Luby's Cafeterias, Inc., In re, 14-98-01030-CV

Citation979 S.W.2d 813
Decision Date05 November 1998
Docket NumberNo. 14-98-01030-CV,14-98-01030-CV
PartiesIn re LUBY'S CAFETERIAS, INC., Relator. (14th Dist.)
CourtCourt of Appeals of Texas

Page 813

979 S.W.2d 813
No. 14-98-01030-CV.
Court of Appeals of Texas,
Houston (14th Dist.).
Nov. 5, 1998.

Page 814

Michael L. Holland, San Antonio, David M. Gunn, Houston, for relator.

Michael J. Hengst, B.J. Walter, Jr., Houston, for respondent.

Before Justices SEARS, CANNON and DRAUGHN. *


BILL CANNON, Justice (Assigned).

This mandamus proceeding arises out of a negligence suit filed by Elizabeth Gaetjen ("Gaetjen") against her employer, Luby's Cafeterias, Inc. ("Luby's"), after Gaetjen was sexually assaulted in the workplace by a fellow employee. The relator, Luby's, contends the trial court abused its discretion by refusing to abate the negligence trial until the Texas Workers' Compensation Commission decides whether Gaetjen, the real party in interest, sustained a compensable injury. See generally TEX. LAB.CODE ANN. Ch.402 (Vernon 1996). We agree and conditionally grant mandamus relief.


In April 1995, Gaetjen, who is mildly retarded, was employed as a bus person at a Luby's Cafeteria in Houston, Texas. At that time, Gaetjen was sexually assaulted over the course of three days by a fellow employee, Antonio Aguirre. Following the incidents, Gaetjen filed a complaint with the Houston Police Department and a workers' compensation claim. On May 15, 1995, Luby's workers' compensation carrier, TIG Premier Insurance Company ("TIG"), denied the claim on the ground that Gaetjen did not sustain a compensable injury. Gaetjen did not seek review of this determination. See TEX. LAB.CODE ANN. Ch. 410 (Vernon 1996). In August 1996, Aguirre was convicted of sexually

Page 815

assaulting Gaetjen and sentenced to five years in the Texas Penitentiary.

In April 1997, almost two years after the incident, Gaetjen filed the underlying negligence suit against Luby's. On December 10, 1997, after discovery revealed information about Aguirre's past criminal record and after urging by Luby's counsel, TIG reopened Gaetjen's claim. The parties proceeded to a benefit review conference and then a contested case hearing. See TEX. LAB.CODE ANN. §§ 410.021, 410.024, 410.151 (Vernon 1996). On June 21, 1998, the hearing officer found Gaetjen sustained a compensable injury and ordered TIG to pay benefits. On July 7, 1998, Gaetjen appealed this ruling. See TEX. LAB.CODE ANN. § 410.202 (Vernon 1996). Ten days later, Luby's requested an abatement of the September 8, 1998 trial, pending a final decision by the Commission. Luby's did not obtain a ruling on its motion.

On August 21, 1998, the appeals panel reversed the hearing officer's decision and remanded the case for a determination of whether the assaults were motivated by personal reasons and not directed to Gaetjen as an employee or because of her employment. See id. § 406.032(1)(C). On August 27, 1998, Luby's again requested an abatement of the trial pending a final decision by the Commission. On September 4, 1998, the trial court denied Luby's motion and retained the case on its trial docket. On September 10, 1998, Luby's filed this mandamus proceeding. Since the filing of Luby's petition, the hearing officer has determined on remand that Gaetjen's injury is compensable. At oral argument, Gaetjen's counsel acknowledged there will be an appeal of the hearing officer's decision.


