Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 16,
2012.




                                        In The

                      Fourteenth Court of Appeals

                                   NO. 14-12-00929-CV



                          IN RE ROCE M. LOPEZ, Relator


                           ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                      On Appeal from the 190th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2009-50621


                           MEMORANDUM OPINION

      On October 8, 2012, relator Roce M. Lopez filed a petition for writ of mandamus
in this court. See Tex. Gov’t Code §22.221; see also Tex. R. App. P. 52. In the petition,
relator asks this court to compel the Honorable Patricia Kerrigan, presiding judge of the
190th District Court of Harris County, to correct or reform a partial summary judgment
signed April 13, 2011, in favor of relator’s former employer, La Madeleine of Texas Inc.
[La Madeleine], who was named as one of the defendants below.
         La Madeleine filed a traditional and no-evidence motion for summary judgment
on all of relator’s workplace discrimination and related claims against it, which were
brought under the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab.
Code §§ 21.001—.556; Waffle House, Inc. v. Williams, 313 S.W.3d 796, 808-09 (Tex.
2010) (holding that statutory regime under the TCHRA comprehensively addresses
employer-employee relations and precludes recovery for common law torts based on
same conduct). The trial court granted the motion as to all of relator’s claims against La
Madeleine.

         In a single issue, relator complains that the 2011 partial summary judgment is
improper with respect to its respondeat superior theory of La Madeleine’s liability for an
alleged assault at the workplace. Relator also asserts that the trial court’s order
improperly “dismissed with prejudice” relator’s claims against La Madeleine. See
Martinez v. S. Pac. Transp. Co., 951 S.W.2d 824, 830 (Tex. App.—San Antonio 1997, no
writ) (affirming summary judgment as modified to delete dismissal language); see also P
& S Corp. v. Park, No. 14-05-00115-CV, 2006 WL 1168804, *4 (Tex. App.—Houston
[14th Dist.] May 4, 2006, no pet) (mem. op.) (same). Relator seeks to have the partial
summary judgment modified to reinstate La Madeleine as a defendant in the underlying
case as to her assault claim, under the doctrine of respondeat superior, and to delete the
language dismissing her other claims against La Madeleine with prejudice.

         Mandamus is an extraordinary remedy that will issue only if (1) the trial court
clearly abused its discretion and (2) the party requesting mandamus relief has no
adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36
(Tex. 2004). We determine the adequacy of an appellate remedy by balancing the
benefits of mandamus review against its detriments. Id. at 136. In evaluating benefits and
detriments, we consider whether mandamus will preserve important substantive and
procedural rights from impairment or loss. Id. The adequacy of an appeal depends on the
facts involved in each case. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 469 (Tex.
2008).
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      A party seeking an extraordinary writ of mandamus has the burden to demonstrate
that that the remedy available through an ordinary appeal is inadequate. Walker v.
Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding). Based upon the record
before this court, it appears that relator has an adequate remedy by appeal from the final
judgment, which will incorporate the partial summary judgment. See Tex. Civ. Prac. &
Rem. Code § 51.012 (providing for appeals from final judgments); Lehmann v. Har–Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001) (reciting general rule that absent statutory
exception, appeals may be taken only from final judgments). An appellate remedy is not
inadequate merely because it may involve more expense or delay, but extraordinary relief
may be warranted when the trial court’s order subjects taxpayers, defendants, and the
state’s district courts to meaningless proceedings or trials. See In re Team Rocket, L.P.,
256 S.W.3d 247, 262 (Tex. 2008) (finding appellate remedy inadequate where integrity
of venue statute would be compromised in an irreversible waste of resources).

      Relator has not established that a remedy by appeal is inadequate in this case.
Accordingly, we deny relator’s petition for writ of mandamus.



                                     PER CURIAM



Panel consists of Chief Justice Hedges and Justices Brown and Busby.




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