Opinion
NO. 14-19-00795-CV
10-11-2019
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 to the trial court—has been applied or cited by decisions of our court seeking mandamus review of a contempt order and of a temporary restraining order.
See In re Choice! Energy, L.P., 325 S.W.3d 805, 810 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding).
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.).
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.