Mandamus relief is available if the trial court violates a duty imposed by law or clearly abuses its discretion, either in resolving factual issues or in determining legal issues, when there is no other adequate remedy by law. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). Generally, appellate courts lack jurisdiction to issue writs of mandamus to supervise or correct incidental rulings of a trial judge when there is an adequate remedy by appeal. See Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985). The refusal to abate is such an incidental ruling for which there is an adequate remedy by appeal. See id. at 567; Coastal Oil & Gas Corp. v.. Flores, 908 S.W.2d 517, 518 (Tex.App.--San Antonio 1995, orig. proceeding) (opinion on motion for leave). There are limited exceptions to this rule such as when one court interferes with the jurisdiction of another court or when a party seeks to enforce mandatory statutory rights. See Hall v. Lawlis, 907 S.W.2d 493, 495 (Tex.1995); see also In re Kimball Hill Homes Texas, Inc., 969 S.W.2d 522, 524-25 (Tex.App.--Houston [14 th Dist.] 1998, orig. proceeding) (and the cases cited therein). None of these exceptions are applicable here. 1

Relying on Mantas v. Fifth Court of Appeals, 925 S.W.2d 656 (Tex.1996), Luby's contends it is entitled to mandamus relief. In Mantas, the plaintiff obtained a judgment against the defendant in a commercial dispute and the defendant appealed. 925 S.W.2d at 657. The court of appeals ordered the parties to mediation, where they reached and signed a settlement agreement. Id. at 657-58. Before the settlement documents were filed with the court of appeals, the plaintiff withdrew his consent. Id. at 658. The defendant moved to enforce the settlement,

Page 816

but the court of appeals denied the motion. Id. Consequently the defendant filed a separate suit in the district court to enforce the settlement agreement. Id. The defendant then requested abatement of the appeal pending resolution of his enforcement suit. Id. When the court of appeals denied abatement, the defendant sought a writ of mandamus in the supreme court. Id.

The supreme court held that the defendant was entitled to mandamus relief, concluding that "it makes no sense for the court of appeals to expend its resources and require the parties to expend theirs on an appeal which may be moot." Id. at 659. The court also concluded that "a ruling on the merits of the appeal before judgment is rendered in the enforcement suit would inject needless uncertainty and confusion into the issues surrounding the settlement." Id. Finally, the court determined that the defendant lacked an adequate remedy by appeal because "if the agreement is upheld, [he] will have lost much of the settlement's benefit if he has been required to expend time and resources in prosecuting the appeal."

We believe the reasoning in Mantas is equally applicable here. Claiming that Gaetjen has sustained a compensable injury, Luby's has asserted the exclusive remedy defense to Gaetjen's negligence claim. See TEX. LAB.CODE ANN. § 408.001(a) (Vernon 1996) ("recovery of workers compensation benefits is the exclusive remedy of an...

To continue reading

Request your trial
20 cases
  • TCI Cavlevision v. Owens, TELE-COMMUNICATION
    • United States
    • Court of Appeals of Texas
    • January 27, 2000
    ...... 8 S.W.3d 837 (Tex.App.-Beaumont 2000) . CI CABLEVISION OF DALLAS, INC., TCI CABLEVISION OF . HOUSTON, INC., TCI CABLEVISION OF TEXAS, INC., . ... within the peculiar competence of the agency.'" In re Luby's Cafeterias, Inc., 979 S.W.2d 813, 816 (Tex. App.--Houston [14th Dist.] 1998, no pet.) ......
  • Northwinds Abatement v. Employers Ins. of Wausau, Civ.A. H-93-1776.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 28, 1999
    ... . 70 F.Supp.2d 699 . NORTHWINDS ABATEMENT, INC., Plaintiff, . v. . EMPLOYERS INSURANCE OF WAUSAU, A Mutual Company, ... within the peculiar competence of the agency." In re Luby's Cafeterias, Inc., 979 S.W.2d 813, 816 (Tex.App. — Houston [14th Dist.] 1998, no ......
  • In re Tyler Asphalt & Gravel Co., Inc., 14-03.-00073-CV.
    • United States
    • Court of Appeals of Texas
    • May 29, 2003
    .......         Both parties rely on In re Luby's Cafeterias, Inc., 979 S.W.2d 813 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding), to support their ......
  • In re Plainscapital Bank, NUMBER 13-17-00021-CV
    • United States
    • Court of Appeals of Texas
    • June 8, 2018
    ...... See Axelson , Inc . v . McIlhany , 798 S.W.2d 550, 556 (Tex. 1990) (orig. proceeding); ...App.—Beaumont 2003, orig. proceeding); In re Luby's Cafeterias......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT