In re Charlotte D. Oliver--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00213-CV

In re Charlotte D. Oliver

Original Proceeding

DISSENTING Opinion

This petition for writ of mandamus was filed on April 29, 2005, requesting relief from being forced to trial on May 2, 2005. A continuance had been requested, was not opposed, but was denied. It was the third continuance requested.

There were two reasons given as the need for a continuance. The focus was primarily on the withdrawal of petitioner s expert witness from being willing to testify at trial. The specific timing of knowledge of the possibility of withdrawal and the ultimate date of withdrawal, as well as the reason for withdrawal, were not disclosed.

The other reason a continuance was sought was that:

Respondent has failed to produce the relevant financial records requested by Petitioner pursuant to her Request for Production. Additionally, Respondent has failed to supplement these records despite a clear requirement to do so. Petitioner has forwarded written correspondence to Respondent in this regard but Respondent has still failed and refused to produce the requested documents. As such, it will be necessary to file and hear a motion to compel in order that Petitioner shall have the relevant financial records for the trial of this matter.

Petitioner s Motion for Continuance.

Discovery in this suit is governed by a Level 2 discovery control plan. The discovery period has ended. Id.

On the merits the trial court did not abuse its discretion in denying the third motion for continuance when, even if the expert had not become unavailable for testimony, the expert would not have had the relevant information necessary to testify because discovery was not completed timely. The trial court is entitled to control its docket, particularly if there is any indication of unnecessary delay.

If I decided the merits, I would deny the mandamus.

But why are we reviewing the merits at all? Once the majority granted the temporary relief by staying the impending trial, for all practical purposes they granted all the relief requested, thus making moot the issue on the merits.

For the foregoing reasons, I respectfully dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed June 29, 2005