                                    NO. 07-05-0441-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                    JANUARY 25, 2006

                          ______________________________

                   IN RE: YORKSHIRE INSURANCE CO., LTD. AND
                       OCEAN MARINE INSURANCE CO., LTD.
                        _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Relators, Yorkshire Insurance Co., Ltd. and Ocean Marine Insurance Co., Ltd.,

petition this court to issue a writ of mandamus ordering the Honorable John LaGrone,

Presiding Judge of the 316th District Court, to enter final judgment in a pending cause. For

the reasons stated, we deny relators’ petition.


       Relators, through two issues, are complaining that the trial court, by refusing to enter

final judgment, is 1) abusing its discretion and 2) jeopardizing relators’ due process rights.


                                      BACKGROUND


       This original proceeding arises out of a death claim filed by the Seger family against

Diatom. During the pendency of the tort claim, the Segers’ filed a declaratory judgment

action against Diatom and relators on the issue of insurance coverage. After the Segers
obtained a judgment against Diatom on the underlying tort claim, the Segers settled with

Diatom and took an assignment of Diatom’s claims against its insurers, the relators in the

present action. The Segers’ declaratory judgment case was then converted to include a

Stowers action.1


       Thereafter, relators filed a third-party action against Diatom seeking declaratory

relief or reformation. On August 9, 2004, the trial court heard pending motions for

summary judgment filed by both sides of the third-party action. Ultimately, on December

30, 2004, the trial court granted Diatom’s summary judgment as to relator’s third-party

claims. The trial court then severed relator’s third-party action from the Segers’ declaratory

judgment action, reserving only the issues of entitlement to and amount of attorney fees

for future determination. The relators’ primary complaint centers upon the trial court’s

failure to issue judgment on these attorney fee issues.


                                 STANDARD OF REVIEW


       Mandamus is proper to compel a ministerial act or to correct a clear abuse of

discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Whether to consider and

rule upon a motion is not a discretionary act on the part of the trial court. In re Ramirez,

994 S.W.2d 682, 683 (Tex.App–San Antonio 1998, orig. proceeding). When a motion is

properly filed and pending before a trial court, the act of considering and ruling on the

motion is ministerial. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San



      1
        See generally C. H. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544
(Tex.Comm’n.App. 1929, holding approved).

                                              2
Antonio 1997, orig. proceeding). However, the trial court has a reasonable time within

which to perform this duty. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.–Houston [1st

Dist.] 1992, orig. proceeding). Whether such reasonable time has lapsed is dependent on

the facts and circumstances of each case. Id. There is no bright line for determining this

issue. Neither is there a set formula, rather, there are a number of factors to consider,

such as, 1) the trial court’s actual knowledge of the motion, 2) the state of the trial court’s

docket, 3) whether there continue to be other legal or factual matters within the case for

the trial court’s continued consideration, and 4) the existence of other judicial and

administrative matters for the trial court’s consideration. See Ex parte Bates, 65 S.W.3d

133, 134 (Tex.App.–Amarillo 2001, no pet. h.). This is not an exhaustive list, but is merely

demonstrative. Additionally, this court must remember that the trial court has inherent

power to control its own docket. Ho v. Univ. of Texas at Arlington, 984 S.W.2d 672, 693-94

(Tex.App.–Amarillo 1998, pet. denied). The power of the trial court to control its own

docket is discretionary in nature, Hoggett v. Brown, 971 S.W.2d 472, 495

(Tex.App–Houston [14th Dist.] 1997, no pet.), we may not arbitrarily interfere with it.


                                         ANALYSIS


       Relators first contend that the trial court abused its discretion by refusing to rule and

enter a final judgment. However, in their argument, relators appear to complain that the

court would neither set a hearing nor render a ruling. The record before us demonstrates

that the trial court held a hearing on the issue of attorney fees on August 8, 2005.

Therefore, the only real issue before this court is whether the court has failed to rule on the

issue of attorney fees within a reasonable time. Barnes, 832 S.W.2d at 426. The party

                                               3
seeking a writ of mandamus must furnish this court with a record sufficient to establish their

right to mandamus relief. Walker, 827 S.W.2d at 837. The record available for our review

in this proceeding provides insufficient evidence that the trial court’s delay in ruling was

unreasonable. The record does not illustrate the state of the court’s docket from August

8, 2005 to the filing of relators’ petition in this matter. The record shows that, during this

period, relators have continued to file matters requiring the court’s consideration.

Additionally, the record is silent as to other legal or administrative matters the trial court

was required to hear or consider during this period. As the relators are responsible for

providing this court with a record sufficient to prove their entitlement to the relief sought and

because they have failed to do so, we cannot say that the trial court has abused its

discretion by failing to rule on the attorney fee issues or by failing to enter a final judgment

in the third-party cause. Therefore, relators are denied mandamus relief on their first issue.


       Relators’ next contend that the trial court’s failure to enter final judgment jeopardizes

relators’ due process rights. Relators conclude, without adequate analysis, that the trial

court’s failure to rule is adversely affecting their due process rights in relation to the

severed cause of action and the underlying $38 million judgment. As authority for their

proposition, relators cite this court to a recent Texas Supreme Court opinion dealing with

what relators contend to be a similar fact pattern. See Progressive County Mut. Ins. Co.

v. Boyd, 48 Tex.Sup.Ct.J. 1020, 2005 Tex. LEXIS 605 (August 26, 2005). However, Boyd

is an appeal of a summary judgment that does not address due process concerns and is,

therefore, inappropriate. Because we have determined that the trial court has not failed

to issue a final judgment within a reasonable time, it follows that the delay in issuing


                                               4
judgment was not a denial of due process. Barnes, 832 S.W.2d at 426. Relators have

also cited the court to Baluch v. Miller, 774 S.W.2d 299 (Tex.App–Dallas 1989, orig.

proceeding), for the proposition that the trial court’s refusal to enter a final judgment is itself

a denial of due process. However, a close reading of Baluch reveals that the trial court

refused to set the matter for any type of hearing. This is clearly distinguishable from the

case before this court and, as such, does not control the issue. Accordingly, relators’

second issue is overruled.


                                         CONCLUSION


       Finding relators have failed to prove their entitlement to mandamus relief, we deny

relators’ petition.




                                             Mackey K. Hancock
                                                 Justice




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