In re Wabash National Trailer Centers, Inc., d/b/a North American Trailer Centers--Appeal from 365th Judicial District Court of Zavala County

IN RE WABASH NATIONAL TRAILER CENTERS, INC.

d/b/a North American Trailer Centers

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 31, 2004

PETITION FOR WRIT OF MANDAMUS DENIED

On February 19, 2004, Wabash National Trailer Centers, Inc. d/b/a North American Trailer Centers ("Wabash") filed a petition for writ of mandamus. We deny the petition as moot.

Mario Antonio Guadalajara died in a collision between his vehicle and an 18-wheel dump truck. Following his death, his survivors brought negligence and product liability claims against several defendants. With respect to Wabash, plaintiffs allege that the accident was caused by the negligent installation of the hydraulic lift system on the dump truck. Although the underlying case had been pending for more than a year, Wabash was not served with plaintiffs' petition until February 13, 2004. According to Wabash, on February 18, 2004, after 5:00 p.m., counsel for Wabash learned for the first time that an activation and test of the hydraulic lift system, as well as the power take-off and controls for that system, were scheduled for Friday, February 20, 2004, at 9:00 a.m. On February 19, 2004, Wabash filed an original answer and "Emergency Motion for Protective Order" and scheduled an emergency hearing that same afternoon. In its motion, Wabash argued that it had not had "the opportunity to obtain pleadings, discovery responses, retain an expert, acquaint the expert with the facts and allegations and determine whether to object to the protocol." Wabash complained that "at this point, [it] does not even have the capacity to ascertain whether the test will result in prejudice to Wabash in defending this case." Thus, Wabash requested that the trial court stay the testing and order that no such testing be performed on the subject vehicle for a period of thirty days from the filing date of its motion, i.e. March 20, 2004. The trial court denied Wabash's motion.

That same day, February 19, 2004, Wabash filed a petition for writ of mandamus and motion requesting emergency relief. Also that same day, we granted Wabash's motion for emergency relief, ordering the testing scheduled for February 20, 2004 to be stayed pending final disposition of the petition for writ of mandamus. In its petition, Wabash requests that we issue a writ of mandamus ordering Judge Abascal to vacate his February 19, 2004 order denying their motion and to grant Wabash a postponement of the testing for a thirty-day period to allow Wabash to retain an expert and inspect the hydraulic system prior to testing. This thirty-day period has now passed. Thus, Wabash has already received the relief it requested. (2)

We deny Wabash's petition for writ of mandamus as moot.

PER CURIAM

1. This proceeding arises out of Cause No. 03-02-10635-ZCV, styled Maria de los Angeles Guadalajara et al. v. Juan Diego Canavacholo Jr. et al., pending in the 365th Judicial District Court, Zavala County, Texas, the Honorable Amado J. Abascal, III presiding.

2. In its reply brief, Wabash argues that its petition is not moot. Wabash concedes that it originally asked for a delay of thirty days in its petition, "thinking that would be enough time to retain experts and have them review the protocol and vehicle." Wabash argues that it has not had enough time to accomplish these purposes and amends its original request to "ask for whatever additional period of time is necessary to accomplish those objectives." We disagree with Wabash; its petition is moot. In its motion to the trial court, Wabash asked for testing to be postponed for at least a month. The trial court denied this request. We cannot issue a writ of mandamus ordering the trial court to give Wabash more time than it originally requested in its motion to the trial court. Wabash has obtained the relief it originally requested--postponement of at least one month. To the extent Wabash needs more time, it should direct its request to the trial court, not this appellate court.