                             NUMBER 13-09-00674-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG
________________________________________________________

        IN RE: DALLAS NATIONAL INSURANCE COMPANY
____________________________________________________________

               On Petition for Writ of Mandamus.
____________________________________________________________

                  MEMORANDUM OPINION ON REHEARING

       Before Chief Justice Valdez and Justices Yañez and Vela
      Memorandum Opinion on Rehearing by Chief Justice Valdez

       On April 6, 2010, relator, Dallas National Insurance Company (“Dallas National”)

filed a motion for rehearing on its petition for writ of mandamus. See TEX . R. APP. P. 49.1.

On April 13, 2010, we requested responses from real parties in interest, Vega Roofing, Inc.

(“Vega”) and Jose E. Garcia, which were due on April 23, 2010. See id. at R. 49.2. To

date, real parties in interest have not filed responses to Dallas National’s motion for

rehearing. After considering Dallas National’s motion for rehearing, we grant the motion,

vacate and withdraw our opinion dated March 17, 2010, and issue this opinion on

rehearing in its place.
       In this matter, Dallas National filed a petition for writ of mandamus and a motion for

temporary relief in which it requested this Court to order the respondent, the Honorable

Noe Gonzalez, presiding judge of the 370th District Court of Hidalgo County, to rule on

Dallas National’s plea to the jurisdiction and motion to dismiss filed on January 3, 2007,

in trial court cause number C-886-06-G, styled Vega Roofing, Inc. v. Dallas National

Insurance Company, formerly Dallas Fire Insurance Company, and First Mercury Insurance

Company. Dallas National asserts that the trial court conducted a hearing on the plea and

the motion on March 6, 2007, and that it is entitled to mandamus relief because the

respondent has failed to rule on the plea and the motion. Because we conclude the trial

court has abused its discretion in failing to rule on Dallas National’s plea and motion, we

conditionally grant its petition for writ of mandamus.

                                       I. BACKGROUND

       This dispute centers on the existence of insurance coverage for Jose Amparo

Alfaro, an employee of Vega who was severely and permanently injured on or about

February 23, 2005, during the construction of a residence for Jose E. Garcia. The record

reflects that Vega purchased a workers’ compensation and employer’s liability policy from

Dallas National, which was effective from June 20, 2004 to June 20, 2005, and had a $1

million policy limit. Vega was also covered from January 1, 2005 to January 3, 2006, by

a commercial general liability policy (“CGL”) issued by First Mercury Insurance Company.

The CGL policy also had a $1 million personal injury policy limit. Vega alleged that, during

the policy period of the Dallas National policy, Alfaro was injured at the Garcia job site, and,

therefore, Alfaro’s injury was covered by the Dallas National policy. Vega subsequently

filed a claim with Dallas National, but this claim was denied. Vega alleged that the Alfaro

claim was refused because Dallas National denied the existence of a valid and enforceable

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policy covering Alfaro.

        On April 11, 2006, Vega sued Dallas National for breach of contract and for

declaratory relief, seeking a judgment that insurance coverage existed for Alfaro under the

workers’ compensation and employer’s liability policy issued by Dallas National. Dallas

National filed its original answer and a motion to transfer venue on May 12, 2006. On

November 1, 2006, Garcia intervened in the suit, adding J.P. Monday, individually and

d/b/a Monday Builders and all other unknown Monday entities as defendants (the “Monday

defendants”), and alleging various causes of action pertaining to the construction of the

residence.     Additionally, Garcia asserted that he is a third-party beneficiary on the

underlying workers’ compensation and employer’s liability policy and, thus, sued Dallas

National for breach of contract. Alfaro and his wife, Eloisa Verdin Alfaro, also intervened

in the suit, alleging that the cause of his injuries was attributable to Vega, the Monday

defendants, and possibly Garcia.1

        Dallas National filed a plea to the jurisdiction and a motion to dismiss subject to its

motion to transfer venue on January 3, 2007. In its plea and motion, Dallas National

argued that the trial court lacked subject-matter jurisdiction over the entire case because

the Texas Workers’ Compensation Commission has exclusive jurisdiction to determine

whether, on the date of his injury, Alfaro was covered under the Dallas National policy.

The trial court conducted a hearing on Dallas National’s plea and motion on March 6, 2007.

At the conclusion of the hearing, the trial court took the matter under advisement.

        On July 12, 2007, Dallas National sent a follow-up letter and a proposed order

granting the plea and motion to the trial court, requesting that the trial court sign the order.



        1
         In addition to the underlying suit in this case, the Alfaros filed a separate non-subscriber lawsuit
against Vega and the Monday defendants in a separate cause and court.

