Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-26-00508-CV IN RE MESA UNDERWRITERS SPECIALTY INSURANCE COMPANY, Relator Original Proceeding 1 Opinion by: Velia J. Meza, Justice Sitting: Rebeca C. Martinez, Chief Justice H. Todd McCray, Justice Velia J. Meza, Justice Delivered and Filed: September 30, 2026 PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART AND DENIED IN PART In this original proceeding, relator Mesa Underwriters Specialty Insurance Company (“MUSIC”) asserts the trial court abused its discretion when it denied MUSIC’s Rule 91a motion to dismiss. For the following reasons, we conditionally grant MUSIC’s petition in part and direct the trial court to dismiss the claims asserted against MUSIC. We deny the petition to the extent it seeks further relief. 1 This proceeding arises out of Cause No. 2025-CI-25407, styled Geofill Material Technologies, LLC d/b/a Geofill Construction v. Mesa Underwriters Specialty Insurance Company and Elk Roofing Solutions, LLC, pending in the 37th Judicial District Court, Bexar County, Texas, the Honorable Nicole Garza presiding. The order at issue was signed by the Honorable Marisa Flores, Presiding Judge of the 224th District Court. 04-26-00508-CV BACKGROUND Real party in interest Geofill Material Technologies, LLC d/b/a Geofill Construction (“Geofill”) sued MUSIC and ELK Roofing Solutions, LLC (“ELK”). Geofill alleged in its petition 2 that Geofill and ELK entered into a construction contract for ELK to install a commercial roof able to withstand “peak wind gust (3 sec)” of 90 miles per hour. In connection with the construction contract, Geofill and ELK entered into a master service agreement, which required ELK to obtain a commercial general liability insurance policy that named Geofill as an additional named insured under the policy and required the policy be made primary as to other insurance policies and noncontributory. According to Geofill, shortly after the roof was installed, the roof sustained substantial wind damage from Hurricane Beryl, allowing water to enter the building and causing approximately one million dollars’ worth of damage. Geofill asserts that documented peak wind gust did not exceed 90 miles per hour. Geofill alleges: “After the roof sustained damage, [Geofill] promptly reported the loss to [ELK] who refused to make a claim with its carrier, MUSIC.” Moreover, according to Geofill, ELK refused to replace the damaged roof without additional payment from Geofill. “As a result of the refusal by [ELK] to file a claim with its carrier, [Geofill] reported the loss to MUSIC as an additional named insured.” Attached to Geofill’s petition are policy endorsements for ELK’s insurance policy with MUSIC. These endorsements modify the policy to make MUSIC’s insurance “primary and noncontributory” and add as an additional insured person “any person or organization to which [ELK is] obligated by virtue of a written contract to provide insurance.” Geofill also filed as a 2 The allegations are taken from Geofill’s first amended petition and its supplement to its first amended petition, which were its live pleadings at the time the trial court determined MUSIC’s first amended Rule 91a motion to dismiss. See TEX. R. CIV. P. 91a.5, 91a.6. -2- 04-26-00508-CV supplement to its petition a “Commercial General Liability Coverage Form,” which Geofill asserts is the relevant insuring agreement with MUSIC. According to Geofill: Contrary to the primary and noncontributory endorsement contained in the [policy], MUSIC wrongfully disclaimed coverage on September 9, 2024, alleging that there was no coverage for this matter. Despite [Geofill’s] efforts to get MUSIC to comply with the [policy] and cover the loss, [Geofill] was forced to report the loss to its own Builder’s Risk Insurance Company, Zurich Insurance[.] ... . . . As a result of MUSIC’s wrongful denial of coverage, despite the plain language in the [policy], thereafter Zurich determined the loss totaled $1,062,241.46 for the [damage] and paid $865,040.44 for the repairs but required [Geofill] to pay a sizeable deductible of $197,201.02, which [Geofill] paid. In this respect, the claim has already been adjudicated and/or “settled” with regards to the liability of [ELK]. As a result of MUSIC failing to pay the claim as required under the [endorsement], [Geofill] was required to pay the $197,201.02 deductible, to which [ELK] failed to contribute and/or indemnify GEOFILL and hold it harmless. Based on these allegations, Geofill asserted claims against ELK for breach of contract and warranties, violations of the Texas Deceptive Trade Practices Act (“DTPA”), and negligence. Geofill also asserted claims against MUSIC for breach of contract, violations of the DTPA, violations of Chapters 541 and 542 of the Texas Insurance Code, and breach of the duty of good faith and fair dealing. MUSIC filed a Rule 91a motion to dismiss all of Geofill’s claims asserted against it. 3 MUSIC requested that the trial court grant the motion and award MUSIC reasonable and necessary attorney’s fees and costs. The trial court denied MUSIC’s motion by written order. MUSIC then filed this petition for writ of mandamus. 3 MUSIC filed a Rule 91a motion directed at Geofill’s initial petition and later an amended Rule 91a motion directed at Geofill’s amended petition. We consider MUSIC’s amended motion, which, like the Geofill’s amended petition and supplement, was before the trial court when it ruled. See TEX. R. CIV. P. 91a.5. -3- 04-26-00508-CV STANDARD FOR GRANTING A WRIT OF MANDAMUS “Mandamus relief is warranted when the trial court clearly abused its discretion and the relator has no adequate appellate remedy.” In re Coppola, 535 S.W.3d 506, 508 (Tex. 2017) (orig. proceeding) (per curiam) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding)). “A trial court abuses its discretion if it fails to analyze or apply the law correctly.” In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). Mandamus relief is appropriate when the trial court abuses its discretion in denying a Rule 91a motion, in order to spare the parties and the public the time and money spent on fatally flawed proceedings. In re Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding); In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam). ABUSE OF DISCRETION 1. Rule 91a Standard Texas Rule of Civil Procedure 91a provides that a party “may move to dismiss a cause of action on the grounds that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. MUSIC challenges only whether Geofill’s claims have a basis in law. “A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” Id. Under Rule 91a, “[d]ismissal is appropriate if the plaintiffs’ pleading of the cause of action fails to state a legally cognizable claim, conclusively establishes an affirmative defense, or otherwise shows the plaintiffs are not entitled to the relief sought.” Carden v. Minton, Bassett, Flores & Carsey, P.C., No. 24-0834, 2026 WL 1851869, at *4 (Tex. June 26, 2026). To state legally cognizable claims, a “plaintiff must plead the essential factual allegations supporting those claims, which must be sufficient to support a judgment if ultimately proven.” In -4- 04-26-00508-CV re First Reserve Mgmt., L.P., 671 S.W.3d 653, 662 (Tex. 2023) (citation omitted). Additionally, “[a] cause of action has no basis in law under Rule 91a if it is barred by an established legal rule and the plaintiff has failed to plead facts demonstrating that the rule does not apply.” Id. at 661. We determine the legal effect of pleaded facts de novo. Carden, 2026 WL 1851869, at *4. We also review a trial court’s ruling on a Rule 91a motion de novo. In re Farmers, 621 S.W.3d at 266. MUSIC contends generally that Geofill’s claims are barred by the Texas no-direct-action rule, and that Geofill has failed to allege one or more necessary elements of each of its claims against MUSIC. We begin with the no-direct-action rule, which determines Geofill’s breach of contract claim and frames our discussion of its remaining claims. 2. The No-Direct-Action Rule “Texas law prohibits an injured party from directly suing the defendant’s insurer unless and until ‘it has been established, by judgment or agreement, that the insured has a legal obligation to pay damages to the injured party.’” In re Ill. Nat’l Ins. Co., 685 S.W.3d 826, 835 (Tex. 2024) (quoting State Farm Cnty. Mut. Ins. Co. of Tex. v. Ollis, 768 S.W.2d 722, 723 (Tex. 1989) (per curiam)). This “‘no-direct-action rule’ . . . prohibits declaratory-judgment claims as well as claims for monetary relief.” Id. at 835–36. The public-policy concerns addressed by the rule include “the conflict of interest that arises when insurers must defend both themselves and their insureds and the prejudice that results when juries hear evidence of a defendant’s insurance coverage.” Id. at 835 n.5. When the rule applies, a plaintiff lacks standing. See KLLM Transp. Servs. v. Hallmark Cnty. Mut. Ins. Co., No. 04-16-00066-CV, 2016 WL 4772349, at *2 (Tex. App.