NO. 07-05-0347-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A NOVEMBER 15, 2005

______________________________ IN RE: CLARE CONSTAT, LTD. AND STE PHEN YORK TAYLOR, RELATORS

_________________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ.

ON PETITION FOR WRIT OF MANDAMUS
Relators Clare Cons tat, Ltd. and Stephen York Tayl or seek a w rit of mand amus requesting that we or

der the Honorable David Gleason, assigned judge of the 47th District Courtof Potter County , to withd raw hisabatement order of September 22, 2005, to allow relators to conduct dis covery prior to any

considerati on of the defendants’ no-ev ide n ce motion for summary j udgment and to all ow all di scovery to proceed in accordance w ith the Texas Rules of Civil Procedure. In response, among oth er things, real parties in interest, Brown & Fortunato, contend the reli ef requested shoul d be denied beca use r elat ors h ave not shown a c lear abuse of dis cretion by the trial court. We deny the petition.1 Other claims were presented by amended pleadings. 2 Standard of Revi ew Discovery

rules encour

age trial courts tolimitdiscover y to avo id undue burdens, and the tria l co urt has broad discretion to schedu le and define the sco pe of discovery. In re Alfo rd Chevrol et-Geo, 997 S.W.2d 173, 181 (Tex. 1999). Relator s are entitl ed t o mandamus relief “only

to correct a trial cour

t’s clear abuse of

discretion when noadequate remedy at law exists.” Id . at 176. In our revi ew, reg arding factual matters as an app ellate courtwe may n ot substitute ou r judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1982); In re Energas Co., 63 S.W .3d 50, 51 (Tex.App.–Am arillo 2001, orig. proceeding). In de term inin g wheth er ma nda mus s hou ld iss ue, b ecau se we cannotplum b the subj ecti ve reasoning of the trial cour t, we must focus

on the record that
was before it and deci de whether the decision was not only arbitrary but also amounted to
a clea r and preju dicia l erro r of l aw. In re Bri stol-Meyers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998). See also In re Shipmon, 68 S.W.3d 815, 81 9 (Tex.Ap p.–Am arillo 20 01, orig. proceeding).
Relators sued real parties in interest for appe llate legal malpract ice alleging the atto rneys failed to timely file a notice of appeal from an adverse trial courtjudgment. 1 Both parties recognize that a determinat ion of the element of

causation is

a claim for appel late legal malpractice and is c ontr olle d by Mil lhou se v. W iese ntha l, 77 5 S.W .2d 6 26 (T ex. 1989). By l etter

dated November

23, 2004, the Honor

able Hal Mi ner, presidi ng judge of2 Neither party pr esents any complaint nor obj ection regarding the denial or absence of document production. 3 the trial cour

t, advised all counsel that he would eventually draft a discovery order and also requested counsel for

real parties to ex plain why the court shoul d not adjudicate proximate
cause before allow ing discov ery on the ot her elements of theother claims

. Following his recusal and assignment of the Honorable David Gl eason, on September 22, 200 5, Judge Gleason signed a Le ve l 3 Scheduling Order w hich relator s challeng e. As material here, the scheduling order prov ided:

C discovery

is abated until future order resol ving thesummary judg ment practice on causation issues;

C defendants shall file a no-evidence motion for summary ju dgment addressing o nly the is sue of cause-in-fact, i.e. , the outcome of the appeal of the underly ing case;

C plai ntif

fs shall file a response and cr oss-motion for

p artial summary judgment

solely on the issue of cause-in-fact, which cross-motio n will include the underlying appellate record and appe llants’ brief that should have been filed in the underlying appeal.

C defendants s ha ll file a res ponse to the plai ntiffs’ cross- motion for partial summary judg ment, including the appellees’ br ief th at would have been filed in the und erlying appeal. 2
In Millhouse , 775 S.W.2d at 627, although notin g that a determination of

proximate
caus e is us uall y a question of fact i n legal malpractice actions, the court he ld that where appellate legal malpr

actice i s the issue, the determinat ion of causation requires a determination of whether the appeal in the underlying action would have been successful. The court then conc luded that b ecause a plaintiff suing fo r appellate malpractice must3 The summary judgments affirmed i n Millhouse and Klein predate adoption of Rue

166a(i) of the Texas Rules of Ci vil Pr ocedure in 1997.
4 We express no opinion as to whether the appe lla te malpractice causation is sue should be presen ted by a traditional motion fo r summary judgment or a no-evidence motion for summary

judgment. See Tex. R. Ci v. P. 166a. 4 show thatbut for

the negligence of the attorne y, the client would have prevailed on appeal, the question of caus ation was to be determined asa question of l aw and affirmed thecourt of appeals’ judg ment affirming the su mmary judg ment. The Millhouse decision w as followed in Klein v . Reynolds , Cunningham, P e ters on & Cordell , 923 S.W.2d 45, 47 (Tex.App.–Hous ton [1st Dist. ] 1995, no writ). The court held that w here the issue of causation hinges on thereview of the trial r

ecord and the briefs, the q uestion of causati on i s to be resolved by the cour t as a questi on of law and affirmed t he summary ju dgment rendered by the trial court. 3
Althou gh discover

y rules are to be liber ally cons trued , see Coleman v. WinnColeman, Inc., 110 S.W .3d 1 04, 111 (Tex.App.–Houst on [1st Dist.] 2003, no pet.), considering that the issue o f causa tion of the appellate malpractice claim is to be determined by the trial court upon its review of the trial record and briefs, that discovery is notabated beyond thedetermination of the causation i ssue, and the peti tion and respons e, we conclude a cl ear abuse o f discre tion by the trial cour t has not been demonstr ated. Accordingl y, relato rs’ petiti on for wri t of mandamus is denied. 4
Don H. Reavis Justice