Opinion
02-24-00337-CV
08-29-2024
In re Tri-County Electric Cooperative, Inc., J. Max Waddell,John Killough, Margaret Koprek, Kevin Ingle, Jerry Walden,Steve Harris, Sommer Portwood, and Michael Siversten, Relators
Original Proceeding 43rd District Court of Parker County, Texas Trial Court No. CV23-1593
Before Kerr, Birdwell, and Womack, JJ.
MEMORANDUM OPINION
Dana Womack, Justice
I. Introduction
Relators Tri-County Electric Cooperative, Inc. (TCEC), J. Max Waddell, John Killough, Margaret Koprek, Kevin Ingle, Jerry Walden, Steve Harris, Sommer Portwood, and Michael Siversten filed this original proceeding seeking mandamus relief from the trial court's orders denying (1) their special exceptions to real party in interest Darryl Schriver's Second Amended Petition and (2) their joint motion for protective order and stay of Schriver's discovery. Although we conclude that Relators are not entitled to mandamus relief from the trial court's special-exceptions ruling, we nevertheless grant Relators mandamus relief from the denial of their joint motion for protective order and direct the trial court to provide Relators the opportunity to present evidence and argument on their specific discovery objections.
II. Background
After being terminated from his position as TCEC's President and CEO, Schriver commenced the underlying lawsuit in which he asserts defamation and conspiracy claims against TCEC and its entire governing board as well as a discharge-for-refusing-to-commit-an-illegal-act claim (commonly referred to as a "Sabine Pilot claim") solely against TCEC. Considering Schriver's claims to be vague and unsupported by essential facts, Relators filed special exceptions. In response, Schriver filed a first amended petition, but this filing failed to cure the pleading defects to Relators' satisfaction.
See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985) (holding that public policy requires a very narrow exception to the employment-at-will doctrine, covering only the discharge of an employee for the sole reason that the employee refused to perform an illegal act).
Schriver also asserts a promissory-estoppel claim solely against TCEC, but that claim is not relevant to this proceeding.
Relators filed special exceptions to Schriver's first amended petition. In these filings, Relators asserted that Schriver had failed to properly plead his defamation claim because he had failed to allege facts concerning the manner of publication, who had made the alleged defamatory statements, the content of the alleged statements, the statements' defamatory nature, to whom the alleged statements had been made, and why the statements were false. In addition, TCEC asserted that Schriver had failed to properly plead his Sabine Pilot claim because, among other things, he had failed to identify the illegal act that he had allegedly been asked to commit. The board members also specially excepted to Schriver's failure to identify which of them he specifically asserted claims against.
On February 14, 2024, the trial court sustained Relators' special exceptions and ordered Schriver to cure the pleading defects within thirty days. The trial court's order sustaining the board members' special exceptions provided that if Schriver failed to cure the defects by the thirty-day deadline, his defamation and conspiracy claims against them would be dismissed.
Shortly thereafter, Schriver served Relators with requests for production regarding his defamation and Sabine Pilot claims. On March 4, 2024, Relators filed a joint motion for protective order arguing that Schriver's discovery requests were premature because he had not yet cured the defects in his pleading and that the requests for production were overly broad and unduly burdensome.
On March 15, 2024-the date on which the thirty-day deadline to cure his pleading defects was set to expire-Schriver filed his second amended petition. But by Schriver's own admission, his second amended petition did not cure all of the pleading defects identified in the trial court's orders sustaining Relators' special exceptions. Indeed, contemporaneously with his second amended petition, Schriver filed a motion to extend the deadline to replead his claims in which he acknowledged that "there are outstanding deficiencies identified in the [c]ourt's [o]rders which [he] cannot reasonably comply with until he receives adequate discovery responses . . . ."
Relators filed a joint motion to dismiss Schriver's claims based on his failure to cure the court-identified pleading defects by the thirty-day deadline. On April 18, 2024, the trial court held a hearing on Relators' motions to dismiss and for a protective order.
At the hearing, Schriver argued-as he had in his motion to extend the deadline to replead his claims-that he could not properly plead his claims without first obtaining discovery from Relators, a position that Relators contended was contrary to law. Despite Schriver's admission that he had failed to timely cure the court-identified pleading defects, the trial court announced that it was "going to deny the motion to dismiss," but it never signed an order to that effect.