—San Antonio Sept. 14, 2016, no pet.). -5- 04-26-00508-CV Geofill contends that the no-direct-action rule is inapplicable because Geofill is an additional insured under MUSIC’s insurance policy, and Geofill “seeks indemnity for liquidated damages that it has already paid.” According to Geofill: After MUSIC denied the claim, Geofill was forced to submit the loss to its builders- risk insurer, Zurich. Zurich determined the loss totaled $1,062,241.46 and paid $865,040.44 for repairs, while Geofill paid it[s] contractual $197,201.02 deductible. . . . Geofill also had to pay Elk to repair the roof. These amounts were adjusted or “settled”, but Elk and MUSIC failed to contribute or indemnify Geofill. MUSIC responds that its policy is a liability policy, which pays only those sums an insured “becomes legally obligated to pay as damages.” According to MUSIC: Under Texas’s No Direct Action Rule, no one may sue a liability insurer for those sums until that obligation has been fixed by judgment or settlement. In re Illinois Nat’l Ins. Co., 685 S.W.3d 826, 835 (Tex. 2024). Geofill pleaded no such judgment or settlement. Instead, Geofill approaches this lawsuit, arguing that as an additional insured, it should have a direct claim, not for indemnity it was adjudicated to owe to another, but for alleged property damage to its own property. Geofill does this in the same lawsuit in which it seeks to hold MUSIC’s named insured liable for the same damages. The No Direct Action Rule bars this attempt to treat the third-party policy as a first-party one. We hold, based on Geofill’s allegations and the pleading exhibits, that the no-direct-action rule applies. See TEX. R. CIV. P. 91a.6. Although Geofill is an additional insured on MUSIC’s policy, Geofill’s lawsuit concerns its third-party claim under that policy, which arises based on ELK’s asserted negligence and breach of contract in constructing a roof for Geofill’s building. In this posture, Geofill, as the injured party, cannot sue ELK’s insurer, MUSIC, “unless and until it has been established, by judgment or agreement, that [ELK] has a legal obligation to pay damages to [Geofill].” In re Ill. Nat’l Ins., 685 S.W.3d at 835 (citation omitted). As the petition alleges and pleading exhibits show, MUSIC’s policy is a commercial general liability policy. It is a standard liability policy, in which MUSIC assumed the duty to defend and the duty to indemnify its insureds. See Landmark Am. Ins. Co. v. Eagle Supply & Mfg. -6- 04-26-00508-CV L.P., 530 S.W.3d 761, 773 (Tex. App.—Eastland 2017, no pet.) (describing similar policy); see also In re Ill. Nat’l Ins., 685 S.W.3d at 831 (“Liability insurance covers damage the insured does to others.” (citation omitted)). “As a liability insurance policy, the . . . policy is a ‘third-party’ policy that is designed to insure against a loss to third parties caused by the insured or another covered person for whom the covered person may be legally responsible.” Landmark, 530 S.W.3d at 768; see also Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 18 (Tex. 2007) (“[T]hird-party insurance traditionally refers to liability policies that protect and indemnify an insured against the claims of unnamed third parties.”). Geofill alleges that ELK is the person legally responsible for damages resulting from defective construction of Geofill’s roof. Under these allegations, ELK, the named insured, could seek liability coverage from MUSIC by filing a third-party claim if ELK were to become legally obligated to pay damages to Geofill. See Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 674 (Tex. 2008); Landmark, 530 S.W.3d at 768. Such a claim would satisfy the policy’s coverage terms, which require MUSIC to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Geofill, as an injured party, could become a third-party beneficiary of the insurance policy, but the no-direct-action rule would apply until it was established that