Opinion
NO. 09-11-00644-CV
01-12-2012
IN RE RONALD ROGERS
Original Proceeding
MEMORANDUM OPINION
Ronald Rogers contends that the trial court abused its discretion by disqualifying Rogers' counsel after Rogers identified counsel as a person having knowledge of the facts and circumstances made the basis of the lawsuit in response to a discovery request by defendants Ted G. Walker and Ted L. Walker. The trial court ordered that counsel would not be permitted to act as counsel during the trial if he will be a witness on a matter other than attorney fees.
After Rogers filed his mandamus petition, the trial court reversed an earlier denial of Ted L. Walker's motion for summary judgment, granted Walker's motion for summary judgment, and severed Rogers's claims against Walker into a separate suit that Rogers has appealed. As to the severed cause, appeal is available and will be an adequate remedy. See In re Kan. City S. Indus., Inc., 139 S.W.3d 669, 670 (Tex. 2004) ("To obtain a writ of mandamus, a relator must establish not only that the trial court clearly abused its discretion but also that no adequate remedy by appeal exists.").
It appears the trial court has not yet entered a final judgment on the remaining claims. Rogers does not contest Walker's assertion that Ted G. Walker has been nonsuited from the case. Walker argues that Rogers's claims against the third defendant, Gayle Creel, are moot because Rogers has already recovered a judgment against Creel in the separate probate proceeding. Regardless of whether the same or similar claims have been brought in a separate proceeding, Rogers's pleadings in the case in which mandamus relief is sought assert claims against Creel, and it appears those claims have not been resolved.
On this mandamus record we cannot ascertain that Creel waived disqualification of Rogers's counsel; it is not clear from the record whether Creel has even been served with process in the underlying case. We find no appearance by Creel in any of the proceedings in this case, and the certificates of service on documents filed in the trial court do not indicate that any of the documents were served on Creel or his counsel. Also the mandamus record is not clear whether Rogers's counsel will be a witness in the trial of Rogers's claims against Creel. His designation as a witness occurred in response to discovery by Walker.
Because appeal is an adequate remedy, Rogers has not shown that he is presently entitled to mandamus relief in the only case to which the mandamus record reflects the order definitely applies. Accordingly, we lift our stay order of December 14, 2011 and deny the petition for writ of mandamus without prejudice.
PETITION DENIED.
PER CURIAM Before McKeithen, C.J., Gaultney and Horton, JJ.