Full Opinion (html_with_citations)

                                  In The

                            Court of Appeals

                  Ninth District of Texas at Beaumont

                            __________________

                           NO. 09-22-00360-CV
                            __________________

        IN RE GREG GRAHAM AND LINDA M. DELANEY

_________________________________________________________________

                      Original Proceeding
      457th District Court of Montgomery County, Texas
                 Trial Cause No. 20-11-13701-CV
__________________________________________________________________

                      MEMORANDUM OPINION

     In this mandamus action, Greg Graham and Linda M. Delaney seek

to compel the judge of the 457th District Court of Montgomery County to

rule on three motions that were timely filed before the case goes to trial,

which when the petition was filed was December 5, 2022. 1 The trial court


     1After the  petition was filed, the trial court rescheduled the trial for
April 3, 2023. But in response to the mandamus, the trial court has
chosen to file a response in this proceeding in which it clearly takes the
position that the instructions on its website are the equivalent of court
orders. For that reason, questions about whether the court’s practice in
viewing procedures on its website as orders is proper are likely to recur,
so we have decided to address the issue here.
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has now ruled on one of these motions, a supplemental motion to exclude

expert testimony, so the petition as to that motion is now moot. But as to

their other two motions, they contend the trial court abused its discretion

by refusing to rule on their timely filed motions for summary judgment

even though they served notice on the opposing party that their motions

would be heard in August 2022 without the necessity of an oral hearing.

      The proper objective of Texas Rules of Civil Procedure “is to obtain

a just, fair, equitable and impartial adjudication of the rights of litigants

under established principles of substantive law . . . with as great

expedition and dispatch and the least expense both to the litigants and

to the state as may be practicable[.]”2 Because the trial court refused to

rule on the relators’ timely-filed motions, and because the real parties in

interest were notified that the trial court could decide the motions

without conducting an oral hearing, we find the trial court abused its

discretion by refusing to rule on the motions as required by Texas Rules

of Civil Procedure. For the reasons explained below, we will conditionally

grant the relators’ request for relief. 3


      2Tex.
          R. Civ. P. 1.
     3We express no opinion on the merits of the relators’ respective

motions.
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                            Background

     Relators Greg Graham and Linda M. Delaney complain the trial

court abused its discretion in failing to rule on their motions for summary

judgment. In July 2022, Graham and Delaney served Prestige Custom

Homes’ attorney with their respective motions for summary judgment. In

August 2022, Graham and Delaney served Prestige Custom Homes’

attorney with a notice of hearing on their motions for summary judgment.

These two notices state the motions for summary judgment “will be

submitted to the court for a ruling without the necessity of a hearing.”

On September 2 the attorney for Graham and Delaney followed up with

an email to the court’s court coordinator, asking her whether the trial

court had ruled on the motions. The email also mentions the motions had

been noticed as being set for submission on the submission docket for

August 19. That same day the court coordinator responded to the

attorney’s email as follows: “Those are being reviewed currently. Please

check back maybe next week for a ruling.”

     On September 12 and 29, Delaney’s attorney followed up with

additional emails, asking the court coordinator whether the trial court




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had ruled on the three motions set for submission as of August 19. The

mandamus record does not show there was any response.

     In this proceeding, the real party in interest, Prestige Custom

Homes Company, argues the trial court did not abuse its discretion in

refusing to rule on the motions at issue because the attorney representing

Graham and Delaney failed to properly request a hearing on the motions

by the deadline required in the trial court’s docket control order. The

docket control order states that “motions for summary judgment shall be

set for a submission docket” no later than 30 days before trial. But

Prestige Custom Homes’ argument lacks merit because the record shows

that on September 2, the trial court reset the case for a trial on December

5. Thus, the hearings Graham and Delaney requested the trial court

conduct on their motions did not violate the trial court’s docket control

order because they put the matters on the trial court’s submission docket

more than 30 days before the scheduled trial.

