in Re Preventative Pest Control Houston, LLC and Nicholas Anthony Charles ( 2019 )


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  • Petition for Writ of Mandamus Conditionally Granted in Part and Denied in
    Part and Majority and Dissenting Opinions filed July 2, 2019.
    In The
    Fourteenth Court of Appeals
    NO. 14-19-00274-CV
    IN RE PREVENTATIVE PEST CONTROL HOUSTON, LLC AND
    NICHOLAS ANTHONY CHARLES, Relators
    ORIGINAL PROCEEDING
    WRIT OF MANDAMUS
    295th District Court
    Harris County, Texas
    Trial Court Cause No. 2016-01076
    MAJORITY OPINION
    Relators Preventative Pest Control Houston, LLC and Nicholas Anthony
    Charles (collectively, the “Pest Control Parties”) have filed a petition for writ of
    mandamus. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. They
    ask this court to compel the Honorable Donna Roth, presiding judge of the 295th
    District Court of Harris County, to vacate the orders she signed on February 25, 2019
    and March 25, 2019, compelling the Pest Control Parties to create lists to satisfy
    requests for production. They also claim that the trial court abused its discretion by
    awarding attorney’s fees to the real party in interest, Karen Ackerman, as a discovery
    sanction. We conditionally grant the petition, in part, and deny it, in part.
    I. BACKGROUND
    Charles, an employee of Preventative Pest Control, was driving a truck owned
    or leased by the company when he hit Karen Ackermann as she was crossing a street
    on foot. Ackermann sued the Pest Control Parties for negligence. In that litigation
    Ackermann filed a motion to compel requesting the trial court to order the Pest
    Control Parties to produce the following in response to her requests for production:
    (1) Charles’s worker’s compensation file; (2) a signed authorization from Charles
    allowing Ackermann to get his prior employment records and to disclose the names
    of previous employers; (3) Charles’s work service records covering the period of his
    employment at Preventative Pest Control; (4) Preventative Pest Control’s files
    regarding any other motor-vehicle accidents for the two-year period before the
    accident; and (5) a signed authorization allowing Ackermann to get Charles’s Sprint
    Nextel records. Ackermann sought an order from the trial court compelling the Pest
    Control Parties to supplement their answers to all discovery requests, including
    Ackerman’s fourth set of discovery.
    2
    The Pest Control Parties responded that Ackermann had requested a
    preferential trial setting on five occasions and represented that she was ready to try
    the case. They pointed out that the discovery deadlines for earlier docket-control
    orders had passed, and Ackerman had obtained almost every document in existence
    with respect to the issues in the motion to compel.         The trial court granted
    Ackermann’s motion, in part.
    The Production Order
    The trial court ordered the Pest Control Parties to produce the following items
    to satisfy Ackermann’s requests for production within ten days of the date of the
    court’s order signed February 25, 2019 (“Production Order”): (1) a list of
    medications taken by Charles during the 24-hour period before the accident
    (“Medications List”); and (2) a list of Charles’s employers for the ten-year period
    before the accident (“Employers List”); (3) Charles’s work service records for the
    14-day period before the accident (“Work Service Records”); and (4) a signed
    authorization allowing Ackermann to get Sprint Nextel records for Charles. The
    trial court also ordered the Pest Control Parties to supplement and answer all
    discovery requests, including Ackermann’s fourth set of discovery. The trial court
    denied Ackermann’s request for Charles’s worker’s compensation file, a signed
    employment authorization allowing Ackermann to get Charles’s prior employment
    records, and Preventative Pest Control’s files regarding any other motor-vehicle
    accidents for the two-year period before the accident.
    The Pest Control Parties responded to the court-ordered discovery by (1)
    stating that no Medications List existed; (2) stating that no Employers List existed;
    3
    and (3) attaching to their response the Work Service Records. Ackermann later filed
    a motion to show cause for the Pest Control Parties’ purported failure to comply with
    the Production Order. According to Ackermann, the Pest Control Parties’ response
    that no Medications List and no Employers List existed violated the Production
    Order.   Ackermann also complained that the Pest Control Parties had not
    supplemented or answered all outstanding discovery requests.
    The Show Cause Order
    The trial court signed an order on March 25, 2019 (“Show Cause Order”),
    granting Ackermann’s motion to show cause for the Pest Control Parties’ failure to
    comply with the Production Order. In the Show Cause Order, the trial court ordered
    the Pest Control Parties to produce a Medications List and an Employers List and to
    fully answer Ackermann’s fourth set of discovery. The trial court also ordered the
    Pest Control Parties to pay Ackermann $1,500 for costs and expenses for having to
    file the motion to show cause. The trial court advised the parties that it would
    consider other sanctions, including the striking of the Pest Control Parties’
    pleadings, if they did not comply with the Show Cause Order.
    Request for Mandamus Relief
    In this mandamus proceeding, the Pest Control Parties assert that the trial
    court abused its discretion by ordering them to create lists that do not exist and by
    awarding attorney’s fees to Ackermann as a sanction. They assert they do not have
    an adequate remedy by appeal.
    4
    II. STANDARD OF REVIEW
    Ordinarily, to be entitled to a writ of mandamus, the relators must show that
    the trial court abused its discretion and that they lack an adequate remedy by appeal.
    In re Dawson, 
    550 S.W.3d 625
    , 628 (Tex. 2018) (original proceeding) (per curiam).
    The parties resisting discovery bear the burden of showing an abuse of discretion
    and an inadequate remedy by appeal. In re CSX Corp., 
    124 S.W.3d 149
    , 151 (Tex.
    2003) (orig. proceeding) (per curiam).
    A trial court clearly abuses its discretion if it reaches a decision so arbitrary
    and unreasonable as to amount to a clear and prejudicial error of law, or the trial
    court clearly fails to analyze the law correctly or apply the law correctly to the facts.
    In re H.E.B. Grocery Co., L.P., 
    492 S.W.3d 300
    , 302–03 (Tex. 2016) (orig.
    proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 
    164 S.W.3d 379
    , 382
    (Tex. 2005) (orig. proceeding) (per curiam). A trial court abuses its discretion if it
    orders discovery that exceeds what the rules of civil procedure permit. In re N.
    Cypress Med. Ctr. Operating Co., Ltd., 
    559 S.W.3d 128
    , 130–31 (Tex. 2018); In re
    Nat’l Lloyds Ins. Co., 
    532 S.W.3d 794
    , 802 (Tex. 2017).
    Courts are to assess the adequacy of an appellate remedy by balancing the
    benefits of mandamus review against the detriments. In re Team Rocket, L.P., 
    256 S.W.3d 257
    , 262 (Tex. 2008) (orig. proceeding). Because this balancing depends in
    large measure on the circumstances presented, courts look to principles rather than
    simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc., 
    275 S.W.3d 458
    , 464 (Tex. 2008) (orig. proceeding). Whether an appeal amounts to an adequate
    remedy depends heavily on the circumstances. In re Garza, 
    544 S.W.3d 836
    , 840
    5
    (Tex. 2018) (orig. proceeding) (per curiam). Mandamus review may be necessary
    to prevent the loss of substantive or procedural rights. In re Reece, 
    341 S.W.3d 360
    ,
    374 (Tex. 2011) (orig. proceeding). Appeal is not an adequate remedy when the
    appellate court would not be able to cure the trial court’s discovery error. In re Dana
    Corp., 
    138 S.W.3d 298
    , 301 (Tex. 2004) (orig. proceeding) (per curiam).
    III. DISCOVERY
    The Pest Control Parties complain that the trial court abused its discretion by
    ordering them to produce lists that do not exist. Under Texas procedure, litigants
    are not required to produce documents or tangible things unless those items lie
    within their possession, custody, or control. In re Colonial Pipeline Co., 
    968 S.W.2d 938
    , 942 (Tex. 1998) (orig. proceeding); see also Tex. R. Civ. P. 192.3 (“A person
    is required to produce a document or tangible thing that is within the person’s
    possession, custody, or control.”). A document that does not exist is not within a
    party’s possession, custody, or control. Colonial Pipeline 
    Co., 968 S.W.2d at 942
    .
    Therefore, parties cannot be forced to create documents that do not exist for the sole
    purpose of complying with a request for production. McKinney v. Nat’l Union Fire
    Ins. Co. of Pittsburgh, Pa., 
    772 S.W.2d 72
    , 73 n.2 (Tex. 1989); In re Jacobs, 
    300 S.W.3d 35
    , 46–47 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding [mand.
    dism’d]); In re Guzman, 
    19 S.W.3d 522
    , 525 (Tex. App.—Corpus Christi 2000, orig.
    proceeding) (citing Tex. R. Civ. P. 192.3(b)). Yet, the trial court ordered the Pest
    Control Parties to do just that.
