Opinion
01-23-00276-CV
05-09-2023
IN RE HUNTER-KELSEY II, LLC, Relator
Original Proceeding on Petition for Writ of Mandamus
Panel consists of Justices Goodman, Landau, and Rivas-Molloy.
MEMORANDUM OPINION
PER CURIAM
Relator Hunter-Kelsey II, LLC ("Relator") filed a petition for writ of mandamus asking this Court to compel Respondent, the Honorable Ursula A. Hall ("Respondent"), to rule on its Motion for Summary Judgment ("Summary Judgment Motion"), pending since April 15, 2020, and its Motion to Dismiss with Prejudice Pursuant to Judicial Estoppel ("Motion to Dismiss"), pending since July 9, 2021.We conditionally grant the writ.
The underlying case is Ronda Shelton v. Hunter-Kelsey II, LLC, cause number 2019-31123, pending in the 165th District Court of Harris County, Texas, the Honorable Ursula A. Hall presiding.
Background
The underlying case relates to a dispute over real property located at 4215 False Cypress Lane, Houston, Texas 77068 ("Property"). The question is whether the loan Real Party in Interest Ronda Shelton ("Real Party") secured through Relator is a home equity loan, as Real Party claims, or a loan on commercial property as Relator asserts.
Real Party brought suit on May 3, 2019 for injunctive relief to prevent Relator from foreclosing on the Property. Real Party originally asserted causes of action for Suit to Remove Cloud and Quiet Title, Fraud and Fraud in a Real Estate Transaction, and Injunction. Later, Real Party added a claim for Wrongful Foreclosure. Relator filed a general denial and later an amended answer asserting affirmative defenses. The trial court held a hearing on Real Party's request for temporary injunction on May 30, 2019. On September 8, 2019, Respondent denied Real Party's request for injunctive relief.
On April 15, 2020, Relator moved for Summary Judgment and set its motion for hearing on May 11, 2020. Real Party filed a response to the Summary Judgment Motion on May 4, 2020, and Relator filed a reply on May 8, 2020.
The original trial date was July 20, 2020. On July 16, 2020, Relator moved for a continuance because Respondent had not yet ruled on its Summary Judgment Motion. On August 21, 2020, Respondent granted the continuance and reset the trial to October 26, 2020. Relator again moved for a continuance on September 30, 2020, referencing the still pending Summary Judgment Motion and requesting that Respondent "allow for the pandemic to clear" to make possible an in-person trial and examination of witnesses.
Relator asserted that it was not able to obtain a live hearing due to the Covid-19 Pandemic ("Pandemic") and requested that the Summary Judgment Motion be heard by written submission. Respondent set the Summary Judgment Motion for submission on May 11, 2020. The submission hearing occurred on May 11, 2020 and June 11, 2020. The Docket Control Hearing scheduled for July 6, 2020 and Status Conference scheduled for July 16, 2020 were cancelled due to the Pandemic.
On September 28, 2020, Real Party commenced a Chapter 13 bankruptcy proceeding, and on October 21, 2020, it filed a Suggestion of Bankruptcy and Notice of Automatic Stay in the trial court. Later, on June 23, 2021, Real Party filed a Notice of Dismissal of Bankruptcy, noting that, on March 1, 2021, the bankruptcy proceeding concluded and the automatic stay was lifted.
On June 30, 2021, Real Party again requested injunctive relief seeking to enjoin the foreclosure sale of the Property, at that time scheduled for July 6, 2021. On July 16, 2021, Respondent signed an agreed upon order rescheduling the hearing on the temporary injunction from July 15, 2021 to July 22, 2021. Relator filed a supplement to its Summary Judgment Motion on July 22, 2021, renewing its original motion. On July 9, 2021, Relator filed its Motion to Dismiss, asserting that Real Party was estopped from proceeding with her claims because she failed to disclose the claims as assets in her bankruptcy proceedings.
Relator asserts that Real Party filed "Schedule A/B: Property" on February 3, 2020 and September 28, 2020 in bankruptcy court.
