in Re: Schindler Elevator Corporation

Opinion

Denied and Opinion Filed October 10, 2016

In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-01172-CV

IN RE: SCHINDLER ELEVATOR CORPORATION, Relator

Original Proceeding from the 417th Judicial District Court Collin County, Texas Trial Court Cause No. 417-00622-2013

MEMORANDUM OPINION Before Justices Francis, Fillmore, and Stoddart Opinion by Justice Francis

Before the Court is relator’s October 4, 2016 petition for writ of mandamus in which

relator complains the trial court refused to issue findings of fact and conclusions of law

explaining the court’s reasoning for denying relator’s motion for leave to designate responsible

third parties.

To be entitled to mandamus relief, a relator must show both that the trial court has clearly

abused its discretion and relator has no adequate appellate remedy. In re Prudential Ins. Co., 148

S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Based on the record before us, we conclude

relator has not shown it is entitled to the relief requested. See TEX. R. APP. P. 52.8(a); Walker v.

Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A trial court is required to file

findings of fact and conclusions of law when properly requested under rule 296 only after the

1 signing of a judgment in a case that has been “tried” before the trial court. See TEX. R. CIV. P.

296. Relator did not file a written request for findings of fact and conclusions of law as required

by Rule 296; however, the hearing on relator’s motion for leave to designate responsible third

parties was not a trial on the merits, and the order denying relator’s motion did not resolve an

issue that has been “tried” for purposes of Rule 296. This record reveals no abuse of discretion.

Moreover, relator has an adequate remedy by appeal because it can raise an issue on direct

appeal regarding the trial court’s failure to make findings and conclusions. See, e.g., In re

Morgan, 08-16-00126-CV, 2016 WL 4013777, at *1 (Tex. App.—El Paso July 27, 2016, orig.

proceeding). Accordingly, we DENY relator’s petition for writ of mandamus.

/Molly Francis/ MOLLY FRANCIS JUSTICE

161172F.P05