in Re GreCon, Inc. ( 2018 )


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  • Petition for Writ of Mandamus Conditionally Granted and Majority and
    Concurring Opinions filed January 12, 2018.
    In The
    Fourteenth Court of Appeals
    NO. 14-17-00639-CV
    IN RE GRECON, INC., Relator
    ORIGINAL PROCEEDING
    WRIT OF MANDAMUS
    129th District Court
    Harris County, Texas
    Trial Court Cause No. 2016-26100
    CONCURRING OPINION
    This court is right to conditionally grant mandamus relief for the reasons
    stated in section II of the majority opinion, and I join that section. But, I respectfully
    decline to join section I of the majority opinion because in it the court relies upon a
    waiver argument not presented to the respondent trial judge, not argued in this
    mandamus proceeding, not necessary to the disposition of today’s case, and not
    correct under applicable law.
    The majority improperly grants mandamus relief based on a waiver argument that
    no party presented to the trial judge.
    Real party in interest Ralph Figgs sued various parties, including Georgia
    Pacific LLC, Georgia Pacific Building Products, LLC, Georgia Pacific Wood
    Products LLC, Georgia Pacific Wood Products South LLC, Georgia Pacific Equity
    Holdings LLC, International Paper Company and Mid-South Engineering, Inc.
    (collectively the “Settling Parties”), as well as relator GreCon, Inc. Under Texas
    Rule of Civil Procedure 194.2, GreCon requested disclosure from Figgs of “any
    settlement agreements described in Rule 192.3(g).”1 Rule 192.3(g) provides that
    “[a] party may obtain discovery of the existence and contents of any relevant
    portions of a settlement agreement.”2 Thus, GreCon asked Figgs to disclose the
    existence and contents of any relevant portions of a settlement agreement. Figgs
    timely responded to this request on April 2, 2017, asserting that there were no
    relevant portions of a settlement agreement at the time of Figgs’s response.
    After Figgs’s counsel informed GreCon that Figgs had settled with various
    defendants, GreCon moved to compel Figgs to supplement his response to the
    request for disclosure with information as to Figgs’s settlements with the Settling
    Parties and to “produce copies of all settlement agreements.” Figgs responded in
    opposition, arguing that at present no part of any settlement agreement with one of
    the Settling Parties was relevant. Figgs asserted that GreCon had not met its burden
    of establishing relevancy. In his response, Figgs expressly moved the court for
    protection from discovery based on the arguments asserted in the response. In its
    reply GreCon asserted that all portions of Figgs’s settlement agreements with one or
    1
    Tex. R. Civ. P. 194.2(h).
    2
    Tex. R. Civ. P. 192.3(g).
    2
    more of the Settling Parties (hereinafter the “Settlement Agreements”) were relevant
    and that Figgs had the burden to show that the Settlement Agreements were not
    relevant. Though GreCon argued that Figgs had not satisfied this burden in his
    response to GreCon’s motion to compel, GreCon did not assert that Figgs had to
    satisfy this burden by April 3, 2017, the deadline for responding to the request for
    disclosure (hereinafter the “Request-for-Disclosure Deadline”).
    At no time in the trial court did GreCon or any other party assert that Figgs
    had waived his argument that the Settlement Agreements are not relevant by failing
    to assert that argument in a motion for protection filed by the Request-for-Disclosure
    Deadline (hereinafter the “Waiver Argument”).
    In section I of the majority opinion, the majority concludes that Figgs waived
    his argument that the Settlement Agreements are not relevant by failing to assert the
    argument in a motion for protection filed by the Request-for-Disclosure Deadline.3
    The majority grants mandamus relief based on the Waiver Argument, an argument
    that no party presented to the respondent trial judge.4 In doing so the majority
    contradicts binding precedent under which this court may not grant mandamus relief
    based on an argument that the relator did not present to the trial judge. 5 Under the
    majority’s analysis, even if no part of the Settlement Agreements were relevant, the
    trial court still would have abused its discretion in denying the relator’s motion to
    3
    See ante at 8–10.
