in Re: Ben E. Keith Company and Andrew Rutkowski

Opinion

DENY and Opinion Filed February 19, 2020

In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-19-00608-CV

IN RE BEN E. KEITH CO. AND ANDREW RUTKOWSKI, Relators

Original Proceeding from the 193rd Judicial District Court Dallas County, Texas

Trial Court Cause No. DC-17-05464

MEMORANDUM OPINION

Before Justices Schenck, Reichek, and Evans Opinion by Justice Schenck Relators Ben E. Keith Co. and Andrew Rutkowski filed this petition for a writ of

mandamus challenging the trial court’s March 28, 2019 order granting real party in interest’s motion to strike the section 18.001 counteraffidavit of Marilyn Pacheco. Entitlement to mandamus relief requires relator to show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). After reviewing the petition for writ of mandamus, real party’s response, the amicus brief filed by the Texas Association of Defense Counsel, and the mandamus record, we conclude relator has failed to show his remedy by appeal is inadequate. See In re Jeremiah Parks, No. 05-19-00375-CV, slip op. at 5 (Tex. App—Dallas Feb. 18, 2020, orig. proceeding) (mem. op.); In re Flores, No. 01-19-00484-CV, 2020 WL 425297, at *1–2 (Tex. App.—Houston [1st Dist.] Jan. 28, 2020, orig. proceeding).

Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R. APP. P.

52.8(a) (the court must deny the petition if the court determines relator is not entitled to the relief sought).

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE

190608F.P05