in Re David L. Jones and Alice Redeker, Relators

Opinion

NO. 07-04-00405-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

OCTOBER 18, 2004

______________________________

IN RE DAVID L. JONES AND ALICE REDEKER, RELATORS

_________________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS

The Court sua sponte withdraws its opinion of October 11, 2004, and in lieu thereof substitutes this opinion. Relators David Lee Jones and Alice Redeker seek a writ of mandamus requesting that we order the Honorable Felix Klein, Judge of the 154th District Court of Lamb County, to vacate his order of April 23, 2004, denying their motion to compel discovery. In response, among other things, real party in interest, William B. Jones, Jr. contends that relators have not demonstrated that the denial of their motion to compel discovery constituted a clear abuse of discretion by the trial court. For the reasons set forth, we deny the requested relief.

Although the discovery rules encourage trial courts to limit discovery to avoid undue burdens in production, real party had the burden in the trial court to produce some evidence to support his request for protection. In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999). Here, relators are entitled to mandamus relief "only to correct a trial court's clear abuse of discretion when no adequate remedy at law exists." In Re Alford Chevrolet-Geo, 997 S.W.2d at 176. In our review, regarding factual matters, as an appellate court we may not substitute our judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992); In re Energas Co., 63 S.W.3d 50, 51 (Tex. App.--Amarillo 2001, orig. proceeding). Therefore, in determining whether mandamus should issue, we must focus on the record that was before the trial court and decide whether the decision was not only arbitrary but also amounted to a clear and prejudicial error of law. In re Bristol-Meyers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998).

An original proceeding filed in this Court must comply with the requirements of Rule 52 of the Texas Rules of Appellate Procedure. Although a reporter's record of the hearing is included, relators' fact statement in their petition is not supported by a verified affidavit as required by Rule 52.3 of the Texas Rules of Appellate Procedure. Consequently, relator's petition for writ of mandamus is denied.

Don H. Reavis

Justice

Campbell, J., concurring.

NO. 07-04-0405-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

OCTOBER 18, 2004

______________________________

IN RE DAVID L. JONES AND ALICE REDEKER, RELATORS

_________________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

CONCURRING OPINION

I concur in the court's denial of relators' petition. In my opinion, relators have not demonstrated the trial court's order reflects a clear abuse of its discretion based on the record presented. In re Alford Chevrolet-Geo, 997 S.W.2d 175 (Tex. 1999); Walker v. Packer, 827 S.W.2d 833 (Tex. 1992).

James T. Campbell

Justice

tically ignore any evidence provided by Dawkins that is not supportive of Wood's position.

As stated in our original opinion, we relied on Dawkins's affidavit that the alleged defamatory statements were based on (1) her past experience with respect to construction costs, (2) her knowledge that certain costs were not included in the estimate of the cost of the jail, (3) her knowledge the estimate was not based on architectural drawings, (4) her understanding that the jail commission had not approved any plans, (5) statements made by Wood prior to the bond election that the cost of the jail facility would be $20 million, and (6) a 1999 newspaper article that the costs had increased to $16 million. Wood has cited no evidence in his motion for rehearing that controverts these facts were the basis for her statements.

However, Wood complains that we improperly inferred that the $12.46 million figure was only an estimate, was not based on actual plans drawn by architects, did not include costs associated with compliance with standards promulgated by the Texas Jail Standards Commission, and did not include costs associated with landscaping, furnishing, and ancillary buildings. Instead, he argues, we should have made the following inferences:

1. The $12.46 million estimate was based on factors commonly used by architects in estimating a new building's cost and was intended to be a number upon which the commissioners court could rely in attempting to obtain financing for the new jail;

2. Although actual plans were not yet drawn, the architect's estimate was the architect's best professional opinion of the new jail's cost and was intended to be a number upon which the commissioners court could rely in attempting to obtain financing for the new jail;

3. Costs associated with compliance with Texas Jail Standards Commission were taken into account by the architects when making their $12.46 million estimate; and

4. Costs associated with landscaping, furnishing, and ancillary buildings were either relatively insignificant or costs that were associated with but not part of the new jail.

Even if we accept these inferences, they do not change our opinion. That is so because even assuming some or all of the underlying factors upon which Dawkins states she relied in making her statements were incorrect or false, that itself is not evidence that the allegedly defamatory statements were made with malice. See Johnson v. Southwestern Newspaper Corp., 855 S.W.2d 182, 185 (Tex.App.--Amarillo 1993, writ denied) (failure to inquire more fully into accuracy of statements is insufficient to show malice).

Nevertheless, Wood asserts that we should have inferred knowledge of falsity from her statement that she obtained the $16 million jail cost figure from a newspaper article published more than a year after the bond election and her testimony that, at the time of the bond election, Wood had no idea what the jail would cost. Further, he claims, we were only able to arrive at the opposite conclusion because we incorrectly gave consideration to the fact that Wood had made statements publicly before the bond election that the jail would be a $20 million project and the fact that, by the time of Dawkins's letter, the jail cost was at least $16 million. The fallacy with this argument is that Wood does not dispute the truth of those facts in his motion for rehearing. He only contends that we may not consider them because they are unfavorable to him. Contrary to his assertion, we did not determine that Wood's evidence had no probative value. We accepted as true the two statements that Wood claims are favorable to him. We also recognize we are required to make reasonable inferences and resolve doubts in favor of the non-movant. However, reasonable inferences cannot be made by ignoring relevant facts that are undisputed by the parties. We believe we are entitled to rely on those undisputed facts that provide a basis for Dawkins's belief that her statements about Wood were true.

Finally, Wood complains that we improperly inferred that Dawkins merely had a different belief than Brian Barrett, who served on the citizens committee, about the cost of the new jail at the time of the committee report and the 1988 bond election. Barrett stated in his affidavit that he believed the $12.46 million estimate to be conservative and did not anticipate any more would have to be borrowed. Barrett became a county commissioner on January 1, 1999, and he did not learn that the jail cost would be $16 million until September 1999, more than a year after the bond election. Wood asserts that if we consider these facts in the light most favorable to him, we would conclude there is some evidence that Dawkins knew he did not believe the jail would cost $16 million at the time of the bond election. Once again, we do not believe that to be a reasonable inference. Accepting these statements as true, they merely recite what Barrett believed from the committee report about the cost of the jail and when he knew it would increase. They do not provide evidence as to what Wood or Dawkins believed about the cost of the jail from the committee report and when they knew the cost would increase.

Based on the factors noted in our original opinion and which we have reiterated again, Dawkins established her belief in the truth of the allegedly defamatory statements and a basis for her belief in their truth. Finding no error in our original disposition of the matter, we overrule appellant's motion for rehearing.

John T. Boyd

Chief Justice

Publish.

1. In determining if the non-movant produced more than a scintilla of probative evidence to raise a fact issue in response to a no-evidence motion for summary judgment, we must also consider the evidence in the light most favorable to the party against whom the summary judgment was rendered and disregard all contrary evidence and inferences. Zipp Industries, Inc. v. Ranger Ins. Co., 39 S.W.3d 658, 663 (Tex.App.--Amarillo 2001, no pet.)

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