Document Info

DocketNumber: 05-18-01516-CV

Filed Date: 12/21/2018

Status: Precedential

Modified Date: 12/24/2018

  • Denied and Opinion Filed December 21, 2018
    S    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-18-01516-CV
    IN RE AMERICAN ZURICH INSURANCE COMPANY, Relator
    Original Proceeding from the 101st Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. DC-13-05893
    MEMORANDUM OPINION
    Before Justices Francis, Evans, and Schenck
    Opinion by Justice Schenck
    In this original proceeding, relator seeks a writ of mandamus directing the trial court to rule
    on and grant relator’s motion to strike the real party in interest’s first amended petition and motion
    for entry of final judgment. When a motion is properly filed and pending before a trial court, the
    act of giving consideration to and ruling upon that motion is a ministerial act, and mandamus may
    issue to compel the trial judge to act. Safety–Kleen Corp. v. Garcia, 
    945 S.W.2d 268
    , 269 (Tex.
    App.—San Antonio 1997, orig. proceeding). To obtain mandamus relief for the trial court’s refusal
    to rule on a motion, a relator must establish: (1) the motion was properly filed and has been pending
    for a reasonable time, (2) the relator requested a ruling on the motion, and (3) the trial court refused
    to rule. O’Connor v. First Court of Appeals, 
    837 S.W.2d 94
    , 97 (Tex.1992); In re Blakeney, 
    254 S.W.3d 659
    , 661 (Tex. App.—Texarkana 2008, orig. proceeding); In re Buholtz, No. 05-16-01312-
    CV, 
    2017 WL 462361
    , at *1 (Tex. App.—Dallas Jan. 31, 2017, orig. proceeding). It is the relator’s
    burden to provide this Court with a sufficient record to establish relator’s right to mandamus relief.
    Walker v. Packer, 
    827 S.W.2d 833
    , 839–40 (Tex. 1992).
    Based on the record before us, we conclude relator has not shown it is entitled to the relief
    requested. First, the record does not include the transcripts of hearings at which relator avers the
    trial court heard argument on the motions, the trial court took the motions under advisement, and
    relator asked for rulings on the motions. On the record presented, relator has not established that
    the trial court has refused to rule and, therefore, has not established a right to a writ of mandamus
    directing the trial court to rule. Second, although this Court may, where appropriate, direct a trial
    court to rule on a motion after a reasonable time, we may not tell the trial court what the decision
    should be. In re Shaw, 
    175 S.W.3d 901
    , 904 (Tex. App.—Texarkana 2005, orig. proceeding).
    Relator is, therefore, not entitled to a writ of mandamus directing the trial court to grant the
    motions.
    Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R. APP. P. 52.8(a)
    (the court must deny the petition if the court determines relator is not entitled to the relief sought).
    /David J. Schenck/
    DAVID J. SCHENCK
    JUSTICE
    181516F.P05
    –2–