In Re: Catherine Michelle Miller--Appeal from 7th District Court of Smith County

NO. 12-05-00161-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: CATHERINE MICHELLE MILLER, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Relator Catherine Michelle Miller seeks a writ of mandamus compelling the Honorable Kerry L. Russell, Judge of the 7th Judicial District Court, Smith County, Texas, to vacate his order signed on April 7, 2005 granting the objection of real party in interest East Texas Medical Center ( ETMC ) to production of an incident report and enter an order denying ETMC s objection. We deny the petition.

Prerequisites to Mandamus

A writ of mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). The limited availability of mandamus is necessary to preserve orderly trial proceedings and to prevent the constant interruption of the trial process by appellate courts. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994). The relator has the burden of showing an abuse of discretion as well as the inadequacy of appeal as a remedy. Id.

Discussion

In the discovery context, appeal is an inadequate remedy when (1) the appellate court would not be able to cure the trial court s discovery error, such as when the trial court erroneously orders the disclosure of privileged information that will materially affect the rights of the aggrieved party; (2) the party s ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court s discovery error; or (3) where the trial court disallows discovery and the missing discovery cannot be made part of the appellate record, or the trial court after proper request refuses to make it part of the record, and the reviewing court is unable to evaluate the effect of the trial court s error on the record before it. Walker v. Packer, 827 S.W.2d 833, 843-44 (Tex. 1992). In the instant case, Miller has not shown any of these circumstances or others that would render appeal inadequate. Consequently, Miller has not satisfied the second prerequisite to mandamus. Because Miller has not shown that appeal is an inadequate remedy, we need not address whether the respondent trial judge abused his discretion in signing the challenged order. The petition is denied.

DIANE DEVASTO

Justice

Opinion delivered July 29, 2005.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)