In re Strachan (Tex.App.- Houston [14th Dist.] Sep. 11, 2008)(per curiam)
MOTION OR WRIT GRANTED: Per Curiam  

Relator presented the motion to the trial court; and the trial court failed to rule on  the
motion.  [...] We hold that the trial court abused its discretion in failing to rule on the
motion to dismiss.  However, while we have jurisdiction to direct the trial court to rule on a
motion, we may not tell the trial court how to rule.  In re Martinez Ramirez, 994 S.W.2d
682, 684 (Tex. App.- San Antonio 1988, orig. proceeding). We therefore conditionally
grant the petition for a writ of mandamus and direct the trial court rule on the motion to
dismiss filed by Solum on July 30, 2007.  

Before Justices Frost, Seymore and Guzman
14-08-00299-CV        In Re James G. Strachan
Appeal from 434th Judicial District Court of Fort Bend County
Trial Court Judge: The Honorable James H Shoemake

M E M O R A N D U M   O P I N I O N   ON   R E H E A R I N G

Relator's motion for rehearing is granted.  The memorandum opinion issued on June 19, 2008 is
withdrawn.  This memorandum opinion is substituted in its place.

In this original proceeding, relator, James G. Strachan, seeks a writ of mandamus ordering the
Honorable P.K. Reiter, visiting judge of the 434th District Court of Fort Bend County, to grant the motion
to dismiss filed by real party in interest, Solum Engineering, Inc. (“Solum").  We conditionally grant the
writ.

On July 30, 2007, Solum filed a motion to dismiss all of its claims against relator with prejudice.  On
August 24, 2007, the Honorable James Shoemake, presiding judge of the 434th District Court, granted
the motion to dismiss.  However, Judge Shoemake subsequently withdrew his signature from the order
granting Solum's motion to dismiss its claims against relator.  On November 20, 2007, Judge
Shoemake was recused from the underlying proceeding.  The Honorable P.K. Reiter was assigned to
the case as a visiting judge.  On December 17, 2007, relator filed a motion to reconsider the trial court's
refusal to grant Solum's motion to dismiss.  After a hearing on January 7, 2008, Judge Reiter failed to
grant Solum's motion to dismiss.

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court
clearly abused its discretion, and it has no adequate remedy on appeal.  In re Team Rocket, L.P., 256 S.
W.3d 257, 259 (Tex. 2008) (orig. proceeding).  A trial court clearly abuses its discretion if it reaches a
decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.  Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

Relator correctly contends that a plaintiff has an unqualified and absolute right to take a nonsuit at any
time until the plaintiff has introduced all evidence other than rebuttal evidence, as long as the defendant
has not made a claim for affirmative relief.  See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854
(Tex. 1995) (per curiam); BHP Petroleum, Inc. v. Millard, 800 S.W.2d 838, 840 (Tex. 1990).  Therefore,
the trial court generally has no discretion to refuse to dismiss a suit, and its order is ministerial.  Univ. of
Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006)
(per curiam).  Here, however, Solum did not file a nonsuit, but a motion to dismiss with prejudice.[1]  The
trial court, nonetheless, has not ruled on the motion.

“When a motion is properly filed and pending before a trial court, the act of giving consideration to and
ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act."  
Safety‑Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.- San Antonio 1997, orig. proceeding).  
To establish that the trial court abused its discretion by failing to rule, the relator must show that the trial
court:  (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and (3)
failed or refused to do so.  In re Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex. App.-El Paso 2006,
orig. proceeding).

At the hearing, relator's attorney informed the trial court that its motion to dismiss was pending.  It is not
clear from the record why the trial court did not sign an order granting or denying Solum's motion to
dismiss, but relator's counsel raised the issue with the trial court.  Relator presented the motion to the
trial court; and the trial court failed to rule on  the motion.  See id.

We hold that the trial court abused its discretion in failing to rule on the motion to dismiss.  However,
while we have jurisdiction to direct the trial court to rule on a motion, we may not tell the trial court how to
rule.  In re Martinez Ramirez, 994 S.W.2d 682, 684 (Tex. App.- San Antonio 1988, orig. proceeding).

We therefore conditionally grant the petition for a writ of mandamus and direct the trial court rule on the
motion to dismiss filed by Solum on July 30, 2007.  The writ will issue only if the trial court fails to act in
accordance with this opinion.

PER CURIAM

Petition Conditionally Granted and Memorandum Opinion filed September 11, 2008.

Panel consists of Justices Frost, Seymore, and Guzman.

[1]  Solum's motion to dismiss requested that its claims against relator be dismissed “with prejudice."  A
dismissal with prejudice is a ruling on the merits.  Sommers v. Concepcion, 20 S.W.3d 27, 39 (Tex. App.
- Houston [14th Dist.] 2000, pet. denied).  In performing its ministerial duty to dismiss an action upon a
motion for nonsuit, the trial court does not adjudicate the merits of the case; instead, the dismissal
merely places the parties in the position they were in before the action was brought.  Yanez v. Milburn,
932 S.W.2d 725, 728 (Tex. App.- Amarillo 1996, writ denied).