Opinion
No. 14-07-00190-CV
Opinion filed July 10, 2007.
Original proceeding writ of mandamus.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
In this original proceeding, the relator/plaintiff in the court below seeks a writ of mandamus based on the trial court's alleged clear abuse of discretion by (1) signing orders abating all discovery, (2) sustaining all six categories of objections that the real party in interest/defendant asserted as to all of the discovery requests at issue, (3) denying the relator's motion to compel discovery, and (4) improperly addressing the merits of relator's claims in a discovery order. Although the parties have extensively briefed the First Amendment issues relating to two of the six categories of discovery objections, relator has not challenged three of the six independent grounds upon which the trial court based its order denying the motion to compel discovery. Furthermore, relator has asserted that the trial court held at least two hearings on relator's motion to compel. The parties have not taken a position in this proceeding as to whether any party presented evidence at any of these hearings. On this record, even if relator had challenged the other three grounds for the trial court's discovery ruling, this court would be required to presume that the proceedings at the hearings in question would show that the trial court did not clearly abuse its discretion in denying the motion to compel. In addition, relator has not shown that the trial court clearly abused its discretion by abating discovery. Accordingly, we deny relator's petition for writ of mandamus.
BACKGROUND
Relator Citizens Supporting Metro Solutions, Inc. ("Citizens") filed suit against real party in interest Texans for True Mobility ("True Mobility"), and its unnamed contributors and "conspirators," regarding True Mobility's advocacy against the transit system plan proposed in August of 2003 by the Metropolitan Transit Authority of Harris County ("Metro"). The transit plan, which included construction and extension of a light rail system, was placed on the November 2003 ballot and approved by Harris County voters (the "ballot measure"). In the underlying suit, Citizens alleges that True Mobility violated Election Code provisions by seeking political contributions and making political expenditures in connection with the ballot measure, without filing the required disclosures under the Election Code.
The Election Code provides a claim to opposing political committees for violations of the code provisions. See TEX. ELEC. CODE ANN. § 253.132 (Vernon 2003). Specifically, Citizens alleged that True Mobility violated sections 253.096 and 253.097, which provide, respectively, that a corporation (1) "may make campaign contributions from its own property in connection with an election on a measure only to a political committee for supporting or opposing measures exclusively," and (2) "not acting in concert with another person may make one or more direct campaign expenditures from its own property in connection with an election on a measure if the corporation" makes the expenditures in accordance with the reporting requirements contained in the Election Code. Id. §§ 253.096, 253.097.
Citizens served discovery requests on True Mobility in the summer of 2004. True Mobility responded to several interrogatories and requests for production, but objected on various grounds to much of the requested discovery. As to all of the discovery requests at issue in this mandamus proceeding, True Mobility asserted the following objections:
(1) The information and documents sought are protected by True Mobility's right to freedom of speech under the First Amendment of the United States Constitution and Article I, Section 8, of the Texas Constitution.
(2) The information and documents sought are protected by True Mobility's right to freedom of association under the First Amendment of the United States Constitution and Article I, Section 8, of the Texas Constitution.
(3) The information and documents sought are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.
(4) The request or interrogatory is vague.
(5) The request or interrogatory is overly broad.
(6) The request or interrogatory is unduly burdensome.
Citizens filed a motion to compel asserting that the trial court should overrule True Mobility's discovery objections and order True Mobility to produce the responsive documents and information. Citizens asserts, and True Mobility does not deny, that the trial court conducted a hearing on this motion on April 4, 2005. Subsequently and before the trial court ruled on this discovery motion, the parties agreed to abate the suit pending the Texas Supreme Court's decision in a case involving similar issues, In re William O. Hammond, Cause No. 04-0089. The Texas Supreme Court, however, denied mandamus in that case without opinion.
According to Citizens, in Hammond, the Texas Association of Business made the same constitutional privilege arguments against discovery as True Mobility asserts in this case. However, in that case, the trial court's orders compelled discovery.
Thereafter, Citizens filed a supplemental memorandum of authorities in support of its motion to compel. Citizens asserts, and True Mobility does not deny, that the trial court held a second hearing on Citizens' motion to compel on October 30, 2006. At this hearing, the trial court invited True Mobility to file a motion for summary judgment, which True Mobility filed on November 2, 2006. The following day, Citizens amended its discovery and filed a "Notice of Amendment of Pending Written Discovery and Supplemental Motion Compelling Discovery," agreeing "that in responding to outstanding written discovery or in depositions, True Mobility may withhold the names of donors or contributors whose names are not already public. . . ." Citizens also served True Mobility with amended discovery requests and filed a motion to shorten the time for responses to the written discovery. In response, True Mobility moved to stay all discovery pending disposition of its summary judgment motion, again asserting, among other objections, that the requested discovery was privileged under the First Amendment and the Texas Constitution. Citizens then moved to continue consideration of the motion for summary judgment. On November 17, 2006, the trial court granted True Mobility's motion to abate discovery pending a ruling on True Mobility's motion for summary judgment. The record indicates that the trial court heard Citizens' motion to continue consideration of True Mobility's motion for summary judgment on December 11, 2006. The trial court's docket sheet indicates that the trial court granted this motion in open court on December 11, 2006, with a written order to follow. On February 7, 2007, the trial court signed an order in which it granted Citizens' motion to continue and ruled that True Mobility's summary-judgment motion is continued "until such time that the issues on appeal regarding discovery and [Citizens'] Motion to Compel same are determined by the Court of Appeals." To date, the trial court has not ruled on True Mobility's summary-judgment motion.
