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Petition for Writ of Mandamus Denied, and Memorandum Opinion filed August 28, 2008.


In The


Fourteenth Court of Appeals



NO. 14-08-00740 -CV












M E M O R A N D U M   O P I N I O N

On August 1, 2008, relators, Heriberto Sedeno-Suarez, M.D. and his professional association, filed a petition for writ of mandamus asking this court to vacate a March 28 protective order entered by the respondent.[1]  That order precludes the parties from exchanging written discovery, and places limits on the availability and scope of depositions of certain fact witnesses, including the parties themselves, until September 10, 2008.  We deny the petition.


In the underlying lawsuit, real party in interest Genoveva Mijares, a former patient, has accused Dr. Sedeno-Suarez of sexually assaulting her during an August 2006 office visit.  Mijares filed her lawsuit in November 2007.  Only one week earlier, the State of Texas also filed a felony complaint against Sedeno-Suarez stemming from the same sexual assault allegations forming the basis for the civil lawsuit.  In the civil lawsuit, the physician responded to Mijares=s written discovery by asserting his Fifth Amendment privilege against self-incrimination, thereby declining to answer any question into the merits of the patient=s allegations.  Although he had refused to answer Mijares=s written discovery, Sedeno-Suarez then served similar sets of written discovery seeking details about Mijares=s allegations.

On March 13, 2008, Mijares and the Harris County District Attorney requested that the trial court enter a protective order that, until September 3, 2008, would abate written discovery between the parties and would require court approval for the depositions of Sedeno-Suarez, Mijares, and her family.  The stated purpose for the motion was that Sedeno-Suarez was unfairly using the more-liberal civil discovery process to his advantage in the criminal action, in which discovery is limited.  On March 28, the trial court granted the following protective order:

It is hereby ORDERED that all future and current and outstanding written discovery to Genoveva Mijares and Heriberto Sedeno is abated until September 10, 2008.[2]  Further, any depositions of Genoveva Mijares, her family and Heriberto Sedeno shall be undertaken only at such method or upon such terms and conditions and at the time and place as directed by the court.


On August 1, slightly more than four months later, relators filed this mandamus proceeding to challenge the trial court=s March 28 protective order.  They claim that the protective order operates as an improper abatement of discovery until the conclusion of the criminal trial against Sedeno-Suarez, and thatCabsent mandamus reliefCthey cannot adequately prepare a defense against Mijares=s allegations in the civil trial.

                                                       Standard of Review

Mandamus relief is available if the relators establishes a clear abuse of discretion for which there is no adequate remedy at law.  In re AutoNation, Inc., 228 S.W.3d 663, 667 (Tex. 2007) (orig. proceeding).  A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  With respect to the resolution of factual issues, the Court may not disturb the trial court=s ruling unless the record clearly demonstrates that the trial court reasonably could have reached only one decision.  See id. at 839B40.  By contrast, review of a trial court=s determination of legal principles is much less deferential.  See id. at 840.  A trial court has no discretion in determining what the law is, or in applying the law to the facts; therefore, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion.  Id.


We note that relators waited more than four months to challenge the trial court=s protective order in this mandamus proceeding.  Relators offer no explanation, and the mandamus record reveals no justification, for the four-month delay in requesting mandamus relief.[3]  On that basis, we decline to issue mandamus relief.

Although mandamus is not an equitable remedy, its issuance is largely controlled by the principles of equity.  Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding).  One such equitable principle is that equity aids the diligent, but not those Awho slumber on their rights.@  Id. (citation omitted).  Therefore, mandamus relief may be denied to a party for lack of diligence.  Id.; In re Users Sys. Servs., Inc., 22 S.W.3d 331, 337 (Tex. 1999) (orig. proceeding).

Because mandamus is discretionary, we need not afford mandamus relief to a dilatory party even if the opposing party does not assert lack of diligence as a ground for denying relief.  Users Sys. Servs., 22 S.W.3d at 337.  We hold that relators, by inexplicably waiting more than four months to request mandamus relief, have not diligently pursued their complaint to the trial court=s order.  See Rivercenter Assocs., 858 S.W.2d at 367; Bailey v. Baker, 696 S.W.2d 255, 256 (Tex. App.CHouston [14th Dist.] 1985, orig. proceeding); Int=l Awards, Inc. v. Medina, 900 S.W.2d 934, 935B36 (Tex. App.CAmarillo 1995, orig. proceeding); Furr=s Supermarkets, Inc. v. Mulanax, 897 S.W.2d 442, 443 (Tex. App.CEl Paso 1995, orig. proceeding).

Nor will we issue mandamus relief to promote inequity, that is, permitting a party to conduct one-sided discovery while simultaneously cutting off his opponent=s discovery rights.  See Right to Life Advocates, Inc. v. Aaron Women=s Clinic, 737 S.W.2d 564, 571 (Tex. App.CHouston [14th Dist.] 1987, writ denied).  It is well-established that a party, like Dr. Sedeno-Suarez, may assert the Fifth Amendment in civil cases should he reasonably believe his answers would be incriminating, and we do not necessarily fault him for doing so.  See Marshall v. Ryder Sys., Inc., 928 S.W.2d 190, 195 (Tex. App.CHouston [14th Dist.] 1996, writ denied). 

However, a trial court need not permit a party to assert the privilege so as to render the civil proceeding unfair.  Id.  One of the roles of courts is to provide a Alevel playing field@ for litigants, so that each side has a fair opportunity to develop her case.  See Lopez v. Foremost Paving, Inc., 796 S.W.2d 473, 481 (Tex. App.CSan Antonio 1990, writ dism=d by agr.).   Therefore, after a party invokes the Fifth Amendment, the trial court may take appropriate steps to ensure that the civil proceeding remains fair.  Tex. Dep=t of Pub. Safety Officers Ass=n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995).  By protecting Mijares from written discovery and limiting the availability and scope of the parties= depositions until the conclusion of the criminal trial, the trial court remedied the inherent fairness that was occasioned by Sedeno-Suarez=s lawful refusal to participate in meaningful discovery.  See Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1087B89 (5th Cir. 1979).

Accordingly, we deny the petition for writ of mandamus.



Petition Denied and Memorandum Opinion filed, August 28, 2008.

Panel consists of Chief Justice Hedges, Justice Guzman, and Justice Brown.

            [1]           Respondent is the Honorable Tony Lindsay, presiding judge of the 280th Judicial District Court of Harris County.

            [2]           The mandamus record does not explain the significance of the September 10, 2008 expiration date for the protective order.  Relators= brief describes the protective order as expiring Aafter the conclusion of the criminal matter@ so, presumably, this September date relates somehow to the criminal trial setting.

            [3]           For example, although a delay might be excused where it was occasioned by the relator=s inability to promptly secure a reporter=s record, see In re SCI Tex. Funeral Servs., Inc., 236 S.W.3d 759, 761 (Tex. 2007) (orig. proceeding), in this case relators did not file a reporter=s record from the hearing.