Full Opinion (html_with_citations)

Opinion issued December 28, 2023




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-23-00708-CV
                             ———————————
                        IN RE OXYVINYLS, LP, Relator


            Original Proceeding on Petition for Writ of Mandamus


                           MEMORANDUM OPINION

      Relator, OxyVinyls, LP (“Oxy”), has filed a petition for a writ of mandamus

asserting that the trial court failed to perform a ministerial duty by refusing to rule

on Oxy’s Motion to Compel Arbitration, filed on April 18, 2023, and set on the trial

court’s submission docket for June 5, 2023.1 Oxy’s mandamus petition requests that


1
      In its mandamus petition, Oxy stated that it sought an oral hearing date from the
      trial court. However, Oxy was “informed that the first available oral hearing date
      was August 23, 2023.” Oxy therefore filed an “Emergency Request for Oral
      Hearing,” asserting that the first available hearing date, August 23, 2023 “would
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this Court issue a writ of mandamus “order[ing] the trial court to rule, without delay,

on Oxy’s pending Motion to Compel Arbitration.”

      This Court requested a response to Oxy’s petition for writ of mandamus, and

on October 30, 2023, real party in interest, Kevin A. Williams, filed a response to

the mandamus petition.

      We conditionally grant Oxy’s petition for writ of mandamus.2

                                     Background

      On February 14, 2022, Williams initiated the underlying lawsuit against Oxy.

In the lawsuit, Williams alleged tort claims against Oxy arising out of an incident

which occurred while Williams was performing maintenance services at a facility

owned and operated by Oxy in Pasadena, Texas. At the time of the alleged incident,

Williams was employed by Turner Industries Group, L.L.C. (“Turner Industries”),

a non-party to the underlying lawsuit. According to the mandamus petition, Turner

Industries is a customer and independent contractor of Oxy.

      On February 22, 2022, the trial court entered a docket control order setting the

following relevant deadlines: an August 14, 2023 deadline for Williams to designate



      pose problems given the deadlines” then pending pursuant to the trial court’s docket
      control order, and further, because “under Texas law, [trial] courts are supposed to
      decide motions to compel arbitration expeditiously.”
2
      The underlying case is Kevin A. Williams v. OxyVinyls, LP, Cause No. 2022-09148,
      in the 164th District Court of Harris County, Texas, the Honorable C. Elliot
      Thornton presiding.

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expert witnesses; a September 14, 2023 deadline for Oxy to designate expert

witnesses; and an October 13, 2023 deadline for the completion of discovery and for

amendments to pleadings. Finally, the trial court’s docket control order set the case

on the two-week trial docket beginning November 13, 2023.

      On March 14, 2022, Oxy filed its answer to the original petition, and the

parties proceeded to participate in written discovery. As a part of discovery, on

October 11, 2022, Oxy served a deposition on written questions and subpoena

requesting that Williams’ employer, Turner Industries, produce Williams’ employee

file. In February 2023, Turner Industries responded to the Oxy subpoena and

produced Williams’ employee file.

      Williams’ employee file included a “Dispute Resolution Agreement,” which

Williams entered into with Turner Industries as a part of his employment. The

Dispute Resolution Agreement provided, in relevant part, that “[b]oth [Williams]

and Company agree[d] to resolve any and all claims, disputes or controversies

arising out of or relating to [Williams’] employment with the Company exclusively

by binding arbitration to be administered by the American Arbitration Association.”

The Dispute Resolution Agreement defined the term “Company” as any “parent,

subsidiary and related companies, specifically including Turner Industries Group,

L.L.C., Turner Specialty Services, L.L.C., Turner Industrial Maintenance, L.L.C.,

and any of their subsidiary companies, related companies, customers, employee


                                          3
benefit plans and alleged joint employers or any other individual or corporate

co-respondents or defendants.”

      Concluding that it was a “customer” of Turner Industries pursuant to the

definition provided by the Dispute Resolution Agreement, Oxy sought to enforce

this arbitration provision. In furtherance of that effort, on April 18, 2023, Oxy filed

its “Motion to Compel Arbitration.” In the Motion to Compel Arbitration, Oxy

argued that the plain, unambiguous language of the Dispute Resolution Agreement,

which it only learned about when Turner Industries produced Williams’ employee

file in response to a subpoena, required Williams to arbitrate all claims, including

“common law or tort claims” arising out of or relating to his employment with

Turner Industries. Oxy further argued that it was entitled to invoke the arbitration

provision of the Dispute Resolution Agreement because it was a “customer” of

Turner Industries.