On February 16, 2007, however, the trial court signed an order denying Citizens' motion to compel discovery (the "February 16 order"). Even though the scope of discovery is measured based on the live pleadings regarding the pending claims, and even though the trial court has not dismissed any of Citizens' claims, the trial court stated in the February 16 order that "the Court finds that none of the mailers disseminated by [True Mobility] constitute express advocacy as a matter of law, and therefore none of [True Mobility's] conduct is regulated by the Texas Election Code," which Citizens contends is an improper consideration of the merits of its claims while ruling on discovery issues. The trial court also denied Citizens' motion to compel in its entirety and sustained all of True Mobility's objections to the discovery requests in question. The trial court then withdrew all then-pending docket-control deadlines, including the trial date.
In its mandamus petition in this case, Citizens asserts the following:
• Citizens challenges (1) the order of November 17, 2006 abating discovery pending a ruling on True Mobility's summary-judgment motion, (2) the order of February 7, 2007 continuing consideration of True Mobility's summary-judgment motion, and (3) the February 16 order.
• The trial court clearly abused its discretion in denying Citizens' motion to compel discovery and in abating all discovery based on True Mobility's claim that the First Amendment grants it immunity from discovery relating to claims against it under the Texas Election Code.
• Citizens is entitled to conduct discovery, and the First Amendment does not provide True Mobility with a blanket privilege to avoid participation in discovery. The First Amendment does not protect True Mobility from discovery that does not require True Mobility to identify contributors whose names are not already public. For various reasons, the trial court erroneously sustained True Mobility's constitutional objections to discovery.
• This court should issue mandamus because in denying Citizens' discovery motion, the trial court improperly prejudged the merits of Citizens's claims and excused True Mobility from the obligation to engage in discovery.
• The discovery that Citizens seeks is essential for Citizens to develop admissible evidence in support of its claims.
• The information and documents sought are relevant.
Citizens has thoroughly briefed its argument that the trial court clearly abused its discretion by sustaining True Mobility's objections to discovery under the First Amendment, providing ample legal authorities and record citations to support its contentions. However, the trial court's ruling was not based solely on First Amendment grounds. As to Citizens' assertion that the trial court is subject to mandamus for signing the February 16 order, Citizens has not argued that the trial court clearly abused its discretion by denying the motion to compel based on True Mobility's objections that the discovery sought is vague, overly broad, and unduly burdensome. See TEX. R. APP. P. 52.3 (h); In re Lausch, 177 S.W.3d 144, 154 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding); In re Kuhler, 60 S.W.3d 381, 384 (Tex.App. — Amarillo 2001, orig. proceeding). Therefore, even if this court were to find merit in Citizens' arguments that the trial court clearly abused its discretion in sustaining True Mobility's first three categories of discovery objections, this court still could not grant Citizens' petition because Citizens has not argued or demonstrated that the trial court clearly abused its discretion as to each of the other three independent grounds upon which the trial court denied the discovery in question. See In re SWEPI, L.P., 103 S.W.3d 578, 588-90 n. 9 (Tex.App. — San Antonio 2003, orig. proceeding) (limiting mandamus inquiry to the issues argued in the mandamus petition and holding that trial court clearly abused its discretion in denying motion to compel discovery, but only after court concluded that trial court clearly abused its discretion in sustaining each of the objections to the discovery in question).
Furthermore, Citizens asserts that the trial court held two hearings on its motion to compel. Citizens has not made an assertion in its petition or provided an affidavit regarding the issue of whether evidence was presented at these hearings or whether any other event occurred that was material to this court's determining whether mandamus should be granted as to the trial court's order. Therefore, we presume that evidence was offered and that events transpired that show the trial court did not clearly abuse its discretion. See Walker v. Packer, 827 S.W.2d 833, 837 n. 3 (Tex. 1992) (stating (1) relator has burden of providing appellate court with record establishing right to mandamus relief, (2) court could not rule that trial court clearly abused its discretion in ruling on motion to compel absent reporter's record from hearing on motion, and (3) even if no evidence were presented at hearing on motion to compel, relator would be required to file an affidavit to this effect with its mandamus petition); Humphreys v. Caldwell, 881 S.W.2d 940, 944 (Tex.App.-Corpus Christi 1994, orig. proceeding) (stating that, unless all parties agree that no evidence was submitted at discovery hearing, relator must file an affidavit proving that no evidence was presented at discovery hearing or present appellate court with reporter's record from the hearing); Ward v. Cornyn, 700 S.W.2d 281, 282 (Tex.App.-San Antonio 1985, orig. proceeding) (denying mandamus petition and stating mandamus could not be granted without a reporter's record from discovery hearing that resulted in trial court's signing the discovery order challenged in the mandamus proceeding).
In its February 16 order, the trial court does not state that it considered evidence at these two hearings; however, the trial court does not state that these hearings were nonevidentiary. In fact, the trial court does not refer to these two hearings at all in the February 16 order.
For these reasons, we deny Citizens' petition for mandamus as to the February 16 order.
On one page in its petition, Citizens states that it also challenges (1) the trial court's November 17, 2006 order abating discovery pending the trial court's ruling on True Mobility's motion for summary judgment, and (2) the trial court's February 7, 2007 order continuing consideration of True Mobility's summary-judgment motion. Citizens has not presented argument that the trial court clearly abused its discretion by signing the November 17, 2006 order or the February 7, 2007 order. Therefore, we deny relator's petition for mandamus as to these orders. See TEX. R. APP. P. 52.3 (h); In re Lausch, 177 S.W.3d at 154; In re Kuhler, 60 S.W.3d at 384.
Accordingly, we deny Citizens' petition for writ of mandamus.