in Re: Apolonia Hernandez Luna, Individually and on Behalf of the Estate of Onesimo Hernandez Luna ( 2007 )

                NO. 12-07-00185-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§         

IN RE: APOLONIA HERNANDEZ LUNA,

INDIVIDUALLY AND ON BEHALF        §          ORIGINAL PROCEEDING

OF THE ESTATE OF

ONESIMO HERNANDEZ LUNA,

RELATOR     §         

MEMORANDUM OPINION

            Apolonia Hernandez Luna, individually and as the representative of the estate of Onesimo Hernandez Luna, seeks mandamus relief from the respondent trial court’s denial of her motion for continuance.¹ Luna also filed a motion for an emergency stay of all proceedings pending our disposition of her petition. We overrule the motion for emergency stay and deny the petition for  writ of mandamus.

Background

            On August 19, 2005, Luna filed a wrongful death action seeking damages resulting from the injury and death of Onesimo Hernandez Luna.  The trial court entered a scheduling order on March 24, 2006.  On October 10, 2006, the parties entered into an agreed scheduling order, and the trial court set the case for trial beginning on May 21, 2007.  Sometime prior to October 23, 2006, Luna served Pilgrim’s Pride (Pilgrim’s) with Luna’s first set of requests for production. Request for production number 2 sought “any and all contracts between Defendant Pilgrim’s Pride and Defendant Thong Le.”  On October 23, 2006, Pilgrim’s served objections and responses to Luna’s request number 2, among others, and produced a copy of a document entitled “Pilgrim’s Pride Broiler Production Agreement.”  However, the document was effective as of November 23, 2004, and the incident in question occurred approximately four months earlier on July 20, 2004. Luna’s counsel pointed this out to Pilgrim’s counsel, who in turn forwarded copies of two other contracts, dated July 31, 2001 and November 7, 2001, respectively.  However, Luna states that Pilgrim’s counsel furnished “nothing to indicate that either of these two (2) documents represented that contract at issue.” 

            On May 4, 2007, Luna filed a motion requesting that the trial be continued for sixty days because she needed additional time to (1) ascertain whether a written contract existed between Pilgrim’s and Le at the time of the incident giving rise to the suit similar to the written contract dated November 23, 2004, (2) obtain deposition testimony of members of Pilgrim’s management “to obtain precise details concerning the nature, depth and breadth of the operational agreement in effect at the time of this incident . . . between Defendants Thong Le and Pilgrim’s Pride, which is one of the key arguments in this matter[,]” and to (3) arrange for Luna to obtain a passport from the Mexican government and a visa from the United States government to attend trial.  On May 15, 2007, the trial court conducted a hearing on Luna’s motion for continuance and denied it.  Luna then filed this original proceeding and a motion for emergency stay.

            Availability of Mandamus

            Mandamus is “an extraordinary remedy, available only in limited circumstances.”  Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).  Mandamus will issue to correct a clear abuse of discretion when there is no other adequate remedy at law.  Id.  A trial court abuses its discretion if it reaches a decision “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.”  Id. at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)).  The granting or denial of a continuance rests within the sound discretion of the trial court.  Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997).

            The denial of a motion for continuance is an incidental trial ruling ordinarily not reviewable by mandamus.  Id. at 477.  An exception to this general rule occurs when “special circumstances” are present.  Id.  “Special circumstances” are present when other errors exist that are themselves properly reviewed on petition for writ of mandamus.  Id.; In re H & R Block, 159 S.W.3d 127, 132 (Tex. App.–Corpus Christi 2004, orig. proceeding [mand. dismissed]). Luna alleged in her motion for continuance that the desired discovery is “material to all the parties in this litigation.”  She argues in this proceeding that justice requires the trial court to allow her additional time to conduct discovery so that she may properly present her case.  See Union Carbide Corp. v. Moye, 798 S.W.2d 792, 793 (Tex. 1990).  Thus, she implicitly argues that the trial court’s denial of her motion for continuance has vitiated her ability to present her case.  This complaint may be addressed by mandamus.  See id.; see also In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (mandamus relief may be justified to correct discovery order when party’s ability to present viable claim or defense is severely compromised or vitiated by erroneous ruling to extent that it is effectively denied ability to develop merits of its case).  Accordingly, we address both complaints Luna raises in her petition.

Abuse of Discretion

            A continuance shall not be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.  Tex. R. Civ. P. 251.  As good cause for the motion, Luna alleges that the requested continuance will provide time for her to obtain a passport and visa  “so that she will be able to appear in court and participate in the trial of her own case.”  Mere absence of a party at trial does not entitle her to a continuance. Vickery v. Vickery, 999 S.W.2d 342, 363 (Tex. 1999); Briscoe v. Goodmark Corp., 130 S.W.3d 160, 169 (Tex. App.–El Paso 2003, no pet.).  The moving party must also show that her absence from trial will result in her prejudice.  See Erback v. McDonald, 170 S.W.2d 289, 292 (Tex. Civ. App.–Fort Worth 1943, writ ref’d w.o.m.).  Luna has made no showing of prejudice.  Moreover, Luna does not explain what efforts she has made to obtain the required passport and visa during the seven months that have passed since the trial court set the case for trial. 

            As to Luna’s need for additional discovery, suit was filed on August 19, 2005.  The record furnished in this proceeding does not include a copy of either scheduling order entered in the case.  We cannot determine from the record when Luna began conducting discovery or whether Luna’s discovery efforts were timely in light of the deadlines imposed by the scheduling orders.  Nor can we determine on what date Luna served Pilgrim’s with her first request for production or whether Luna had conducted other discovery before serving the request for production.  Although Luna alleges that she cannot ascertain, without further discovery, whether either of the 2001 contracts were in effect on the date of Onesimo Luna’s death, she does not explain the reasons for her uncertainty, or what additional discovery she has conducted or attempted to conduct in an effort to clarify the issue since receiving copies of the 2001 contracts.  Consequently, the record does not affirmatively show the diligence necessary for Luna to obtain a continuance to conduct additional discovery. See State v. Wood Oil Distrib., 751 S.W.2d 863, 865 (Tex. 1988) (failure of a litigant to utilize the rules of civil procedure for discovery purposes will not authorize granting of continuance). 

Conclusion

            Luna has failed to show that the trial court abused its discretion by denying her motion for continuance.  Therefore, we need not address whether she has an adequate remedy by appeal.  The motion for emergency stay is overruled and the petition for writ of mandamus is denied.

                                                                                                     SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered May 17, 2007.

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

(PUBLISH)

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¹ The respondent is the Honorable G. Timothy Boswell, Judge of the 402nd Judicial District Court, Wood County, Texas.  The real parties in interest are Thong Le, Deere Company d/b/a John Deere Company, and Pilgrim’s Pride.