DENY and Opinion Filed February 19, 2020




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-19-00608-CV

           IN RE BEN E. KEITH CO. AND ANDREW RUTKOWSKI, Relators

                 Original Proceeding from the 193rd Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-17-05464

                             MEMORANDUM OPINION
                          Before Justices Schenck, Reichek, and Evans
                                  Opinion by Justice Schenck
       Relators Ben E. Keith Co. and Andrew Rutkowski filed this petition for a writ of

mandamus challenging the trial court’s March 28, 2019 order granting real party in interest’s

motion to strike the section 18.001 counteraffidavit of Marilyn Pacheco.            Entitlement to

mandamus relief requires relator to show both that the trial court has clearly abused its discretion

and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124,

135–36 (Tex. 2004) (orig. proceeding). After reviewing the petition for writ of mandamus, real

party’s response, the amicus brief filed by the Texas Association of Defense Counsel, and the

mandamus record, we conclude relator has failed to show his remedy by appeal is inadequate.

See In re Jeremiah Parks, No. 05-19-00375-CV, slip op. at 5 (Tex. App—Dallas Feb. 18, 2020,

orig. proceeding) (mem. op.); In re Flores, No. 01-19-00484-CV, 2020 WL 425297, at *1–2

(Tex. App.—Houston [1st Dist.] Jan. 28, 2020, orig. proceeding).
       Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R. APP. P.

52.8(a) (the court must deny the petition if the court determines relator is not entitled to the relief

sought).




                                                       /David J. Schenck/
                                                       DAVID J. SCHENCK
                                                       JUSTICE

190608F.P05




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