Republic Bankers Life Insurance Company, Relators v. Honorable Charles C. ("Kit") Cooke, III, Judge, 18th District Court, Johnson County, Texas

• Court: Court of Appeals of Texas
• Decided: June 10, 1992
• Docket: 10-92-00134-CV
• Status: Published

Opinion

Republic Bankers Life v. Hon. Cooke

IN THE

TENTH COURT OF APPEALS

No. 10-92-134-CV

     REPUBLIC BANKERS LIFE INSURANCE

     COMPANY, ET AL., RELATORS,

                                                                                              Appellants

     v.

     HONORABLE CHARLES C. ("KIT") COOKE, III,

     JUDGE, 18TH DISTRICT COURT, JOHNSON COUNTY,

     TEXAS, ET AL., RESPONDENTS,

                                                                                              Appellees

Original Proceeding

            Republic Bankers Life Insurance Company and Harold P. Altshuler, Relators, filed a Motion for Leave to File a Petition for Writ of Mandamus on May 19, 1992, against The Honorable Charles C. "Kit" Cooke, III, Judge of the 18th Judicial District Court, Johnson County, Texas, and against the Honorable Frank G. McDonald, who was sitting as an Assigned Judge for Judge Cooke in the 18th District Court. Relators seek relief from a discovery order rendered by Judge Cooke following a hearing and an in camera inspection of documents. The order was subsequently signed on May 14 by Judge McDonald sitting in Judge Cooke's absence.

      Although the court's order encompassed Altshuler, he was not a party to the suit at the time Judge McDonald signed the order. On May 29, Rodney E. Woody, Sr. and Nancy E. Woody, plaintiffs below and the Real Parties in Interest in this original proceeding, filed in this court a brief in response to the petition for mandamus. Their brief reflects that they filed their First Amended Original Petition in the trial court on May 22. The First Amended Petition, a certified copy of which accompanied the brief, asserts numerous additional causes of action and specifically names Altshuler as a defendant.

      Because Relators had responded to the Plaintiffs' discovery requests on the basis of the allegations contained in the original petition then on file and because the court also based its May 14 discovery order on the original petition—which is no longer a live pleading—the parties should have an opportunity to reassert their positions and the trial judge should have an opportunity to review his order in light of the amended petition. Relators may then amend their petition for writ of mandamus and the matter will be decided on the merits.

      The stay previously imposed by this court in aid of its jurisdiction will continue in effect. If no amended petition for writ of mandamus is filed in this court within twenty days from the date of this order, this cause will be dismissed. In the meantime, oral argument and the decision in this case will be held in abeyance. See State v. Olsen, 360 S.W.2d 403 (Tex. 1962).

                                                                                     PER CURIAM

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Proceeding abated

Order issued and filed June 10, 1992

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