Court of Appeals of Texas, Third District, Austin
THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-17-005456, THE HONORABLE AMY CLARK MEACHUM, JUDGE
Justices Goodwin, Baker, and Kelly.
J. Baker, Justice.
his parole was revoked, Kirk Wayne McBride, Sr., sued the
Texas Board of Pardons and Paroles (the Board); David
Gutierrez, who is the chair of the Board; Pamela Thielke, who
is the director of the Texas Department of Criminal Justice;
and Michael Arellano, who is a parole officer according to
McBride (collectively the defendants). In his suit, McBride
alleged, among other things, that the defendants violated his
contractual rights when his parole was revoked. After suing
the defendants, McBride filed a motion for summary judgment
asserting that he was entitled to judgment as a matter of law
on his breach-of-contract claim. The Board and Gutierrez
filed a response to McBride's motion asserting that he
was not entitled to summary judgment because his motion
sought relief on grounds that were not included in his live
petition and because McBride failed to establish as a matter
of law that a contract existed between himself and the Board
and Gutierrez. After reviewing the motion and the response,
the district court denied McBride's motion for summary
the district court's ruling, McBride filed in this Court
a notice of appeal challenging the district court's order
denying his summary-judgment motion. This Court sent a letter
to the parties asking them to explain how this Court may
exercise jurisdiction over this appeal. See Tex.
Civ. Prac. & Rem. Code § 51.014 (authorizing appeals
of certain interlocutory orders). In his response, McBride
acknowledges that, in general, "under Texas law a party
cannot appeal the denial of a motion for summary judgment
because it is an interlocutory order and thus not
appealable." However, McBride contends that this Court
can exercise jurisdiction over his appeal because the
district court's order "is a final and appealable
order" disposing of his breach-of-contract claim. In
other words, McBride argues that the district court's
ruling essentially determined as a matter of law that there
was no contract between the parties and that, therefore,
there "are no claims left to be adjudicated."
disagree. "[T]he denial of a motion for summary judgment
is merely an interlocutory order and is in no way final;
therefore, such an order does not finally decide any question
before the trial court." Hansberger v. EMC Mortg.
Corp., No. 04-08-00438-CV, 2009 WL 2264996, at *3 (Tex.
App.-San Antonio July 29, 2009, pet. denied) (mem. op.).
Although the legislature has authorized appellate review of
certain interlocutory rulings by trial courts, including
certain types of orders denying summary judgment,
see Tex. Civ. Prac. & Rem. Code §
51.014(a), the legislature has not authorized an
interlocutory appeal for summary-judgment rulings like the
one at issue in this case. Because the district court's
order does not fit within one of the statutory exceptions
created by the legislature, this Court does not have
jurisdiction to consider McBride's appeal of the district
court's order denying his motion for summary judgment.
See Fields v. Geico Advantage Ins. Co., No.
01-16-00555-CV, 2016 WL 6599614, at *1 (Tex. App.-Houston
[1st Dist.] Nov. 8, 2016, no pet.) (per curiam) (mem. op.);
William Marsh Rice Univ. v. Coleman, 291 S.W.3d 43,
46 (Tex. App.-Houston [14th Dist.] 2009, pet. dism'd).
response, McBride contends that even if this Court determines
that it does not have jurisdiction over this interlocutory
appeal, we should construe his response as a petition for
writ of mandamus asking this Court to direct "the
district court to vacate its order denying" his
"motion for summary judgment and enter an order granting
the motion." Essentially, McBride urges that the
district court misapplied the law when it determined that no
contract existed and, therefore, abused its discretion by
denying his summary-judgment motion.
assuming that McBride satisfied the requirements for filing a
petition for writ of mandamus, see Tex. R. App. P.
52.1-.11, we would be unable to grant the relief requested.
"The standards generally applied in a mandamus
proceeding are well-established: 'mandamus will issue
only to correct a clear abuse of discretion or the violation
of a duty imposed by law' and when the petitioning party
lacks an adequate remedy by appeal." In re
Turner, 500 S.W.3d 641, 642 (Tex. App.-Austin 2016,
orig. proceeding) (quoting In re Columbia Med. Ctr. of
Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex.
2009) (orig. proceeding)). Mandamus relief will not be
granted "when the law provides another plain, adequate,
and complete remedy." In re Texas Dep't of
Family & Protective Servs., 210 S.W.3d 609, 613
(Tex. 2006) (orig. proceeding). "[A]n appellate remedy
is not inadequate merely because it may involve more expense
or delay than obtaining an extraordinary writ."
Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992)
(orig. proceeding). "[S]tanding alone, delay and expense
generally do not render a final appeal inadequate."
In re Gulf Expl., L.L.C., 289 S.W.3d 836, 842 (Tex.
2009) (orig. proceeding); see also In re City of
Dallas, 445 S.W.3d 456, 462 (Tex. App.-Dallas 2014,
orig. proceeding) (explaining that "to conclude that
mandamus review is available in any situation where a trial
court may have committed reversible error would be to
fundamentally alter our system of trial and appeal" and
that "mandamus review is more appropriately reserved for
trial court errors" that elude appellate review
"and which forever deprive a party of a right that
cannot be restored by reversal on appeal").
speaking, mandamus relief is not available when a trial court
denies a motion for summary judgment regardless of the merits
of the motion. In re United Servs. Auto. Ass'n,
307 S.W.3d 299, 314 (Tex. 2010) (orig. proceeding).
"Only extraordinary circumstances will justify granting
mandamus relief when a trial court erroneously denies a
motion for summary judgment." In re Ooida Risk
Retention Grp., Inc., 475 S.W.3d 905, 913 (Tex.
App.-Fort Worth 2015, orig. proceeding). For example, courts
have found extraordinary circumstances justifying mandamus
relief where a party had "already endured one trial in a
forum that lacked jurisdiction," pursued two appeals of
that ruling, and was "facing a second trial on a claim
that" was "barred by limitations," see
United Servs., 307 S.W.3d at 314; where a
summary-judgment motion addressed paternity in a suit
affecting the parent-child relationship because "issues
involving the rights of parents and children should be
resolved expeditiously," see In re S.T., 467
S.W.3d 720, 729 (Tex. App.-Fort Worth 2015, orig.
proceeding); and where a four-year-old personal injury case
had been put on hold while the parties litigated "an
unenforceable settlement agreement," see In re
Robison, 335 S.W.3d 776, 783 (Tex. App.-Amarillo 2011,
orig. proceeding [mand. denied]) (per curiam). McBride has
made no comparable showing of extraordinary circumstances in
this case. See In re Ooida Risk, 475 S.W.3d at
913-14 (denying mandamus relief pertaining to denial of
motion for summary judgment asserting breach-of-contract
claim). Accordingly, without expressing any opinion on the
district court's ruling denying summary judgment, we
would conclude that McBride has not established entitlement
to the extraordinary relief of a writ of mandamus even
assuming that McBride fully complied with the procedural
requirements for filing a petition for writ of mandamus.
the reasons previously given, we dismiss McBride's appeal