in Re: American Zurich Insurance Company

• Court: Court of Appeals of Texas
• Decided: December 21, 2018
• Docket: 05-18-01516-CV
• Status: Published

Opinion

Denied and Opinion Filed December 21, 2018

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01516-CV

IN RE AMERICAN ZURICH INSURANCE COMPANY, Relator

Original Proceeding from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-05893

MEMORANDUM OPINION Before Justices Francis, Evans, and Schenck Opinion by Justice Schenck In this original proceeding, relator seeks a writ of mandamus directing the trial court to rule

on and grant relator’s motion to strike the real party in interest’s first amended petition and motion

for entry of final judgment. 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 obtain mandamus relief for the trial court’s refusal

to rule on a motion, a relator must establish: (1) the motion was properly filed and has been pending

for a reasonable time, (2) the relator requested a ruling on the motion, and (3) the trial court refused

to rule. O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex.1992); In re Blakeney, 254

S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); In re Buholtz, No. 05-16-01312-

CV, 2017 WL 462361, at *1 (Tex. App.—Dallas Jan. 31, 2017, orig. proceeding). It is the relator’s burden to provide this Court with a sufficient record to establish relator’s right to mandamus relief.

Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).

Based on the record before us, we conclude relator has not shown it is entitled to the relief

requested. First, the record does not include the transcripts of hearings at which relator avers the

trial court heard argument on the motions, the trial court took the motions under advisement, and

relator asked for rulings on the motions. On the record presented, relator has not established that

the trial court has refused to rule and, therefore, has not established a right to a writ of mandamus

directing the trial court to rule. Second, although this Court may, where appropriate, direct a trial

court to rule on a motion after a reasonable time, we may not tell the trial court what the decision

should be. In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana 2005, orig. proceeding).

Relator is, therefore, not entitled to a writ of mandamus directing the trial court to grant the

motions.

Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R. APP. P. 52.8(a)

(the court must deny the petition if the court determines relator is not entitled to the relief sought).

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

181516F.P05

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