in Re Lizette Ventura
14-17-00326-CV
| Tex. App. | Oct 17, 2017Background
- Ventura, an Allstate insured, was rear-ended by an unknown driver and sought uninsured motorist benefits; Allstate denied the claim and Ventura sued for breach of contract plus extra-contractual claims (later severed and abated).
- Ventura noticed a corporate-representative deposition of Allstate with 29 discrete topics; Allstate moved twice to quash and objected to many topics.
- The trial court denied Ventura’s motion to compel the corporate-rep deposition without specifying grounds, implicitly sustaining Allstate’s objections.
- Ventura petitioned this court for a writ of mandamus asking the trial judge to vacate the denial and compel the deposition.
- After Ventura filed mandamus, Allstate offered to present a corporate representative on eleven specific topics but reserved privilege and work-product objections at the deposition and trial-court hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus should compel deposition on topics Allstate later offered to produce | Ventura sought mandamus to compel deposition on all noticed topics | Allstate had offered to produce a witness for topics 10,11,15,16,17,18,19,20,26,27,28 and reserved privilege objections | Moot as to those eleven topics because Allstate offered to produce a witness |
| Whether mandamus should compel deposition on the remaining topics where Allstate raised objections | Ventura argued the trial court abused its discretion by denying the motion to compel for all topics | Allstate maintained its objections to the remaining topics and the trial court implicitly sustained them | Denied as to topics 1–9, 12–14, 21–25, and 29 because Ventura failed to challenge at least one of Allstate’s objections for each topic |
| Whether Allstate may object at the deposition on privilege/work-product grounds after offering topics | Ventura sought assurance deposition could proceed without preserved objections | Allstate reserved right to object to privileged/work-product questions at the deposition | Allstate may assert privilege/work-product objections at the deposition and those objections can be litigated in a hearing under the rules |
| Standard for mandamus review (relevance to relator’s burden) | Ventura relied on mandamus standard that courts may grant relief where trial court clearly abused discretion and no adequate appellate remedy exists | Allstate relied on requirement that relator show trial court abused discretion and that objections were sound | Court applied the standard and found Ventura did not meet burden for the contested topics |
Key Cases Cited
- In re Nat’l Lloyds Ins. Co., 507 S.W.3d 219 (per curiam) (mandamus standard: relator must show clear abuse of discretion and lack of adequate appellate remedy)
- In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300 (per curiam) (definition of clear abuse of discretion)
- Walker v. Packer, 827 S.W.2d 833 (per curiam) (when discovery denial may leave no adequate appellate remedy)
- K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (implicit sustaining of objections when trial court denies motion without specifying basis)
- Hernandez v. Abraham, Watkins, Nichols, Sorrels & Friend, 451 S.W.3d 58 (party seeking mandamus must show none of respondent’s objections support the trial court’s denial)