Respondent heard oral arguments on Real Party's second request for a temporary injunction, Relator's Summary Judgment Motion, and Relator's Motion to Dismiss on July 22, 2021. At the hearing, Respondent reset all pending matters to August 5, 2021 to allow for additional briefing, and to review and rule on the pending motions. On August 5, 2021, the parties appeared before Respondent and presented additional oral arguments on the pending matters.
On November 11, 2021, Relator filed a letter to Respondent inquiring about the status of its pending Summary Judgment Motion and Motion to Dismiss. Relator also sent a letter to Respondent's clerk, requesting a status conference on the pending motions. On January 31, 2022, the parties filed a Rule 11 Agreement, asking Respondent to make rulings on the pending motions. See Tex. R. Civ. P. 11.
The parties agreed to reschedule the foreclosure sale of the Property from February 1, 2021 to March 1, 2021, and to request a hearing before Respondent to determine all issues prior to the sale. On March 1, 2022, HK REO, LLC ("Intervenor") purchased the Property at a foreclosure sale. On July 8, 2022, Intervenor filed a petition to intervene, asserting causes of action for quiet title, trespass, declaratory judgment, and forcible detainer. On July 14, 2022, Intervenor filed a Motion for Summary Judgment.
On June 20, 2022, Real Party filed an Amended Petition adding a cause of action for Wrongful Foreclosure. Relator filed a second supplement to its Summary Judgment Motion on July 13, 2022, addressing Real Party's cause of action for Wrongful Foreclosure.
On June 21, 2022, Relator filed a Motion for Hearing on the Summary Judgment Motion and Motion to Dismiss. Respondent did not set the motion for hearing.
On August 15, 2022, Relator again moved for a continuance of the October 3, 2022 trial setting because Respondent had not yet ruled on the pending motions. Relator noted that the parties had not been consulted about the October 3, 2022 trial date. Relator further noted that there are dispositive motions pending and requested that Respondent rule on the motions before resetting the trial as "[i]t would be very useful for the parties to know the rulings on said motions for preparation and negotiation purposes." Rather than ruling on the pending motions, on August 16, 2022, Respondent reset the trial to January 23, 2023.
On September 29, 2022, Relator moved for a continuance of the January 23, 2023 trial setting. Relator noted that the parties were not consulted before the trial date was set, and that Relator had a conflict and was not able to appear on January 23, 2023. Relator also noted that there are "dispositive pending trial motions" and requested that Respondent "rule on those motions before resetting this trial" "[i]n the interests of judicial economy." Two months later, on November 16, 2022, while the motions still remained pending, Respondent reset the trial to May 15, 2023.
Relator and Intervenor jointly moved for a continuance.
On April 10, 2023, Relator filed the present Petition for Writ of Mandamus, asking this Court to order Respondent to rule on its Motion for Summary Judgment and Motion to Dismiss. The Court requested that Real Party file a response, but none was filed.
Standard of Review
Generally, mandamus relief is warranted when the Relator can show that (1)the trial court clearly abused its discretion or violated a duty imposed by law, and (2)there is no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Mandamus relief also may be granted to compel a trial court to perform the ministerial act of ruling on a properly filed, pending motion. In re SMS Fin. XV, L.L.C., No. 01-19-00850-CV, 2020 WL 573247, at *1 (Tex. App.- Houston [1st Dist.] Feb. 6, 2020, orig. proceeding); In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex. App.-Corpus Christi-Edinburg 2014, orig. proceeding); see also Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding) ("When a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling on that motion is a ministerial act."). A trial court abuses its discretion by failing to rule on a pending motion if it (1) has a legal duty to perform a nondiscretionary act; (2) was asked to perform the nondiscretionary act; and (3) failed to do so. In re Robbins, No. 14-21-00129-CV, 622 S.W.3d 600, 601 (Tex. App.-Houston [14th Dist.] Apr. 8, 2021, orig. proceeding).
