in Re Rosa I. Perez

• Court: Court of Appeals of Texas
• Decided: May 11, 2022
• Docket: 13-21-00456-CV
• Status: Published

Opinion

NUMBER 13-21-00456-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE ROSA I. PEREZ

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Justices Hinojosa, Tijerina, and Silva Memorandum Opinion by Justice Tijerina1

By petition for writ of mandamus, relator Rosa I. Perez asserts that the trial court

abused its discretion by denying relator’s motion for leave to designate David Oropeza as

a responsible third party. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004.

“Mandamus relief is an extraordinary remedy requiring the relator to show that

(1) the trial court clearly abused its discretion and (2) the relator lacks an adequate

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). remedy on appeal.” In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceeding);

see In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36, 138 (Tex. 2004) (orig.

proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).

A trial court abuses its discretion only if its decision is “so arbitrary and unreasonable as

to amount to a clear and prejudicial error of law.” In re K & L Auto Crushers, LLC, 627

S.W.3d 239, 247 (Tex. 2021) (orig. proceeding) (quoting Walker, 827 S.W.2d at 839; see

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

curiam).

Mandamus relief is available when a trial court abuses its discretion in denying a

timely filed motion to designate a responsible third party. In re Eagleridge Operating, LLC,

642 S.W.3d 518, 526 (Tex. 2022) (orig. proceeding); In re Mobile Mini, Inc., 596 S.W.3d

781, 788 (Tex. 2020) (orig. proceeding) (per curiam). “In such cases, an adequate

appellate remedy is ordinarily lacking because allowing a case to proceed to trial without

a properly requested responsible-third-party designation ‘would skew the proceedings,

potentially affect the outcome of the litigation, and compromise the presentation of the

relator’s defense in ways unlikely to be apparent in the appellate record.’” In re Mobile

Mini, Inc., 596 S.W.3d at 788 (cleaned up) (quoting In re Coppola, 535 S.W.3d 506, 509

(Tex. 2017) (orig. proceeding) (per curiam)). Thus, “ordinarily, a relator need only

establish a trial court’s abuse of discretion to demonstrate entitlement to mandamus relief

with regard to a trial court’s denial of a timely-filed [§] 33.004(a) motion.” In re Coppola,

535 S.W.3d at 510.

Although mandamus “is not an equitable remedy, its issuance is largely controlled

2 by equitable principles. One such principle is that equity aids the diligent and not those

who slumber on their rights.” In re Am. Airlines, Inc., 634 S.W.3d 38, 42–43 (Tex. 2021)

(orig. proceeding) (per curiam) (cleaned up) (quoting Rivercenter Assocs. v. Rivera, 858

S.W.2d 366, 367 (Tex. 1993) (orig. proceeding); Callahan v. Giles, 155 S.W.2d 793, 795

(Tex. 1941) (orig. proceeding)). “Thus, a relator who unduly or unreasonably delays filing

a petition for mandamus relief may waive its right to such relief unless the delay is

justified.” In re Am. Airlines, Inc., 634 S.W.3d at 43; see In re Int’l Profit Assocs., Inc., 274

S.W.3d 672, 676 (Tex. 2009) (orig. proceeding) (per curiam).

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

the response filed by the real parties in interest, Guadalupe Oropeza, Suleyma Oropeza,

and Samantha Oropeza, and the applicable law, is of the opinion that relator has not met

her burden to obtain extraordinary relief. The trial court denied relator’s motion for leave

to designate David Oropeza as a responsible third party on February 4, 2021. Relator

filed a motion for rehearing of that decision on March 1, 2021. In an unsigned order dated

March 18, 2021, the trial court ostensibly denied rehearing of relator’s motion to

designate. This original proceeding ensued on December 21, 2021. Relator offers no

explanation or justification for the delay in filing this original proceeding. Accordingly, we

deny the petition for writ of mandamus. See TEX. R. APP. P. 52.8.

JAIME TIJERINA Justice

Delivered and filed on the 11th day of May, 2022.