Texas Supreme Court Again Expands Mandamus Powers [for the benefit of favored defendants]

July 3, 2009 - Opinions Released

TEXAS SUPREME COURT ORDERS JUDGES TO EXPLAIN AND JUSTIFY WHY THEY GRANTED NEW TRIALS [in cases in which tort claim defendants had prevailed with the jury]

"In the Interest of Justice" - a common label for judicial discretion in that regard and in others - will no longer pass muster as a sufficient ground.

In other cases in which decisions were released just in time for Fourth of July, the Supremes take additional steps to assure that prevailing defendants in health-care liability litigation can saddle unsuccessful plaintiffs and/or their lawyers with attorneys fees and costs as a sanction ... and as deterrence for other would-be plaintiffs: Judicial Med-Mal Reform Plus

In Re Columbia Medical Center of Las Colinas (Tex. 2009),
No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted) (reasons for trial court judge disregarding jury verdict and granting new trial required) (mandamus relief granted to direct trial court to elaborate on reasons for setting aside jury verdict and granting new trial) (also see --> JNOV) IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County;5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated; stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf] Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] E-Briefs in Tex 2009 No. 06-0416 IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS
The Texas Constitution provides that the right of trial by jury “shall remain inviolate.” Tex. Const. art. 1, § 15. The issue before us is whether, after a jury has rendered its verdict, the trial court may disregard that verdict, grant a new trial, and explain its action only as being “in the interests of justice and fairness.” We conclude that just as appellate courts that set aside jury verdicts are required to detail reasons for doing so, trial courts must give more explanation than “in the interest of justice” for setting aside a jury verdict. We conditionally grant mandamus relief directing the trial court to more specifically set out the reasons for which it set aside the jury verdict and granted a new trial.Conclusion: We conditionally grant relief. We direct the trial court to specify the reasons it refused to enter judgment on the jury verdict and ordered a new trial as to Columbia. The reasons should be clearly identified and reasonably specific. Broad statements such as “in the interest of justice” are not sufficiently specific. We are confident the trial court will comply. The writ will issue only if it fails to do so.

AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT JUDGES, SUPREMES ORDER THE LAST ONE TO SERVE UP A VALID EXPLANATION WHY NEW TRIAL WAS WARRANTED IN THE CASE.

In Re Baylor Medical Center at Garland (Tex. 2009) ,
No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted)(Johnson) (trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide reason for granting new trial)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below) as reinstated, stay order issued August 29, 2008, lifted. The Supreme Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] View Electronic Briefs in Tex. 2009 No. 06-0491 IN RE BAYLOR MED. CTR. AT GARLAND

NO PARTNERSHIP FORMED, AND THUS NONE EXISTED, UNDER TEXAS REVISED PARTNERSHIP ACT

Ingram v. Deere (Tex. 2009) ,
No. 06-0815 (Tex. Jul 3, 2009)(Wainwright)(dispute over existence of partnership under TRPA, partnership criteria/factors, fiduciary duty) (existence of partnership not proven, take-nothing judgment reinstated)
JESSE C. INGRAM, PH.D. AND BEHAVIORAL PSYCHOLOGY CLINIC, P.C. v. LOUIS DEERE, D.O. AND HILLVALE MEDICAL GROUP ASSOCIATION D/B/A HILLVALE MEDICAL ASSOCIATION; from Dallas County; 5th district (05-05-00063-CV, 198 SW3d 96, 04-27-06 Opinion of the Dallas court of Appeals) 2 petitions. The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Willett joined, in which Justice O'Neill and Justice Brister joined except as to part II.D.5.a, and in which Justice Johnson joined except as to part II.D.2. [pdf]
Justice Johnson delivered a concurring opinion. [pdf] View Electronic Briefs in Tex. 2009 No. 06-0815 JESSE C. INGRAM, PH.D. v. LOUIS DEERE, D.O.
In this case, we review a court of appeals judgment reinstating a jury verdict finding that Louis Deere, D.O. and Jesse C. Ingram, Ph.D. formed a partnership pursuant to the Texas Revised Partnership Act (TRPA).TRPA lists five factors to be considered in determining whether a partnership has been formed. This determination should be made by examining the totality of the circumstances in each case, with no single factor being either necessary or sufficient to prove the existence of a partnership. Here, the evidence is legally insufficient to establish that a partnership existed between Ingram and Deere. Because the evidence of the formation of a partnership is legally insufficient, we do not address the issue raised in Ingram’s cross-petition challenging the court of appeals’ decision that Ingram owed Deere a fiduciary duty. Accordingly, we reinstate the trial court’s take-nothing judgment in favor of Ingram and reverse the court of appeals’ judgment.Whether a partnership exists must be determined by an examination of the totality of the circumstances. Evidence of none of the factors under the Texas Revised Partnership Act will preclude the recognition of a partnership, and even conclusive evidence of only one factor will also normally be insufficient to establish the existence of a partnership under TRPA. However, conclusive evidence of all five factors establishes a partnership as a matter of law. In this case, Deere has not provided legally sufficient evidence of any of the five TRPA factors to prove the existence of a partnership. Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s take-nothing judgment.