the insured, ELK, had a legal obligation to pay damages. See In re Ill. Nat’l Ins. Co., 685 S.W.3d at 835; Ollis, 768 S.W.2d at 723; Landmark, 530 S.W.3d at 772. Geofill, however, is attempting to pursue a first-party claim based on its own property damage, even though MUSIC’s policy is not a first-party insurance policy. “A first-party insurance policy is typically payable only to the insured or a named beneficiary for losses personal to the insured. A life, accident, and health policy is an example.” Lamar Homes, 242 S.W.3d at -7- 04-26-00508-CV 17–18. First- and third-party insurance claims are distinguished “based on the claimant’s relationship to the loss.” Evanston, 256 S.W.3d at 674. “A first-party claim is stated when an insured seeks recovery for the insured’s own loss, whereas a third-party claim is stated when an insured seeks coverage for injuries to a third party.” Id. (citation omitted). 4 Geofill argues against application of the no-direct-action rule by asserting that it “is not a stranger to the policy,” and that its status as an additional insured provides it with standing to sue. In this context, however, where Geofill sues as a third-party claimant, its status as an additional insured does not defeat the no-direct-action rule. See Landmark, 530 S.W.3d at 773 (“Eagle’s status as an additional insured does not change its status as a third-party claimant under the [general commercial liability] policy with respect to its claims against [the named insured] for property damage.”); Ohio Cas. Ins. Co. v. Time Warner Entm’t Co., L.P., 244 S.W.3d 885, 889 (Tex. App.—Dallas 2008, pet. denied) (explaining designation as additional insured does not negate application of the no-direct-action rule where additional insured sought coverage based on named insured’s alleged liability); cf. Rumley v. Allstate Indem. Co., 924 S.W.2d 448, 449–50 (Tex. App.—Beaumont 1996, no writ) (wife could not sue husband’s liability insurer for extra- contractual damages, even though she was also a named insured, because in the dispute, she “assumed the posture of a third-party claimant”). 5 4 Presumably Geofill filed a first-party claim with its insurer Zurich. See Evanston, 256 S.W.3d at 674. 5 The Texas Supreme Court has never considered the exact circumstances raised by Geofill’s pleadings, but its holdings do not contradict ours. In Evanston Insurance Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660, 663– 70 (Tex. 2008) an additional insured sued an insurer directly, but the supreme court did not dismiss the claim, or even discuss the no-direct action rule. Geofill contends that Evanston “supplies a direct and controlling legal path for Geofill’s contractual claims” because the additional insured, ATOFINA, “brought the insurer[, Evanston,] into the case before settlement, and the Supreme Court treated the action as an insured’s direct coverage dispute — not as a prohibited action by a stranger.” Geofill, however, avoids the distinguishing characteristic of that case: ATOFINA was sued by a third-party; thus, unlike Geofill, ATOFINA is not a third-party claimant. See id. at 671; see also id. at 675 (“This case in which ATOFINA seeks coverage for injuries sustained by a third party presents a classic third- party claim.”). Geofill also cites ExxonMobil Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 672 S.W.3d 415 (Tex. 2023), which is similarly distinguishable because the additional insured sought liability coverage after being sued by an injured worker. See id. at 417. -8- 04-26-00508-CV In short, the no-direct-action rule applies because Geofill proceeds as a third-party claimant under MUSIC’s policy. 3. Breach of Contract Because the no-direct-action rule applies, Geofill is prohibited, as an injured party, from directly suing to enforce MUSIC’s policy, unless and until it has been established, by judgment or agreement, that ELK has a legal obligation to pay damages to Geofill. See In re Ill. Nat’l Ins., 685 S.W.3d at 835. Geofill’s settlement with its insurer, Zurich, is not an “agreement or a judgment against” ELK, see Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 265–66 (Tex. 1969), or a “judgment or agreement, that [ELK] has a legal obligation to pay damages to [Geofill],” see In re Ill. Nat’l Ins., 685 S.W.3d at 835. Thus, the no-direct-action rule currently bars Geofill’s breach of contract claim. See In re Ill. Nat’l Ins., 685 S.W.3d at 835; see also Murray, 437 S.W.2d at 265–66 (“Under [a liability] policy a third party’s right of action against the insurer does not arise until he has secured . . . an agreement or a judgment against the insured.”). 