NUMBER 13-16-00251-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE PATRICK LUTHEN, RACHEL LUTHEN, AND ANDREW LUTHEN
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion Per Curiam1
Relators, Patrick Luthen, Rachel Luthen, and Andrew Luthen, filed a petition for
writ of mandamus and motion for emergency temporary relief on May 5, 2016. Through
this original proceeding, relators seek to set aside an order limiting the scope of the
deposition of a non-party, non-resident witness. By emergency motion, relators request
this Court to “order the parties to refrain from instructing the deponent, Kent Nyberg, not
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.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
to answer deposition questions” on a specified subject. Relators request a ruling by the
end of the business day “because the subject deposition is tomorrow at 9AM in
Minnesota.”
To be entitled to mandamus relief, the relator must demonstrate that the trial court
clearly abused its discretion and the relator has no adequate remedy by appeal. In re
Lee, 411 S.W.3d 445, 463 (Tex. 2013) (orig. proceeding); In re Reece, 341 S.W.3d 360,
364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135–36 (Tex. 2004) (orig. proceeding). A trial court clearly 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 the law correctly or apply the law correctly to the
facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (per curiam). The adequacy of an appellate remedy must be determined by
balancing the benefits of mandamus review against the detriments. In re Team Rocket,
L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding); In re McAllen Med. Ctr., Inc.,
275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding).
An appeal is inadequate when the parties are in danger of permanently losing
substantial rights. In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004)
(orig. proceeding) (per curiam). “Such a danger arises when the appellate court would not
be able to cure the error, when the party's ability to present a viable claim or defense is
vitiated, or when the error cannot be made part of the appellate record.” Id. “If an
appellate court cannot remedy a trial court's discovery error, then an adequate appellate
remedy does not exist.” In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig.
proceeding).
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The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that relators have not met their burden to obtain
mandamus relief. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36.
Accordingly, the petition for writ of mandamus and motion for emergency temporary relief
are DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM
Delivered and filed the
5th day of May, 2016.
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