Opinion
05-23-01263-CV
01-24-2024
IN RE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Relator
Original Proceeding from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-20-01121-D
Before Justices Pedersen, III, Nowell, and Miskel
MEMORANDUM OPINION
ERIN A. NOWELL JUSTICE
The suit underlying this original proceeding is a wrongful-death and survival suit brought by the son and the estate of the wife of a decedent who played collegiate football for Southern Methodist University. Real parties in interest assert claims against relator for negligence and gross negligence, alleging relator failed to take effective action to protect decedent from the long-term effects of concussions and sub-concussive blows to the head while he played collegiate football.
In August 2022, the Honorable Paula Rosales signed an order granting real parties' traditional and no-evidence summary-judgment motion on relator's purported defense that decedent was proportionately responsible for his own injuries. Respondent the Honorable Dianne K. Jones succeeded Judge Rosales, and relator filed a motion for reconsideration. On October 27, 2023, respondent denied relator's request for reconsideration of the summary-judgment ruling at issue.
Now before the Court is relator's December 13, 2023 petition for writ of mandamus. Relator challenges respondent's October 27, 2023 order denying relator's request for reconsideration of the August 2022 summary-judgment ruling at issue. Relator also contends respondent orally ruled at the hearing on relator's motion for reconsideration that relator would be precluded from seeking submission of a jury question on decedent's proportionate responsibility.
Relator asks this Court to compel respondent to (1) vacate its order denying relator's motion for reconsideration, (2) issue an order reconsidering and denying real parties' summary-judgment motion as to decedent's proportionate responsibility, and (3) permit relator to present evidence and seek submission of a jury question regarding decedent's proportionate responsibility.
Entitlement to mandamus relief requires relator to show that the trial court clearly abused its discretion and that relator lacks an adequate appellate remedy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Relator bears the burden of providing the Court with a record sufficient to show it is entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).
Relator was required to file with its petition "a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding." TEX. R. APP. P. 52.7(a)(1). Because the parties in an original proceeding assemble their own record, this Court strictly enforces the requirements of rule 52 to ensure the integrity of the mandamus record. In re Vasquez, No. 05-15-00592-CV, 2015 WL 2375504, at *1 (Tex. App.-Dallas May 18, 2015, orig. proceeding) (mem. op.).
Here, relator did not include in its mandamus record a copy of any answer it filed to real parties' petition. We also lack a complete summary-judgment record. Relator omitted from its mandamus record all exhibits that real parties filed with their summary-judgment motion and several exhibits relator filed with its response to the summary-judgment motion. Relator contends that the omitted exhibits are "not material" to this original proceeding. But we must presume that the omitted exhibits support the summary-judgment ruling. See DeSantis v. Wackenhut Corp., 793 S.W.3d 670, 689 (Tex. 1990) ("Absent a complete record of the summary judgment evidence, an appellate court must presume that the omitted documents support the judgment of the trial court."). In its motion for reconsideration, relator also incorporated by reference "the [relator's] Motion for Summary Judgment briefing, . . . including [the] exhibits thereto," as well as its initial response to real parties' summary-judgment motion. But relator did not include the referenced summaryjudgment motion and exhibits in its mandamus record.
Accordingly, to the extent relator challenges respondent's order denying relator's motion for reconsideration (or the merits of the August 2022 summaryjudgment ruling), we conclude relator has failed to meet its burden to provide a record sufficient to support its request for mandamus relief.
To the extent relator asks this Court to compel respondent to permit relator to present evidence and seek submission of a jury question regarding decedent's proportionate responsibility at trial, we conclude relator's complaints are premature.
Even if we consider the record and petition before us, and to the extent relator's complaints are not premature, we conclude that relator has failed to demonstrate entitlement to any of the requested mandamus relief. See TEX. R. APP. P. 52.8(a).
Accordingly, we deny relator's petition for writ of mandamus.