NO. 12-06-00127-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§         

IN RE: GUY SPARKMAN, INDIVIDUALLY

AND ON BEHALF OF ALL OTHERS,     §          ORIGINAL PROCEEDING

SIMILARLY SITUATED,

RELATOR     §         

MEMORANDUM OPINION

            Guy Sparkman, individually and on behalf of all others similarly situated, complains of the trial court’s order granting the motion for traditional summary judgment and no evidence summary judgment filed by CyBerCorp Holdings, Inc. and CyberTrader, Inc., the real parties in interest.¹  Sparkman also complains that the trial court (1) failed to act on his motion to compel discovery, (2) failed to act on his motion to modify the trial scheduling order and discovery control plan, (3) and denied his motion for a discovery continuance or, alternatively, for an extension of time to file a response to the real parties’ motion for no evidence summary judgment.  We deny the requested relief.

            Mandamus will issue when a trial court commits a clear abuse of discretion for which the relator has no adequate remedy at law.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  A judgment is appealable if it is a final judgment.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree.  Id.  Here, the order grants the summary judgment motion filed by the real parties as to all claims asserted by Sparkman individually and on behalf of a putative class.  The order also dismisses Sparkman’s case in its entirety with prejudice.  Because the order granting summary judgment disposes of all pending parties and claims, the order is a final judgment for purposes of appeal.  See id.  Therefore, as to his complaint about the entry of summary judgment, Sparkman has an adequate remedy by appeal.

            Sparkman’s remaining complaints relate to the trial court’s failure to act on two of his motions and its denial of a third.  Ordinarily, mandamus is not available to correct incidental trial court rulings because appeal is an adequate remedy.  Abor v. Black, 695 S.W.2d 564, 566-67 (Tex. 1985).  When a trial court does not rule on a pending motion, mandamus is available only if the motion has been on file with the trial court for a reasonable time, the movant has requested a ruling, and the trial court has refused to rule.  See In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.–San Antonio 1998, orig. proceeding).  In the case at hand, the trial court has entered a final summary judgment and dismissed the underlying proceeding.  Consequently, our consideration of Sparkman’s remaining complaints would be a useless act.  See Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995) (mandamus will not issue if for any reason it would be useless or unavailing).  Therefore, we do not consider the merits of Sparkman’s complaints relating to his three motions.

DISPOSITION

            The petition for writ of mandamus is denied.

                                                                                                     SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered April 28, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

DeVasto, not participating.

(PUBLISH)