Progressive County Mutual Insurance Co. v. Parks , 1993 Tex. App. LEXIS 1916 ( 1993 )


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  • OPINION ON DENIAL OF RELATOR’S MOTION FOR LEAVE TO FILE APPLICATION FOR WRIT OF MANDAMUS

    BARAJAS, Justice.

    Relator in the instant case seeks granting of its motion for leave to file its application for writ of mandamus. We deny motion for leave to file.

    I. PROCEDURAL HISTORY

    In the underlying action, Manuel Villa-nueva, his wife Lily and his son Steven, sued Relator for breach of an insurance policy contract by failing to pay damages when Manuel’s truck, which was insured by Relator, caught fire and burned. They also alleged violations of the Deceptive Trade Practices Act, the Texas Insurance Code and the duty of good faith and fair dealing. Relator answered asserting that there was no coverage under the policy because the loss was not accidental, the fire having been intentionally set.

    Relator’s motion for severance of the bad faith and other extra-contractual claims from the breach of contract cause of action having been denied by the trial court, brought a first petition to this Court for writ of mandamus to require the severance. We denied the petition, holding that no prejudice had been shown and that the trial court at a pretrial hearing should determine if there were prejudicial issues which would require separate trials. Progressive County Mutual Ins. Co. v. Parks, No. 08-93-00086-CV, 856 S.W.2d 776 (Tex.App.—El Paso 1993, orig. proceeding). Following a pretrial hearing, the trial court then severed the bad faith suit from the other causes and issued its order that the bad faith suit be tried first. Relator subsequently filed the present motion for leave to file petition for mandamus, claiming that the Respondent judge abused his discretion by ordering trial of the extra-contractual torts prior to trial of the contract dispute. In short, Relator seeks a writ of mandamus directing the trial court not to try the extra-contractual torts prior to trial of the contract dispute.

    I. DISCUSSION

    A writ of mandamus will issue only to correct a clear abuse of discretion by the trial court. An abuse of discretion occurs when the trial court reaches a deci*782sion so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992); Volcanic Gardens Mgt. Co. v. Paxson, 847 S.W.2d 343 (Tex.App.—El Paso 1993, orig. proceeding); Dal-Briar Corp. v. Baskette, 833 S.W.2d 612, 614 (Tex.App.—El Paso 1992, orig. proceeding). A relator must establish that the trial court reasonably could have reached but one decision. Walker, 827 S.W.2d at 839-40; Volcanic Gardens Mgt. Co. v. Paxson, 847 S.W.2d at 346. A clear failure of a trial court to analyze or apply the law correctly will constitute an abuse of discretion and may well result in the issuance of an extraordinary writ. Walker, 827 S.W.2d at 840. However, a relator must nonetheless carry its burden of showing that facts and law permit a trial court to make but one decision. Keller Industries, Inc. v. Blanton, 804 S.W.2d 182 (Tex.App.—Houston [14th Dist.] 1991, orig. proceeding); Chamberlain v. Cherry, 818 S.W.2d 201, 204 (Tex.App.—Amarillo 1991, orig. proceeding).

    In the instant case, Relator effectively asks this Court to set the trial court’s civil docket, an act clearly not within the province of this Court. Given the record before this Court for consideration, Relator has failed in its burden of showing that facts and law permit a trial court to make but one decision, i.e., the “proper” scheduling of civil cases for it for disposition.1 Indeed, there are many significant factors that only the trial court can know, and properly consider in setting its docket: the number of days a case will take to try, the size of a panel needed to seat an impartial jury, the schedules of the trial judge, attorneys, litigants, and witnesses, just to name a few. Consequently, we find the trial did not abuse its discretion in the manner or order in which it has controlled its trial docket as it relates to the instant case, and we deny Relator’s motion for leave to file its application for writ of mandamus.

    . The dissenting opinion is correct in stating that it would be possible under Tex.R.Civ.P. 162 for the plaintiff in the action below to nonsuit one of their independent causes of action where there are two or more causes of action, one dependent on the outcome of the other. We find no authority however, for the proposition that in a case such as the one under consideration, a nonsuit of the contractual claim would automatically result in a nonsuit of the noncon-tractual claims as well because they depend on the outcome of the other.

Document Info

Docket Number: 08-93-00158-CV

Citation Numbers: 856 S.W.2d 780, 1993 Tex. App. LEXIS 1916, 1993 WL 238638

Judges: Koehler, Barajas, Larsen

Filed Date: 7/2/1993

Precedential Status: Precedential

Modified Date: 11/14/2024