APPRAISAL PROVISION IN INSURANCE CONTRACT ENFORCED

State Farm Lloyds v. Johnson (Tex. 2009),
No. 06-1071 (Tex. Jul. 3, 2009)(Brister) (INSURANCE LAW: appraisal clause in insurance context, hail damage to home of insured property owner) STATE FARM LLOYDS v. BECKY ANN JOHNSON; from Collin County; 5th district (05-05-00640-CV, 204 SW3d 897, 10-27-06 Opinion of the Dallas Court of Appeals) The Court affirms the court of appeals' judgment. Justice Brister delivered the opinion of the Court. [pdf] View Electronic Briefs in Tex. 2009 No. 06-1071 STATE FARM LLOYDS v. JOHNSON
Appraisal clauses have appeared in most property insurance policies in Texas for many years. Although they rarely detail the scope of appraisal, there has rarely been any litigation about it. The parties here agree that the scope of appraisal includes damage questions and excludes liability questions, but they disagree which is involved in this dispute about hail damage to a homeowner’s roof. Because an appraisal has yet to take place, we agree with the insured that the record does not establish that it will exceed the permissible scope of appraisal. Accordingly, we affirm the court of appeals’ judgment in favor of the insured.We do not decide today whether the appraisal conducted on remand will necessarily be binding. The summary judgment record does not, and probably cannot, answer that question until after the appraisal has taken place. But for the reasons stated above, we affirm the court of appeals’ order granting Johnson’s motion for summary judgment to compel State Farm to participate in the appraisal process, and remanding the issue of her attorney’s fees to the trial court for consideration.

SUPREMES AGAIN GRANT REVIEW TO VINDICATE HEALTH CARE DEFENDANT'S CLAIM TO SANCTIONS AFTER ABORTIVE MED-MAL SUIT - INTERLOCUTORY APPEAL CONCERNING EXPERT REPORT OBJECTIONS WAS NOT REQUIRED AS A PRELUDE.

Hernandez, MD v. Ebrom (Tex. 2009),
No. 07-0240 (Tex. Jul 3, 2009)(Johnson) (HCLC, does med-mal defendant forfeit right to seek sanctions by failing to pursue by interlocutory appeal challenge to expert report where objection was overruled by the trial court?)
MIGUEL HERNANDEZ, M.D. v. JULIOUS EBROM AND RICHARD HUNNICUTT; from Hidalgo County;13th district (13-06-00053 CV, ___ SW3d ___, 02-08-07 Opinion of the court below) opposed motion for leave to file post-submission brief granted
The Court reverses the court of appeals' judgment and remands the case to that court.Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett joined. [pdf] Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined. [pdf] View Electronic Briefs in Tex. 2009 No. 07-0240 MIGUEL HERNANDEZ, M.D. v. EBROM
A defendant in a health care liability claim may appeal from the interlocutory order denying its objection to the plaintiff’s expert report. The statutes authorizing the defendant’s objection and appeal do not impose consequences if an interlocutory appeal is not pursued. In this case, we consider whether a defendant health care provider’s failure to challenge the adequacy of an expert report by interlocutory appeal precludes a challenge of the report by appeal from a final judgment when the plaintiff later nonsuits before trial. The court of appeals held it does; we hold it does not. We reverse and remand to the court of appeals.

