in Re David L. Jones and Alice Redeker, Relators ( 2004 )

NO. 07-04-0405-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 16, 2004

______________________________



IN RE DAVID L. JONES AND ALICE REDEKER, RELATORS

_________________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

ON MOTION FOR REHEARING

Remaining convinced that our disposition of relator's petition for writ of mandamus per our opinion of October 18, 2004, was correct, relators' motion for rehearing is denied with these additional comments.

Mandamus, as distinguished from an ordinary appeal, is an extraordinary remedy, designed for situations involving manifest and urgent necessity. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989). ⁽¹⁾ In Southern Bag & Burlap Co. v. Boyd, 120 Tex. 418, 38 S.W.2d 565, 569 (Tex. 1931), the Court held that although discovery orders are interlocutory and non-appealable, mandamus may lie if the trial court ordered the production of documents in circumstances that constituted an abuse of discretion. Although mandamus is also available where discovery has been denied, where a relator seeks mandamus relief on that basis, in addition to other things, relator must establish the denial effectively prevented him from developing the merits of his case. Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992).

Discovery requests must be reasonably tailored to include only matters relevant to the case and may not be used as a fishing expedition to impose discovery expenses on the opposing party. In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999). ⁽²⁾ Although relators do not seek an audit or accounting by their pleadings or per Rule 172 of the Texas Rule of Civil Procedure, among other things, the record shows that real party has produced approximately 900 pages of business and financial records sought by relators. Considering these and other principles, we conclude relators have not established that denial of the requested discovery effectively denied them the reasonable opportunity to develop the merits of their case.

Accordingly, the motion for rehearing is denied. ⁽³⁾

Don H. Reavis

Justice

Quinn, J., concurring.

NO. 07-04-0405-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 16, 2004  

______________________________



IN RE DAVID L. JONES AND ALICE REDEKER,

Relators  

_________________________________

Concurring Opinion

______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

I concur in the result of the majority.

In the opinion of In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004), our Supreme Court reaffirmed the principle that absent exceptional circumstances, mandamus will not issue unless the respondent lacks an adequate legal remedy through appeal. Id. at 210, 211. Moreover, that such remedy is lacking must be demonstrated by the respondent. Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992).

Here, the relators posited that the remedy of appeal was inadequate because the "requested documents go to the heart of the Relators['] claim." Yet, this conclusory proposition was not developed or explained. Nor did the relators suggest that exceptional circumstances were present relieving them from their burden to prove the want of an adequate legal remedy. Instead, they focused upon how the trial court abused its discretion in refusing the discovery sought. Establishing the latter does not alone entitle one to a writ of mandamus. Again, the relator must also "demonstrate" how a later appeal would fail to protect him from injury likely to arise from the trial court's purported mistake, and this was not done here. Consequently, I too would vote to overrule the motion for rehearing.

Brian Quinn

Justice

1. Being an original proceeding, mandamus proceedings are subject to the rules set out in section three of the Texas Rules of Appellate Procedure.

2. See 997 S.W.2d at 180 n.1 discussing matters of questionable relevancy and overbroad requests.

3. Rule 47.1 of the Texas Rules of Appellate Procedure does not apply to orders on original proceedings.

See Tex. R. App. P. 52.8.