    4
    See 
    id. 5 See
    Bigham v. Dempster, 
    901 S.W.2d 424
    , 426 n. 3 (Tex.1995) (orig. proceeding); In re Credit
    Suisse First Boston Mortg. Capital. L.L.C., 
    257 S.W.3d 486
    , 493 (Tex. App.—Houston [14th
    Dist.] 2008, orig. proceeding [mand. denied]).
    3
    compel and Figgs still would have to produce the Settlement Agreements because
    Figgs waived his relevancy argument by not asserting it by the Request-for-
    Disclosure Deadline.
    In section I of the majority opinion, the majority concludes that Figgs did not
    meet his burden of proving that the Settlement Agreements were not relevant
    because Figgs failed to file a motion for protection asserting this relevancy argument
    by the Request-for-Disclosure Deadline.6 The term “burden of proof” refers to a
    party’s duty to prove an assertion or charge; the term does not refer to any applicable
    deadline by which a party must make an assertion or charge.7 Presuming for the
    sake of argument that Figgs was required to assert the relevancy argument by the
    Request-for-Disclosure Deadline, Figgs’s failure to timely assert this argument
    would not constitute a failure to satisfy a burden of proving it. 8 Rather, a failure to
    timely assert the argument would constitute a waiver of the argument, and there
    would be no need to determine whether Figgs satisfied his burden of proving the
    relevancy argument.9
    In addition to incorrectly asserting that Figgs’s alleged duty to assert his
    relevancy argument by the Request-for-Disclosure Deadline constitutes part of
    6
    See ante at 8–9.
    7
    See Black’s Law Dictionary 209 (8th ed. 2004) (defining “burden of proof” as “[a] party’s duty
    to prove a disputed assertion or charge”); Huckaby v. Huckaby, 
    436 S.W.2d 601
    , 604–05 (Tex.
    Civ. App.—Houston [1st Dist.] 1968, writ ref’d n.r.e.) (concluding that the term “burden of proof”
    as used in a section of the Probate Code meant the “burden of persuasion” and that the party had
    to prove the proposition in question by a preponderance of evidence).
    8
    See Black’s Law Dictionary 209; 
    Huckaby, 436 S.W.2d at 604
    –05.
    9
    See Bielamowicz v. Cedar Hill Indep. Sch. Dist., 
    136 S.W.3d 718
    , 723 (Tex. App.—Dallas 2004,
    pet. denied) (concluding that party waived discovery objections by asserting them in an untimely
    manner, without addressing whether party satisfied his burden of proof as to the objections).
    4
    Figgs’s burden of proving the relevancy argument, the majority also states that the
    parties disputed in the trial court and in this court whether Figgs had the burden of
    proving that the Settlement Agreements were not relevant.10 To the extent the
    majority is suggesting in section I that the parties raised the Waiver Argument in the
    trial court and in this court, this suggestion clashes with the record. The parties have
    disputed whether in responding to GreCon’s motion to compel, Figgs had the burden
    to prove that the Settlement Agreements were not relevant or whether GreCon, in
    moving to compel, had the burden to prove that the Settlement Agreements were
    relevant. No party has argued that Figgs waived his relevancy argument by failing
    to assert the argument by the Request-for-Disclosure Deadline.
    Requiring a relator to raise an issue in the trial court or forfeit the issue as a
    potential basis for obtaining mandamus relief against the trial judge gives the trial
    judge a chance to consider the claimed error and, if appropriate, correct it. The trial
    judge in today’s case never got that chance. Nor did Figgs get the chance to respond
    to the Waiver Argument, which is an issue of apparent first impression in Texas
    jurisprudence. Thus, under applicable law, GreCon should not able to get mandamus
    relief based on an argument that GreCon did not raise in the proceedings before the
    trial judge.11 Nonetheless, in section I, the majority grants mandamus relief based
    on the Waiver Argument, even though GreCon did not present the argument to the
    respondent trial judge.12
    10
    See ante at 4.