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On December 17, 2007, Dallas National sent a second letter and proposed order to the

trial court, again requesting that the trial court sign the order. Finally, on October 7, 2009,

Dallas National sent a third letter and proposed order to the trial court to be signed.

Because the trial court has not responded to its requests for a ruling, Dallas National filed

a petition for writ of mandamus in this Court on December 16, 2009.

       Pursuant to this Court’s request, real parties-in-interest Vega and Garcia each filed

a response to Dallas National’s petition. In its response, Vega argues that the trial court

has jurisdiction over the underlying dispute because the issue is a breach-of-contract issue,

not an issue involving entitlement to workers’ compensation benefits. Vega further argues

that the trial court had no “ministerial duty” to rule favorably on Dallas National’s plea and

motion and that the trial court’s assertion of jurisdiction does not “create a clear disruption

of the orderly processes of government under the facts presented in this case.” (internal

quotations omitted.)

       On the other hand, Garcia argues that: (1) because Vega and Garcia’s claims

against Dallas National are predicated on the absence of coverage, the claims are outside

the jurisdiction of the Texas Workers’ Compensation Division; (2) Dallas National cannot

complain about the trial court’s failure to rule because it waited nearly two years between

requests for rulings from the trial court; and (3) Dallas National waived any right to

complain of the trial court’s failure to rule by not objecting. Garcia also asserts that the

Alfaros filed a separate non-subscriber lawsuit against Vega and the Monday defendants

“in a separate cause and court,” and that “Dallas National’s claims of court delay are

disingenuous because the parties had discussed and allowed the underlying Alfaro liability

case to proceed with minimum interference.” Dallas National filed a reply responding to

most of the arguments made by Vega and Garcia; however, Dallas National did not

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address the status, nor the existence, of the related Alfaro non-subscriber lawsuit.

        On original submission, the majority concluded that Dallas National did not prove

its entitlement to mandamus relief because it did not address the status of the related

Alfaro non-subscriber lawsuit and because it appeared that the cases were being

coordinated by various trial courts. In re Dallas Nat’l Ins. Co., No. 13-09-00674-CV, 2010

Tex. App. LEXIS 1990, at **15-16 (Tex App.–Corpus Christi Mar. 17, 2010, orig.

proceeding) (mem. op.) (Yañez J., dissenting).2 However, in its motion for rehearing,

Dallas National provided documentation showing that the related Alfaro non-subscriber suit

had settled on February 26, 2009, and that Vega and Garcia had been non-suited on

November 24, 2008.

                            II. STANDARD OF REVIEW AND APPLICABLE LAW

        “Mandamus relief is an extraordinary remedy that issues only if the court clearly

abused its discretion and the relator has no adequate remedy by appeal.” In re Sw. Bell

Tel. Co., 235 S.W.3d 619, 623 (Tex. 2007) (citing In re Entergy Corp., 142 S.W.3d 316,

320 (Tex. 2004)). “To show entitlement to mandamus relief, a relator must (1) show that

it has no adequate remedy at law to redress the alleged harm and (2) the act sought to be

compelled is ministerial and does not involve a discretionary or judicial decision.” In re

Bramlett, No. 07-09-0113-CV, 2009 Tex. App. LEXIS 5228, at *2 (Tex. App.–Amarillo July

8, 2009, orig. proceeding) (mem. op.) (citing State ex rel. Young v. Sixth Judicial Dist.

Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007); State ex rel. Rosenthal v.

Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003)). Furthermore, a relator must also



        2
           In her dissenting opinion on original subm ission, Justice Yañez concluded that, based on the record
at the tim e, the trial court abused its discretion by failing to rule within a reasonable tim e. In re Dallas Nat’l
Ins. Co., No. 13-09-00674-CV, 2010 Tex. App. LEXIS 1990, at **15-16 (Tex. App.–Corpus Christi Mar. 17,
2010, orig. proceeding) (m em . op.) (Yañez J., dissenting).

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demonstrate entitlement to mandamus relief by showing that “the district court (1) had a

legal duty to perform a non-discretionary act, (2) was asked to perform the act, and (3)

failed or refused to do so.” In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.–Amarillo 2003,

orig. proceeding) (citing O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex.

1992); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding)); see

In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.–Texarkana 2008, orig. proceeding).

Thus, “the party requesting mandamus relief has the burden to provide us with a record

sufficient to establish his right to same.” Ex parte Bates, 65 S.W.3d 133, 135 (Tex.

App.–Amarillo 2001, orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992)); see In re Blakeney, 254 S.W.3d at 661.

