In Re Intex Recreation Corp. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 27, 2023
• Docket: 13-22-00518-CV
• Status: Published

Opinion

NUMBER 13-22-00518-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE INTEX RECREATION CORP.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Tijerina Memorandum Opinion by Justice Benavides1

By petition for writ of mandamus, relator Intex Recreation Corp. contends that the

trial court abused its discretion by granting a partial motion for summary judgment

regarding parental immunity in favor of the real parties in interest, Jaime Flores and

Veronica Flores, individually and as representative of the estate of A.F., and as next

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). friends of J.C., a minor child. Relator has also filed an unopposed motion to stay the trial

of this case which is presently set to occur in March of 2023.

Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.

Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,

840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial

court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re

USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re

Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,

839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of proving these two

requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.

proceeding) (per curiam); Walker, 827 S.W.2d at 840.

The Court, having examined and fully considered the petition for writ of mandamus,

the response filed by the real parties in interest, the reply filed by relator, the record, and

the applicable law, is of the opinion that relator has failed to meet its burden to obtain

relief. First, relator bases its contentions and argument, in part, on the law pertaining to

the designation of responsible third parties. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.004. However, this matter is before the Court on a motion for partial summary

judgment regarding parental immunity, not a motion for leave to designate a responsible

third party, nor a motion to strike, and the issue of whether the plaintiffs in this case

constitute responsible third parties has not been litigated. See In re CVR Energy, Inc.,

500 S.W.3d 67, 78 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding [mand. denied])

2 (“[W]e follow the straightforward construction that ‘third party’ means a party that is not

otherwise a party to the litigation.”). In this regard, while we examine the adequacy of a

remedy by appeal based on the specific circumstances presented, we note that orders

granting partial summary judgment are typically reviewed by appeal from a final judgment

because appeal serves as an adequate remedy in such cases. Compare, e.g., In re

Mobile Mini, Inc., 596 S.W.3d 781, 787–88 (Tex. 2020) (orig. proceeding) (per curiam)

(concerning third party designations), with, e.g., In re Dynamic Health, 32 S.W.3d 876,

881 (Tex. App.—Texarkana 2000, orig. proceeding) (regarding partial summary

judgments); see also Walker, 827 S.W.2d at 842 (“[A]n appellate remedy is not

inadequate merely because it may involve more expense or delay than obtaining an

extraordinary writ.”).

Second, relator’s arguments are not clearly founded in the record. Here, the real

parties are suing individually, as representative of an estate, and as next friend of a minor

child, and they assert, among other causes of action, wrongful death and survival claims;

however, neither the motion for partial summary judgment nor the order granting the

motion for partial summary judgment clearly identifies the parties and capacities in which

the partial summary judgment has been granted. See Shoemake v. Fogel, Ltd., 826

S.W.2d 933, 938 (Tex. 1992) (delineating the parameters of parental immunity and its

effect on contribution claims); Ruff v. Univ. of St. Thomas, 582 S.W.3d 707, 712–15 (Tex.

App.—Houston [1st Dist.] 2019, pet. denied) (discussing the interplay between parental

immunity and proportionate responsibility).

Third, and finally, relator’s contentions regarding the ramifications of the partial

3 summary judgment depend on speculation insofar as the trial court has not made any

evidentiary rulings regarding contributory negligence, the case has not been submitted to

the jury with any particular charge, and the trial court has not considered the appropriate

damage award, if any, following the jury’s verdict. At best, relator’s contentions that the

trial court has precluded the submission of the issue of contributory negligence to the jury

are premature. See In re Ford Motor Co., 124 S.W.3d 147, 147 (Tex. 2003) (orig.

proceeding) (per curiam). We do not issue advisory opinions, nor do we grant mandamus

relief based on hypothetical facts or conjecture. See id.; In re Rodriguez, 409 S.W.3d 178,

180 (Tex. App.—Beaumont 2013, orig. proceeding) (per curiam); In re Kuster, 363

S.W.3d 287, 290 (Tex. App.—Amarillo 2012, orig. proceeding). Accordingly, we deny the

petition for writ of mandamus. See TEX. R. APP. P. 52.4, 52.5, 52.8. Given our resolution

of this original proceeding, we dismiss relator’s unopposed motion to stay the trial of this

case as moot.

GINA M. BENAVIDES Justice

Delivered and filed on the 27th day of February, 2023.