    11
    See 
    Bigham, 901 S.W.2d at 426
    n. 3; In re Credit Suisse First Boston Mortg. Capital. 
    L.L.C., 257 S.W.3d at 493
    .
    See ante at 8–10; 
    Bigham, 901 S.W.2d at 426
    n. 3; In re Credit Suisse First Boston Mortg.
    12
    Capital. 
    L.L.C., 257 S.W.3d at 493
    .
    5
    The court improperly grants mandamus based on a waiver argument that GreCon
    waived by its failure to raise or brief the argument in its mandamus petition.
    In GreCon’s mandamus petition,13 GreCon does not assert that GreCon is
    entitled to mandamus relief based on the Waiver Argument. GreCon’s petition
    contains no argument, analysis, record citations, or legal authority in support of the
    Waiver Argument.14 So, GreCon waived the Waiver Argument by not briefing it in
    the mandamus petition, and this court may not grant mandamus relief based on the
    Waiver Argument.15 The analysis in section II — based on arguments presented to
    the respondent trial judge and briefed in GreCon’s mandamus petition — provides
    ample basis to grant mandamus relief. This court should not stretch for a reason to
    grant mandamus that was not raised in this court.16 Instead, the court should grant
    mandamus relief based only on the analysis in section II.
    All references in this opinion to GreCon’s mandamus petition refer to both GreCon’s original
    13
    mandamus petition and its supplement to the original mandamus petition.
    14
    See Tex. R. App. P. 52.3(h) (stating that the mandamus petition “must contain a clear and concise
    argument for the contentions made, with appropriate citations to authorities and to the appendix or
    record”).
    15
    See Del Lago Partners, Inc. v. Smith, 
    307 S.W.3d 762
    , 776 (Tex. 2010) (holding that petitioners
    waived an argument by not briefing the argument in the Supreme Court of Texas); In re TCW
    Global Project Fund II, Ltd., 
    274 S.W.3d 166
    , 169–71 (Tex. App.—Houston [14th Dist.] 2008,
    orig. proceeding [mand. denied]) (holding that relators waived an argument by not briefing the
    argument in their mandamus petition); In re Akin Gump Strauss Hauer & Feld, LLP, 
    252 S.W.3d 480
    , 495 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) (holding that relator waived
    an argument by not briefing the argument in its mandamus petition); In re Citizens Supporting
    Metro Solutions, Inc., No. 07–00190–CV, 
    2007 WL 4277850
    , at *4 (Tex. App.—Houston [14th
    Dist.] Oct. 18, 2007, orig. proceeding) (mem. op.) (same as In re Akin Gump Strauss Hauer &
    Feld, LLP).
    16
    See Del Lago Partners, 
    Inc., 307 S.W.3d at 776
    (asserting that the Supreme Court of Texas
    should not “stretch for a reason to reverse that was not raised [in the Supreme Court of Texas]”).
    6
    Even if it were proper to consider the Waiver Argument, the argument would not
    provide a basis for granting mandamus relief.
    Presuming for the sake of argument that (1) GreCon presented the Waiver
    Argument to the respondent as a reason to grant GreCon’s “Motion to Compel
    Production of Settlement Agreements”; (2) GreCon briefed the Waiver Argument in
    its mandamus petition; and (3) this court must reach the Waiver Argument because
    the other arguments in GreCon’s mandamus petition lack merit, this court would
    have to address the issue. Yet, neither the parties nor the majority have cited any
    Texas case addressing the Waiver Argument, and research has not revealed any. The
    issue appears to be one of first impression under Texas law, and for this additional
    reason the Waiver Argument would be better left for another day and another case
    — one in which the parties have raised it and briefed it.17
    As allowed under Rule 194.2(h), GreCon requested that Figgs disclose “the
    existence and contents of any relevant portions of a settlement agreement.” 18 Figgs
    responded before the Request-for-Disclosure Deadline. In his response to the
    request under Rule 194.2(h), Figgs asserted that there were no relevant portions of a
    settlement agreement at the time of Figgs’s response.19 Even presuming for the sake
    of argument that Figgs had to assert by the Request-for-Disclosure Deadline any
    privilege, any ground for protection from discovery, or any basis for avoiding
    disclosure of all relevant portions of a settlement agreement, Figgs’s failure to assert
    any of these matters would mean only that Figgs had a duty to disclose to GreCon
    17
    The majority cites In re Morse. See 
    153 S.W.3d 578
    , 581–82 (Tex. App.—Amarillo 2004, orig.
