in Re Patrick Luthen, Rachel Luthen, and Andrew Luthen

• Court: Court of Appeals of Texas
• Decided: May 5, 2016
• Docket: 13-16-00251-CV
• Status: Published

Opinion

NUMBER 13-16-00251-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE PATRICK LUTHEN, RACHEL LUTHEN, AND ANDREW LUTHEN

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion Per Curiam1

Relators, Patrick Luthen, Rachel Luthen, and Andrew Luthen, filed a petition for

writ of mandamus and motion for emergency temporary relief on May 5, 2016. Through

this original proceeding, relators seek to set aside an order limiting the scope of the

deposition of a non-party, non-resident witness. By emergency motion, relators request

this Court to “order the parties to refrain from instructing the deponent, Kent Nyberg, not

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). to answer deposition questions” on a specified subject. Relators request a ruling by the

end of the business day “because the subject deposition is tomorrow at 9AM in

Minnesota.”

To be entitled to mandamus relief, the relator must demonstrate that the trial court

clearly abused its discretion and the relator has no adequate remedy by appeal. In re

Lee, 411 S.W.3d 445, 463 (Tex. 2013) (orig. proceeding); In re Reece, 341 S.W.3d 360,

364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124,

135–36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion if it

reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial

error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the

facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.

proceeding) (per curiam). The adequacy of an appellate remedy must be determined by

balancing the benefits of mandamus review against the detriments. In re Team Rocket,

L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding); In re McAllen Med. Ctr., Inc.,

275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding).

An appeal is inadequate when the parties are in danger of permanently losing

substantial rights. In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004)

(orig. proceeding) (per curiam). “Such a danger arises when the appellate court would not

be able to cure the error, when the party's ability to present a viable claim or defense is

vitiated, or when the error cannot be made part of the appellate record.” Id. “If an

appellate court cannot remedy a trial court's discovery error, then an adequate appellate

remedy does not exist.” In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig.

proceeding).

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

and the applicable law, is of the opinion that relators have not met their burden to obtain

mandamus relief. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36.

Accordingly, the petition for writ of mandamus and motion for emergency temporary relief

are DENIED. See TEX. R. APP. P. 52.8(a).

PER CURIAM

Delivered and filed the 5th day of May, 2016.