      On May 15, 2023, Oxy filed, in the trial court, an “Emergency Request for

Oral Hearing.” In its emergency request, Oxy stated that it sought “an emergency

hearing to seek a ruling on a time-sensitive [m]otion,” namely, the Motion to Compel

Arbitration. However, Oxy was advised that the trial court’s “first available hearing”

date was August 23, 2023, four months after the motion was filed.

      Oxy asserted that, given the pending deadlines set by the trial court’s docket

control order, “waiting until August 23, 2023 for a ruling on” the Motion to Compel


                                          4
Arbitration would require the “parties [to] expend significant resources . . . which

would negate the overall intent and effect” of the arbitration provision included in

the Dispute Resolution Agreement. On May 18, 2023, the trial court entered an

order denying Oxy’s request for an emergency hearing. On May 23, 2023, in

response to the trial court’s denial of its request for a hearing date prior to August

23, 2023, Oxy set its Motion to Compel Arbitration on the trial court’s submission

docket for June 5, 2023.

      On June 30, 2023, the trial court entered two orders, both related to discovery

matters, and both requiring Oxy to produce witnesses for their depositions within

forty-five days of the date of the orders. However, despite being set on the trial

court’s submission docket for June 5, 2023, the trial court did not rule on Oxy’s

Motion to Compel Arbitration.

      On August 16, 2023, Oxy sent a letter to the trial court regarding the Motion

to Compel Arbitration.     In the letter, Oxy stated that the Motion to Compel

Arbitration had been set on the trial court’s June 5, 2023 submission docket, “which

was 72 days” prior to the date of the letter. Oxy further noted that the trial setting

was November 13, 2023, “less than 90 days from” the date of the letter, and that

Oxy’s expert designation deadline was “less than 30 days from” the date of the letter.

And although the Motion to Compel Arbitration had been “fully briefed” and each

party had “filed proposed orders,” the trial court had not yet ruled on the motion.


                                          5
Oxy concluded its letter by requesting that the trial court “issue an order granting”

the Motion to Compel Arbitration.

      On September 5, 2023, because the trial court had not yet issued a ruling on

the Motion to Compel Arbitration, Oxy sent another letter to the trial court. In its

September 5, 2023 letter, Oxy reasserted its request that the trial court “rule promptly

on its Motion to Compel Arbitration,” again noting that there were several imminent

docket deadlines. Williams filed a letter with the trial court in response to Oxy’s

September 5, 2023 letter, stating that Oxy’s Motion to Compel Arbitration was

“baseless” and Oxy had “failed to raise its meritless defense” that the case was

subject to arbitration “for more than a year.”

      On October 2, 2023, Oxy filed its mandamus petition, noting that, since it filed

its Motion to Compel Arbitration, “the trial court ha[d] ordered Oxy, over Oxy’s

objections, to present two of its witnesses for deposition, and [Williams] ha[d]

moved to compel Oxy to present two additional witnesses for depositions—and to

sanction Oxy for not agreeing to present those witnesses for depositions.” Yet, Oxy

continued, despite multiple requests, the trial court had not ruled on Oxy’s Motion

to Compel Arbitration. At the time the mandamus petition was filed, approximately

six months after the Motion to Compel Arbitration was filed, and less than forty-five

days from the November 13, 2023 trial setting, the trial court had not ruled on Oxy’s

Motion to Compel Arbitration. Accordingly, Oxy sought mandamus relief and


                                           6
requested that “this Court . . . order the trial court to rule without delay on Oxy’s

Motion to Compel Arbitration.”

      In connection with its mandamus petition, Oxy also filed a “Motion for

Temporary Relief and Stay of Trial Court Proceedings.”            In its Motion for

Temporary Relief, Oxy requested a “stay of all trial court proceedings” pending the

Court’s review of the mandamus petition. On October 10, 2023, the Court granted,

in part, Oxy’s Motion for Temporary Relief. Notably, the Court did not “stay all

trial court proceedings” as requested by Oxy, and instead stayed only the “November

13, 2023 trial setting and all discovery” pending the Court’s disposition of Oxy’s

mandamus petition. In our October 10, 2023 order, the Court also requested that

Williams file a response to the mandamus petition. Williams filed a response to the

mandamus petition on October 30, 2023.