    proceeding). This case is not on point for the reasons discussed later in this section.
    18
    Tex. R. Civ. P. 192.3(g); see Tex. R. Civ. P. 194.2(h).
    19
    Figgs responded “None at this time.”
    7
    “the existence and contents of any relevant portions of a settlement agreement.”20
    The relevance of all or part of any settlement agreement in Figgs’s possession is a
    matter subject to dispute. In his timely response and in his arguments in opposition
    to GreCon’s motion to compel in the trial court and GreCon’s mandamus petition in
    this court, Figgs has asserted that no part of the Settlement Agreements is relevant.
    Under the unambiguous text of the rules of civil procedure, by failing to file a motion
    for protection or assert a privilege by the Request-for Disclosure Deadline, Figgs did
    not waive his right to argue that the Settlement Agreements are not relevant in
    response to GreCon’s motion to compel.21 No rule or other legal authority required
    Figgs to assert by the Request-for-Disclosure Deadline a motion for protection or
    other motion presenting argument and proof that the Settlement Agreements are not
    relevant.22 Figgs timely argued that the Settlement Agreements are not relevant in
    response to GreCon’s motion to compel. Figgs did not waive this argument by
    failing to assert it in a motion before the Request-for-Disclosure Deadline.23
    Though the majority concludes that Figgs waived this argument by failing to
    assert it and prove it in a motion filed by the Request-for-Disclosure Deadline, the
    majority cites no rule, case, or other legal authority that imposes this requirement.24
    The majority cites In re Morse, but that case imposes no such requirement.25 In
    20
    Tex. R. Civ. P. 192.3(g); see Tex. R. Civ. P. 194.2(h).
    21
    See Tex. R. Civ. P. 194; Tex. R. Civ. P. 192.3(g).
    22
    See Tex. R. Civ. P. 194; Tex. R. Civ. P. 192.3(g).
    23
    See Tex. R. Civ. P. 194; Tex. R. Civ. P. 192.3(g).
    24
    See ante at 8–10. Though the majority cites comment 1 to Rule 194, this comment does not
    impose any requirement that a party on whom a request for disclosure under Rule 194.2(h) is
    served must assert any relevancy arguments in a motion for protection filed by the deadline to
    respond to the disclosure request. See Tex. R. Civ. P. 194 cmt. 1.
    25
    See 
    153 S.W.3d 578
    , 581–82 (Tex. App.—Amarillo 2004, orig. proceeding).
    8
    Morse, the real parties in interest did not fully respond to a request for disclosure of
    identity information as to potential parties under Rule 194.2(b); there was no issue
    as to a request for disclosure under Rule 194.2(h).26 In today’s case, Figgs moved
    for protection and presented non-frivolous arguments in the trial court that the
    respondent trial judge should deny GreCon’s motion to compel because the
    Settlement Agreements are not relevant. In Morse, the real parties in interest did not
    move for protection, nor did they assert in the mandamus proceeding that the
    requested information was privileged or that they had a valid basis for seeking
    protection.27 In Morse, Rule 194.2(b) required the disclosure of the name, address,
    and telephone number of any potential parties, and the real parties did not argue that
    the information at issue was not the name, address, and telephone number of any
    potential parties.28 In today’s case, Rule 194.2(h) requires the disclosure of the
    existence and contents of any relevant portions of a settlement agreement, and Figgs
    argued in the trial court and in this proceeding that no part of the Settlement
    Agreements is relevant.29 Though the Morse court stated that the real parties in
    interest’s failure either to file a motion for protection or to fully respond to the
    request for disclosure constituted an abuse of the discovery process, the Morse court
    did not hold that any argument had been waived, nor did the Morse court address
    whether an argument would have been untimely if the real parties had presented it
    to the respondent trial judge after the deadline for responding to the disclosure
    26
    See 
    id. 27 See
    id.