    Ackermann contends that the rule that one cannot be forced to create a
    document that does not exist is based on Texas Rule of Civil Procedure 166b(2)(b),
    6
    which was repealed effective January 1, 1999. See GTE Comm’n Sys. Corp. v.
    Tanner, 
    856 S.W.2d 725
    , 728–29 (Tex. 1993) (original proceeding) (“A person is
    not required to produce a document or tangible thing unless it is within the person’s
    possession, custody or control. Possession, custody or control includes constructive
    possession such that the person need not have actual physical possession. . . .”)
    (quoting former Tex. R. Civ. P. 166b(2)(b))). But, current Rule 192.3(b) provides
    that “[a] person is required to produce a document or tangible thing that is within the
    person’s possession, custody, or control.” Tex. R. Civ. P. 192.3(b). Under Rule
    192.3(b), one cannot be forced to create a document that does not exist solely to
    comply with a request for production. 
    Guzman, 19 S.W.3d at 525
    (citing Tex. R.
    Civ. P. 192.3(b)). This court’s precedent holds the same. See 
    Jacobs, 300 S.W.3d at 46
    –47.
    Despite the trial court’s order for the Pest Control Parties to create lists going
    against both the plain language of the rules and this court’s precedent, Ackermann
    posits that ordering the Pest Control Parties to create lists amounted to a reasonable
    and proportionate decision for the equitable adjudication of the case. Specifically,
    she argues that by applying Rule 192.4’s1 proportionality factors, the trial court did
    not abuse its discretion by ordering the creation of the lists. See In re State Farm
    Lloyds, 
    520 S.W.3d 595
    , 604, 608–12 (Tex. 2017) (orig. proceeding). The Supreme
    Court of Texas has set forth the following proportionality factors: (1) the likely
    1
    Tex. R. Civ. P. 192.4. Rule 192.4 provides a trial court should limit discovery methods
    to those which are more convenient, less burdensome, and less expensive, or when the burden or
    expense of the proposed discovery outweighs its likely benefit. 
    Id. 7 benefit
    of the requested discovery; (2) the needs of the case; (3) the amount in
    controversy; (4) the parties’ resources; (5) the importance of the issues at stake in
    the litigation; (6) the importance of the proposed discovery in resolving the
    litigation; and (7) any other articulable factor bearing on proportionality. 
    Id. In identifying
    these factors the high court recognized that “all discovery is subject to
    the proportionality overlay embedded in our discovery rules,” and “the discovery
    rules imbue trial courts with the authority to limit discovery based on the needs and
    circumstances of the case[.]” 
    Id. at 599.
    But, in today’s case the trial court has not
    limited discovery methods. Instead, the trial court has ordered production of
    documents in response to a specific request for production that exceeds what the
    discovery rules allow. The rules do not permit a trial court to order parties to create
    documents for the purposes of discovery. See Tex. R. Civ. P. 192.3(b); Colonial
    Pipeline 
    Co., 968 S.W.2d at 942
    ; 
    McKinney, 772 S.W.2d at 73
    n.2; 
    Jacobs, 300 S.W.3d at 46
    –47; 
    Guzman, 19 S.W.3d at 525
    . Nothing in Rule 192.4 allows the trial
    court to order discovery that exceeds what the applicable rules of discovery permit.
    Abuse of Discretion
    The trial court exceeded the proper scope of discovery by going beyond what
    the rules of civil procedure permit. See N. Cypress Med. Ctr. Operating Co., 
    Ltd., 559 S.W.3d at 130
    –31 (stating that it is an abuse of discretion for the trial court to
    order discovery that exceeds what the rules of civil procedure permit); Nat’l Lloyds
    Ins. 
    Co., 532 S.W.3d at 802
    (stating that a discovery order that compels production
    beyond what the rules of procedure allow amounts to an abuse of discretion).
