Low v. King

867 S.W.2d 141, 1993 Tex. App. LEXIS 3299, 1993 WL 505514

• Court: Court of Appeals of Texas
• Decided: December 9, 1993
• Docket: 09-93-142 CV
• Status: Published

Opinions

OPINION

BURGESS, Justice.

Wyley W. Low [Low] petitions this Court for a writ of mandamus compelling Honorable Jack R. King to rescind certain orders and make other orders in a case pending in the 136th District Court and styled No. D-142,393, Low v. Gulf States Utilities Company [GSU], the real party in interest. Low sued GSU under a variety of tort and contract theories, alleging they wrongfully disconnected electric power to his residence and billed him for charges incurred by a third party. GSU filed a counterclaim which alleged that when Low applied for electric service he misrepresented the identity and status of the person sharing the residence to avoid paying charges owed by her.

Trial of the case resulted in a mistrial granted for reasons not germane to this proceeding. Low sought dismissal of GSU’s counterclaim through plea in abatement, plea to the jurisdiction, and special exceptions; all relief was denied by the trial court. The trial court also denied Low’s motion to reeon-solidate a previously severed portion of Low’s petition.

GSU sought a protective order to prohibit Low from running an advertisement for witnesses in the local paper. On May 26, 1993, the trial court entered a protective order prohibiting Low from “placing and publication of an ad in a newspaper soliciting and requesting information from the public concerning alleged controversies between such customers and [GSU] of the type identical with or similar to those involved in the allegations of the Plaintiffs Petition....” This order was amended on June 29,1993, to deny the Motion for Protective Order prohibiting Low from “placing any advertisement in the newspaper seeking the identity and location of witnesses ...” and to grant the motion prohibiting Low from “placing any newspaper or other advertisement soliciting the identity and knowledge of witnesses which contains any indication of the style of the above-numbered cause, or information or report of the specific complaints of the Plaintiff....”

Low’s original motion for leave to file petition for writ of mandamus was granted only as to the May 26, 1993 order. We granted leave to amend the petition. The amended petition is organized into “points of error” numbered four through seven. Point of error five is a complaint directed to the trial court’s August 5, 1993, order denying various Low motions directed towards GSU’s counterclaim. The motions include a plea to the jurisdiction, plea in abatement, motion to dismiss, and special exceptions. Point seven also contends the trial court abused its discretion in ruling on the special exceptions. The trial court’s orders on all of these motions are incidental rulings for which relator has an adequate remedy by appeal. Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 964 (Tex.1990) (plea to the jurisdiction); Abor v. Black, 695 S.W.2d 564 (Tex.1985) (plea in abatement); Hill v. Lopez, 858 S.W.2d 563 (Tex.App.—Amarillo 1993, orig. proceeding) (special exceptions). Point six contends the trial court abused its discretion in refusing to grant Low’s motion to reconso-lidate or clarify its order concerning the severance. A refusal to sever has in limited circumstances been subject to mandamus. U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668 (Tex.App.—Houston [1st Dist.] 1993, orig. proceeding); State Farm v. Wilbom, 835 S.W.2d 260 (Tex.App.—Houston [14th Dist.] 1992, orig. proceeding). The Tyler Court of Appeals refused to find an abuse of discretion where the trial court denied a motion to reconsolidate because counsel was not properly notified of the hearing. State Dept, of Hwys. & Pub. Transp. v. Ross, 718 S.W.2d 5 (Tex.App.—Tyler 1986, orig. proceeding). In this case the trial court apparently denied the motion on its merits, but in contrast to a situation where a refusal to sever forces a litigant to take inconsistent positions before the jury, we find no reason why relator is deprived of an adequate remedy by appeal. Although relator argues he is too confused to determine which aspects of his suit have been severed into which cause number, he has failed to demonstrate his confusion to this Court. Mandamus will not lie when there is an adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833 (Tex.1992). We find that motion for leave to file was improvidently granted as to the matters raised in designated points of error five, six and seven, and dismiss the petition as to those particular issues.

Point of error four urges constitutional arguments under both the United States and Texas Constitutions. We need only to address his complaint under Tex. Const, art. I, § 8. Two recent cases have dealt with this provision, Ex parte Tucci, 859 S.W.2d 1 (Tex.1993), and Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992). The former case caused considerable acrimony among our highest state court while the latter is more on point. Davenport dealt with a protective order, characterized as a “gag” order, which prohibited all discussion of a case outside the court room. After an exhaustive review of Texas history, the court reaffirmed prior decisions that pri- or restraint on expression is presumptively unconstitutional, Davenport, 834 S.W.2d at 10, and adopted the following test:

a ‘gag’ order in civil judicial proceedings will withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.

The court went on to hold that only an imminent, severe harm can justify prior restraint and that harm must be to the judicial process. When applying this test to the orders of May 26 and June 29, they are all violative of Tex. Const, art. I, § 8.

We are confident Judge King will withdraw all the previous protective orders. Only if he should fail to do so mil the writ of mandamus issue.

WRIT CONDITIONALLY GRANTED.