Court of Appeals of Texas, Houston (14th Dist.).

IN RE VALERO REFINING TEXAS, L.P., Relator

NO. 14-19-00691-CV

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Opinion filed January 28, 2020

Attorneys & Firms

Jessica Z. Barger, Houston, Brian Cathey, William C. Book Jr., David W. Burns, Houston, for Relator.

Lucy Forbes, Anthony Glenn Buzbee, Andrew Dao, Houston, Ryan Pigg, for Real party in interest Richard Avilez, Pedro Barajas Et Al.

Byron Miles Buchanan, Houston, Lucy Forbes, Arturo Gonzalez, for Real party in interest Tarango, Jose.

Panel consists of Justices Christopher, Spain, and Poissant.

MEMORANDUM OPINION

PER CURIAM

*1 Relator Valero Refining Texas, L.P. filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. The Honorable Donna Roth, presiding judge of the 295th District Court of Harris County, in orders dated December 31, 2018, and June 19, 2019, denied relator’s motions for summary judgment on relator’s affirmative defense of exclusive remedy pursuant to the Texas Workers’ Compensation Act. See Tex. Lab. Code Ann. §§ 406.123, 408.001(a). Relator asks this court to compel Judge Roth to grant relator’s motions for summary judgment and render judgment in relator’s favor.

On February 25, 2019, and August 2, 2019, Judge Roth denied relator’s motions for permissive interlocutory appeal on relator’s affirmative defense of exclusive remedy. Alternatively, relator asks this court to compel Judge Roth to grant relator permission to bring an interlocutory appeal of her rulings on the exclusive-remedy defense.

Relator has not shown that it is entitled to mandamus relief. Accordingly, we deny relator’s petition for writ of mandamus.

(Christopher, J., concurring)

(Poissant, J., joining both the Memorandum Opinion and Concurring Memorandum Opinion).

CONCURRING MEMORANDUM OPINION

Tracy Christopher Justice, concurring.

I concur in the denial of the mandamus at this time because Valero has not established that it is entitled to extraordinary relief. This case does not come to us on cross-motions for summary judgment. The plaintiffs and intervenors argued below that Valero has waived its right to assert the exclusive-remedy provision of the Texas Worker’s Compensation Act. (Waiver is generally a fact question although they seemed to argue waiver as a matter of law.) They also argued below that fact issues precluded Valero’s permissive interlocutory appeal. The trial court denied both motions presumably because the court found a fact issue.

Valero asserts as a ground for extraordinary relief that waiting for an appeal after a minimum of three trials on the merits of the case for what it characterizes as a mass tort is extraordinary. Valero also argues that it will be prejudiced by having to try the immunity defense with the merits of the case. These issues can be remedied by asking for a separate trial on the immunity issue on remand. This trial should take place before the trial on the merits. Valero notes (in footnote 5 of its petition for mandamus) that the court can avoid prejudice through this separate trial procedure. Yet Valero provided no excuse for not seeking this method before a petition for mandamus. If the trial court had denied such a motion, then my review of this mandamus would have been quite different.

I respectfully concur in the denial at this time.