Discussion
It is the trial court's duty "to rule on all motions on which a ruling has been sought within a reasonable time, considering all the surrounding circumstances." In re SMS Fin. XV, L.L.C., 2020 WL 573247, at *2 (quoting In re Foster, 503 S.W.3d 606, 607 (Tex. App.-Houston [14th Dist.] 2016, orig. proceeding). Whether "a reasonable time has lapsed 'depends on the circumstances of the case.'" Id. (citing In re Baylor Coll. of Med., No. 01-19-00105-CV, 2019 WL 3418504, at *2 (Tex. App.-Houston [1st Dist.] July 30, 2019, orig. proceeding) (mem. op.)). "The test for determining what time period is reasonable is not subject to exact formulation, and no 'bright line' separates a reasonable time from an unreasonable one." In re Greater McAllen Star Props., 444 S.W.3d at 748.
Relator originally filed its Motion for Summary Judgment on April 15, 2020, and it was set for submission on May 11, 2021. Four months later, Real Party commenced bankruptcy proceedings and the trial court proceedings were stayed until June 2021. After the bankruptcy stay was lifted, Relator filed a Supplement to its Motion for Summary Judgment on July 22, 2021. Earlier the same month, on July 9, 2021, Relator filed its Motion to Dismiss. The trial heard arguments on both motions on July 22, 2021 and August 5, 2021. Thus, at the latest, Relator's Motion to Dismiss and Motion for Summary Judgment were ripe for ruling on August 5, 2021-20 months ago. On July 13, 2022, Relator filed a Second Supplement to its Motion for Summary Judgment to address the claim for Wrongful Foreclosure added by Real Party one month earlier. That portion of Relator's Motion for Summary Judgment has been pending for nearly nine months. Despite the significant passage of time and the parties' request to obtain a ruling on these motions, the motions remain pending, and the trial of the case has been reset 4 times.
There is little doubt that the time period between the filing of Relator's Motions for Summary Judgment and Motion to Dismiss, and the filing of its Petition for Writ of Mandamus is an unreasonable amount of time to wait for a ruling from the trial court, especially in light of the trial court's last notice setting the case for trial in May 2023. The record reflects that Relator properly filed its Motion to Dismiss, Summary Judgment Motion, and supplements to its Summary Judgment Motion. The record also reflects that Relator has been diligent in seeking a ruling from the trial court on its pending motions, as reflected by Relator's June 2022 Motion for Hearing, its November 11, 2021 Letter, the parties' January 31, 2022 Rule 11 Agreement, and its motions for continuance, all which sought to resolve the issues raised in the pending motions in advance of trial. There is nothing in the record reflecting the existence of circumstances preventing Respondent from ruling on the pending motions.
Relator asserts it has no adequate appellate remedy because Respondent's "failure to rule on [Relator's motions] would deprive [Relator] of the ability to have this case dismissed before trial" and "risks forcing [Relator] to trial and defeating its substantive right to dispositive relief." 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) (no adequate remedy by appeal if plea to the jurisdiction not ruled on before summary judgment is granted); see also In re Bank of Am., N.A., No. 01-02-00867-CV, 2003 WL 22310800, at *4 (Tex. App.-Houston [1st Dist.] Oct. 9, 2003, orig. proceeding) ("Mandamus will issue . . . 'to prevent a court from exercising jurisdiction it does not have, even if there is an adequate remedy by appeal.'") (citing In re Cornyn, 27 S.W.3d 327, 332 (Tex. App.-Houston [1st Dist.] 2000, orig. proceeding).
Without addressing the merits of the pending motions, we conclude that Respondent's significant delay in ruling on Relator's Summary Judgment Motions and Motion to Dismiss is unreasonable and constitutes an abuse of discretion warranting mandamus relief.
Conclusion
We conditionally grant Relator's Petition for Mandamus Relief and direct Respondent to rule on Relator's Motion for Summary Judgment filed on April 15, 2020, and supplemented on July 22, 2021 and July 13, 2022, as well as Motion to Dismiss filed on July 9, 2021. Our writ of mandamus will issue only if Respondent does not comply within thirty days of the date of this opinion. All pending motions are denied as moot.