    Therefore, the trial court abused its discretion by directing the Pest Control Parties
    8
    to create a Medications List an Employers List solely for purpose of responding to
    discovery. See Colonial Pipeline 
    Co., 968 S.W.2d at 942
    ; 
    Jacobs, 300 S.W.3d at 46
    –47; 
    Guzman, 19 S.W.3d at 525
    . Having determined that the trial court abused
    its discretion by ordering the Pest Control Parties to create the lists, we now turn to
    consider whether they have an adequate remedy by appeal.
    No Adequate Remedy by Appeal
    An adequate remedy by appeal does not exist when parties stand to lose a
    substantive or procedural right. 
    Reece, 341 S.W.3d at 374
    . The Pest Control Parties
    risk losing the right not to be forced to create lists—an action the trial court cannot
    order under the Texas Rules of Civil Procedure and governing precedent. See Tex.
    R. Civ. P. 192.3(b); Colonial Pipeline 
    Co., 968 S.W.2d at 942
    ; 
    McKinney, 772 S.W.2d at 73
    n.2; 
    Jacobs, 300 S.W.3d at 46
    –47; 
    Guzman, 19 S.W.3d at 525
    . This
    error cannot be cured on appeal because by the time of the appeal, the Pest Control
    Parties already will have created the lists. See Dana 
    Corp., 138 S.W.3d at 301
    .
    Under the circumstances presented, the Pest Control Parties lack an adequate remedy
    by appeal as to the portions of the orders directing them to create the Medications
    List and the Employers List.2
    III. SANCTIONS
    The Pest Control Parties also complain that the $1,500 assessment of costs
    and fees amounts to an arbitrary punishment and violates due process. Ordinarily,
    2
    The Pest Control Parties do not challenge the portions of the orders directing them to
    supplement and answer all of Ackermann’s discovery requests, including her fourth set of
    discovery requests.
    9
    relators have an adequate remedy by appeal from an order awarding sanctions. In
    re RH White Oak, LCC, 
    442 S.W.3d 492
    , 503 (Tex. App.—Houston [14th Dist.]
    2014, orig. proceeding [mand. denied]) (citing Braden v. Downey, 
    811 S.W.2d 922
    ,
    928 (Tex. 1991) (orig. proceeding)). But, when a monetary sanction is so severe as
    to threaten their continuation of litigation, an appeal stands as an adequate remedy
    only if the trial court defers payment until final judgment when the sanctioned parties
    can supersede the judgment and perfect an appeal. 
    Id. (citing Prime
    Group, Inc. v.
    O’Neill, 
    848 S.W.2d 376
    , 378–79 (Tex. App.—Houston [14th Dist.] 1993, orig.
    proceeding)). Though the trial court did not defer payment of the sanctions in this
    case, the Pest Control Parties have not made the necessary allegations and showing
    to trigger that exception to the general rule that an appeal from an order awarding
    sanctions provides an adequate remedy
    The Pest Control Parties assert only that the trial court’s monetary sanctions
    amount to arbitrary punishment and violate due process, not that the sanction is so
    severe as to threaten their ability to continue litigation. Thus, the Pest Control Parties
    have not shown that they lack an adequate remedy by appeal. See 
    id. at 503–04
    (holding that the relators did not show that they lacked an adequate remedy on appeal
    where they failed to explain why the sanctions were so severe as to threaten their
    ability to continue litigation); In re Christus Health, 
    276 S.W.3d 708
    , 709 n.2 (Tex.
    App.—Houston [1st Dist.] 2008, orig. proceeding [mand. denied]) (holding that the
    relators did not establish an adequate remedy by appeal as to monetary sanctions
    because they only contended that such sanctions were an abuse of discretion).
    Because they have failed to make this showing, we need not address in this
    10
    proceeding whether the trial court abused its discretion by awarding Ackermann the
    $1,500 assessment of costs and fees as a sanction.
    IV. CONCLUSION
    We conclude that the trial court abused its discretion by ordering the Pest
    Control Parties to create a Medications List and an Employers List. We therefore
    conditionally grant the petition for writ of mandamus in part and direct the trial court
    to set aside those portions of the Production Order and the Show Cause Order. We
    deny the remainder of the petition for mandamus relief. The writ will issue only if
    the trial court fails to act in accordance with this opinion.
    We lift the stay this court issued on April 2, 2019.
    /s/    Kem Thompson Frost
    Chief Justice
    Panel consists of Chief Justice Frost and Justices Jewell and Bourliot. (J., Bourliot,
    dissenting).
    11