal Dist.,
No. 14-19-00078-CV, 2019 WL 1716274, at *3 (Tex. App.—Houston [14th Dist.]
Apr. 18, 2019, orig. proceeding) (mem. op.) (six months was unreasonable amount
of time for trial court to fail to rule on plea to jurisdiction); In re Shredder Co.,
L.L.C., 225 S.W.3d 676, 680 (Tex. App.—El Paso 2006, orig. proceeding)
7
(concluding trial court abused its discretion by failing to rule on motion to compel
arbitration properly filed and pending for approximately six months).
To be entitled to mandamus relief, relators must also lack an adequate remedy
by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.
2004). While there is no “comprehensive definition,” Texas courts have concluded
that “[a]n appellate remedy is ‘adequate’ when any benefits to mandamus review are
outweighed by the detriments.” Id. at 136. This Court has previously held that a
relator lacks an adequate remedy by appeal where a trial court refuses to rule on a
pending motion. See SMS Fin. XV, L.L.C., No, 01-19-00850-CV, 2020 WL 573247,
at *2 n.4 (Tex. App–Houston [1st Dist.] Feb. 6, 2020, orig. proceeding) (mem. op.).
Thus, we conclude that relators in this case lack an adequate remedy by appeal.
We note that relators, in their mandamus petition, have requested that this
Court “issue a [w]rit of [m]andamus commanding [the trial court] to enter an order
dismissing [Roy’s] cause[s] of action, without prejudice, for want of subject-matter
jurisdiction due to lack of standing.” Although we may direct the trial court to rule
on relators’ plea to the jurisdiction, we lack the authority to grant this specific relief
requested by relators. See In re Shredder, 225 S.W.3d at 680 (“Although 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.”)

Outcome: Accordingly, we conditionally grant relators’ petition for writ of mandamus
in part and direct the trial court to rule on relators’ plea to the jurisdiction. However, because we lack jurisdiction to “tell the trial court” what its decision should be, we
deny relators’ mandamus petition to the extent that it requests that we command the
trial court to dismiss real party in interest’s causes of action against them.

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