Glenda Johnson, as Next Friend of C.C., a Minor Child v. Insurance Company of Evanston

NO. 07-00-0270-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 12, 2001

______________________________



GLENDA JOHNSON, AS NEXT FRIEND OF C.C., A MINOR CHILD, APPELLANT CHILDREN'S HOME OF LUBBOCK AND FAMILY SERVICE AGENCY, INC., A/K/A CHILDREN'S HOME OF LUBBOCK, INC., INTERESTED PARTY

V.

INSURANCE COMPANY OF EVANSTON, APPELLEE



_________________________________

FROM THE 99^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 98-503,381; HONORABLE MACKEY K. HANCOCK, JUDGE

_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.

On October 30, 2001, the appellant filed an unopposed Motion to Dismiss Appeal averring that the parties have resolved the issues and agree that the appeal should be dismissed.

Without passing on the merits of the case, the appellant's unopposed Motion to Dismiss Appeal is granted and the appeal is hereby dismissed. Tex. R. App. P. 42.1(a)(1). No order pertaining to costs is hereby made as all costs have been paid. Having dismissed the appeal at the appellant's request and because the appellee is not opposed to such a request, no motion for rehearing will be entertained and our mandate will issue forthwith.

Phil Johnson

Justice

Do not publish.

586 S.W.2d 843, 846 (Tex. 1979). When a motion is properly pending before a trial court, the act of considering and ruling on the motion is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). (orig. proceeding). However, the trial court has a reasonable time within which to perform that ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997) (orig. proceeding). Whether a reasonable period of time has lapsed is dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992) (orig. proceeding).

Additionally, the party seeking relief has the burden to provide a sufficient record to establish entitlement to mandamus relief. Walker, 827 S.W.2d at 837. See also In re Bates, 65 S.W.3d 133, 135 (Tex.App.-Amarillo 2001) (orig. proceeding). The record must show the motion was presented to the trial court and it refused to act. In re Villarreal, 96 S.W.3d 708, 710 n.2 (Tex.App.-Amarillo 2003) (orig. proceeding) (filing something with the District Clerk does not demonstrate that a motion has been brought to the trial court's attention).

Relator asserts that on May 19, 2005, he inquired about his case, and the District Clerk acknowledged the case had been docketed and submitted. He does not allege, or demonstrate, that his motions were presented to the trial court and it refused to act on them. We must conclude relator has not satisfied his burden to provide a sufficient record demonstrating that a properly pending motion has awaited disposition for an unreasonable length of time or that the trial court has refused to perform a ministerial act.

Moreover, as noted, relator's petition for writ of mandamus does not substantially comply with the requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. For these reasons, relator's petition for writ of mandamus is denied.

James T. Campbell

Justice