These separate rights have been preserved in every constitution since. This ensures that Texas
citizens bringing valid causes of action will not be unlawfully denied adequate, effective and meaningful
access to the courts. See, TOM L. NELSON ET AL., Petitioners v. EDWARD M. KRUSEN AND
BAYLOR UNIVERSITY MEDICAL CENTER, Respondents, 678 S.W.2d 918; 1984 Tex. LEXIS 404;
28 Tex. Sup. J. 31 (October 17, 1984).
Summary judgment premature
Summary judgment is appropriate only after adequate time for discovery. A party opposing a motion
for summary judgment must have a reasonable opportunity to discover information that is essential to
its opposition to the motion. Celotex v. Catrett, 477 U.S. 317 at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at
276. Tex. R. Civ. P. 166a.
This rule clearly contemplates that the trial court will allow the parties a reasonable opportunity to
conduct discovery before granting a summary judgment. The purpose of the discovery process is to
allow parties to obtain the fullest knowledge of facts and issues before the disposition of their case.
Chapa v. Garcia, 848 S.W.2d 667, 668 (Tex. 1992). Discovery is favored, and the rules governing
discovery are to be liberally construed. Service Lloyds Ins. Co. v. Clark, 714 S.W.2d 437, 438
(Tex. App.—Austin 1986, no writ).
Due Process and Tex. R. Civ. P. 166a(c) and (i) clearly contemplates and mandates that the trial
court allow a reasonable opportunity for discovery before granting a summary judgment. The purpose
of discovery is to allow a party an opportunity to garner relevant facts before the resolution of the case.
The discovery process is a party’s opportunity to obtain facts pertaining to its claim or defense. The rules
governing discovery should be liberally construed. CBI Indus. v. National Union Fire Ins. Co.,
860 S.W.2d 662, (Tex. App., August 5, 1993)
Petitioners right to discovery:
The record demonstrates Relator’s efforts to have discovery of evidence that goes to the heart of his
claims have been denied without basis or reason in law.
The Supreme Court of the United States stated: “Modern instruments of discovery serve a useful
purpose, as we noted in Hickman v. Taylor, 329 U.S. 495. They together with pretrial procedures make
a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to
the fullest practicable extent. Id., at 501”. See, UNITED STATES v. PROCTER & GAMBLE CO.
ET AL., 356 U.S. 677; 78 S. Ct. 983; 2 L. Ed. 2d 1077 ( 1958).
The Texas Supreme Court held that the very basis of the right to a fair trial is, indeed, that each party
have the opportunity to adequately and vigorously present any material claims and defenses.
Schein v. Stromboe, 102 S.W. 3d 675, 46 Tex. Sup. C. J. 103, (Tex. 2002)
The whole purpose of discovery is to allow the parties “to obtain the fullest knowledge of issues and
facts prior to trial.” West v. Solito, 563 S.W.2d 240, 243 (Tex. 1978).
The rules of discovery were changed to prevent trials by ambush and to ensure that fairness would
prevail. Maria Gutierrez, Petitioner, v. Dallas Independent School District, Respondent
729 S.W.2d 691; 1987 Tex. LEXIS 344; 30 Tex. Sup. J. 431(1987); Jampole v. Touchy,
673 S.W.2d 569, 573 (Tex. 1984, orig. proceeding).
Plainly, the trial court should not have permited Cybertrader to boldly and arrogantly defy Relator’s
legitimate requests for discovery that goes to the heart of Relator’s claims; much less, allow
CyberTrader to benefit from such outrageous conduct. This violates Petitioner’s fundamental rights
and imperils the public integrity of the judicial processes.
NO ADEQUATE REMEDY BY APPEAL
Erroneous denial of discovery going to the heart of a party”s case severely compromises a party’s
ability to present a viable claim or defense at trial, and renders the appellate remedy inadequate.
Walker v. Packer, 827 S.W.2d 833, 843-44 (Tex. [**5] 1992) (orig. proceeding).
The Texas Supreme Court has set out three situations in the discovery context when an appeal is not
an adequate remedy and when mandamus is proper:
First, when the trial court erroneously orders the disclosure of privileged information that will materially
affect the rights of the aggrieved party, such as documents protected by the attorney-client privilege,
an appeal will not be an adequate remedy when the appellate court is unable to cure such error.
Second, when the trial court disallows discovery and the missing discovery cannot be made part of the
appellate record, thereby denying the reviewing court the ability to evaluate the effect of the trial
court’s error; mandamus is a proper remedy.
Finally, where the party’s ability to present a viable claim or defense is vitiated or severely compromised,
the appellate remedy may be inadequate.
See, In re Colonial Pipeline Co., 968 S.W.2d 938, 1998 Tex. LEXIS 80 (Tex., May 8, 1998);
Walker v. Packer, 827 S.W.2d 833, 843-44 (Tex. [**5] 1992) (orig. proceeding); Also, see
In re Jobe Concrete Prods, 101 S.W.3d 122, [HN 6], 2002 Tex. App. LEXIS 9268 (Tex. App.,
December 31, 2002, ) In re Family Hospice, Ltd., 62 S.W.3d 313, [HN7] 72001 Tex. App. LEXIS 7931
(Tex. App., November 29, 2001).
