in Re Mark Thuesen ( 2013 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April
11, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00243-CV
IN RE MARK THUESEN, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
151st District Court
Harris County, Texas
Trial Court Cause No. 2012-49262
MEMORANDUM OPINION
On March 26, 2013, relator Mark Thuesen filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code §22.221; see also Tex. R. App. P.
52. In the petition, relator asks this court to compel the Honorable Mike Engelhart,
presiding judge of the 151st District Court of Harris County, to set aside his order
denying relator’s motion for partial summary judgment and to grant the motion.
Relator was an owner and resident of a condominium project known as 2520
Robinhood, and he formerly served as president of the 2520 Robinhood at Kirby
Condominium Association. The record in this proceeding indicates that relator, the
condominium association, and its management company have been involved in
several lawsuits with neighbors and members of the Houston real estate
community.
Swamplot Industries, LLC operates a website, Swamplot.com, which reports
on matters related to Houston real estate. Laurence Albert, and his wife, Beth
Brinsdon, operate Swamplot, including the website. Swamplot.com posted a
number of stories related to the 2520 Robinhood lawsuits. In May of 2011, relator
and the condominium association filed suit against Swamplot.com. based on
comments posted on the site, but the action was non-suited a few months later. In
August of 2012, Swamplot Industries, Albert, and Brinsdon, filed the underlying
suit against relator and others, alleging malicious prosecution, defamation, and
other related claims.
On February 11, 2013, relator filed a motion for partial summary judgment
on five causes of action: (1) trespass to real property; (2) invasion of Privacy by
intrusion on seclusion; (3) public disclosure of private facts; (4) product
disparagement; and (5) violations of the Texas Wiretap Act. Relator included his
own affidavit “unequivocally denying any involvement in these causes of action.”
The real parties responded, objecting that discovery had not been completed. An
affidavit from real party Albert was included with the response. On March 6, 2013,
the trial court denied relator’s motion for partial summary judgment. This
proceeding followed.
Relator raises two issues in this proceeding. He asserts that his motion for
summary judgment was denied in error and that the real party’s affidavit filed in
response to the summary judgment motion was defective and void.
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Mandamus is an extraordinary remedy that will issue only if (1) the trial
court clearly abused its discretion and (2) the party requesting mandamus relief has
no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135–36 (Tex. 2004). We determine the adequacy of an appellate remedy by
balancing the benefits of mandamus review against its detriments. Id. at 136. In
evaluating benefits and detriments, we consider whether mandamus will preserve
important substantive and procedural rights from impairment or loss. Id.
A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law, or if it clearly
fails to analyze or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164
S.W.3d 379, 382 (Tex. 2005). When reviewing the trial court’s decision for an
abuse of discretion, we may not substitute our judgment for that of the trial court
with respect to the resolution of factual issues or matters committed to the trial
court’s discretion. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).
Mandamus is generally unavailable when a trial court denies summary
judgment, no matter how meritorious the motion, because “trying a case in which
summary judgment would have been appropriate does not mean the case will have
to be tried twice.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465–66 (Tex.
2008) (stating that parties are not “entitled” to summary judgment in the same way
they are entitled to arbitration). Only the most extraordinary circumstances warrant
mandamus relief from the erroneous denial of a motion for summary judgment. See
In re USAA, 307 S.W.3d 299, 314 (Tex. 2010) (granting relief to enforce
limitations after relator had already endured trial in incorrect jurisdiction). Relator
has not presented such extraordinary circumstances.
Relator argues only that because an interlocutory order denying a motion for
summary judgment may not be immediately appealed, he lacks an adequate
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appellate remedy. As the Texas Supreme Court has repeatedly held, the cost or
delay incident to pursuing an appeal does not make the remedy inadequate. See In
re Kansas City S. Indus, Inc., 139 S.W.3d 669, 670 (Tex. 2004).
Relator has an adequate remedy by appeal after a final judgment is signed in
the underlying case. Accordingly, we deny his petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
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