After an off-the-record discussion with counsel in chambers, the trial court likewise announced that it was "going to deny the protective order at this time" but stated that it was "going to amend" any of Schriver's discovery requests "that would involve or pertain to any attorney-client communications." But, as with Relators' motion to dismiss, the trial court never signed a written order denying the protective order or amending the discovery requests.
On April 26, 2024, Relators filed special exceptions to Schriver's second amended petition. Additionally, because their prior motion for protective order had been heard in connection with their motion to dismiss and because the trial court had stated at the April 18, 2024 hearing that it was "going to deny the protective order at this time," Relators filed an amended and renewed motion for protective order and stay of Schriver's discovery. [Emphasis added.] In their renewed motion for protective order, Relators argued that Schriver's discovery requests amounted to a premature fishing expedition because he had failed to properly plead his claims. In addition, they objected to specific requests on the grounds that they were overly broad and unduly burdensome.
Relators attached affidavits of board member Max Waddell as well as Dykema Gossett PLLC's Director of Litigation Support and one of the firm's associate attorneys to support their objections to Schriver's discovery requests. See Tex. R. Civ. P. 193.4(a).
On June 4, 2024, the trial court held a hearing on Relators' special exceptions and renewed motion for a protective order. After the parties argued extensively regarding Relators' special exceptions-but before Relators had been afforded the opportunity to present evidence supporting the discovery objections raised in their motion for protective order-the trial court pointed out that "the motion for protection . . . hinge[d] on" the special exceptions, meaning that "if the [c]ourt [were to] grant[] the special exceptions, then [the parties would not] really need to talk about the protection." To save time and attorney's fees, the trial court then offered to take Relators' special exceptions under advisement and to set another hearing on their motion for protective order in the event that it denied the special exceptions. The parties agreed that this procedure "ma[de] sense," and the hearing was therefore concluded before the presentation of evidence or substantive argument regarding the protective order and Relators' specific discovery objections.
On June 28, 2024, the trial court signed orders denying Relators' special exceptions. Further, rather than setting a hearing on Relators' motion for protective order in accordance with the agreed-upon procedure discussed at the June 4, 2024 hearing, the trial court signed an order denying Relators' motion for protective order in its entirety. On July 15, 2024, the trial court signed an order staying these rulings pending review by this court. Relators then filed the instant petition for writ of mandamus.
We requested that Schriver, the real party in interest, file a response to the petition for writ of mandamus, and he did so. See Tex. R. App. P. 52.2, 52.4, 52.8. Relators then filed a reply. See Tex. R. App. P. 52.5.
III. Discussion
A. Mandamus Relief Is Not Available to Correct the Trial Court's Ruling on Relators' Special Exceptions
In their first issue, Relators contend that the trial court abused its discretion by denying their special exceptions to Schriver's second amended petition. But mandamus relief is not available to correct this ruling.
Mandamus relief is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceeding). The party seeking mandamus relief must show both that the trial court clearly abused its discretion and that the party has no adequate remedy by appeal. In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021) (orig. proceeding). "The cost or delay incurred by the trial and appellate process does not make the remedy by appeal inadequate." Hill v. Lopez, 858 S.W.2d 563, 565 (Tex. App.-Amarillo 1993, orig. proceeding) (first citing Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding); and then citing Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex. 1991) (orig. proceeding)).
Generally, "mandamus relief is not available to supervise or correct rulings of a trial judge which are merely incidental to the normal trial process when there is an adequate remedy by appeal for their correction." In re Saucedo, 677 S.W.3d 71, 90 (Tex. App.-El Paso 2023, orig. proceeding) (citing Grimm v. Garner, 589 S.W.2d 955, 956 (Tex. 1979)). Because a trial court's decision regarding special exceptions constitutes such an "incidental" ruling and because the aggrieved party has an adequate appellate remedy, mandamus relief is unavailable to correct a trial court's decision regarding special exceptions in the absence of extraordinary circumstances. Int'l Paper Co. v. Garza, 872 S.W.2d 18, 19 (Tex. App.-Corpus Christi 1994, orig. proceeding) (citing Hill, 858 S.W.2d at 565); accord Saucedo, 677 S.W.3d at 90-91; see Ozcelebi v. Chowdary, No. 13-16-00346-CV, 2018 WL 4354732, at *15 (Tex. App.- Corpus Christi-Edinburg Sept. 13, 2018, pet. denied) (mem. op.) ("A special exceptions issue is generally not the kind of issue that eludes appellate review such that it must be corrected by mandamus to prevent injustice." (citing Moseley v. Hernandez, 797 S.W.2d 240, 242 (Tex. App.-Corpus Christi 1990, no writ))).