JURISPRUDENTIAL CURIO: FIRST THE AGENCY SUES, THEN IT CLAIMS THE COURT DOES NOT (YET?) HAVE JURISDICTION

ERS of Texas v. Duenez (Tex. 2009),
No. 07-0410 (Tex. Jul 3, 2009)(Brister) (administrative law, agency exclusive jurisdiction doctrine) EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. XAVIER DUENEZ AND IRENE DUENEZ; from Calhoun County; 13th district (13-05-00729 CV, ___ SW3d ___, 04-05-07 Opinion below) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court dismisses the petition for want of jurisdiction. Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Medina, Justice Green, and Justice Willett joined. [pdf] Justice Hecht delivered a dissenting opinion. [pdf] Justice Wainwright delivered a dissenting opinion, in which Justice Johnson joined. [pdf] View Electronic Briefs in Tex. 2009 No. 07-410 EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. DUENEZ
Construing the Act as a whole, we conclude that the court of appeals’ opinion rejecting ERS’s claim of exclusive jurisdiction here does not conflict with this Court’s opinion in Duenez I affirming ERS’s exclusive jurisdiction of questions relating to payment of benefits. Accordingly, without argument, we dismiss the petition for want of jurisdiction.

A MAJORITY OF THE SUPREMES DENIES MANDAMUS RELIEF IN DISPUTE OVER LEGAL CAPACITY ISSUE WITH RESPECT TO ARBITRATION AGREEMENT. NO LESS THAN FOUR (4) SEPARATE OPINIONS ARE HANDED DOWN.

In re Morgan Stanley & Co, Inc. (Tex. 2009),
No. 07-0665 (Tex. Jul. 3, 2009)(Medina) (arbitration vs. litigation: legal capacity of party to arbitration agreement, who decides the issue?)
IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW, INC.; from Dallas County; 5th district (05-07-00590-CV, ___ SW3d ___, 07-17-07 Opinion by the Dallas CoA)
The petition for writ of mandamus is denied.
Justice Medina delivered the opinion of the Court [pdf], in which Chief Justice Jefferson, Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
Justice Hecht delivered a dissenting opinion. [pdf](Justice O'Neill not sitting) Electronic Briefs in Tex. 2009 No. 07-0665 IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW INC.
In this original mandamus proceeding, the relator seeks to compel arbitration in accordance with its agreement in the underlying case. The other putative party to the agreement resists arbitration on the ground that she lacked the mental capacity to assent to the contract. The question here is whether the court or the arbitrator should decide this issue of capacity. The trial court concluded that it was the proper forum. We agree and, accordingly, deny the petition for writ of mandamus.
We agree that Prima Paint reserves to the court issues like the one here, that the signor lacked the mental capacity to assent. Accordingly, the trial court did not abuse its discretion in declining to yield the question to the arbitrator. Relator’s petition for writ of mandamus is denied.

DEFAULT JUDGMENT IMPROPER WHERE COUNSEL'S NO-SHOW FOR TRIAL WAS EXCUSABLE DUE TO CONFLICTING ENGAGEMENT IN ANOTHER COURT. NEW TRIAL WARRANTED UNDER CRADDOCK TEST

Dolgencorp of Texas, Inc. v. Lerma (Tex. 2009),
No. 08-0032 (Tex. 2009)(per curiam) (motion for new trial after post-answer default judgment due to counsel's scheduling conflict should have been granted; counsel was in trial in another county, and both counsel and the other court had numerous communications with the court that entered default judgment on no-show)
DOLGENCORP OF TEXAS, INC., D/B/A DOLLAR GENERAL STORE v. MARIA ISABEL LERMA, INDIVIDUALLY, ET AL.; from Cameron County; 13th district (13-03-00314-CV, 241 SW3d 584,08-23-07 Opinion by the Thirteenth Court of Appeals below) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion [pdf] Electronic Briefs in Tex. 2009 No. 08-0032 DOLLAR GENERAL STORE v. LERMA
This appeal arises from a post-answer default judgment entered against Dolgencorp of Texas, Inc., d/b/a Dollar General Store (“Dollar General”) when its counsel failed to appear for trial because he was in a preferential trial setting in another county. Because Dollar General established it was entitled to a new trial pursuant to the factors set out in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939), we reverse and remand for a new trial. We reverse the judgment of the court of appeals. The case is remanded to the trial court for a new trial.

