ACCEPTED
01-15-00267-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/25/2015 11:26:37 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00267-CV
IN THE FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST COURT OF APPEALS 3/25/2015 11:26:37 AM
CHRISTOPHER A. PRINE
AT HOUSTON, TEXAS Clerk
__________________________________________________________
In re SOLID SOFTWARE SOLUTIONS, INC.,
d/b/a EDIBLE SOFTWARE
___________________________________________________________
Original Proceeding arising from Cause No. 2013-748, in t66he
215th 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,
complaining 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
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 appropriate 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
relator 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 substantial 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 established schedule will almost certainly be lost, should the Court
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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 dearth 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 court
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
APPELLATE COUNSEL FOR
REAL PARTY IN INTEREST ANDREA FARMER
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CERTIFICATE 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
COUNSEL FOR RELATOR
SOLID SOFTWARE SOLUTIONS, INC.
Hon. Elaine H. Palmer
215th District Court
201 Caroline, 13th Floor
Houston, Texas 77002
RESPONDENT
/s/ Iain G. Simpson
________________________________
Iain G. Simpson
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