Opinion
No. 10-05-00285-CV
Opinion delivered and filed September 21, 2005.
Original Proceeding.
Petition granted and writ conditionally issued.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
Relator Theron Belton, a state prison inmate, filed a pro se lawsuit on or about November 2, 2001, against Conagra Poultry Company (Conagra) and Texas Department of Criminal Justice, Institutional Division (TDCJ). Belton alleges that he was injured when he bit into a piece of chicken that contained a piece of metal.
Belton's petition for writ of mandamus (filed on July 15, 2005) states that he served requests for production on Conagra and TDCJ, who both served only objections and asserted privileges. On April 22, 2004, Belton requested a hearing on Conagra's and TDCJ's objections and privilege assertions.
Conagra filed a no-evidence motion for summary judgment on August 10, 2004. After several re-settings of the summary judgment hearing, it was held on April 14, 2005, and the motion was taken under advisement. Belton asserts that at the hearing, he re-urged the trial court to hear and rule on Conagra's and TDCJ's objections and privilege assertions because he needed the discovery to respond to Conagra's no-evidence motion for summary judgment, but the trial court refused to. Belton asserts that he also sent a letter and filed an emergency motion that both requested a hearing and ruling, but he has not received a response.
Approximately two weeks after Belton's mandamus petition was filed, the trial court granted Conagra's no-evidence motion for summary judgment. Belton has supplemented the mandamus record with the trial court's order, which appears to be interlocutory because Belton's claims against TDCJ remain pending.
Conagra has not filed a response to the mandamus petition. TDCJ filed a response that alleges that Belton has not provided sufficient evidence to determine the reasonableness of the trial court's delay in ruling on Conagra's and TDCJ's objections and privilege assertions.
A trial judge has a reasonable time to perform the ministerial duty of considering and ruling on a motion properly filed and before the judge. In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, orig. proceeding) (civil mandamus); In re Martinez Ramirez, 994 S.W.2d 682, 683-84 (Tex.App.-San Antonio 1998, orig. proceeding) (civil mandamus). Whether the judge has acted within a "reasonable" period of time depends on the circumstances of the case. See, e.g., Martinez Ramirez, 994 S.W.2d at 684 (18 months too long for trial court not to have ruled on plaintiff-inmate's motion for default judgment). These principles extend to discovery motions. See In re Buggs, 166 S.W.3d 506, 508 (Tex.App.-Texarkana 2005, orig. proceeding) (declining to grant mandamus relief on plaintiff-inmate's "discovery motion" because sufficient time had not elapsed).
Belton's request for a ruling on Conagra's and TDCJ's objections and privilege assertions has been pending for over sixteen months, and the mandamus record reflects repeated requests by him to have the objections and privilege assertions ruled on. Under these circumstances, mandamus is appropriate as a means of compelling the trial court to exercise its discretion and rule on Conagra's and TDCJ's objections and privilege assertions. See Martinez Ramirez, 994 S.W.2d at 684.
An appeal will not be an adequate remedy where the party's ability to present a viable claim is vitiated or severely compromised by the trial court's discovery error. Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding). In this case, the error is the trial court's failure to rule on the discovery objections. Belton demonstrates that he lacks an adequate remedy at law, including by appeal, with his fair assertion that he needs the discovery to prove his claim against TDCJ (he also alleged that he needed the discovery from Conagra to respond to its no-evidence motion for summary judgment). Moreover, a technically available legal remedy will not defeat a petitioner's entitlement to mandamus relief when the remedy is so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate. In re Prudential Ins. Co., 148 S.W.3d 124, 135-38 (Tex. 2004) (orig. proceeding); In re AIU Ins. Co., 148 S.W.3d 109, 116-20 (Tex. 2004) (orig. proceeding) (explaining Walker); Walker, 827 S.W.2d at 843 ("[T]he remedy by appeal may be inadequate where the trial court disallows discovery and the missing discovery cannot be made part of the appellate record, or the trial court after proper request refuses to make it part of the record, and the reviewing court is unable to evaluate the effect of the trial court's error on the record before it.").
Because the trial court has abused its discretion in failing to rule on Conagra's and TDCJ's objections and privilege assertions to Belton's requests for production within a reasonable time, we conditionally grant Belton's petition for writ of mandamus. The trial court is directed to determine if a hearing is necessary and proceed to rule on Conagra's and TDCJ's objections and privilege assertions to Belton's requests for production. We are confident that Respondent will comply with our ruling, so the writ will issue only if the trial court fails to comply with these instructions within thirty days of our ruling.
DISSENTING OPINION
The trial court signed a judgment on July 28, 2005. It appears from the mandamus record before us that the trial court's intent was to render a final appealable judgment. ("This is a final judgment and no other action will be taken on this case by this court.") (Letter transmitting the trial court's judgment.)
The year on the judgment was typed "2004" prior to the trial court writing the month and the day, July 28, in the blank. It was file-stamped by the trial court clerk on August 1, 2005. In the cover-letter to Belton by the district clerk, the clerk noted that the judgment was signed on July 28, 2005. I presume the "2004" on the judgment was a typographical error and that the date the judgment was actually signed was July 28, 2005.
Whatever the problems were, if any, in getting to this point, we can resolve them on direct appeal from the judgment. A direct appeal is an adequate remedy. According to his supplemental brief, Belton filed a notice of appeal on August 9, 2005. Belton's notice of appeal was file-stamped by the trial court clerk on August 12, 2005, and has been forwarded to this Court. Thus, procedurally, Belton fails to show how relief by direct appeal is inadequate; a necessary element to be able to proceed by mandamus.
Additionally, although the mandamus is about ruling on objections to discovery sought by Belton, we have no way of determining if any of the discovery was actually relevant to the summary judgment issues. Belton has made neither his discovery request nor the responses and objections part of the mandamus record. See Tex.R.App.P. 52.7(a). Belton, therefore, has failed to show himself entitled to any relief by mandamus.
Belton has also failed to establish that the trial court abused its discretion. After Belton's case was dismissed, he appealed to this Court. We held that the dismissal was error and remanded the case to the trial court on January 13, 2003. See cause number 10-02-00071-CV.
Belton then sought the appointment of an attorney to represent him in the district court in this civil case. The trial court denied his request. Belton appealed that ruling. See cause number 10-03-00291-CV. That appeal was dismissed by this Court on December 29, 2004 for want of jurisdiction to review the interlocutory order. This was eight months after Belton requested a hearing on his discovery motion. Belton's motion for rehearing in this Court was denied on January 18, 2005. He then filed a petition for review with the Texas Supreme Court. The petition for review was not denied until August 29, 2005.
I find it hard to determine that the trial court abused its discretion by not ruling on a motion filed by a pro se litigant while the court's order denying that litigant appointed counsel was on appeal. But it seems supremely practical for that same trial court to render a final judgment on a dispositive motion so that this Court can obtain jurisdiction to review the earlier order denying appointed counsel, the ruling on the merits, if appropriate, and even the refusal to rule on the discovery motion filed by Belton, if it is appropriate, which refusal is the subject of this mandamus proceeding.
There seems to be a lot of valid reasons for the trial court to have delayed ruling on Belton's motion, and I am unwilling to say, as the majority concludes, that the trial court abused its discretion under these circumstances.
I would deny the petition. At the very least, we should delay ruling on the mandamus until we can resolve the direct appeal.