SUPREME COURT AGAIN STEPS IN TO ASSURE DEFENDANT IN UNSUCCESSFUL MED-MAL SUIT GETS TO COLLECT ATTORNEY'S FEES AS SANCTION

Aviles, MD v. Aguirre (Tex. 2009),
No. 08-0240 (Tex. Jul 3, 2009)(per curiam) (HCLC sanctions under former med-mal law to be awarded on remand)
WILFREDO AVILES, M.D., AND WILFREDO AVILES, M.D., P.A. v. ALBERT AGUIRRE, ET AL.; from Hidalgo County; 13th district (13-06-00495-CV, ___ SW3d ___, 02-14-08 Opinion below)(Dissenting opinion by Rose Vela) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.Per Curiam Opinion [pdf] Electronic Briefs 08-0240 WILFREDO AVILES, M.D. v. AGUIRRE
Like the current statute,1 former article 4590i required dismissal of a health-care claim if no timely expert report was served, and an award of attorney’s fees and costs “incurred” by the defendant. Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 13.01, 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (hereinafter “article 4590i”). In this case, the trial court granted dismissal but denied attorney’s fees because they had been incurred by the defendant’s insurer rather than the defendant himself. A divided court of appeals affirmed. ___ S.W.3d ___. As this reflects a basic misunderstanding of both the statute and liability insurance, we reverse.

EXCLUSIVE REMEDY? - NO (IT'S NOT A WORKER'S COMP CASE)

Dealers Electrical Supply Co. v. Scoggins Construction Co, Inc. (Tex. 2009),
No. 08-0272 (Jul. 3, 2009)(O'Neill) (construction law: bond requirement for workers and materialmen, supplies of materials, Texas Construction Trust Fund Act no exclusive remedy)
DEALERS ELECTRICAL SUPPLY CO. v. SCOGGINS CONSTRUCTION COMPANY, INC. ANDBILL R. SCOGGINS; from Hidalgo County;13th district (13-06-00368-CV, ___ SW3d ___, 12-20-07 Opinion by the Thirteenth Court of Appeals). The Court reverses the court of appeals' judgment and remands the case to that court. Justice O'Neill delivered the opinion of the Court. [pdf] Electronic Briefs in Tex. No. 08-0272 DEALERS ELECTRICAL SUPPLY CO. v. SCOGGINS CONSTRUCTION CO., INC.
Chapter 2253 of the Texas Government Code, historically called the McGregor Act, requires a prime contractor on a public-work contract to execute a payment bond to protect laborers and materialmen who work on or supply materials for the project. See Tex. Gov’t Code § 2253.021(a)(2). In this case, an electrical subcontractor on a bonded public-work project walked off the job, leaving his supplier of electrical parts unpaid. The supplier missed the McGregor Act deadline to pursue a claim on the bond, and filed this suit against the prime contractor for violation of the Texas Construction Trust Fund Act, Tex. Prop. Code §§ 162.001(a), 162.031(a), and breach of a separate Joint Check Agreement designed to ensure payment for materials supplied to the subcontractor. We must decide whether the McGregor Act provides the supplier’s exclusive remedy. We hold that it does not. Accordingly, we reverse the court of appeals’ judgment and remand the case for the court to consider the remaining issues it did not address.

