Summary
holding that a trial court's failure to rule on a motion for default judgment for fifteen months was an abuse of discretion
Summary of this case from In re First Mercury Ins. Co.Opinion
No. 10-07-00250-CV
Opinion delivered and filed January 23, 2008.
Original Proceeding.
Before Chief Justice GRAY, Justice VANCE, and JUSTICE REYNA.
MEMORANDUM OPINION
Relator Maurice Mitchell, a pro se state prison inmate, seeks a writ of mandamus against Respondent, the Honorable Kenneth H. Keeling, Judge of the 278th District Court of Walker County, compelling him to rule on Mitchell's motion for default judgment.
Background
According to Mitchell's mandamus petition, in February 2006, he sued the Texas Department of Criminal Justice, Institutional Division, and several of its officials and employees for the "negligent deprivation" of Mitchell's tangible personal property. Mitchell states that the defendants were served and that on February 9, 2006, Respondent ordered the defendants, through the Attorney General of Texas, to answer Mitchell's suit within sixty days.
Mitchell's petition avers that when no answer was filed, he filed his first motion for default judgment on May 1, 2006, and then on July 28, 2006, he filed his second "nonsuperseding" motion for default judgment with attached documentation supporting the propriety of entry of a default judgment. Mitchell pleads that on November 28, 2006, he filed a "Request for the Court to Rule on his Nonsuperseding Motion for Default Judgment," and when Respondent did not rule on the motion, on March 29, 2007 — about eleven months after the motion for default judgment had been filed — he filed his "Second Request for Ruling."
Mitchell states that because of his imprisonment, he cannot provide us a record of the above events, and his petition requests that we order the trial court clerk to provide us with a clerk's record. For the following reasons, we will not require such a record in this proceeding: (1) Mitchell's mandamus petition contains adequate specificity of the relevant events; (2) his petition includes an unsworn declaration under chapter 132 of the Civil Practice and Remedies Code; and (3) no response contesting Mitchell's factual allegations has been filed.
Mitchell seeks a writ of mandamus compelling Respondent to rule on Mitchell's motion for default judgment. We requested a response to the mandamus petition, but neither Respondent nor the Attorney General filed one.
Applicable Law
We will grant mandamus relief if there has been an abuse of discretion and the relator has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-38 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial judge has a reasonable time to perform the ministerial duty of considering and ruling on a motion properly filed and before the judge. In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, orig. proceeding); In re Martinez Ramirez, 994 S.W.2d 682, 683-84 (Tex.App.-San Antonio 1998, orig. proceeding). But that duty generally does not arise until the movant has brought the motion to the trial judge's attention, and mandamus will not lie unless the movant makes such a showing and the trial judge then fails or refuses to rule within a reasonable time. See Chavez, 62 S.W.3d at 228. Whether the judge has acted within a "reasonable" period of time depends on the circumstances of the case. See, e.g., Martinez Ramirez, 994 S.W.2d at 684 (18 months too long for trial court not to have ruled on plaintiff-inmate's motion for default judgment).
Discussion
As of the filing of Mitchell's mandamus petition in August 2007, his motion for default judgment had been on file for fifteen months. It has now been on file for about twenty months. His November 28, 2006 request to Respondent to rule on the motion for default judgment was made about thirteen months ago. Under the circumstances alleged by Mitchell, Respondent has had a reasonable time to rule on Mitchell's motion for default judgment. See id.
We acknowledge the burden of pro se inmate litigation, but as long as a suit satisfies Chapter 14 of the Civil Practice and Remedies Code, our judicial system must function for such litigation as it does for any other. In addition to providing litigants with their "day in court," such functioning will render unnecessary original proceedings such as this one.
Conclusion
We conditionally grant Mitchell's petition for writ of mandamus. The writ will issue only upon certification to this court that Respondent has failed to rule upon Mitchell's motion for default judgment within 21 days after the date of this opinion.
Petition granted and writ conditionally issued