In Re: Clearcover Insurance Company v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 5, 2024
• Docket: 05-24-00415-CV
• Status: Published

Opinion

DENIED and Opinion Filed April 5, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00415-CV

IN RE CLEARCOVER INSURANCE COMPANY, Relator

Original Proceeding from the 493rd District Court Collin County, Texas Trial Court Cause No. 493-01894-2022

MEMORANDUM OPINION Before Justices Pedersen, III, Smith, and Garcia Opinion by Justice Garcia Before the Court is relator’s April 5, 2024 petition for writ of mandamus.

Relator challenges an April 1, 2024 order wherein the trial court denied relator’s

motion to quash trial setting and, alternatively, motion for continuance. Also before

the Court is relator’s April 5, 2024 motion for temporary relief wherein relator asks

this Court to stay the April 8, 2024 trial of the case and stay any other action or

discovery in the case pending further order of this Court.

Entitlement to mandamus relief requires relator to show that the trial court

clearly abused its discretion and that relator lacks an adequate appellate remedy. In

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). Relator bears the burden of providing the Court with a record sufficient to show it is entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)

(orig. proceeding). “Those seeking the extraordinary remedy of mandamus must

follow the applicable procedural rules. Chief among these is the critical obligation

to provide the reviewing court with a complete and adequate record.” In re Phung

Van Tran, No. 05-14-01551-CV, 2014 WL 7234616, at *1 (Tex. App.—Dallas Dec.

19, 2014, orig. proceeding) (mem. op.) (citations omitted).

Relator’s petition does not comply with the Texas Rules of Appellate

Procedure in numerous respects. For example, relator provided a certified copy of

the April 1, 2024 order being challenged, but none of the other documents that relator

included in its mandamus record or appendix is a sworn or certified copy as is

required by the rules. See TEX. R. APP. P. 52.3(k)(1)(a), 52.7(a). The mandamus

petition reflects that there was a hearing on relator’s motion to quash, and relator’s

petition includes factual statements about what did and did not happen at that

hearing. But relator did not provide a reporter’s record of the hearing. See TEX. R.

APP. P. 52.3(g), (h). Relator also did not provide a statement that no testimony was

adduced in connection with the matter complained at that hearing. See TEX. R. APP.

P. 52.7(a)(2). Relator further makes representations about whether real party in

interest filed a response to relator’s plea in abatement, but it does not support those

statements with citations to competent evidence included in the appendix or record.

See TEX. R. APP. P. 52.3(g), (h).

–2– Accordingly, we deny relator’s petition for writ of mandamus. We also deny

relator’s motion for temporary relief as moot.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

–3–