Ornelas v. Briones , 1994 Tex. App. LEXIS 1525 ( 1994 )

OPINION ON DENIAL OF MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS

BARAJAS, Chief Justice.

Relators have filed their motion for leave to file a petition for writ of mandamus seeking to have this Court order the judge of County Court at Law No. One of El Paso County, Texas to vacate an order staying proceedings in a medical malpractice case. We deny leave to file.

The record in the instant case shows that Relators filed a medical malpractice suit against both Dr. Yolanda Lagunas and Vista Hills Medical Center for injuries that occurred to their son during childbirth. In March of 1994, Dr. Lagunas filed a motion to stay the malpractice suit, because her insurance carrier, Physicians National Risk Retention Group, Inc., is in receivership in the State of Louisiana, and thus is unable to defend her at this time. Dr. Lagunas based her request on a stay order issued by a Louisiana court which states that all suits against Physicians National Risk Retention Group, Inc. are stayed until further order of that court, including litigation involving the adjudication of liability of any policyholder. Dr. Lagunas argues that as a policyholder, she is a protected party under that Louisiana stay order.

Mandamus is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court. Rivercenter Assocs. v. The Hon. Rivera, 858 S.W.2d 366, 367 (Tex.1993, orig. proceeding); see Walker v. The Hon. Packer, 827 S.W.2d 833, 840 (Tex.1992, orig. proceeding).. Mandamus will not issue where there is a clear and adequate remedy at law. Walker, 827 S.W.2d at 840.

Rule 41 of the Texas Rules of Civil Procedure provides that any claim against a party may be severed and proceeded with separately. Tex.R.Civ.P. 41. Where parties fail or otherwise refuse to pursue remedies provided by law that will provide full relief to which they may be entitled, they will not be aided by issuance of a writ of mandamus. Watson v. Robertson County Appraisal Review Board, 795 S.W.2d 307, 310 (Tex.App.— Waco 1990, no writ); Gonzales v. Stevens, 427 S.W.2d 694, 702 (Tex.Civ.App.—Corpus Christi 1968, writ ref d n.r.e.). Relators have failed to show in their motion for leave to file their petition for writ of mandamus that they have no other clear and adequate remedy at law.

The motion for leave to file the petition for writ of mandamus is denied.

KOEHLER, J., dissents.