     The respondent in this proceeding, Judge Vincenzo J. Santini, also

responded to Graham’s and Delaney’s petition for mandamus by filing an

“Order” in Trial Cause Number 20-11-13701-CV. After signing that

order, Judge Santini forwarded the Order to this Court. In his order,


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Judge Santini explains that the court’s website contains what he

describes as orders for setting motions by submission. As he describes the

website, he says the website requires the movant to “call or email the

[trial court] to get an available hearing date.” An exhibit attached to

Judge Santini’s order refers to pending motions and advises: “If it has

been more than 7 days since a motions submission or hearing and you

have received no ruling, please email one of the Coordinators (give them

the cause number and matter for which you need a ruling).” The exhibit

contains information posted and available to parties on the court’s

website and states that motions for summary judgment must be

scheduled on the submission docket, which occurs on Fridays at 9:00 a.m.

The notice then states: “Please call or email to set a case on these dockets.

Please do not send a notice of submission or hearing without prior

confirmation from the Court.”

     Judge Santini’s order explains he refused to rule on Graham’s and

Delaney’s timely-filed motions for summary judgment because their

attorney violated the court’s “standing order” when the attorney “failed

to contact the [trial court coordinator] to obtain an available hearing

date” on the motions they are complaining of here. In further


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explanation, the trial court adds that Graham’s and Delaney’s attorney

“apparently tried to piggy back his clients’ Motions on the same day

[Prestige Custom Homes, the plaintiff] had properly set its Motions for

Summary Judgment with the Court.” Judge Santini concludes he didn’t

rule on Graham’s and Delaney’s motions “because they have not been

properly set.” Finally, the trial court urges this Court to consider

sanctioning the attorney representing Graham and Delaney for what he

considers the filing of a groundless petition complaining of his failure to

rule.

                                Analysis

        From the mandamus record, it is apparent that Graham’s and

Delaney’s attorney filed notices of submission on the motions without

first contacting the trial court’s court coordinator, by email or by

telephone, noticing their motions for summary judgment would be heard

on the trial court’s submission docket. By failing to obtain the court’s

permission to add them to the submission docket, the relator’s attorney

failed to comply with the information posted on the court’s website about

how hearings on submission are supposed to be scheduled, meaning




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attorneys are asked to “please” not send a notice of submission or hearing

without “prior confirmation from the Court.”

     Yet as to confirmation, the record shows that the trial court’s court

coordinator told Graham’s and Delaney’s attorney in an email after he

failed to follow the above procedure that the motions his client filed were

“being reviewed currently” and to “check back maybe next week for a

ruling.” And in subsequent emails from the attorney inquiring about

whether the trial court had acted on the motions, the record shows the

court coordinator did not respond to further emails, nor did the court

coordinator—who presumably would have been aware of the trial court’s

internal procedures—notify the attorney that the court would not

consider the motions because he had failed to comply with a statement

on the court’s website asking the parties to “please” not send a notice of

submission or hearing without “prior confirmation from the Court,” a

procedure that differs from that required by the Texas Rules of Procedure

to obtain a ruling from a trial court on a motion without a hearing.

     Importantly, even after the trial court knew the motions had been

filed and that the movants were awaiting rulings, the trial court refused

to consider and rule on the motions for summary judgment. Instead, after


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the Petition for Mandamus was filed, the trial court ruled that the

motions for summary judgment were not being considered on the

submission docket because the movants’ attorney failed to call the court

before filing his notice of submission, which the trial court ruled was a

failure to comply with the trial court’s directive outlined on the court’s

website. That said, the result of the trial court’s refusal to rule on the

motions in essence forfeits a party’s right to obtain a ruling on the merits

of dispositive motions that, if meritorious, would allow the parties and

the trial court to avoid the expense and time consumed by a trial.

     Trial courts have a ministerial duty to rule on properly filed

motions within a reasonable time after a motion is submitted to the court

or after the party has requested a ruling. 4 In this case, the motions for

summary judgment were both properly filed. And even though the

attorney for the relators failed to contact the court coordinator before

sending the notices of submission, as the trial court website indicates is

the court’s preference, the attorney for the relators informed the court

coordinator (more than once) that the motions had been filed after he




     4Safety-Kleen Corp. v. Garcia,
945 S.W.2d 268, 269
 (Tex. App.—San
Antonio 1997, orig. proceeding).
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filed the notices and submitted the motions for hearing. He also asked

the court coordinator when he could expect rulings. The court coordinator

didn’t tell the attorney the trial court would not hear or consider the

motions because the attorney had not complied with the procedures

posted on the court’s website. Rather, the information she gave the

attorney was that the motions were being reviewed.

