* John T. Boyd, Chi ef Justi ce (Ret.), Seventh Court of Ap peals, sitting by

assignment

. NO. 07-02-0338 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E AUGUST 29 , 2002

______________________________ IN RE H AZEL WELCH, RELATOR

_________________________________ ORIGINAL PROCEEDING

_______________________________ Before REAVIS and JOHNSON, JJ., and BOYD, S.J. * Relator Hazel W elch seeks issuance of a w rit of mandam us directing Respondent, the Hon ora ble Andy Kupper, Judge of the 286 th District C ourt, to vacate a disco very ord er. W e deny the petition. Relator Welch fil ed s uit against Real Party in Interest Dorothy Sm ith d/b/a the Bounty Restaurant as the result of personal injuries Wel ch claims occ urred when sh e fell on the prem ises of the Bounty Res taurant. Sm ith answered and fo rwarded interrogatories and a request for disclosure to Welch. Smith’s interrogatory num ber 12 reads as follo ws:2

For the period beginning ten (10) years prior to the accident m ade the subject of this la wsu i t to the present, state the full name, present address and telephone number of each person, enti ty o rinstitution (whether hospital s, me dical doctors, chiropractors, or any other type of

practitioner of the healing arts) who has prov ided health care services to you. W elch responded by obj ecting. She asserted that the interrogatory was “overbroad and violates the physician-patient privilege.” She disclosed that sh e was withholding information responsive to t he request. Request for disclosure num ber j. reques ted All me dical records and bills that are reasonably relat ed to the i njuries or damag es as serted b y you in this suit or, in lieu thereof, an authorization permitting the disc losure of such m edical recor ds and b ills (form attach ed). The attached for m w

as a form w hich author ized rel ease of any and al l of W elch’s healthcar

e records, both treatm entand business records, toSm ith’s attorn eys or agents. The release was not limited as to tim e or type of treatm ent. W elch responded, in part, to the request for disclosure by providing a limited release for healthcare records. The release authorized Sm ith’s attor neys o r agents to obtain copies of records and docum ents concerning Wel ch’s healthcare treatm ent on or after the date of her fall in the Bounty. Sm ith filed a motion to com pel. By her m otion, Sm ith sought an order com pelling W elch to ex

ecute “ an appro priate m edical autho rization allow ing for the ret rie val of [W elch’s] prior medical information. . . .” The trial court heard the m otion to com pel on J uly3

12, 2002. W e do not have a recor d of the heari ng, thus have no reco rd of the tri al court’s ruling or the evidence on w hich it was based. W elch asserts, and Sm ith does not contest, that following the hearing of July 12th , the trial court ordered W elch to 1. Identify to [Sm ith] the full na me, present address and telephone num ber of each person, enti ty or insti tution (whether h ospital s, medical doctors, chiropractors, or any other type of practitioner of the healing arts) whohas provided h ealth careservices to [Welch], for the period beginning ten (10) years prior to the accident m ade the subj ect of this lawsuit; 2. Execute and deliver to [Sm ith] an authorization for the release of m edical information, me dical records, and/or m edical reports relating to any m edical treatm entand/or consultation received by [We lch ] during the period beginning ten (10) years prior to the date of the accidentmade the subject of this lawsuit to the presen t. Bytwo issues, W elch urges th at we should issue a writ of m andam us directing the trial court to vacate its order. First, W elch asserts that the trial court’s ordering her to sign an unlimited m edical release for the ten years preceding the accident w as an ab use of discretion. Next , she argues that thetrial court abused its discretion in allowing d iscovery of the ident ity, trea tm ent by and diagno sis m ade by e very ph ysician and hospital w here she w as t rea ted for

ten yea rs p rior

to t he a cci d ent. Her basis for bot h issues i s T EX . R. E V ID . 509(c)(1 ) and (2) and, am ong othe r authori ties, R.K. v. Ramirez , 887 S.W.2d 836 (T ex. 1994); Mutter v. Wood , 744 S.W.2d 600 (Tex. 1 988); an d Midkiff v. Shaver , 788 S.W.2d 399 (Tex.App.--Am arillo 1990, no writ). A writ of m andam us is an extraordinary rem edytha t w ill issue (1) only to correct a clear abuse o f discretion or the violation of a duty imposed by law, w hen (2) there is no other adequate rem edyby law. See Can adia n He licop ter s Ltd. v . Wittig , 876 S.W.2d 304,4

305 (Tex. 1994). To es tablish the first requirement for m andam us relief, an abuse of discretion, the com plaining party must dem onstrate that thetrial court acted unrea sonably, arbitr aril y, or without reference to guiding rules and principles. See Downer v . Aquam arine Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985). In regard to decisi ons based on factual ma tters, an abuse of discretion occ urs if the trial court could reas ona blyhave reached only one conclusion, and it reached a contrary conclusion. See W alker v. Packer , 827 S.W.2d 833, 839-40 (Tex. 1992). Itis the relator’s burden to show entitlement to t he rel ief being re quested. See gen era lly Joh nso n v. Fou rth Cou rt o f A ppe als , 700 S.W.2 d 916, 9 17 (Tex. 1985) (orig. proceed ing). In order to find that the trial court abused its discretion, the rev iewing court must conclude thatthefac

ts a nd c ircu m sta nce s of thecas e ex

ting uish any

disc ret ion in the ma tter. See id . at 918. In making such evaluation, the reviewing court m ust focus on the evidence and m atters before the trial court at th e t i me the challenged ruling was m ade. See In re Bristol-Myers Squibb Co. , 975 S .W.2d 601, 605 (Tex. 1 998); Midkiff , 788 S.W.2d at403 (trial court’s discretion is to be exerc ised base d on therecord as constituted w hen presented for

i ts decision). The relator in a mandam us proceeding m ust file a certified sworn copy of every doc ument that is m aterial to the relator’s claim for relief and that w as filed in any underlying proceeding and a properly authenticated transcript of any relevant testimony

from any underlying proceeding including any exhibits offered in evidence, or a sta tem ent

tha t notes tim ony

w as a ddu ced in connecti on with the matter about which com plaint is made. See T EX . R. A PP . P. 52. 7(a). A court of ap peals may not grant5

manda mus

relief when the petition an d record before it require the court to specu late. See In re Colony Ins. , 978 S.W.2d 746, 747 (Tex.App.--D allas 1998, orig. proceeding); Frink v. Blackstock , 813 S.W.2d 602, 604 (Tex.App.--H ouston [1st Dist.] 1 991, or ig. p roceeding)

. The trial court’s order was made following an evidentiary hearing. W e do not know what evid ence was p res ented d urin g th e he arin g an d ca n on lyspe culate as to w hat com prised the record before the trial court at the t ime its ruling was m ade. W e can not determ ine that the trial court abused its discretion based on speculation. See In r e B ristolMyer s Squibb Co. , 975 S.W.2d at 605; In re Colony Ins ., 978 S.W.2d at 747; Midkiff , 788 S.W.2d at 403. Relator’s petition for writ of m andam us m ust be and is denied.

Phil Johnson Justice Do not publish.6