Petition for Writ of Mandamus Denied and Memorandum Opinion filed
October 11, 2019.




                                       In The

                     Fourteenth Court of Appeals

                                 NO. 14-19-00795-CV



    IN RE AMERICAN WORKERS INSURANCE SERVICES INC. AND
     ASSOCIATION HEALTH CARE MANAGEMENT, INC., Relators


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                               215th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2019-53545

                         MEMORANDUM OPINION

      On October 10, 2019, relators American Workers Insurance Services Inc. and
Association Health Care Management, Inc. filed a petition for writ of mandamus in
this court. See Tex. Gov’t Code Ann. § 22.221 (Supp.); see also Tex. R. App. P. 52.
In the petition, relator asks this court to compel respondent, the Honorable Elaine H.
Palmer, presiding judge of the 215th District Court of Harris County, to vacate her
“Amended Order Holding Defendants in Contempt and Granting Rule 11
Sanctions,” signed on September 18, 2018.

      “As a rule, mandamus is not available to compel an action which has not first
been demanded and refused.” Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex.
1991). But such requirement is excused when the request would have been futile and
the trial court’s refusal little more than a formality. Id. “To determine whether a
request would have been futile, appellate courts examine whether the request would
have added anything for the court’s consideration.” In re RH White Oak, LLC, 442
S.W.3d 492, 503 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) (per
curiam).

      Arguments not presented to the trial court will not be considered in the review
of a petition for writ of mandamus. See In re Am. Optical Corp., 988 S.W.2d 711,
714 (Tex. 1998) (orig. proceeding). “It is well established that arguments not
presented to the trial court will not be considered in a petition for writ of mandamus.”
In re RH White Oak, LLC, No. 14-15-00789-CV, 2016 WL 3213411, at *9 (Tex.
App.—Houston [14th Dist.] June 9, 2016, orig. proceeding) (mem. op.) (quoting In
re Advance Payroll Funding, Ltd., 254 S.W.3d 710, 714 (Tex. App.—Dallas 2008,
orig. proceeding)); see also In re Jindal Saw Ltd., 264 S.W.3d 755, 767 (Tex. App.–
Houston [1st Dist.] 2008, orig. proceeding) (concluding that arguments asserted in
mandamus petition could not be considered because they were not first presented to
trial court). This requirement—of a predicate request and presentment of arguments




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to the trial court—has been applied or cited by decisions of our court seeking
mandamus review of a contempt order1 and of a temporary restraining order.2

       The record provided by relators does not show that the arguments stated in
their petition have been presented to the trial court or that doing so would have been
futile and would not have added anything for the trial court’s consideration. We
therefore deny relators’ petition for writ of mandamus and motion for temporary
relief, without prejudice to re-filing with a record showing these requirements have
been met.


                                              PER CURIAM

Panel consists of Justices Christopher, Wise, and Spain.




       1
          See In re Choice! Energy, L.P., 325 S.W.3d 805, 810 (Tex. App.—Houston [14th Dist.] 2010,
orig. proceeding).
       2
        See In re Crestline Direct Fin., L.P., No. 14-16-00776-CV, 2016 WL 5724964, at *1 (Tex. App.—
Houston [14th Dist.] Oct. 3, 2016, orig. proceeding) (per curiam) (mem. op.).
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