## NUMBER 13 - 2 2 - 00 518 - C V 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 Benavides 1 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 favo r of the real parties in interest, Jaime Flores and Veronica Flores, individually and as representative of the estate of A.F., and as n ext

1 See T EX

. R. A PP

. 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).2

friend s of J.C. , a minor child. Relator has also filed an unopposed motion to stay the trial of this case which is pres ently set to occur in March of 2023.
M andamus 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 part ies in interest , the reply filed by relator , the record, and the applicable law, is of the opinion that relator ha s failed to meet its burden to obtain relief. First, r elator bases its contentions and argument , in part, on the law pertaining to the designation of responsible third parties. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 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])3

(“ [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 t he 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.”). Sec ond, 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, n either 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, 7 12

– 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 partial4

summary judgment depend on speculation insofar as t he 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 con tentions that the trial court has precluded the submission of the issue of contributory negligence to the jury are premature. S ee 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. S ee 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 mandam us

. See T EX

. R. A PP

. 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 27t h day of February , 202 3

.