in Re: Heide Ortuno, Individually and as Next Friend of J.O. a Minor Child ( 2008 )

Petition for Writ of Mandamus Denied, and Memorandum Opinion filed July 24, 2008

Petition for Writ of Mandamus Denied, and Memorandum Opinion filed July 24, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00457 -CV

____________

IN RE HEIDI ORTUNO, INDIVIDUALLY AND

 AS NEXT FRIEND OF J.O., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

This mandamus proceeding marks the second occasion for relator Heidi Ortuno to request that we protect her consulting expert=s report from being disclosed and used in the underlying litigation.  We previously denied her request to issue a writ of mandamus compelling the trial court to enter a protective order, because the requested relief had not first been asked of the trial court.^[1] When that request was posed to the trial court, the respondent^[2] ruled that Ortuno had waived the consulting-expert privilege.   In challenging the trial court=s rulings on mandamus, Ortuno twice has filed unsealed copies of the document she insists are privileged.  We conclude that in so doing, she has waived the privilege through voluntary and intentional disclosure. Accordingly, we deny the petition.

                                                               Background

The underlying facts are well-known to the parties, and are recited in more detail in the Court=s memorandum opinion of May 6, 2008.^[3] Briefly, the three-page report of Sue Caudle, Ph.D., whom Ortuno contends is her consulting expert, was produced in discovery as a part of the medical records of non-party Texas Children=s Hospital.^[4] Upon learning of the disclosure, Ortuno contended that Rule 193.3(d) required her opponent, Winkler Villa, to return the report.  The trial court concluded that Rule 193.3(d) does not apply to production by non-parties, and we likewise denied mandamus relief.

Ortuno then asked the trial court to enter a protective order to prevent Winkler Villa from disclosing or using the already-produced report.  The trial court denied Ortuno=s request, ruling that she (1) had not timely requested protection, (2) failed to request that the report be sealed pursuant to Rules 192.6(b) and 76a, and (3) waived the consulting-expert privilege.  This mandamus proceeding ensued.  Ortuno asks that we issue a writ of mandamus to compel the trial court to enter a protective order prohibiting the use and disclosure of Dr. Caudle=s report.

                                                       Standard of Review

Mandamus relief will lie if the relator establishes a clear abuse of discretion for which there is no adequate appellate remedy.  In re AutoNation, Inc., 228 S.W.3d 663, 667 (Tex. 2007) (orig. proceeding).  A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  That is, a clear abuse of discretion occurs when a trial court issues a decision that lacks any basis or reference to guiding legal principles.  Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985) (orig. proceeding).  With respect to the resolution of factual issues or matters committed to the trial court=s discretion, we may not substitute our judgment for that of the trial court.  Walker, 827 S.W.2d at 839. However, because a trial court has no discretion in determining what the law is or applying the law to the facts, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion.  Id. at 840.  Because a trial court cannot abuse its discretion if it reaches the correct result for the wrong reasons, we will uphold the trial court=s order on any ground supported by the record.  See Luxenberg v. Marshall, 835 S.W.2d 136, 141B42 (Tex. App.CDallas 1992, orig. proceeding); In re ExxonMobil Corp., 97 S.W.3d 353, 358 (Tex. App.CHouston [14th Dist.] 2003, orig. proceeding).

Although waiver is ordinarily a question of fact, and the trial court=s resolution of factual matters is conclusive, mandamus is a proper method for determining whether waiver is intended or unintended.  See In re Carbo Ceramics, Inc., 81 S.W.3d 369, 376 (Tex. App.CHouston [14th Dist.] 2002, orig. proceeding).  In a charge of waiver of privileged information, the person asserting the privilege bears the burden of showing that waiver did not occur.  See Giffin v. Smith, 688 S.W.2d 112, 114 (Tex. 1985) (orig. proceeding).

                                      Waiver by Intentional Disclosure

When Ortuno filed her earlier mandamus proceeding, she included an unsealed copy of Dr. Caudle=s report in the mandamus record.^[5]  At a May 13 hearing on her motion for protection, Ortuno was informed that the Caudle report had been inserted into both the trial court=s and our records, and was therefore a public record:

THE COURT:            Are those three documents in the court=s record already?

MR. HOOPER:          Yes.

THE COURT:            They are?

MR. HOOPER:          That=s the other thing, they=re in this court=s record^[6] and the Court of Appeals= record.

THE COURT:            In-camera documents?

MR. HOOPER:          No, sir, they=re not in-camera.  They are attached toB

THE COURT:            So they are already public records?

MR. HOOPER:          Yes.

THE COURT:            So ordering the protection is futile.

MR. HOOPER:          Well, you would have to do a 76a hearing.