     Regardless of what the attorney was told by the court coordinator,

Judge Santini’s language on the court’s website instructing parties to

please call the court before sending a notice of a motion that is to be heard

by submission is ambiguous, conveys only a directive, and is not an order

of the court. Moreover, the court’s directive doesn’t explain that the

penalty for the party’s failure to comply with the court’s directive, which

apparently is that the party’s timely-filed motion will never be heard

even when the party follows up and notifies the court that the party is

seeking to obtain a ruling on its motion. Nothing on the court’s website

explains that a failure to comply with the court’s directive will be treated

as a waiver of a right to a hearing under the Texas Rules of Civil

Procedure or under the Local Rules of Montgomery County for setting a




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hearing on a properly filed motion. 5 Neither of these Rules require a

party to obtain the permission of a court before setting the date on which

a motion is to be decided by submission, likely because parties are not

entitled to attend the “hearing” when trial courts decide motions by

submission.

     While trial courts have wide discretion to manage their dockets,6

the trial court elevated its directive in this case above the important

substantive rights of litigants in obtaining rulings on timely-filed

motions under the Texas Rules of Civil Procedure even after the court

was aware that the motions were properly filed and that the parties were

awaiting rulings from the court. We conclude that by failing to issue




     5Tex.  R. Civ. P. 166a(c) (requiring 21-days’ notice for summary
judgment hearings); Martin v. Martin, Martin & Richards, Inc.,
989 S.W.2d 357, 359
 (Tex. 1998) (holding notice of the hearing date on a
motion for summary judgment is required but explaining the trial court
is not required to conduct an oral hearing on the motion because the
motion and the response must be supported by exhibits and not oral
testimony adduced in the hearing); Montgomery County Local Rule 3.7 B
— Submission (“Motions shall state a date of submission which shall
be at least 10 days from filing, except on leave of court, the motion will
be submitted to the court upon that date.”).
      6Coe v. Weller, Green, Toups & Terrell, LLP, No. 09-18-00365-CV,
2020 Tex. App. LEXIS 9240
, at *22 (Tex. App.—Beaumont Nov. 25, 2020,
pet. denied) (mem. op.).
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substantive rulings on the relators’ motions for summary judgment, the

trial court abused its discretion.

     We determine the adequacy of an appellate remedy by balancing

the benefits of mandamus review against the detriments, considering

whether extending mandamus relief will preserve important substantive

and procedural rights from impairment or loss. 7 A party’s failure to

obtain a substantive ruling on a motion for summary judgment may

result in waiver of the issue on appeal. 8

     In this case, the relators lack an adequate remedy by appeal

because they have a right to a substantive ruling on motions that would,

should they be granted, avoid the time, expense, and necessity of a trial

for both the parties and the state.

     We hold the trial court abused its discretion in refusing to rule on

the merits of Graham’s and Delaney’s motions for summary judgment.9

We further conclude they do not have an adequate remedy through an


     7In   re Team Rocket, L.P.,
256 S.W.3d 257, 262
 (Tex. 2008) (orig.
proceeding).
       8See Tex. R. App. P. 33.1.
       9As previously noted, the trial court ruled on Graham’s First

Supplement to Motion to Exclude Expert Testimony from Prestige
Custom Homes’ Expert Witness after the Petition for mandamus was
filed. For that reason, that part of the petition is moot.
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appeal. We are confident the trial court will promptly rule on the merits

of the pending motions. A writ of mandamus shall issue only in the event

the trial court fails to comply.

     PETITION CONDITIONALLY GRANTED.

                                                  PER CURIAM

Submitted on November 18, 2022
Opinion Delivered December 8, 2022

Before Golemon, C.J., Horton and Johnson, JJ.




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