       Consideration of a motion that is properly filed and before the trial court is a

ministerial act, and mandamus may issue to compel the trial court to act. See Eli Lilly &

Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992); In re Blakeney, 254 S.W.3d at 661; see

also In re Bramlett, 2009 Tex. App. LEXIS 5228, at *3. However, the trial court has a

reasonable time within which to perform its ministerial duty. See In re Blakeney, 254

S.W.3d at 661; Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.–San

Antonio 1997, orig. proceeding); see also In re Bramlett, 2009 Tex. App. LEXIS 5228, at

*3. A trial court’s refusal to rule on a pending motion within a reasonable amount of time

constitutes a clear abuse of discretion. See In re Shredder Co., L.L.C., 225 S.W.3d 676,

679 (Tex. App.–El Paso 2006, orig. proceeding) (citing In re Greenwell, 160 S.W.3d 286,

288 (Tex. App.–Texarkana 2005, orig. proceeding)).

       Whether a reasonable time for the trial court to act has lapsed is dependent upon

the circumstances of each case. In re Blakeney, 254 S.W.3d at 662. “Determining what

time period is reasonable is not subject to exact formulation. . . . Moreover, no bright line

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separates a reasonable time period from an unreasonable one.” Id. (citing In re Keeter,

134 S.W.3d 250, 253 (Tex. App.–Waco 2003, orig. proceeding); In re Chavez, 62 S.W.3d

at 228). In analyzing whether a reasonable period has lapsed, Texas courts have noted

the following:

              “[A reasonable time to rule] is dependent upon a myriad of criteria, not
       the least of which is the trial court’s actual knowledge of the motion, its overt
       refusal to act on same, the state of the court’s docket, and the existence of
       other judicial and administrative matters which must be addressed first. Ex
       parte Bates, 65 S.W.3d 133[, 135] (Tex. App.–Amarillo 2001, orig.
       proceeding). So too must the trial court’s inherent power to control its own
       docket be factored into the mix. See Ho v. Univ. of Tex. at Arlington, 984
       S.W.3d 672, 694-95 (Tex. App.–Amarillo 1998, pet. denied) (holding that a
       court has the inherent authority to control its own docket).”

In re Blakeney, 254 S.W.3d at 663 (quoting In re Chavez, 62 S.W.3d at 228-29).

Furthermore, since the trial court’s power to control its own docket is discretionary, a

reviewing appellate court may not arbitrarily interfere with it. See Ex parte Bates, 65

S.W.3d at 135.

                                        III. DISCUSSION

       The parties do not dispute that Dallas National’s plea and motion were properly filed

and that the trial court’s ruling on Dallas National’s plea and motion constitutes a ministerial

duty. In its response, Vega argued that the trial court did not have a ministerial duty to rule

favorably on Dallas National’s plea and motion. However, this argument is not persuasive

because we must not reach the merits of Dallas National’s plea and motion or direct the

trial court as to how to rule on the plea and motion. See In re Blakeney, 254 S.W.3d at

661; O’Donniley v. Golden, 860 S.W.2d 267, 269 (Tex. App.–Tyler 1993, orig. proceeding)

(“While it is a basic premise that an appellate court lacks the power to compel a trial judge

to do a particular act involving or requiring discretion on his part, this Court is empowered

to order a trial judge to exercise his discretion in some manner.”); see also In re Minnfee,

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No. 07-09-0005-CV, 2009 Tex. App. LEXIS 332, at *2 (Tex. App.–Amarillo Jan. 16, 2009,

orig. proceeding) (mem. op.) (“[W]e cannot tell a trial judge how to rule on motions pending

before them before the trial judge himself rules on them.”). We therefore conclude that the

trial court has a ministerial duty to rule on Dallas National’s plea and motion. See Marshall,

829 S.W.2d at 158; In re Blakeney, 254 S.W.3d at 661; In re Chavez, 62 S.W.3d at 228

(“[A]dmittedly, the need to consider and rule upon a motion is not a discretionary act.”); see

also In re Bramlett, 2009 Tex. App. LEXIS 5228, at *3. However, the crux of Dallas

National’s complaint in its petition is whether a reasonable time has lapsed for the trial

court to rule on its plea and motion.

         In support of its contention that a reasonable time has lapsed for the trial court to

rule on its plea and motion, Dallas National directs us to the three letters that it sent to the

trial court, requesting that the trial court rule on the pending plea and motion. As noted

earlier, the letters are dated July 12, 2007, December 17, 2007, and October 7, 2009, and

each contains a proposed order granting Dallas National’s plea and motion and a request

for the trial court to sign the proposed order. Thus, the evidence demonstrates that Dallas

National has requested a ruling from the trial court, and the trial court has refused to issue

a ruling.3 See In re Blakeney, 254 S.W.3d at 661; see also In re Villarreal, 96 S.W.3d at

710; In re Chavez, 62 S.W.3d at 228.


