A Motion to Alter or Vacate a Discovery Order Does Not Extend the Presumptively Reasonable Time Within With to File a Mandamus Petition

In Ex parte Hoyt , No. 2060858, released October 12, 2007, the Court of Civil Appeals dismissed a mandamus petition seeking review of the trial court’s discovery order because the petitioner failed to file it within the presumptively reasonable time period or to include a statement of reasons as to why the court should consider the petition notwithstanding its untimeliness.  

The parties below were embroiled in the discovery stages of a workers’ compensation action.  During the course of discovery, the petitioner requested that the respondent produce a certain videotape.  The respondent objected. At a status conference, the trial court ordered that the respondent would be allowed to take the petitioner’s deposition before it was required to produce the videotape.  Subsequently, the petitioner filed a "motion to vacate or modify" the trial court’s order.  The trial court denied the motion on May 15, 2007. The petitioner filed her petition for a writ of mandamus on June 20, 2007. 

The court held that it had no appellate jurisdiction.  The petition was filed 68 days after the trial court entered the order allowing the respondent to depose the petitioner. The motion to alter or vacate did not work to extend the presumptively reasonable time within which the petitioner could have filed her petition for writ of mandamus.  The court pointed out that "unlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus."

Although a mandamus petition not filed within the presumptively reasonable time period may be considered if accompanied by a statement of the circumstances constituting good cause for the untimeliness, the petitioner did not include such a statement.  Accordingly, it was dismissed.