                                   NO. 07-08-0117-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL E

                                   APRIL 17, 2008
                          ______________________________

           IN RE TOM BERNSON, D/B/A BERNSON ENTERPRISES, RELATOR
                       _______________________________


Before CAMPBELL, and HANCOCK, JJ. and BOYD, S.J.1


                       ON PETITION FOR WRIT OF MANDAMUS


       On March 17, 2008, relator Tom Bernson d/b/a Bernson Enterprises filed a petition

for writ of mandamus seeking an order compelling the trial court to grant additional time

for discovery in the underlying case. Because trial of the underlying case was scheduled

to begin on March 17, and as the essence of relator’s requested relief by this original

proceeding is additional discovery time, relator contemporaneously filed a motion for

emergency relief seeking a stay of the trial. On March 17, we denied relator’s request for

emergency relief.


       On April 11, relator filed a pleading with this court explaining that the underlying

case was tried, the jury answered all questions submitted in his favor, and he has

submitted a proposed judgment to the trial court. According to relator, however, at trial he

       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
chose not to present claims he deemed dependant on the discovery he alleges the trial

court wrongly denied. Relator asserts the trial court’s entry of a judgment thus may not

cure the harm caused by its denial of additional discovery. Relator concludes his pleading

by asking us to either leave his petition for writ of mandamus pending until the trial court

enters judgment in the underlying case or reach the merits of his petition. We will address

the merits.


       Relator’s complaint with the trial court arises from the assertedly wrongful denial of

discovery by that court. The underlying case now has been tried. To obtain relief by

mandamus, relator must show the trial court clearly abused its discretion and he possesses

no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.

proceeding). A court of appeals may not issue a writ of mandamus if the record fails to

demonstrate the lack of an adequate remedy on appeal. In re Tex. Dep’t of Family &

Protective Servs., 210 S.W.3d 609, 612 (Tex. 2006) (orig. proceeding).             A writ of

mandamus is not a substitute for an appeal. See Walker, 827 S.W.2d at 840-41. The

underlying case having been tried, we have nothing to demonstrate that appeal of the trial

court’s judgment would not provide an adequate remedy for relator’s complaint.

Accordingly, relator’s petition for writ of mandamus is denied. Tex. R. App. P. 52.8(a).




                                                  James T. Campbell
                                                       Justice




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