State Dept. of Highways and Public Transp. v. Ross
| Decision Date | 22 May 1986 |
| Docket Number | No. 12-86-0089-CV,12-86-0089-CV |
| Citation | 718 S.W.2d 5 |
| Parties | STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Relator, v. Hon. Donald R. ROSS, Respondent. |
| Court | Texas Court of Appeals |
William Luther Martin, Jr., Asst. Atty. Gen., Dallas, for relator.
John Cash Smith, Mehaffy, Weber, Keith & Gonsoulin, Orange, Barbara Barron, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Richard A. Peebles, Reid, Strickland, Gillette & Elkins, Baytown, for respondent.
This is an original proceeding in which Relator ("State") seeks issuance of a writ of mandamus directing Respondent to rescind certain discovery-related orders.
In the underlying cause of action, suit was filed against the State by John Robert Peterson and Leslie Ann Peterson ("Petersons"). The lawsuit arose out of an automobile collision occurring on August 22, 1982, in which the Petersons' six-year-old son was killed and Mr. Peterson was injured. At the time of the accident, Mr. Peterson was driving his father's truck and pulling his father's boat. An oncoming vehicle, driven by Terri Lee Robinson Winnon ("Winnon"), swerved first to the right edge of the highway and then over to the left hand side of the road, striking the Peterson truck. The Petersons sued the State to recover for damages suffered as a result of the death of their son and injuries to Mr. Peterson and for property damage to the truck, boat and trailer, alleging that an unsafe drop-off on the side of the highway caused Winnon to lose control of her car and swerve into the oncoming lane of traffic.
The case was initially tried beginning on March 25, 1985. The trial lasted until April 4, 1985, when a mistrial was declared due to a hung jury. On June 11, 1985, a new trial was set for April 22, 1986. In response to the State's motion for leave to file petition for writ of mandamus, we stayed the April trial until further order of this court.
Prior to the first trial, the Petersons served the State with interrogatories seeking identification of fact witnesses and experts expected to testify and with requests for production of photographs and various documents relating to the accident and lawsuit. Discovery was cut off by order of the trial court on March 14, 1985, ten days before the first trial. 1
The present controversy arose when the State tried to supplement its answers to interrogatories and requests for production after the mistrial. A rather complicated exchange of motions and responses occurred before the second trial. For ease of reference, we have compiled the following chronology:
and Motion to Quash and
Motion to Strike Interrogatories
2. Petersons' Motion to Strike All
Documents and All Discovery
Produced after March 14, 1985.
1986
3/28/86 State's Motion to Preserve
Discovery Rights and for
3/31/86 Hearing on Discovery Motions After the hearing, the trial court issued a plethora of orders precluding further discovery in this case. Summarizing these various orders, the trial court:
(1) Granted Petersons' Motion to Strike All Documents and All Discovery Produced After March 14, 1985, including photographs, videotapes, computer simulations, manuals, and scientific papers set out in State's Fourth Supplemental Answers, described above;
(2) Struck all but three witnesses listed in State's Third and Fourth Supplemental Answers;
(3) Struck Interrogatories served on Petersons by State after March 14, 1985;
(4) Quashed State's notice of depositions to be taken of Mr. Peterson's treating physicians, Dr. Copell and Dr. George.
The basis of the trial court's orders is that the discovery cut-off date of March 14, 1985, was still in effect.
In its petition for writ of mandamus, the State asserts that Respondent clearly abused his discretion in forbidding supplementation of answers to interrogatories and requests for production. The State argues that Respondent's orders are in conflict with Tex.R.Civ.P. 166b(5) which, it contends, creates an absolute duty to supplement requests for discovery up to thirty (30) days before trial. 6 The State also attacks Respondent's order precluding further discovery by State, through interrogatories to Petersons, of an apparent settlement between Winnon's insurance carrier and Mr. Peterson's father for property damage to the truck. The State also attacks Respondent's refusal to allow Winnon to be joined as a third-party defendant in the Peterson lawsuit.
We will first consider matters related to the State's attempt to join Winnon as a third-party defendant. The State refers to a motion for leave to join Terri Winnon, filed on December 31, 1984; we find no copy of that motion in the record. The State claims a hearing was held to consider the motion on January 4, 1985. No transcription of such a hearing on that date appears in the record, but we assume from comments made in a statement of facts from a hearing on January 8, 1985, that the proceeding was postponed until that date. The State complains that Respondent failed to rule on its motion, leaving it with no ruling from which to appeal; however, Respondent clearly stated at the close of the hearing, "[t]he court will overrule the motion by the State for consideration and will deny leave to join the Winnons as third-party defendants in the action that is pending before the court in cause number 83-89 [the Peterson suit]." We have no written order to that effect in the record, but neither is there any indication that Respondent refused to sign such an order. We therefore decline to order Respondent to take further action on that motion.
The State also filed a "Motion for Leave to File Third-Party Action by Consolidation of Existing Cross-Action in Separate Suit" and a "Request to Reconsider Motion for Consolidation." Winnon had filed suit against the State in a separate action in the trial court arising out of the accident, and the State filed a cross-action for contribution and indemnity. Winnon's case against the State ended in a nonsuit. The State has tried to consolidate its cross-action against Winnon with the present action, but by orders dated April 9, 1986, the trial court refused to consolidate the two cases. In its petition for writ of mandamus, the State claims the settlement between Winnon's carrier and Peterson's father would give rise to "an article 2212a release" of the damages attributable to Winnon if she is not joined.
The State asks that this court order Respondent to grant its motion to consolidate. The record before us indicates that Respondent considered State's motions regarding consolidation on March 31, 1986, and denied them because Winnon's attorney was not properly notified of the hearing. We find no abuse of discretion in this action and will not order Respondent to rescind his orders in that regard. State's claim that Respondent, by striking interrogatories, erroneously refused discovery of the details of the settlement between Winnon's carrier and Peterson's father will be considered with the other discovery matters raised.
The principal purpose of State's action in this court is to enforce its right to supplement answers to interrogatories and requests for production and its right to serve interrogatories upon the opposing parties. Since the first trial, the State has obviously worked to strengthen its defense to the Petersons' claim. Apparently, most of the State's efforts have been to garner evidence that discontinuity of the highway edge was not a proximate cause of the accident. The State maintains that the most damaging aspect of Respondent's action is that a computer simulated accident reconstruction recently prepared by "recognized scholars at Texas A & M University" would not be allowed at trial.
In response, Respondent attacks the issuance of a writ on several grounds, those with some merit being: (1) the State has an adequate remedy on appeal, and (2) Respondent's orders do not reflect a clear abuse of discretion.
Initially, it must be determined whether this proceeding is the proper vehicle for review of the trial court's discovery orders. We see no need to "reinvent the wheel" by analyzing the increasing use of mandamus to correct erroneous pre-trial discovery orders, as much has already been written on that subject. 7 As Respondent points out, the Supreme Court still seems to recognize that a prerequisite to mandamus is that Relator have no adequate remedy on appeal. See Jampole, 673 S.W.2d at 573. Other courts of appeals have held that an adequate remedy on appeal exists if error can be rectified by...
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