in Re Penn-America Insurance Company ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00333-CV

In re Penn-America Insurance Company

Original Proceeding

MEMORANDUM  DISSENTING Opinion

          Because we do not know why the majority has denied the petition for writ of mandamus[1] and, further, because I find the authority of the Texas Supreme Court’s decision in In re Allstate Ins. Co., 85 S.W.3d 193 (Tex. 2002) compelling, I would request a response.  Although we cannot grant a mandamus without requesting a response, Texas Rule of Appellate Procedure 52.4, the above referenced authority seems to compel a holding that the trial court erred in not requiring use of the appraisal process, the court did not err in refusing to abate the proceeding to allow the appraisal process to go forward, and that mandamus is an available remedy for the error in failing to order the appraisal.  Accordingly, I respectfully dissent.

                                                          TOM GRAY

                                                          Chief Justice

Memorandum dissenting opinion delivered and filed October 18, 2006

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[1] Unlike an appeal, a court of appeals does not have to hand down an opinion if it is denying the relief requested in a petition for writ of mandamus.  Tex. R. App. P. 52.8(d).