                                IN THE
                        TENTH COURT OF APPEALS



                               No. 10-10-00212-CV

          IN RE WESLEY F. HONZA, JR. AND ROBERT HONZA


                               Original Proceeding



                         MEMORANDUM OPINION


      The Honzas seek a writ of mandamus compelling Respondent, the Honorable

Greg Wilhelm, Judge of the County Court at Law No. 1 of Ellis County, to vacate an

order permitting interim summations by the attorneys in a jury trial which was stayed

by this Court in December 2007 and will resume in July. Because the Honzas have an

adequate remedy by appeal, we will deny their mandamus petition.

      “Generally, mandamus will issue only to correct a clear abuse of discretion or the

violation of a duty imposed by law when an adequate remedy by appeal does not exist.

Mandamus should not issue to correct grievances that may be addressed by other

remedies.” In re Columbia Med. Ctr of Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009)

(citations omitted).   “Used selectively, mandamus can ‘correct clear errors in
exceptional cases and afford appropriate guidance to the law without the disruption

and burden of interlocutory appeal.’” Id. (quoting In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 138 (Tex. 2004)).

       The Honzas contend that their case is an “exceptional” one for which the

principals enunciated in Prudential dictate that mandamus relief is appropriate even

though relief by appeal will be available after final judgment.       We disagree.     The

Honzas’ case does not present a matter of “clear error,” nor is the case so “exceptional”

that relief by appeal will be an inadequate remedy. See In re Pilgrim’s Pride Corp., No.

06-08-00109-CV, 2008 Tex. App. LEXIS 8619, at *4-8 (Tex. App.—Texarkana Nov. 17,

2008, orig. proceeding) (mem. op.) (relator had adequate remedy by appeal for review

of ruling excluding testimony).

       Therefore, the petition is denied.



                                                        FELIPE REYNA
                                                        Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Petition denied
Opinion delivered and filed June 30, 2010
[OT06]

*      (Chief Justice Gray concurs in the denial of the petition for writ of mandamus but
for reasons entirely different than those expressed in the memorandum opinion. A
separate opinion will not issue. He notes, however, that he did not participate in the
opinion denying the earlier petition for writ of mandamus and expressly dissented to
the granting of the stay of the trial court proceedings during the middle of trial and the
Court’s refusal to include his dissent thereto in the order staying the trial, which issued
on December 28, 2007.


In re Honza                                                                          Page 2
On December 5, 2007, the Court had unanimously stayed the trial court’s discovery
order compelling certain discovery. In Re Honza No. 10-07-00378-CV (Dec. 5, 2007)
(original proceeding) (order). Notwithstanding that the discovery order was stayed the
trial court, apparently without objection from the parties, proceeded to trial without the
items allegedly sought in discovery and without resolution of the validity of the order
compelling the discovery. At this juncture it serves no useful purpose to fully explain
why but, based upon the limited review that the circumstances then allowed Chief
Justice Gray, he did not believe that a stay of the trial was necessary or appropriate
because it did not appear that the discovery ordered had ever been properly or timely
requested. Further, if the items sought in the motion to compel had been properly and
timely requested in discovery and a timely motion to compel had been pursued and
production properly and timely ordered, there would have been no need to interrupt a
second trial to allow the discovery (An earlier jury trial had resulted in a mistrial).
Nevertheless, a trial that had been in process for 11 days was stayed by an order of a
majority of this court to consider the propriety of the trial court’s order compelling
production of certain computer data known as “meta data.”

Now, over 2.5 years after the second proceeding was stopped in the middle of a jury
trial for a discovery issue, the trial court intends to resume that trial. To facilitate that
process the trial court has rendered an order that will allow the parties one hour each to
summarize the evidence that had previously been presented in 11 days of trial and
which time also includes the opportunity for the defendants, Relators here, to provide
the jurors with a supplemental opening statement. The Court holds that any issue
regarding what now happens in the middle of trial can be adequately reviewed on
appeal. Chief Justice Gray concurs only in the result for the reasons stated below.

Without addressing the efficacy of, or the many problems that the trial court, the
parties, and the jurors may experience in the effort to continue with a trial interrupted
for so long, on the narrow issue presented by this mandamus proceeding, he does not
believe that it is an abuse of the trial court’s discretion to allow the parties the
opportunity to summarize the evidence previously presented. Given the length of the
interruption in the trial, it would be difficult to simply resume the trial with the
presentation of the defendants’ case-in-chief (the trial was stayed when the plaintiffs’
had fully presented their case-in-chief.) And at this juncture, while he recognizes the
concern that the summaries will cross over into argument which is only proper “after
the evidence is concluded and the charge is read,” TEX. R. CIV. P. 269 (a), that is not an
issue that we can address in this mandamus proceeding. See generally Parker v. State, 51
S.W.3d 719, 723-7245(Tex. App.—Texarkana 2001, no pet.). The scope of the summaries
and thus the duty to keep them within the proper boundaries begins with the lawyers
as officers of the court but ultimately rest with the trial court to supervise and control
the events in the court room, including limiting the summaries given by the parties to
the proper scope.


In re Honza                                                                            Page 3
Accordingly, for the reasons expressed, Chief Justice Gray concurs in the judgment of
the Court to deny the petition for writ of mandamus.)




In re Honza                                                                    Page 4
