No. 01

- 15

- 00267

- CV

IN THE

FIRST COURT OF APPEALS

AT HOUSTON , TEXAS

__________________________________________________________

In re SOLID SOFTWARE SOLUTIONS, INC.,

d/b/a EDIBLE SOFTWARE

___________________________________________________________

Original Proceeding arising from Cause No. 201 3- 74 8 , in t 66 he

21 5 th District Court of Harris County, Texas

___________________________________________________________

REAL PARTY IN INTEREST’S OPPOSITION TO

RELATOR’S MOTION FOR TEMPORARY STAY

___________________________________________________________

Andrea Farmer, Real Party in Interest, files this response in

opposition to the Relator’s Motion for Temporary Stay :

Relator filed its Petition for Writ of Mandamus on March 24, 2015,

complaini ng of the trial court’s Order denying the Relator’s Motion to

Dismiss or for Summary Judgment that was entered February 27, 2015

.

This case is set on the trial court’s current trial docket that began on March

23, 2015

.

Mandamus is an extraordinary remedy, reserved for use in instances

of manifest and urgent necessity. Holloway v. Fifth Court of Appeals , 767 ACCEPTED

01-15-00267-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

3/25/2015 11:26:37 AM

CHRISTOPHER PRINE

CLERK2 S.W.2d 680, 684 (Tex. 1989). It is not issued as a matter of right, but solely

at the discretion of the court, In re Prudential Ins. , 148 S.W.3d 124, 138 (Tex.

2003) , and only when the relator “satisfies a heavy burden of establishing

‘compelling circumstances.’” Tilton v. Marshall , 925 S. W.2d 672, 681 (Tex.

1996) . “As a selective procedure, mandamus can correct clear errors in

exceptional cases and afford appropriat e guidance to the law without the

disruption and burden of interlocutory appeal.” Id. But the Court may

issue mandamus only when the relator demonstrates and the Court finds

that (1) the trial court has committed an abuse of discretion and (2) the

relato r lacks any adequate remedy at law. Walker v. Packer , 827 S.W.2d 833,

839 (Tex. 1992)

. Mandamus is generally unavailable when a trial court

denies summary judgment, no matter how meritorious the motion. In re

McAllen Med. Ctr., 275 S.W.3d 458, 465 (Tex. 2008).

In its Petition, the Relator fails even to address the issue of the

adequacy of its remedy by ordinary appeal. It is not clear that the Relator

will lose any s u b s t a n t i a l right by being required simply to try this case and

appeal an adverse result, rather than be excused through summary

disposition . What is clear is that an opportunity to try this case on the trial

court’s establ ished schedule will almost certainly be lost, should the Court3 grant Relator’s Motion for a Temporary Stay. The Relator cites “the

ramifications of moving forward in the trial” without articulating what

those “ramifications” actually are. Due to the dear th of explanation, both

in the Relator’s Petition and its Motion for Temporary Stay, the latter

should be denied.

For these reasons, Andrea Farmer, Real Party in Interest, respectfully

requests that the Relator’s Motion for Temporary Stay of the trial cou rt

proceedings be denied.

Respectfully submitted,

SIMPSON, P.C.

/s/ Iain G. Simpson

______________________________ Iain G. Simpson

State Bar No. 00791667

1333 Heights Boulevard, Suite 102

Houston, Texas 77008

(281) 989

- 0742

(281) 596

- 6960

– fax

iain@simpsonpc.com

A PPELLATE C OUNSEL FOR

R EAL P ARTY IN I NTEREST A NDREA F ARMER4 C ERTIFICATE OF SERVICE

I hereby certify that, on March 25, 2015 , I served a true and correct

copy of the foregoing motion via electronic service, certified mail, facsimile,

or hand delivery on the following:

Gregg M. Rosenberg

Rosenberg & Sprovach

3518 Travis, Suite 200

Houston, Texas 77002

C OUNSEL FOR R ELATOR

S OLID S OFTWARE S OLUTIONS

, I NC

.

Hon. Elaine H. Palmer

215 th District Court

201 Caroline, 13 th Floor

Houston, Texas 77002

R ESPONDENT

/s/ Iain G. Simpson

________________________________ Iain G. Simpson