In Re: USAA Insurance Agency Inc. and Sylvia Diaz v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 4, 2024
• Docket: 05-24-01290-CV
• Status: Published

Opinion

DENIED and Opinion Filed December 4, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-01290-CV

IN RE USAA INSURANCE AGENCY INC. AND SYLVIA DIAZ, Relators

Original Proceeding from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-24-01874-B

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Garcia Opinion by Justice Pedersen, III Before the Court is relators’ November 4, 2024 petition for writ of mandamus

whereby relators challenge the trial court’s September 30, 2024 Order on

Defendants’ Motion to Sever and Abate. In this UIM case, the trial court denied

relators’ motion to sever and abate but ordered that “the trial shall be bifurcated as

required under Texas law.”

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). After reviewing relators’ petition and the record before us, we conclude

that relators have failed to demonstrate entitlement to mandamus relief.1

Accordingly, we deny the petition for writ of mandamus. See TEX. R. APP. P.

52.8(a).

Also before the Court is relators’ December 2, 2024 emergency motion for

temporary relief. We deny the motion as moot.

/Bill Pedersen, III// 241290f.p05 BILL PEDERSEN, III JUSTICE

1 A relator bears the burden of providing the Court with a record that is sufficient to show it is entitled to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). To meet that burden, a relator is required to file with its petition, among other things, “a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding.” TEX. R. APP. P. 52.7(a)(1). Here, relators provided the Court with a sworn copy of real party in interest’s first amended petition but omitted from their record real party’s original petition, which was the live pleading on file with the trial court when relators filed their motion to sever and abate and when the trial court signed the order at issue. Thus, relators’ record is also incomplete. In order to expedite a decision, however, we reviewed relators’ request for mandamus relief based on the record before the Court. See TEX. R. APP. P. 2 (permitting an appellate court to suspend a rule’s operation in a particular case to expedite a decision or for other good cause).

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