Additionally, erroneous denial of discovery going to the heart of a party’s case severely compromises
a party’s ability to develop the merits of his or her case, so that the trial would be a waste of judicial
resources and renders the appellate remedy inadequate. See, Able v. Moye, 898 S.W.2d 766, 772 (Tex.
1995, orig. proceeding); General Motors Corp. v. Tanner, 892 S.W.2d 862, 864 (Tex. 1995, orig.
proceeding); Granada Corp. v. First Court of Appeals, 844 S.W.2d 223, 225-26 (Tex. 1992, orig.
proceeding)
Mandamus is appropriate:
Mandamus relief is available if the trial court violates a duty imposed by law or clearly abuses its
discretion, either in resolving factual issues or in determining legal principles when there is no other
adequate remedy by law. A trial court clearly abuses its discretion if it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833,
1992 Tex. LEXIS 14 (Tex., February 19, 1992, Delivered) In re Valero Energy Corp., 973 S.W.2d 453,
1998 Tex. App. LEXIS 4835 (Tex. App., August 6, 1998)
Mandamous is appropriate when there is: (1) a clear abuse of discretion or the violation of a duty
imposed by law (which is often described as a “ministerial” act), and (2) the absence of a clear and
adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132, 37 Tex. Sup. Ct. J. 921 (Tex. 1994);
Walker v. Packer, 827 S.W.2d 833, 839-40, 35 Tex. Sup. Ct. J. 468 (Tex. 1992).
There is no clear and adequate remedy at law where the denial of discovery going to the heart of a
party’s case severely compromises a party’s ability to present a viable claim or defense at trial, and
renders the appellate remedy inadequate. Walker v. Packer, 827 S.W.2d 833, 843-44 (Tex. 1992) (orig.
proceeding).
The appellate remedy may be inadequate in three situations: (1) when the appellate court cannot
cure the trial court's discovery order, such as where the trial court orders disclosure of privileged
documents;
(2) where the party's ability to present a viable claim or defense is vitiated or severely compromised;
(3) and when the trial court disallows discovery and the missing discovery cannot be made part of the
appellate record, thereby precluding appellate review. IN RE CARBO CERAMICS INC.,
81 S.W 3D 369 (2002 Tex. App.Houston)
CONCLUSION
The record clearly demonstrates the complaints presented in the petitioner for writ of mandamus are
authorized by law and are not moot or useless. Therefore, Petitioner has the fundamental right to have
a written decision wherein each of the complaints is addressed in a full, fair, objective, rational and
reasoned manner with supporting authorities. Clearly, the Court has the solemn duty imposed by law
to do so.
REQUEST FOR RELIEF
WHEREFORE, for the foregoing compelling reasons, Petitioner respectfully requests and urges the
Court to grant this motion, withdraw and vacate the opinion signed April 28, 2006. Then issue a written
opinion wherein each of the complaints is addressed in a rational and reasoned manner with supporting
authorities. Petitioner requests all other and further relief and remedies to which he may be entitled at
law, in equity and in fundamental fairness.
Respectfully submitted,
Guy Sparkman
420 Haden St.
Tyler, Texas 75701
CERTIFICATE OF SERVICE
I hereby certify that I have delivered a true copy of this motion for rehearing to the Respondent and
to the office of the attorney for the real party in interest and to the Honorable John Ovard , et al.
Guy Sparkman
"Outlaw"
Appellate Judge Sam Griffith Responded to this
Legitimate Motion for Rehearing with
One Word
2006 Tex. App. LEXIS 4822, *
FOCUS - 1 of 2 DOCUMENTS
In Re: Guy Sparkman
12-06-127-CV
COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER
2006 Tex. App. LEXIS 4822
May 23, 2006, Decided
Page 1
NOTICE: [*1] DECISION WITHOUT PUBLISHED OPINION
PRIOR HISTORY: In re Sparkman, 2006 Tex. App. LEXIS 3548 (Tex. App. Tyler, Apr. 28, 2006)
OPINION:
Rehearing Petition Denied
Appellate Decision Denying Petition for Writ of Mandamous
To Require Judge Kent to Perform Her
Ministerial Duties.
2006 Tex. App. LEXIS 3548, * LEXSEE 2006 TEX. APP. LEXIS 3548
IN RE: GUY SPARKMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS, SIMILARLY
SITUATED, RELATOR
NO. 12-06-00127-CV
COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER
2006 Tex. App. LEXIS 3548
April 28, 2006, Opinion Delivered
SUBSEQUENT HISTORY: [*1] Released for Publication May 23, 2006.Rehearing denied by In re Sparkman,
2006 Tex. App. LEXIS 4822 (Tex. App. Tyler, May 23, 2006)
PRIOR HISTORY: ORIGINAL PROCEEDING
DISPOSITION: DENIED
JUDGES: Panel consisted of Worthen, C.J. and Griffith, J. DeVasto, not participating.