      On November 2, 2023, Oxy filed a reply in support of its mandamus petition.

In its reply, Oxy advised this Court that, on October 20, 2023, “the trial court [had]

emailed the parties informing them” that the trial court “would like to set [Oxy’s]

Motion to Compel [Arbitration]” for an oral hearing.          The oral hearing was

eventually set for November 8, 2023. On November 9, 2023, Oxy filed a letter to

notify this Court that the parties appeared for the hearing, as requested by the trial

court, but that the trial court did not consider the merits of Oxy’s Motion to Compel




                                          7
Arbitration. According to Oxy, “the trial court stated that the case was stayed,” and

there was “no ruling by the trial court.”

      On November 16, 2023, the Court issued an “Order of Clarification.” In our

November 16, 2023 order, the Court advised all parties that our October 10, 2023

order, which granted Oxy’s Motion for Temporary Relief in part, “stayed the

November 13, 2023 trial setting, and further stayed any additional discovery pending

this Court’s resolution of relator’s mandamus petition.” However, “nothing in our

October 10, 2023 [o]rder stayed any other proceedings in the trial court.” The

November 16, 2023 order went on to state that “[s]pecifically, nothing in our October

10, 2023 [o]rder would prevent, or otherwise limit, the trial court from considering

the merits of, and ruling on,” Oxy’s Motion to Compel Arbitration.

      The mandamus record further reflects that, as of November 9, 2023, the date

of Oxy’s letter to this Court regarding the November 8, 2023 oral hearing, the trial

court had yet to rule on Oxy’s Motion to Compel Arbitration.

                                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 imposed by law, and the party has

no adequate remedy by appeal. See id.; see also In re Ford Motor Co.,
165 S.W.3d 
                                           8
315, 317 (Tex. 2005); In re Baylor College of Med., Nos. 01-19-00105-CV,

01-19-00142-CV,
2019 WL 3418504
, at *2 (Tex. App.—Houston [1st Dist.] July

30, 2019, orig. proceeding) (mem. op.).

                                      Analysis

      “A trial judge has a legal, nondiscretionary duty to consider and rule on

properly filed motions within a reasonable time.” In re Univ. of Tex. MD Anderson

Cancer Ctr., No. 01-19-00201-CV,
2019 WL 3418567
, at *1 (Tex. App.—Houston

[1st Dist.] July 30, 2019, orig. proceeding) (mem. op.) (quoting In re Ramirez,
994 S.W.2d 682, 683
 (Tex. App.—San Antonio 1998, orig. proceeding)). And where a

trial court fails to comply that that nondiscretionary, ministerial duty, “mandamus

may issue to compel the [trial court] to act.” See In re Layton,
257 S.W.3d 794, 795

(Tex. App.—Amarillo 2008, orig. proceeding); see also In re Baylor Coll. of Med.,
2019 WL 3418504
, at *2.

      To establish an abuse of discretion for failure to perform a ministerial duty,

Oxy must show that: (1) the trial court had a legal duty to rule on its Motion to

Compel Arbitration, (2) Oxy 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 Baylor Coll.

of Med.,
2019 WL 3418504
, at *2; see also O’Connor v. First Court of Appeals,
838 S.W.2d 94
, 97 (Tex. 1992). While a trial court “has a reasonable time within which

to perform” its ministerial duty to rule on a properly filed motion, there is no


                                          9
“bright-line” rule regarding what constitutes a “reasonable time,” and the

determination is dependent on the circumstances of each case. See In re Chavez,
62 S.W.3d 225, 228
 (Tex. App.—Amarillo 2002, orig. proceeding); In re Amir-Sharif,
357 S.W.3d 180, 181
 (Tex. App.—Dallas 2012, orig. proceeding).

      Applying this standard to the facts presented here, the Court concludes that a

“reasonable time” has passed. The mandamus record reflects that Oxy filed its

Motion to Compel Arbitration on April 18, 2023, and set it for submission on the

trial court’s June 5, 2023 submission docket. When the trial court had not ruled,

Oxy filed letters with the trial court on August 16, 2023 and September 5, 2023,

requesting that the trial court rule on the Motion to Compel Arbitration and noting

that the case was set for trial on the trial court’s two-week docket beginning

November 13, 2023.

      Despite these requests, the trial court did not rule on Oxy’s Motion to Compel

Arbitration. Accordingly, on October 2, 2023, Oxy filed its mandamus petition.

