in Re: Susan Von Hohn

• Court: Court of Appeals of Texas
• Decided: January 18, 2006
• Docket: 12-05-00415-CV
• Status: Published

Opinion

                     NO. 12-05-00415-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

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IN RE: SUSAN VON HOHN,                           §     ORIGINAL PROCEEDING

RELATOR

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MEMORANDUM OPINION

            In this original mandamus proceeding, Susan Von Hohn complains that the Honorable Robin D. Sage, Judge of the 307th Judicial District Court of Gregg County, Texas, abused her discretion by refusing to order production of certain documents. For the reasons set forth below, we deny Susan’s petition.

Availability of Mandamus

            Mandamus will issue to correct a discovery order when the mandamus record establishes that the order constitutes a clear abuse of discretion and there is no adequate remedy by appeal. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998). A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or, stated differently, when it acts without reference to guiding rules and principles. Id. Mandamus relief may be justified when (1) the appellate court would not be able to cure the trial court’s discovery error; (2) the party’s ability to present a viable claim or defense is severely compromised or vitiated by the erroneous discovery ruling; or (3) the trial court’s discovery order disallows discovery that cannot be made a part of the appellate record. Walker v. Packer, 827 S.W.2d 833, 843-44 (Tex. 1992). The party seeking the writ of mandamus has the burden of showing that the trial court abused its discretion. In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 935 (Tex. App.–Tyler 2005, orig. proceeding).

Background

            In the underlying proceeding, Susan seeks a divorce from her husband, Edward Von Hohn. Edward is a partner in the law firm of Nix, Patterson, and Roach, L.L.P. (“NPR”). For the purpose of valuing Edward’s interest in NPR, Susan has requested the production of certain documents (the “documents”) pertaining to NPR’s pending cases, unfiled cases, and cases settled within the previous three years. Edward filed a motion for protective order asserting the attorney-client privilege.

            After a hearing on Edward’s motion, the trial court signed an order appointing a master in chancery. In compliance with the order, the master reviewed certain information relating to NPR’s practice and its pending, filed, and recently settled cases. The master then filed a report with the trial court and provided copies to the parties. Approximately two months later, on Susan’s motion, the trial court scheduled a pretrial conference. In the motion, Susan requested the trial court “clarify its prior order with respect to the cou[r]t appointed master prior to mediation.”

            Both parties presented testimony at the pretrial conference. James Penn, a certified public accountant whom Susan had retained as an expert, testified about Susan’s need for the documents. Edward and his law partner, Nelson Roach, testified about matters such as the nature of NPR’s practice, the need to preserve client confidentiality in complying with Susan’s discovery requests, and Edward’s interest in NPR. Ultimately, the trial court entered an order that provided, in pertinent part, as follows:

The court finds that [Susan] has requested the following documents be provided either to [Susan’s] expert witness or to the Master . . . :

                            . . . .

(3)Schedule of all pending cases that have not been filed.

                            (4)         Original and Amended Pleadings for all cases that have been filed.

(5)Copies of all contracts and referral agreements relating to the filed and unfiled cases scheduled above.

                            (6)         Copies of all settlement sheets for all cases settled for the previous three years.

The court finds that there has been no showing that the [sic] utilizing historical earnings of the law firm for a valuation would not be accurate, nor any showing that unfiled cases would make a material change in the income stream of the law firm. The request to expand the role of the Master to do further review of unfiled cases is denied.

To the extent that any other request contained in the Motion for Pre-Trial Conference is not expressly referenced herein, it is denied.

The motion included no request other than for the trial court to clarify its prior order appointing the master.

Analysis

            A petition filed in an original proceeding must be accompanied by an appendix that contains a certified or sworn copy of any order complained of. Tex. R. App. P. 52.3(j)(A). In the absence of a written order, the appendix may include any other document showing the matter complained of. Id. The appendix filed with Susan’s petition includes a copy of the above-quoted order, which was entered after the pretrial conference. This order relates only to Susan’s request to expand the authority of the master and does not deny the requested discovery. When questioned at oral argument, Susan’s counsel conceded that the order does not deny Susan’s requests for production. Nonetheless, counsel argued, the trial court’s comments at the pretrial conference indicated that if Susan filed a motion to compel production of the documents, the motion would be denied. Thus, counsel concluded, no written order denying Susan’s requests for production is necessary for this Court to issue a writ of mandamus. We have reviewed the record of the pretrial conference and see nothing from which we can conclude, or even infer, that the trial court either denied the requested production or communicated its intent to do so if a motion to compel were filed. Consequently, Susan has not complied with Rule 52.3(j)(A).

            Moreover, Susan has not provided any motion to this Court in which she asked the Court to rule on the discoverability of the documents. It is well established that when a motion is properly filed and pending before a trial court, the act of giving consideration to and ruling upon that motion is a ministerial act. See Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). An abuse of discretion occurs where a properly filed motion has been brought to the attention of the trial court and the trial court refuses to rule on the motion within a reasonable time. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding). It logically follows that where no motion has been properly filed, the trial court’s duty to rule does not arise. Therefore, the failure to rule in the absence of a properly filed motion cannot constitute an abuse of discretion.

Conclusion

            Susan has failed to show that the trial court denied her requests for production or that the trial court abused its discretion by failing to rule on whether the documents must be produced. Accordingly, the petition for writ of mandamus is denied. Our stay of December 30, 2005 is lifted.

                                                                                                     JAMES T. WORTHEN

                                                                                                                 Chief Justice

Opinion delivered January 18, 2006.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)