JUDICIAL ESTOPPEL BASED ON NONDISCLOSURE IN BANKRUPTCY COURT HELD NOT TO APPLY

Ferguson v. Building Materials Corp. of America (Tex. 2009),
No. 08-0589 (Tex. Jul. 3, 2009)(per curiam) (judicial estoppel based on bankruptcy proceeding does not apply here) JASON FERGUSON AND BOBBIE FERGUSON v. BUILDING MATERIALS CORPORATION OF AMERICA, CPC LOGISTICS, INC., AND ROBERT JAMES MADDOX; from Dallas County;8th district (08-07-00051-CV, 276 SW3d 45, 06-12-08 Opinion of the Eight Court of Appeals below) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion [pdf] Electronic Briefs in Tex. 2009 No. 08-0589 FERGUSON v. BUILDING MATERIALS CORP. OF AM.
At issue in this appeal is whether the plaintiffs in a personal injury suit should be estopped from pursuing their claim because they initially omitted it as a listed asset in a pending bankruptcy. The court of appeals, in a divided opinion, concluded that the doctrine of judicial estoppel should apply and affirmed the trial court’s dismissal of the plaintiffs’ personal injury claim. 276 S.W.3d 45. The court of appeals reasoned that the doctrine applied because of the plaintiffs failure to add the personal injury claim as an asset in their bankruptcy proceeding before the personal-injury defendant pointed out the omission and moved for dismissal. Because we disagree that the doctrine is invoked under the circumstances of this case, we reverse and remand the personal injury claim to the trial court. We review a grant of summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Because the Fergusons have taken neither a clearly inconsistent position nor obtained an unfair advantage, the court of appeals erred in affirming the dismissal of their personal injury claim under the doctrine of judicial estoppel. We accordingly grant the petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings. See Tex. R. App. P. 59.1.

ANOTHER NEW TRIAL GRANTED - ANOTHER MANDAMUS ISSUED TO GET THE TRIAL COURT TO JUSTIFY THAT ACT (and explain why judgment was not entered for the defense)

In Re E.I. DuPont de Nemours and Co. (Tex. 2009).,
No. 08-0625 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted: trial court's grant of new trial following jury verdict requires specific explanation)
IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County;9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf] Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] Electronic Briefs in Tex. 2009 No. 08-0625 IN RE E.I. DU PONT DE NEMOURS AND CO.
At issue in this mandamus proceeding is whether the trial court abused its discretion by disregarding the jury verdict and granting a new trial without giving its reasons for doing so. Based on In re Columbia Medical Center of Las Colinas, ___ S.W.3d ___ (Tex. 2009), we hold that it did and grant relief. Without hearing oral argument, we conditionally grant DuPont’s petition for writ of mandamus. See Tex. R. App. P. 52.8(c). The trial court is directed to specify the reasons for which it disregarded the jury verdict and ordered a new trial. We are confident the trial court will comply, and the writ will issue only if it fails to do so.

COURT-BLESSED DISCOVERY PRIOR TO RULING ON MOTION TO FORCE ARBITRATION PROMPTS HIGH COURT TO INTERVENE

In Re Houston Pipeline Co., L.P. (Tex. 2009),
No. 08-0800 (Tex. 2009)(per curiam) (discovery orders and motion to compel arbitration) (trial court ordered to rule on motion to compel arbitration, and to lift discovery orders).
IN RE HOUSTON PIPE LINE COMPANY, L.P., ET AL.; from Victoria County;13th district (13-07-00299-CV & 13-07-00362-CV, 269 SW3d 90,08-26-08 Opinion of the Thirteenth Court of Appeals)stay order issued October 17, 2008, lifted. Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion [pdf] Electronic Briefs in Tex. 2009 No. 08-0800 IN RE HOUSTON PIPE LINE CO., L.P. D/B/A HOUSTON PIPE LINE CO.
When deciding a motion to compel arbitration under the Federal Arbitration Act, a Texas trial court applies Texas procedure, which permits discovery to be taken when it is needed before the arbitration or to permit the arbitration to be conducted in an orderly manner. Tex. Civ. Prac. & Rem. Code § 171.086 (a)(4),(6); see also Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992). At issue in this proceeding is whether the trial court abused its discretion by permitting discovery on damage calculations and other potential defendants, instead of deciding the motion to compel arbitration. For the reasons below, we conclude the trial court should not have ordered pre-arbitration discovery, but rather should have decided the motion to compel arbitration. Because the discovery ordered here is overbroad and beyond the issues raised in the motion to compel, we conclude that the trial court abused its discretion by ordering this discovery rather than ruling on the legal issues raised by the motion to compel. Accordingly, without hearing oral argument, we conditionally grant the writ and direct the trial court to vacate the discovery order and to rule on the motion to compel arbitration. Tex. R. App. P. 52.8(c). We are confident the trial court will comply, and our writ will issue only if it does not.