in Re 8650 Frisco, LLC D/B/A Estilo Gaucho Brazilian Steakhouse, Mandona, LLC, Galovelho, LLC, Bahtche, LLC, Claudio Nunes and David Jeiel Rodrigues
01-15-00423-CV
| Tex. App. | Jul 23, 2015Background
- 8650 Frisco, LLC and related Relators filed a motion for mandamus seeking relief from an April 1, 2015 and an April 27, 2015 order in the First Court of Appeals, Houston, Texas.
- The underlying discovery dispute originated from a July 28, 2014 order directing production of documents and a related discovery request by Real Parties in Interest.
- The Fourth Amended Petition in the underlying suit narrowed claims to a single breach-of-contract claim tied to a settlement; prior claims were nonsuited.
- Relators argued the April 1 and April 27 orders were void or, alternatively, an abuse of discretion for requiring production of already-produced or irrelevant documents.
- The appellate court denied mandamus relief prior to the rehearing motion; Relators filed a motion for reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by denying mandamus under void order standard | Relators: orders void due to moot discovery requests | Respondent: orders were within authority absent mootness | Void orders shown; mandamus proper |
| Whether mandamus should be granted for abuse of discretion due to production of documents already produced | Relators: orders compelled production of already produced materials | Respondent: discretion exercised; not an abuse | Abuse of discretion found; relief warranted |
| Whether the April 27, 2015 order constitutes abuse where there was no evidence of noncompliance | Relators: no noncompliance shown; sanction improper | Respondent: noncompliance established by evidence and inference | Abuse of discretion shown; relief granted |
Key Cases Cited
- Able v. Moye, 898 S.W.2d 766 (Tex. 1995) (trial court discovery denial may be remedied by mandamus)
- In re Vaishangi, Inc., 442 S.W.3d 256 (Tex. 2014) (mandamus where adequate remedies lacking)
- In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (original proceeding on discovery disputes)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standard for reviewing discovery and mandamus issues)
- Bair v. Hagans, 838 S.W.2d 677 (Tex.App.–Houston [1st Dist] 1992) (an order to compel is not a lesser sanction under rule 215.2(b))