After a response was filed by Williams, on November 2, 2023, Oxy filed a reply in

support of its mandamus petition. Notably, in its reply, Oxy advised the Court that

the trial court had requested that the parties appear for an oral hearing on the Motion

to Compel Arbitration. The mandamus record reflects that on November 8, 2023,

the parties appeared before the trial court. But the trial court still did not rule on the

Motion to Compel Arbitration, and, according to Oxy, “stated that the case was


                                           10
stayed” pursuant to this Court’s October 10, 2023 order granting, in part, Oxy’s

Motion for Temporary Relief.

      On November 16, 2023, we issued an order clarifying that our October 10,

2023 order granted only a limited stay of trial court proceedings. Specifically, our

October 10, 2023 order stayed the November 13, 2023 trial setting and discovery

pending our review Oxy’s petition for writ of mandamus. However, “nothing in our

October 10, 2023 [o]rder . . . prevent[ed], or otherwise limit[ed], the trial court from

considering the merits of, and ruling on,” Oxy’s Motion to Compel Arbitration. The

mandamus record before this Court reflects that the trial court still has not ruled on

Oxy’s Motion to Compel Arbitration, approximately seven months after it was filed,

and five months after it was set on the trial court’s submission docket.

      Texas trial courts are obligated to consider and resolve motions to compel

arbitration “without delay.” See In re Houston Pipe Line Co.,
311 S.W.3d 449, 451

(Tex. 2009) (concluding trial court abused its discretion by ordering discovery rather

than ruling on motion to compel arbitration); see also In re MHI P’ship, Ltd.,
7 S.W.3d 918, 923
 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding)

(concluding trial courts are mandated to “decide the issues” presented on motion to

compel arbitration “summarily,” which “connote[s] acting quickly, [and] without

delay”). Accordingly, we conclude, under the facts presented here, that “reasonable

time” has passed, and the trial court has abused its discretion by failing to perform


                                          11
its ministerial duty to rule on Oxy’s Motion to Compel Arbitration despite multiple

requests to do so. See In re Harris Cnty. Appraisal Dist., No. 14-19-00078-CV,
2019 WL 1716274
, at *2–3 (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
,

679–80 (Tex. App.—El Paso 2006, orig. proceeding) (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, a relator 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 concluded

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.). Accordingly, we conclude that Oxy lacks an adequate remedy on appeal

from the trial court’s failure to rule on its Motion to Compel Arbitration.

      It is important to note that we offer no opinion on the merits of Oxy’s Motion

to Compel Arbitration, nor would it be appropriate for the Court to do so. See In re


                                          12
Blakeney,
254 S.W.3d 659, 661
 (Tex. App.—Texarkana 2008, orig. proceeding)

(“While we have jurisdiction to direct the trial court to make a decision, we may not

tell the [trial] court what that decision should be.”); see also In re Shredder,
225 S.W.3d at 679
 (“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.”). Our only purpose is to consider whether the trial court had

a ministerial duty to rule on Oxy’s Motion to Compel Arbitration, and if so, whether

the trial court failed to perform its ministerial duty within a reasonable time under

the circumstances of the case. If both questions are answered in the affirmative, then

mandamus relief is appropriate.

      We conclude that Oxy’s Motion to Compel Arbitration was properly pending

before the trial court, and further that Oxy had made multiple requests for the trial

court to rule. Accordingly, the trial court had a ministerial duty to rule on the Motion

to Compel Arbitration within a reasonable time under the circumstances of the case.

We further conclude that a reasonable amount of time has passed since Oxy filed its

Motion to Compel Arbitration, and the trial court’s failure to rule therefore amounts

to an abuse of discretion, for which Oxy lacks an adequate remedy by appeal.

                                     Conclusion

      Accordingly, we lift the partial stay imposed by our October 10, 2023 order

and conditionally grant Oxy’s petition for writ of mandamus and direct the trial court


                                          13
to rule on Oxy’s Motion to Compel Arbitration, filed on April 18, 2023 and set on

the trial court’s June 5, 2023 submission docket. We are confident that the trial court

will comply with this Court’s ruling, and the writ will issue only if the trial court

fails to comply within thirty days of the date of this opinion. All pending motions

are dismissed as moot.




                                               April Farris
                                               Justice

Panel consists of Justices Countiss, Guerra, and Farris.




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