    28
    See 
    id.
    29
    See 
    Tex. R. Civ. P. 194.2(h); Tex. R. Civ. P. 192.3(g).
    9
    request.30 The Morse case does not address the Waiver Argument and so is not on
    point.31
    In concluding that Figgs had the burden of proving that the Settlement
    Agreements were not relevant, the majority cites In re Univar USA, Inc., 
    311 S.W.3d 175
    (Tex. App.—Beaumont 2010, orig. proceeding).32 In that case, the court of
    appeals granted mandamus relief compelling production of settlement agreements in
    response to a request for disclosure.33 The parties resisting discovery in In re Univar
    did not file a motion for protection asserting that the settlement agreements were not
    relevant by the deadline for responding to the request for disclosure.34 Thus, under
    the majority’s analysis, the resisting parties waived their relevancy argument.35
    Significantly, the In re Univar court did not conclude that the relevancy argument
    was waived; instead, the court addressed the merits of the argument and concluded
    that the settlement agreements were relevant.36 That is precisely what this court
    should do today.
    In concluding that Figgs had the burden of proving that the Settlement
    Agreements were not relevant, the majority also cites cases involving requests for
    production and the resisting party’s objections thereto.37        The majority thus
    30
    See In re 
    Morse, 153 S.W.3d at 581
    –82.
    31
    See 
    id. 32 See
    ante at 8–9.
    33
    See In re Univar USA, Inc., 
    311 S.W.3d 175
    , 179–82 (Tex. App.—Beaumont 2010, orig.
    proceeding).
    34
    See 
    id. at 178,
    180.
    35
    See ante at 8–10.
    36
    See In re Univar USA, 
    Inc., 311 S.W.3d at 179
    –82.
    37
    See ante at 8–9.
    10
    analogizes Figgs’s argument that the Settlement Agreements were not relevant to a
    party’s objection that a settlement agreement is not relevant in response to a request
    for production.38 If GreCon had served requests for production of the Settlement
    Agreements on Figgs, and if Figgs had timely objected on the ground that the
    agreements are not relevant, then Figgs would have had until the hearing on
    GreCon’s motion to compel to prove that the agreements are not relevant. 39 So,
    under the majority’s analogy, Figgs should have until the hearing on GreCon’s
    motion to compel to prove that there were no relevant portions of a settlement
    agreement, as Figgs had timely asserted in response to GreCon’s request for
    disclosure.40 Instead, the majority concludes that Figgs had to meet this burden of
    proof by the Request-for-Disclosure Deadline.41
    The majority concludes that a party waives its argument that any settlement
    agreement is irrelevant in whole or in part if the party fails to assert and prove that
    argument in a motion for protection filed by the deadline for responding to a request
    for disclosure under Rule 194.2(h).42 If this waiver rule is applied in future cases, it
    likely will impose significant transaction costs on parties who enter into numerous
    settlement agreements and likely will present a trap for the unwary — a trap that will
    result in the waiver of valid arguments that settlement agreements are not relevant.
    38
    See 
    id. 39 See
    Tex. R. Civ. P. 193.4(a); In re Weekley Homes, L.P., 
    295 S.W.3d 309
    , 315 (Tex. 2009).
    40
    See Tex. R. Civ. P. 193.4(a); In re Weekley Homes, 
    L.P., 295 S.W.3d at 315
    ; In re Univar USA,
    
    Inc., 311 S.W.3d at 179
    –82.
    41
    See ante at 8–10.