Having determined-based on our review of the record-that the type of extraordinary circumstances that might warrant mandamus relief from a special-exceptions ruling are not present here, we overrule Relators' first issue.
Such extraordinary circumstances include those in which "the very act of proceeding to trial, regardless of the outcome, would defeat the substantive right involved." In re XTO Energy Inc., 471 S.W.3d 126, 136 (Tex. App.-Dallas 2015, orig. proceeding). For example, in XTO Energy, a trustee sought mandamus relief from a special-exceptions ruling that would have allowed a lawsuit filed by a trust beneficiary on the trust's behalf to proceed to trial even though the trustee had determined that the lawsuit was meritless and should not be pursued. Id. at 129-30. The Dallas court of appeals held that mandamus review of the trial court's special-exceptions ruling was appropriate under those unique circumstances "[b]ecause allowing [a beneficiary] to proceed to trial on behalf of the [t]rust defeats [the trustee's substantive] right . . . to control the [t]rust's involvement in litigation . . . ." Id. at 137. No such extraordinary circumstances are present here.
B. The Trial Court Must Consider Relators' Individual Discovery Objections
In their second issue, Relators contend that the trial court abused its discretion by denying their amended and renewed motion for protective order. We agree.
1. Standard of Review
This court may grant mandamus relief from a discovery order only when (1) the trial court's decision is so arbitrary and unreasonable that it amounts to "a clear and prejudicial error of law" and (2) the relator has no adequate remedy by appeal. In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig. proceeding) (quoting Walker, 827 S.W.2d at 839).
In determining whether the trial court abused its discretion, we may not substitute our judgment for the trial court's determination of factual or other discretionary matters. Id. But because a trial court has no discretion in determining what the law is or in applying the law to even unsettled facts, we review its decisions on questions of law and application-of-law-to-facts questions much less deferentially. Id. A trial court abuses its discretion by clearly failing to correctly analyze or apply the law. In re M-I L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (orig. proceeding).
The scope of discovery is generally within the trial court's discretion so long as a discovery order does not exceed what the rules of civil procedure permit. See Tex. R. Civ. P. 192.4; State Farm Lloyds, 520 S.W.3d at 604; In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). Even when a trial court abuses its discretion in making a discovery ruling, we will not intervene if the relator has an adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). Appeal is inadequate when a discovery order compels production "beyond the rules of [civil] procedure." In re Nat'l Lloyds Ins. Co., 507 S.W.3d 219, 223 (Tex. 2016) (orig. proceeding) (quoting In re Nat'l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig. proceeding)).
2. Analysis
As noted, in Relators' renewed motion for protective order, they raised three objections to Schriver's discovery requests, namely, that they were (1) premature and improper because Schriver had failed to properly plead his claims, (2) overly broad, and (3) unduly burdensome. Thus, even after the trial court effectively ruled that Schriver had properly pleaded his claims by denying Relators' special exceptions, the trial court could not rule on Relators' motion for protective order without first considering each of their individual overbreadth and undue-burden objections. But the record does not reflect that the trial court did so. Rather, in contravention of the procedure proposed by the trial court and agreed upon by the parties at the June 4, 2024 hearing, the trial court declined to set another hearing on Relators' motion for protective order after overruling their special exceptions and instead simply signed an order denying the motion.