Accordingly, the trial court disputed Ortuno=s assertion that she had done everything Ahumanly possible@ to prevent the disclosure of Dr. Caudle=s records: A[T]o say that you have done everything that=s humanly possible isn=t a fair characterization and isn=t reconcilable with other things you have already admitted.  If the records are indeed in this court=s records and the record of the Court of Appeals, there is no 76a motion that has to this moment been filed.@ 

Despite this admonition, Ortuno once again filed the unsealed Caudle report with the mandamus record in this proceeding.  Accordingly, we find that Ortuno has waived the consulting-expert privilege with respect to the Caudle report.

A party waives a privilege if it voluntarily discloses the privileged information to an open court.  See Stroud Oil Props., Inc. v. Henderson, No. 02-03-00003-CV, 2003 WL 21404820, at *3 (Tex. App.CFort Worth June 19, 2003, pet. denied) (mem. op.).  Likewise, the voluntary submission of unsealed materials in an appellate record waives any asserted privileges as to those materials:

Some of the evidence . . . was included in the appellate record in this cause.  These documents were made part of the record on December 28, 2004.  They were included in the appellate record after [Appellee] asserted its claims of privilege.  Nothing in this court=s file evidences any attempt by [Appellee] to recall these documents as privileged.  Therefore, for the present litigation, we conclude that [Appellee=s] prior assertion of privilege as to these documents has been waived.

Yorkshire Ins. Co., ___ S.W.3d ___, 2007 WL 1771614, at *14 (citation omitted).^[7]  Because Yorkshire presented as a regular appeal, the responsibility for preparing, certifying, and timely filing the record therein lay with the trial court personnel.  See Tex. R. App. P. 35.3.  By contrast, in a mandamus proceeding, the relatorChere, OrtunoCprepares and files the mandamus record.  See Tex. R. App. P. 52.7(a).  This obligation does not relieve her of the duty to properly preserve an asserted privilege, as through, for example, the submission of a sealed mandamus record.  See, e.g., In re Jeffcoat, No. 01-04-00430-CV, 2005 WL 428213, at *1 (Tex. App.CHouston [1st Dist.] Feb. 24, 2005, orig. proceeding [mand. denied]) (mem. op.).

Ortuno has voluntarily filed unsealed copies of the Caudle report on at least two occasions.  We conclude that she has not carried her burden of demonstrating that she did not waive the consulting-expert privilege.  See Giffin, 688 S.W.2d at 114; Stroud Oil Props., Inc., 2003 WL 21404820, at *3; Yorkshire Ins. Co., ___ S.W.3d ___, 2007 WL 1771614, at *14.  We therefore do not find that the trial court abused its discretion in denying Ortuno=s motion for protection.  Because of our resolution here, we need not address the trial court=s other stated grounds for denying Ortuno=s requested relief.

Accordingly, we deny the petition for writ of mandamus.

/s/      Jeff Brown

Justice

Petition Denied, and Memorandum Opinion filed, July 24, 2008.

Panel consists of Justices Yates, Guzman, and Brown.

---

            ^[1]           In re Ortuno, No. 14-08-00227-CV, 2008 WL 2339800, at *2 (Tex. App.CHouston [14th Dist.] May 6, 2008, orig. proceeding [mand. denied]).

            ^[2]           The Honorable Levi Benton, judge of the 215th Judicial District Court of Harris County

            ^[3]           Ortuno, 2008 WL 2339800, at *1.

            ^[4]           Texas Children=s Hospital is Dr. Caudle=s employer.

            ^[5]           Waiver was not an issue in the earlier mandamus proceeding, which instead related to whether the Asnap-back@ provisions of Rule 193.3(d) applyies to production of privileged materials by a non-party.  See Ortuno, 2008 WL 2339800, at *1.

            ^[6]           Winkler Villa filed the Caudle report in the trial court=s record.  We agree with Ortuno that an opponent=s disclosure of privileged materials would not automatically waive a privilege that belongs to Ortuno.  See In re Ford Motor Co., 211 S.W.3d 295, 301 (Tex. 2006) (orig. proceeding).  We note, however, that Ortuno still has not asked that the trial court=s records containing the Caudle report be sealed.  See Yorkshire Ins. Co. v. Seger, ___ S.W.3d ___, 2007 WL 1771614, at *14 (Tex. App.CAmarillo June 20, 2007, pet. filed); Envtl. Procedures, Inc. v. Guidry, ___ S.W.3d ___, No. 14-05-01090-CV, 2008 WL 1746087, at *18 (Tex. App.CHouston [14th Dist.] Apr. 17, 2008, no pet.) (concluding that failure to request sealing waived such relief); In re R.D., 955 S.W.2d 364, 366 (Tex. App.CSan Antonio 1997, pet. denied) (same).

            ^[7]           Although Yorkshire remains pending before the Texas Supreme Court, none of the parties have challenged the appellate court=s waiver holding in their briefs, which have been made available online.