Petition for Writ of Mandamus Denied and Memorandum Opinion filed April 

11, 2013.

In The

Fourteenth Court of Appeals

NO. 14-13-00243-CV

IN RE MARK THUESEN, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

151st District Court

Harris County, Texas

Trial Court Cause No. 2012-49262

MEMORANDUM OPINION

On March 26, 2013, relator Mark Thuesen filed a petition for writ of 

mandamus in this court. See Tex. Gov’t Code §22.221; see also Tex. R. App. P. 

52. In the petition, relator asks this court to compel the Honorable Mike Engelhart,

presiding judge of the 151st District Court of Harris County, to set aside his order 

denying relator’s motion for partial summary judgment and to grant the motion.

Relator was an owner and resident of a condominium project known as 2520 

Robinhood, and he formerly served as president of the 2520 Robinhood at Kirby 
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Condominium Association. The record in this proceeding indicates that relator, the 

condominium association, and its management company have been involved in 

several lawsuits with neighbors and members of the Houston real estate 

community.

Swamplot Industries, LLC operates a website, Swamplot.com, which reports 

on matters related to Houston real estate. Laurence Albert, and his wife, Beth 

Brinsdon, operate Swamplot, including the website. Swamplot.com posted a 

number of stories related to the 2520 Robinhood lawsuits. In May of 2011, relator 

and the condominium association filed suit against Swamplot.com. based on 

comments posted on the site, but the action was non-suited a few months later. In 

August of 2012, Swamplot Industries, Albert, and Brinsdon, filed the underlying 

suit against relator and others, alleging malicious prosecution, defamation, and 

other related claims. 

On February 11, 2013, relator filed a motion for partial summary judgment 

on five causes of action: (1) trespass to real property; (2) invasion of Privacy by 

intrusion on seclusion; (3) public disclosure of private facts; (4) product 

disparagement; and (5) violations of the Texas Wiretap Act. Relator included his 

own affidavit “unequivocally denying any involvement in these causes of action.” 

The real parties responded, objecting that discovery had not been completed. An 

affidavit from real party Albert was included with the response. On March 6, 2013, 

the trial court denied relator’s motion for partial summary judgment. This 

proceeding followed.

Relator raises two issues in this proceeding. He asserts that his motion for 

summary judgment was denied in error and that the real party’s affidavit filed in 

response to the summary judgment motion was defective and void.
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Mandamus is an extraordinary remedy that will issue only if (1) the trial 

court clearly abused its discretion and (2) the party requesting mandamus relief has 

no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 

135–36 (Tex. 2004). We determine the adequacy of an appellate remedy by 

balancing the benefits of mandamus review against its detriments. Id. at 136. In 

evaluating benefits and detriments, we consider whether mandamus will preserve 

important substantive and procedural rights from impairment or loss. Id.

A trial court 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 or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164 

S.W.3d 379, 382 (Tex. 2005). When reviewing the trial court’s decision for an 

abuse of discretion, we may not substitute our judgment for that of the trial court 

with respect to the resolution of factual issues or matters committed to the trial 

court’s discretion. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

Mandamus is generally unavailable when a trial court denies summary 

judgment, no matter how meritorious the motion, because “trying a case in which 

summary judgment would have been appropriate does not mean the case will have 

to be tried twice.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465–66 (Tex.

2008) (stating that parties are not “entitled” to summary judgment in the same way 

they are entitled to arbitration). Only the most extraordinary circumstances warrant 

mandamus relief from the erroneous denial of a motion for summary judgment. See 

In re USAA, 307 S.W.3d 299, 314 (Tex. 2010) (granting relief to enforce

limitations after relator had already endured trial in incorrect jurisdiction). Relator 

has not presented such extraordinary circumstances.

Relator argues only that because an interlocutory order denying a motion for 

summary judgment may not be immediately appealed, he lacks an adequate 
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appellate remedy. As the Texas Supreme Court has repeatedly held, the cost or 

delay incident to pursuing an appeal does not make the remedy inadequate. See In 

re Kansas City S. Indus, Inc., 139 S.W.3d 669, 670 (Tex. 2004).

Relator has an adequate remedy by appeal after a final judgment is signed in 

the underlying case. Accordingly, we deny his petition for writ of mandamus.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.