4. Statutory and Common-law Claims In addition to its contract claim, Geofill asserts a claim for violations of the DTPA, claims under Chapters 541 and 542 of the Insurance Code, and a claim for breach of the common-law duty of good faith and fair dealing. See TEX. BUS. & COM. CODE ANN. §§ 17.41–17.63; TEX. INS. CODE ANN. §§ 541.001–.454, 542.001–.302; Viles v. Sec. Nat. Ins. Co., 788 S.W.2d 566, 567 (Tex. 1990). Geofill argues that, regardless of whether it can enforce MUSIC’s policy as a contractual matter now, it can pursue alternative theories of recovery that are not barred by the no-direct-action rule. Assuming without deciding that Geofill’s statutory and common-law claims could survive the no-direct-action rule when its contract claim cannot, we hold that Geofill has failed to plead legally cognizable statutory or common-law claims. See Carden, 2026 WL 1851869, at *4; In re -9- 04-26-00508-CV First Reserve, 671 S.W.3d at 662. Each claim is unavailable to a third-party claimant, such as Geofill. Specifically, with the DTPA, only a “consumer” can maintain a cause of action directly under the statute. See TEX. BUS. & COM. CODE ANN. §§ 17.45(4), 17.50(a); Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 386 (Tex. 2000). A third-party claimant is not a “consumer,” within the meaning of the statute; therefore, as pled, Geofill has not stated a legally cognizable DTPA claim. See TEX. BUS. & COM. CODE ANN. § 17.45(4); Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 273–75 (Tex. 1995) (explaining a third-party claimant under an insurance policy is not a “consumer” within the meaning of the DTPA). Chapter 541 of the Insurance Code allows for a private right of action for deceptive trade practices specifically enumerated in the DTPA and for other unfair settlement practices. See TEX. INS. CODE ANN. § 541.151. However, the Insurance Code’s tie-in to the DTPA does not remove the DTPA’s requirement that a plaintiff be a “consumer.” See Crown Life, 22 S.W.3d at 381 (discussing prior version of section 541.151); see also Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d 424, 438 n.103 (Tex. 2023). With respect to other unfair settlement practices covered by Chapter 541, Geofill’s petition references section 541.060 as a basis for its Chapter 541 claim. However, section 541.060 likewise “does not provide a cause of action to a third party asserting . . . claims against an insured covered under a liability insurance policy.” Id. § 541.060(b); see Reule v. Colony Ins. Co., 407 S.W.3d 402, 413 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (“Even if Reule paid premiums for and was entitled to liability coverage under the [general liability policy], in her current posture as a third-party claimant, [the insurer] did not owe her duties under sections 541.060 and 542.051 and the duty of good-faith and fair dealing.”). - 10 - 04-26-00508-CV Similarly, Geofill cannot maintain a claim under Insurance Code Chapter 542, the prompt- payment statute, because the statute defines “claim” as “a first-party claim . . . made by an insured or policyholder under an insurance policy or contract . . . [that] must be paid by the insurer directly to the insured . . .” TEX. INS. CODE ANN. § 542.051(2). Again, Geofill alleges its claim as a third- party claimant on MUSIC’s liability policy. See id.; Reule, 407 S.W.3d at 413; see also Lamar Homes, 242 S.W.3d at 16–18 (explaining “claim,” as defined by section 542.051(2), does not extend to a claim arising when “an insured seeks coverage for injuries to a third party” (citation omitted)). Last, an insurer’s duty of good faith and fair dealing does not extend to third-party claimants. Transport Ins., 898 S.W.2d at 279–80. Because Geofill has alleged a third-party claim, it has not stated a viable claim for breach of the common-law duty of good faith and fair dealing. See id.; see also Reule, 407 S.W.3d at 413; Caserotti v. State Farm Ins. Co., 791 S.W.2d 561, 566 (Tex. App.