in Re Old American County Mutual Fire Insurance Company

Opinion

NUMBER 13-14-00331-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE OLD AMERICAN MUTUAL FIRE INSURANCE COMPANY

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Perkes Memorandum Opinion Per Curiam1

Relator, Old American County Mutual Fire Insurance Company, filed a petition for

writ of mandamus in the above cause on June 17, 2014 through which it contends that

the trial court erred in denying its motion to dismiss a declaratory judgment action filed by

Freedom Communications, Inc. d/b/la The Brownsville Herald (“Freedom

Communications”) because Freedom Communications lacks standing to pursue a

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.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). declaratory judgment action against relator. The Court has requested and received a

response to the petition for writ of mandamus from Dalia Garcia and Fructuoso Saenz,

and has also received a response from Freedom Communications.

To be entitled to the extraordinary relief of a writ of mandamus, the relator must

show that the trial court abused its discretion and that there is no adequate remedy by

appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). The relator has the burden of establishing both prerequisites to mandamus

relief. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding). This burden

is a heavy one. See In re Epic Holdings, Inc., 985 S.W.2d 41 (Tex. 1998) (orig.

proceeding). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or

without reference to any guiding rules or principles. In re Gen. Elec. Co., 271 S.W.3d

681, 685 (Tex. 2008) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.

1992) (orig. proceeding). We assess the adequacy of an appellate remedy by balancing

the benefits of mandamus review against the detriments. In re State, 355 S.W.3d 611,

614–15 (Tex. 2011) (orig. proceeding); In re Team Rocket, L.P., 256 S.W.3d 257, 262

(Tex. 2008) (orig. proceeding).

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

and the applicable law, is of the opinion that relator has not met its burden to obtain

mandamus relief. Specifically, relator has not shown that this case presents extraordinary

circumstances which compel mandamus review. See In re Puig, 351 S.W.3d 301, 306

(Tex. 2011) (orig. proceeding); In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004)

(orig. proceeding); In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig.

proceeding); In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 375 (Tex.

2 1998) (orig. proceeding); Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 306, 308–

09 (Tex. 1994) (orig. proceeding); Hooks v. Fourth Ct. of App., 808 S.W.2d 56, 59 (Tex.

1991) (orig. proceeding); Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955

(Tex. 1990); Abor v. Black, 695 S.W.2d 564, 566–67 (Tex. 1985) (orig. proceeding); see

In re Thompson, Coe, Cousins, & Irons, LLP, 212 S.W.3d 918, 920 (Tex. App.—Tyler

2007, orig. proceeding). In so holding, we note that the facts and circumstances herein

differ from other cases in which an appellate remedy has been determined to be

inadequate for the denial of a plea to the jurisdiction. See, e.g., In re First Mercury Ins.

Co., No. 13-13-00697-CV, 2014 WL _____, at **__ (Tex. App.—Corpus Christi May 23,

2014, orig. proceeding); In re Am. Nat’l Cnty. Mut. Ins. Co., No. 14–12–01135–CV, 2013

WL 476824, at **1–2 (Tex. App.—Houston [14th Dist.] 2013, orig. proceeding) (mem. op.

per curiam). Accordingly, the stay previously imposed by this Court is LIFTED. See TEX.

R. APP. P. 52.10(b) (“Unless vacated or modified, an order granting temporary relief is

effective until the case is finally decided.”). The petition for writ of mandamus is DENIED.

See id. R. 52.8(a).

Delivered and filed the 7th day of July, 2014.