Martinez v. Martinez

52 S.W.3d 429, 2001 Tex. App. LEXIS 5081, 2001 WL 839035
CourtCourt of Appeals of Texas
DecidedJuly 26, 2001
Docket2-00-233-CV
StatusPublished
Cited by12 cases

This text of 52 S.W.3d 429 (Martinez v. Martinez) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martinez v. Martinez, 52 S.W.3d 429, 2001 Tex. App. LEXIS 5081, 2001 WL 839035 (Tex. Ct. App. 2001).

Opinion

OPINION ON REHEARING

LIVINGSTON, Justice.

We grant appellant Nicolas Garza Martinez’s motion for rehearing and withdraw our prior opinion and judgment. We substitute the following to address an unaddressed issue raised by appellant. Nicolas raised two issues in his brief. Our opinion addressed both; however, Nicolas’s first issue contained two subparts. Although we are not required to address multifarious issues or points, we are to liberally *431 construe briefing rules in the interest of justice. Tex.R.App. P. 38.1(e), 38.9; Shull v. United Parcel Serv., 4 S.W.3d 46, 51 (Tex.App.—San Antonio 1999), cert. denied, 531 U.S. 835, 121 S.Ct. 94, 148 L.Ed.2d 53 (2000). This opinion will address the second subpart of issue one. Otherwise, the opinion is the same.

Nicolas appeals from the protective order obtained against him by his wife, ap-pellee Blanca Fay Martinez. Additionally, Nicolas’s attorney, John R. Stoutimore, has appealed that portion of the protective order that requires him to personally pay for his client’s participation in a batterer’s program and to report to the court regarding the suitability of the program for his client. We affirm the trial court’s protective order as modified.

Factual and Procedural Summary

On April 11, 2000, Blanca filed an application for a protective order under Title IV of the Texas Family Code, claiming Nicolas engaged in conduct constituting family violence. She also obtained a temporary ex parte protective order that day that included a show cause order requiring Nicolas to appear at a hearing on April 25, fourteen days later, to show cause why the temporary order should not be continued and made into a final protective order.

At the first hearing on the protective order, Nicolas gave notice to take Blanca’s deposition and produce documents on May 4, served a request for disclosure, and filed a motion for a continuance that also requested shortening the discovery window. The trial court associate judge granted Nicolas’s request to shorten the time for Blanca to respond to his discovery, ordered Nicolas to appear for his deposition at the courthouse on May 5, ordered Blanca’s deposition to be taken at the courthouse on May 4, and extended the matter until May 10. The court also signed an order extending the temporary protective order until May 10. On April 27, Blanca filed an appeal from the associate judge’s rulings shortening the discovery time and filed a motion seeking the same relief granted Nicolas to shorten the time for discovery and to quash her deposition. The trial court heard the appeal of the discovery issues on May 4 and granted Blanca’s relief from discovery, denying Nicolas the right to depose her or pursue any other discovery. Nicolas conditionally asked for the same relief in the event the court denied discovery. The court ordered no discovery be conducted by either party and that it would hold the May 10 hearing on the final protective order.

Issues

In his first issue, Nicolas primarily complains about the trial court’s refusal to allow discovery. He also challenges the trial court’s rulings on Blanca’s alleged failure to plead facts sufficient to show entitlement to a protective order under the family code’s definition of family violence. See Tex. Fam.Code Ann. § 71.004 (Vernon Supp.2001). In his second issue, he challenges the portion of the trial court’s protective order directed to his attorney of record, John R. Stoutimore. The State has professionally confessed error with regard to issue two. Because the trial court had no authority to order Nicolas’s attorney to pay for and report on his client’s batterer’s program, we sustain issue two. See Strawder v. Thomas, 846 S.W.2d 51, 61-62 (Tex.App.—Corpus Christi 1992, no writ) (op. on reh’g).

Appellate Review of Discovery

Appellate review of a trial court’s disposition of a motion for discovery or protection from discovery is limited to a determination of whether or not the trial judge abused the legal discretion vested in *432 him or her. Templeton v. Dreiss, 961 S.W.2d 645, 663 (Tex.App.—San Antonio 1998, pet. denied). While a trial judge may exercise some discretion in controlling the nature and form of discovery, that discretion is not without bounds. Tex.R. Civ. P. 192; In re Amaya, 34 S.W.3d 354, 356 (Tex.App.—Waco 2001, orig. proceeding). Generally, a party is entitled to full, fair discovery within a reasonable period of time. In re R.R., 26 S.W.3d 569, 574 (Tex.App.—Dallas 2000, orig. proceeding) (citing In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998) (orig.proeeed-ing)). A party seeking to avoid discovery must show particular, specific, and demonstrable injury by facts sufficient to justify protection from discovery. Amaya, 34 S.W.3d at 356-57 (citing Masinga v. Whittington, 792 S.W.2d 940, 940-41 (Tex.1990) (orig.proceeding)). Thus, it was Blanca’s burden to show that the discovery, or the delay in discovery, could result in injury to her.

Discovery Under Title IV Protective Order Cases

Title IV of the family code governing family violence protective orders is a unique statutory scheme. Chapters 83 and 84 set forth the specific statutory procedures to be followed. Chapter 84 specifies the time for the hearing: “[T]he court may not set a date later than the 14th day after the date the application is filed.” Tex. Fam.Code Ann. § 84.001(a). According to sections 84.003 and 84.004 the hearing may only be rescheduled under two circumstances:

[At applicant’s request due to lack of service on the responding party] the date for a rescheduled hearing shall be not later than 14 days after the date the request is made.

Id. § 84.003(b).

[At respondent’s request] [i]f a respondent receives service of notice of an application for a protective order within 48 hours before the time set for the hearing ... the court shall reschedule the hearing for a date not later than 14 days after the date set for the hearing.

Id. § 84.004(a). Because of the nature of the relief anticipated and the danger the statute seeks to avoid, it is a very abbreviated procedure.

The parties and the court realized the inherent conflict between normal discovery contemplated by the rules of civil procedure and the mandatory fourteen-day (from the filing date) hearing date of the family code protective order provisions. See id. § 84.001.

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Bluebook (online)
52 S.W.3d 429, 2001 Tex. App. LEXIS 5081, 2001 WL 839035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-martinez-texapp-2001.