Opinion filed December 13, 2018




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-18-00318-CV
                                  __________

    IN RE DOUBLE DIAMOND, INC., DOUBLE DIAMOND
MANAGEMENT CORP., DOUBLE DIAMOND UTILITIES CO.,
R. MIKE WARD, CLIFFS GOLF, INC., CLIFFS DINING CORP.,
CLIFFS HOTEL CORP., CLIFFS MARINA INC., CLIFFS CLUB
     CORP., RANDY GRACE, AND DOUBLE DIAMOND-
                  DELAWARE, INC.

                         Original Mandamus Proceeding


                                  OPINION
      This mandamus proceeding arises from a suit filed by Real Parties in Interest,
Dan Dipprey et al. The real parties in interest are members of a property owners
association known as The Cliffs Property Owners’ Association, Inc. They filed suit
against Relators—Double Diamond, Inc., Double Diamond Management
Corporation, Double Diamond Utilities Co., R. Mike Ward, Cliffs Golf, Inc., Cliffs
Dining Corp., Cliffs Hotel Corp., Cliffs Marina, Inc., Cliffs Club Corp., Randy
Grace, and Double Diamond-Delaware, Inc.—concerning the governance of the

                                         1
property owners association. We note at the outset that the property owners
association is not a party to either the underlying suit or this original proceeding.
       Relators have filed a petition for writ of mandamus seeking to vacate various
interlocutory orders by the trial court concerning the annual election of the board of
directors of the property owners association, a “special meeting” of the members of
the property owners association, the tabulation of members’ votes, and the removal
of directors and election of new directors. Relators assert that these orders by the
trial court violate the governing documents of the property owners association. We
deny Relators’ request for mandamus relief.
       Mandamus is an “extraordinary” remedy that is “available only in limited
circumstances.”     Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding). A writ of mandamus will issue only if the trial court clearly abused its
discretion and the relator has no adequate remedy on appeal. In re Prudential Ins.
Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). With respect
to the first requirement, 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. In re
Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)
(per curiam). In addition, because a trial court has no discretion in determining what
the law is or in applying it to the facts, a trial court abuses its discretion if it fails to
correctly analyze or apply the law. See Prudential, 148 S.W.3d at 135; see also In
re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding).
With respect to the second requirement, the cost and delay of pursuing an appeal
will not, in themselves, render appeal an inadequate alternative to mandamus review.
In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004) (orig. proceeding). We do
not reach Relators’ contention that the trial court has clearly abused its discretion




                                             2
because we conclude that Relators have not established that they do not have an
adequate remedy by appeal.1
        The trial court’s rulings that are the subject of this original proceeding are
interlocutory rulings by the trial court made during the pendency of the underlying
suit. The adequacy of appeal as a remedy for an alleged clear abuse of discretion in
an interlocutory ruling involves a balance of jurisprudential considerations. In re
Prudential, 148 S.W.3d at 136. An appellate remedy is “adequate” when any
benefits to mandamus review are outweighed by the detriments. Id. When the
benefits outweigh the detriments, appellate courts must consider whether the
appellate remedy is adequate. Id.
        “As a general rule, mandamus does not lie to correct incidental trial court
rulings when there is a remedy by appeal.” In re Entergy, 142 S.W.3d at 320 (citing
Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex. 1990)). As
noted by the Texas Supreme Court in In re Prudential:
        Mandamus review of incidental, interlocutory rulings by the trial courts
        unduly interferes with trial court proceedings, distracts appellate court
        attention to issues that are unimportant both to the ultimate disposition
        of the case at hand and to the uniform development of the law, and adds
        unproductively to the expense and delay of civil litigation.

148 S.W.3d at 136. “The reluctance to issue extraordinary writs to correct incidental
trial court rulings can be traced to a desire to prevent parties from attempting to use
the writ as a substitute for an authorized appeal.” In re Entergy, 142 S.W.3d at 320.
Appellate courts will not exercise mandamus jurisdiction over interlocutory trial
court rulings absent “special, unique circumstances” that mandate intervention. Id.
at 321.

        1
         We express no opinion concerning whether the trial court has correctly interpreted the governing
documents of the property owners association. As noted in our opinion, this is an issue that we have not
reached.

                                                   3
       An appeal is inadequate when 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). “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. As
observed by the Austin Court of Appeals, “the most frequent use of mandamus relief
by the supreme court involves cases in which the very act of proceeding to trial—
regardless of the outcome—would defeat the substantive right involved.” In re
Empower Texans, Inc., No. 03-18-00220-CV, 2018 WL 1802515, at *3 (Tex.
App.—Austin Apr. 17, 2018, orig. proceeding) (mem. op.) (listing the circumstances
wherein the supreme court has recently granted mandamus relief for interlocutory
trial court rulings).
       Other than asserting that they have “urgent issues,” Relators have not asserted
they do not have an adequate remedy by appeal. We conclude that Relators have an
adequate remedy by appeal. The proper tabulation of votes and the composition of
the board of directors are matters that can be litigated at the trial on the merits, which
has not yet occurred. Furthermore, the trial court’s rulings would not seem to impair
Relators’ presentation of evidence at trial or their ability to litigate the matter on
appeal. It would appear that all votes/proxies cast can be preserved for the trial court
or jury to consider at the trial on the merits.
       The trial court’s task of interpreting the governing documents for the property
owners association is one typically undertaken by a trial court in the summary
judgment context. Issues resolved by summary judgment are typically not subject
to mandamus review. See In re Gibson, 533 S.W.3d 916, 921 (Tex. App.—
Texarkana 2017, orig. proceeding). Any error arising from incidental trial court
rulings concerning the legal interpretation of documents is a matter that typically can
be corrected on appeal. To hold otherwise would be permitting Relators to pursue
                                            4
an impermissible interlocutory appeal of the trial court’s interlocutory orders. See
In re Entergy, 142 S.W.3d at 320; see also In re Brar, 463 S.W.3d 921, 923 (Tex.
App.—Dallas 2015, orig. proceeding) (“Granting the relief relator seeks would
result in nothing more than the piecemeal resolution of the suit.”). Accordingly, we
deny Relators’ requested mandamus relief solely on the basis that this is not the sort
of exceptional case that warrants the extraordinary remedy of mandamus.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE




December 13, 2018
Panel consists of: Bailey, C.J.,
Willson, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

                                                      5
