Ward v. Cornyn

700 S.W.2d 281, 1985 Tex. App. LEXIS 12805

• Court: Court of Appeals of Texas
• Decided: October 30, 1985
• Docket: 04-85-00304-CV
• Status: Published

Opinions

ON RELATORS’ PETITION FOR WRIT OF MANDAMUS

CADENA, Chief Justice.

This is an original mandamus proceeding. Relators moved for and were granted leave to file a petition seeking a writ of mandamus commanding Honorable John Cornyn, Judge of the 131st District Court of Bexar County, to set aside and cancel his order granting defendants’ “motion to strike and protective order” and to reinstate an order granting leave to file supplemental responses.

Rule 166b of the Texas Rules of Civil Procedure requires that leave of court on good cause be obtained when a party seeks to supplement responses to discovery concerning expert witnesses within thirty (30) days prior to trial.

This case was set for trial on July 15, 1985. On June 20, 1985, an ex parte hearing was held before the Honorable James C. Onion. No notice of this hearing had been sent to the defendants. Judge Onion apparently did not sign a formal order but merely affixed his signature to the supplemental responses. These supplemental responses have not been made a part of this record. However, defendant, Humana, Inc., admits in its brief that the judge signed the responses, and that by so doing granted the necessary leave for late filing of the supplemental responses.

The defendants filed a motion to strike the supplemental responses with the presiding judge, the Honorable John Cornyn. All parties appeared at the hearing held on June 26, 1985, at which arguments were apparently heard. No record was made of any of the various hearings.

Judge Cornyn granted defendants’ motion to strike, and respondents subsequently filed a motion to reconsider on which a hearing was conducted on July 2, 1985. This motion was denied and this petition for mandamus followed.

Mandamus will not issue unless a clear abuse of discretion is shown. Jampole v. Touchy, 673 S.W.2d 569, 572 (Tex.1984). From the state of the record in this mandamus proceeding, we cannot hold that there was a clear abuse of discretion. No statement of facts has been brought forward. We therefore do not have a complete record of what Judge Cornyn had before him. Absent a statement of facts or findings of fact and conclusions of law, this court will assume the trial court made all necessary findings to support its judgment. Gutierrez v. Gutierrez, 643 S.W.2d 786, 787 (Tex.App. — San Antonio 1982, no writ). We therefore deny the writ of mandamus.