         3
           In his response to Dallas National’s petition for writ of m andam us, Garcia argues that Dallas National
waived any com plaint by not objecting to the trial court’s refusal to rule. See Goodchild v. Bombardier-Rotax
G MBH, 979 S.W .2d 1, 7 (Tex. App.–Houston [14th Dist.] 1998, pet. denied) (op. on reh’g). In Goodchild,
appellants argued that the trial court erred in failing to rule on their m otion to com pel discovery from co-
defendants. Id. at 6. The trial court, citing what is now Texas Rule of Appellate Procedure 33.1, held that
because appellants had not obtained a ruling on their m otion to com pel discovery and had not objected to the
trial court’s failure to rule, they had failed to preserve error. Id. at 7 (citing T EX . R. A PP . P. 33.1). However,
we do not find this case to be persuasive in this case because Dallas National was required to show and did
show that the trial court: (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform the
act; and (3) failed or refused to do so. See In re Shredder Co., L.L.C., 225 S.W .3d 676, 679 (Tex. App.–San
Antonio 1997, orig. proceeding); see also In re Blakeney, 254 S.W .3d 659, 661 (Tex. App.–Texarkana 2008,
orig. proceeding).

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       In its motion for rehearing, Dallas National addresses the factors articulated in In re

Blakeney and In re Chavez and also provides documentation stating that the related Alfaro

non-subscriber lawsuit has settled and that Vega and Garcia have been non-suited, with

both events occurring more than a year ago. See In re Blakeney, 254 S.W.3d at 663; see

also In re Chavez, 62 S.W.3d at 228-29. The record reflects that more than three years

has elapsed since the trial court conducted a hearing on Dallas National’s plea and motion.

Moreover, during this three-year period, Dallas National made several requests for a ruling,

yet the trial court still has not issued a ruling on Dallas National’s plea and motion.

       Under these circumstances, we find that the trial court has abused its discretion in

refusing to rule on Dallas National’s plea and motion within a reasonable time. See In re

Blakeney, 254 S.W.3d at 662-63; In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.–San

Antonio 1998, orig. proceeding) (holding that a trial court’s failure to rule on a motion for

default judgment for over eighteen months was an abuse of discretion); Kissam v.

Williamson, 545 S.W.2d 265, 267 (Tex. App.–Tyler 1976, orig. proceeding) (holding that

a trial court’s delay of more than thirteen months in ruling on an election of incorporation

was unreasonable and constituted an abuse of discretion); see also In re Reeves County,

No. 08-09-227-CV, 2009 Tex. App. LEXIS 6702, at *6 (Tex. App.–El Paso Aug. 26, 2009,

orig. proceeding) (holding that a trial court’s failure to rule on a motion to compel arbitration

for nineteen months was an abuse of discretion); In re Mitchell, No. 10-07-250-CV, 2008

Tex. App. LEXIS 507, at *4 (Tex. App.–Waco Jan. 23, 2008, orig. proceeding) (holding that

a trial court’s failure to rule on a motion for default judgment for fifteen months was an

abuse of discretion). Thus, we conclude that Dallas National has proved its entitlement to

mandamus relief. See In re Blakeney, 254 S.W.3d at 662-63; In re Villarreal, 96 S.W.3d

at 710; Ex parte Bates, 65 S.W.3d at 135; In re Ramirez, 994 S.W.2d at 684; see also In

                                               9
re Bramlett, 2009 Tex. App. LEXIS 5228, at *2.

       Though we have concluded that Dallas National is entitled to mandamus relief to

compel the trial court to rule on its plea and motion, we do not and cannot, under any

circumstances, direct the trial court to rule a certain way on the plea and the motion. See

In re Blakeney, 254 S.W.3d at 661; In re Ramirez, 994 S.W.2d at 684; O’Donniley, 860

S.W.2d at 269; see also In re Minnfee, 2009 Tex. App. LEXIS 332, at *2. Thus, we

express no opinion on the merits of Dallas National’s plea and motion. Because the trial

court abused its discretion by failing to rule on Dallas National’s plea and motion within a

reasonable time, we conditionally grant Dallas National’s petition for writ of mandamus.

The writ will issue only if the trial court fails to rule on Dallas National’s plea and motion.

       Additionally, we deny Dallas National’s motion for temporary relief as moot.



                                                   ___________________
                                                   ROGELIO VALDEZ,
                                                   Chief Justice

Delivered and filed the
17th day of June, 2010.




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