    42
    See 
    id. 11 The
    Texas Rules of Civil Procedure do not define the term “settlement
    agreement,” as used in Rule 192.3(g) or Rule 194.2(h).43 As this court has noted,
    the plain meaning of this undefined term is broad and includes settlements of claims
    against other parties in other lawsuits.44 So, the plain meaning of this term would
    seemingly include all settlement agreements in the possession of the party on whom
    the disclosure request is served, even settlement agreements as to unrelated claims
    and even settlement agreements in which the party had no involvement.45 Under
    Rule 194.2(h), the sole factor for winnowing out which settlement agreements or
    portions thereof are discoverable is the requirement that they be relevant to the case
    in which disclosure is sought.46 Yet, under the majority’s reasoning in section I, a
    party waives all relevancy arguments unless the party raises and proves these
    arguments in a motion for protection filed by the disclosure deadline. Parties
    undertaking to follow this rule may face transaction costs asserting and proving
    relevancy arguments as to settlement agreements that no party seriously could argue
    were relevant to the litigation. Parties who fail to follow this rule and simply respond
    that no part of any settlement agreement is relevant run the risk of the discovering
    party asserting that the responding party has waived all relevancy arguments and is
    required to produce every settlement agreement in the responding party’s
    possession.        For responding parties who have entered into many settlement
    43
    See Tex. R. Civ. P. 192, 194.
    44
    See Palo Duro Pipeline Co. v. Cochran, 
    785 S.W.2d 455
    , 457 (Tex. App.—Houston [14th Dist.]
    1990, orig. proceeding).
    45
    If, as happened in today’s case, a party has reason to believe that a party to the litigation has
    settled with one or more other parties, the party may seek discovery of these settlement agreements
    by specific requests for production. The record in today’s case does not reflect that GreCon sought
    discovery of the Settlement Agreements by a request for production.
    46
    See Tex. R. Civ. P. 194.2(h); Tex. R. Civ. P. 192.3(g).
    12
    agreements, this rule will impose significant transaction costs in either asserting and
    proving that all the settlement agreements are not relevant or in having to produce
    all of these settlement agreements if a court concludes that the party waived its
    relevancy arguments under this rule. In both scenarios, the rule puts litigants to
    unnecessary time and expense.
    Figgs asserted that the Settlement Agreements were not relevant in a response
    and motion for protection filed within seventy days after the Request-for-Disclosure
    Deadline and before the respondent trial judge ruled on GreCon’s motion to compel.
    GreCon has not said that Figgs waived his relevancy arguments, nor does any legal
    authority so provide. Though Figgs’s relevancy arguments lack merit, under
    applicable law, Figgs did not waive these arguments by failing to assert them in a
    motion for protection filed by the deadline for responding to a request for disclosure
    under Rule 194.2(h).47
    Conclusion
    The analysis in section I of the majority opinion violates fundamental
    principles established in binding precedent by granting mandamus relief based on
    the Waiver Argument because (1) GreCon did not present the Waiver Argument to
    the respondent trial judge; (2) the trial judge did not rule on the Waiver Argument;
    (3) GreCon did not assert the Waiver Argument in this mandamus proceeding; (4)
    Figgs has not had the opportunity to respond to the Waiver Argument; and (5) this
    court may grant mandamus relief for the reasons stated in section II of the majority
    47
    See Tex. R. Civ. P. 192, 194. As the majority notes, the purported settlement agreement with
    Mid-South Engineering, Inc. submitted under seal does not contain any date or any indication as
    to when it was executed. The majority does not explain the basis on which this court concludes
    that this document was in Figgs’s possession on April 2, 2017, when he responded to the request
    for disclosure.
    13
    opinion, without relying upon the Waiver Argument. And, in any event, the Waiver
    Argument lacks merit.
    /s/    Kem Thompson Frost
    Chief Justice
    Panel consists of Chief Justice Frost and Justices Boyce and Jewell. (Jewell, J.,
    majority) (Boyce, J., joining section I of the majority opinion).
    14