By denying Relators a meaningful opportunity to present oral argument and evidence regarding their specific discovery objections, the trial court effectively failed to consider these individual objections and, in so doing, abused its discretion. See In re CAR Fin. Servs., Inc., No. 02-20-00157-CV, 2020 WL 4213839, at *6 (Tex. App.-Fort Worth July 23, 2020, orig. proceeding) (mem. op.) (conditionally granting mandamus relief from trial court's decision overruling all of relator's overbreadth discovery objections because the record did not show that the trial court had considered each of the objections individually); In re Speer, 965 S.W.2d 41, 46-47 (Tex. App.-Fort Worth 1998, orig. proceeding) (conditionally granting mandamus relief from trial court's ruling that relator had waived discovery objections based on privilege against self-incrimination because "[t]here [was] no evidence in the record . . . that the trial court [had] allowed [relator] to present any evidence to support his discovery objections" and "[i]t [was] the trial judge's duty to consider [relator's] evidence and argument on each individual question" to determine whether the privilege applied); see also In re Econ. Dev. Corp. of Weslaco, Inc., No. 13-22-00516-CV, 2023 WL 184227, at *7 (Tex. App.-Corpus Christi-Edinburg Jan. 13, 2023, orig. proceeding) (mem. op.) ("When the [Fifth Amendment] privilege is asserted, it is the trial court's duty to consider the evidence and argument on each individual [discovery] question to determine whether the privilege against self-incrimination applies." (first citing In re Edge Capital Grp., Inc., 161 S.W.3d 764, 768 (Tex. App.-Beaumont 2005, orig. proceeding); and then citing Burton v. West, 749 S.W.2d 505, 508 (Tex. App.-Houston [1st Dist.] 1988, orig. proceeding))). Under these circumstances, rather than attempting to address each of Relators' individual overbreadth and undue-burden objections in this original proceeding, we believe that it is more appropriate for the trial court to consider each of those objections first. See CAR Fin. Servs., Inc., 2020 WL 4213839, at *6 (first citing In re Am. Optical Corp., 988 S.W.2d 711, 713-14 (Tex. 1998) (orig. proceeding); and then citing In re Gen. Motors Corp., No. 12-07-00387-CV, 2008 WL 541679, at *4 (Tex. App.-Tyler Feb. 29, 2008, orig. proceeding) (mem. op.)). Accordingly, we sustain Relators' second issue.
As noted by Relators, although they submitted evidence in the form of affidavits to support their undue-burden objections, the trial court's order denying their motion for protective order recites that the trial court considered only "the arguments of counsel" and "the pleadings" before concluding that the requested relief should be denied.
C. Relators Lack an Adequate Appellate Remedy
Having sustained Relators' second issue, we must address the question presented in their third issue: whether they have an adequate remedy by appeal. See Allstate Indem. Co., 622 S.W.3d at 875. We conclude, based upon well-settled legal principles, that they do not. See Nat'l Lloyds Ins. Co., 507 S.W.3d at 223 (quoting Nat'l Lloyds Ins. Co., 449 S.W.3d at 488); Walker, 827 S.W.2d at 843; see also In re Hous. Pipe Line Co., 311 S.W.3d 449, 452 (Tex. 2009) (orig. proceeding) (conditionally granting mandamus relief where the ordered discovery was overbroad); In re Redman, No. 12-23-00212-CV, 2023 WL 6760074, at *2 (Tex. App.-Tyler Oct. 11, 2023, orig. proceeding) (mem. op.) ("Litigants have an interest in protecting their rights by not producing information that exceeds the permissible bounds of discovery under the applicable procedural rules and once a party has turned over information not relevant to a case, the trial court's error cannot be cured on appeal." (first citing Prudential Ins. Co. of Am., 148 S.W.3d at 136; and then citing In re Mem'l Hermann Health Sys., 607 S.W.3d 913, 921 (Tex. App.-Houston [14th Dist.] 2020, orig. proceeding))); In re Susan Newell Custom Home Builders, Inc., 420 S.W.3d 459, 462 (Tex. App.-Dallas 2014, orig. proceeding) ("[T]he trial court[']s error in ordering the discovery cannot be cured by ordinary appeal.").
Accordingly, we sustain Relators' third issue.
IV. Conclusion
Having overruled Relators' first issue and sustained their second and third issues, we deny mandamus relief as to the trial court's ruling on Relators' special exceptions, but we conditionally grant relief regarding the trial court's denial of Relators' amended and renewed motion for protective order. We direct the trial court to (1) vacate its June 28, 2024 order denying Relators' amended and renewed motion for protective order and (2) set a hearing on that motion to allow Relators the opportunity to present argument and evidence in support of their individual discovery objections. Our writ will issue only if the trial court fails to comply.