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. 14-13-00255-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 27, 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
On April 4, 2013, relator filed a motion to stay proceedings in the court
below. See Tex. R. App. P. 52.10. In his motion, relator urged that a stay is
necessary because the trial court has been requested to sign a final judgment in the
underlying case. On April 8, 2013, the court denied relator’s motion for stay.
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 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
2012, Swamplot Industries, Albert, and Brinsdon, filed the underlying suit against
relator and others, alleging malicious prosecution, defamation, and other claims.
Relator brought third party claims against Catherine Schoolar, Candace
Garcia, Aaron Neil Carpenter, and Craig Phillip Malisow. Malisow, Schoolar, and
Garcia filed motions to dismiss relator’s claims pursuant to Chapter 27 of the
Texas Civil Practice and Remedies Code, the Texas Citizens Participation Act
(“TCPA”), which provides for dismissal of actions involving the exercise of
certain constitutional rights, including freedom of speech. See Tex. Civ. Prac. &
Rem. Code §§ 27.001–27.011. On March 4, 2013, the trial court signed orders
granting the motions to dismiss filed by Malisow, Schoolar and Garcia and
ordering attorneys fees against relator. On March 25, 2013, the trial court denied
relator’s motion for reconsideration. This proceeding followed.
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Relator raises eight issues in this proceeding. He challenges the
constitutionality of Chapter 27 of the Texas Civil Practice and Remedies Code. He
asserts that he was denied the right to nonsuit and denied a trial on the merits.
Relator argues that Chapter 27 effectively permits a pre-trial directed verdict and
should be required to comply with summary judgment standards. He complains
that the real parties are not entitled to sanctions because they did not plead for
affirmative relief, and he asserts that the sanctions awarded are excessive. He
complains that the trial court improperly conducted an evidentiary hearing on the
dismissal motions. Finally, relator asserts that because he amended his petition
before the hearing on the motions to dismiss, the dismissal motions were required
to be amended.
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.
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). We will deny mandamus relief if
another remedy, usually appeal, is available and adequate. Id. at 840. Mandamus is
intended to be an extraordinary remedy, available only in limited circumstances.
Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). Mandamus
should not be used as an alternative to appeal or to address grievances that may be
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addressed by other remedies. Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d
954, 955 (Tex. 1990) (per curiam).
In relator’s motion to stay the trial court proceedings, he asserts that the trial
court recently signed an order severing the claims against Schoolar, Garcia, and
Malisow, the real parties-in-interest in this proceeding.1 In addition, relator asserts
that the real parties have filed a motion for entry of a final judgment. Relator
sought a stay, alleging that “[t]he trial court’s signing of this order of final
judgment serves no purpose other than to burden the 14th Court of Appeals with
doubling the amount of work for identical issues.” We denied the stay request
because an appeal from a final judgment actually provides a better remedy for
relator’s claim that the trial court erred in granting motions to dismiss.
An appeal provides more complete review of an order disposing of a party’s
claims than review by petition for writ of mandamus. An appellate court may not
deal with disputed matters of fact in an original mandamus proceeding. Brady v.
Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990). When the issues
before the trial court necessarily require factual determinations, the court of
appeals abuses its discretion when it resolves those issues in an original mandamus
proceeding. Id. at 716. Absent extraordinary circumstances not present here, an
interlocutory ruling on a motion to dismiss is incident to the ordinary trial process
and should be challenged by appeal, not corrected by mandamus. See Hooks v.
Fourth Court of Appeals, 808 S.W.2d 56, 59-60 (Tex. 1991); In re Dennis, No. 14-
11-00595-CV, 2011 WL 2791126 *1 (Tex. App.—Houston [14th Dist.] July 14,
2011, orig. proceeding) (mem. op.).
1
A trial court may make a judgment that fails to dispose of all parties final for purposes of
appeal by severing the causes and parties disposed of into a different cause. Martinez v. Humble
Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994).
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The cost or delay of having to go through trial and the appellate process does
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not make a remedy by appeal inadequate. In re Kan. City S. Indus., Inc., 139
S.W.3d 669, 670 (Tex. 2004). An appeal is inadequate when it comes too late to
correct the court’s error without the loss of substantial rights to the complaining
party. Id. An appellate remedy is adequate when any benefits to mandamus review
are outweighed by the detriments. Prudential Ins. Co., 148 S.W.3d at 136. Under
the circumstances presented here, the benefits, both to the parties and to the
reviewing court, from a complete appellate record and full briefing in a normal
appeal outweigh any benefits from mandamus.
Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
2
Any delay from an appeal should be minimal. Appellate courts are required to expedite appeals
from orders on motions to dismiss brought pursuant to Chapter 27. See Tex. Civ. Prac. & Rem.
Code § 27.008(b).
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