in Re: Thomas Gene Brown D/B/A B&B Construction Co

• Court: Court of Appeals of Texas
• Decided: July 25, 2019
• Docket: 05-19-00877-CV
• Status: Published

Opinion

DENY; and Opinion Filed July 25, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00877-CV

IN RE THOMAS GENE BROWN D/B/A B&B CONSTRUCTION CO, Relator

Original Proceeding from the 86th Judicial District Court Kaufman County, Texas Trial Court Cause No. 56631-86

MEMORANDUM OPINION Before Justices Bridges, Osborne, and Carlyle Opinion by Justice Osborne In this original proceeding, relator seeks a writ of mandamus directing the trial court to

vacate its April 22, 2019 partial summary judgment order, and seeks an emergency stay of all trial

court proceedings and a writ of prohibition directing respondent to take no further action in the

underlying proceeding during the pendency of this proceeding. Based on the record before us, we

conclude relator has not shown he is entitled to the relief requested.

To be entitled to mandamus relief, a relator must 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). A partial summary judgment order is not

subject to mandamus review because an adequate remedy is available by appeal once the order

becomes final. In re Spiritas, No. 05-16-00791-CV, 2017 WL 1281394, at *3 (Tex. App.—Dallas

Apr. 6, 2017, orig. proceeding) (mem. op.); see also In re Thompson, No. 05-99-00251-CV, 1999

WL 80713, at *1 (Tex. App.—Dallas Feb. 22, 1999, orig. proceeding) (mem. op.) (denying petition seeking review of three partial summary judgment orders, noting that “Relator clearly has an

adequate remedy at law”); In re Dynamic Health, 32 S.W.3d 876, 881 (Tex. App.—Texarkana

2000, orig. proceeding) (mandamus review unavailable as to non-final, unsevered order granting

partial summary judgment because “[t]here is clearly an adequate remedy at law”). Here, relator

clearly has an adequate remedy at law. 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).

A writ of prohibition is a limited purpose remedy used to enable an appellate court to

protect and enforce its jurisdiction and judgments. Holloway v. Fifth Court of Appeals, 767

S.W.2d 680, 683 (Tex.1989) (orig. proceeding); In re Herrera, No. 05-14-00394-CV, 2014 WL

1477922, at *1 (Tex. App.—Dallas April 14, 2014, orig. proceeding) (mem. op.). Relator has

presented no basis for this Court to issue a writ of prohibition here. Further, having denied relator’s

petition for writ of mandamus, relator’s request for a stay of the underlying proceedings is now

moot. Accordingly, we deny relator’s petition for writ of prohibition and deny relator’s request

for emergency relief.

/Leslie Osborne/ LESLIE OSBORNE JUSTICE

190877F.P05

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