—Dallas 1990, writ denied) (“We conclude that an insurer does not owe the duty of good faith and fair dealing to its insured who is asserting a third-party claim against another insured of the same company.”). In sum, we hold that Geofill has not asserted any legally cognizable claims against MUSIC under the DTPA or the Insurance Code and has not stated a viable claim for breach of the common- law duty of good faith and fair dealing. See Carden, 2026 WL 1851869, at *4; In re First Reserve, 671 S.W.3d at 661–62. 5. Dismissal with Prejudice and Attorney’s Fees Because Geofill did not allege any legally cognizable claims against MUSIC, the trial court abused its discretion by denying MUSIC’s Rule 91a motion and by failing to dismiss Geofill’s claims. See TEX. R. CIV. P. 91a.1; Carden, 2026 WL 1851869, at *4; In re First Reserve, 671 - 11 - 04-26-00508-CV S.W.3d at 661–62. Accordingly, we direct the trial court to dismiss Geofill’s claims against MUSIC. However, we leave the determination of whether dismissal should be with or without prejudice to the trial court. MUSIC requests in its petition that we direct the trial court to dismiss Geofill’s claims with prejudice, but MUSIC never requested dismissal with prejudice in its Rule 91a motion. Therefore, the trial court was never presented with the request, which is typically required before we grant mandamus relief. See In re Coppola, 535 S.W.3d at 510 (“Due to the extraordinary nature of the remedy, the right to mandamus relief generally requires a predicate request for action by the respondent, and the respondent’s erroneous refusal to act.”). Additionally, in its petition, MUSIC provides no substantive analysis as to whether dismissal should be with or without prejudice, and either is allowed under Rule 91a. See TEX. R. CIV. P. 91a.1; Litka v. Byrkit, No. 03-25-00292-CV, 2026 WL 1424272, at *3 (Tex. App.—Austin May 21, 2026, no pet.) (mem. op.) (noting Rule 91a allows for dismissal without prejudice if a defect is potentially curable). Under these circumstances, we cannot say the trial court abused its discretion by failing to dismiss with prejudice. See In re Sanders, 153 S.W.3d at 56. Likewise, the record presents no basis for us to direct the trial court to conduct additional proceedings on attorney’s fees, in order to correct an abuse of discretion. MUSIC did not request the trial court to conduct additional proceedings on attorney’s fees; it only requested an award of attorney’s fees. See In re Coppola, 535 S.W.3d at 510. Moreover, while Rule 91a.7 allows for an award of attorney’s fees to the prevailing party, the award is discretionary. See TEX. R. CIV. P. 91a.7; Montoya Frazier v. Maxwell, 734 S.W.3d 1, 16 (Tex. App.—Fort Worth 2025, pet. denied). On this record, MUSIC has not shown an abuse of discretion warranting mandamus relief to direct the trial court to conduct additional proceedings on attorney’s fees. - 12 - 04-26-00508-CV INADEQUATE REMEDY BY APPEAL “Mandamus relief is appropriate when the trial court abuses its discretion in denying a Rule 91a motion to dismiss.” In re Farmers, 621 S.W.3d at 266. Under similar circumstances, where a trial court denied a Rule 91a motion to dismiss claims against an insurer based on the no-direct- action rule, the supreme court determined that “mandamus relief is appropriate to spare the parties and the public the time and money spent on fatally flawed proceedings.” In re Essex, 450 S.W.3d at 528. Pursuant to this precedent, we hold MUSIC has established that it lacks an adequate remedy by appeal. CONCLUSION We conclude that the trial court abused its discretion by denying MUSIC’s Rule 91a motion to dismiss and that MUSIC has an inadequate remedy by appeal. Therefore, we conditionally grant MUSIC’s petition for writ of mandamus in part and direct the trial court to vacate its order denying MUSIC’s Rule 91a motion to dismiss and grant the motion to dismiss Geofill’s claims against MUSIC. We deny MUSIC’s petition to the extent it seeks further relief. MUSIC has not shown an abuse of discretion regarding the trial court’s failure to dismiss Geofill’s claims with prejudice and its failure to conduct additional proceedings on attorney’s fees. The writ of mandamus will issue only if the trial court fails to comply with our opinion and order within fifteen days. Velia J. Meza, Justice - 13 -