In re Mike EAST, Alice East, Lisa East, and Alejandro Urias.
No. 13-14-00317-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
Aug. 22, 2014.
461 S.W.3d 61
III. CONCLUSION
We affirm the order of the trial court.
mandatory blood draw law except as the provision was applied to appellee in the specific circumstances of this particular case, where the police officer admitted that he could have obtained a warrant and chose not to because of the statute, which does not purport to dispense with the Fourth Amendment‘s warrant requirement. See
J.A. “Tony” Canales, Canales & Simonson, P.C., Corpus Christi, for Relators.
Keith C. Livesay, McAllen, Robert J. Salinas, Donna, for Real Party in Interest.
Before Justices RODRIGUEZ, GARZA, and BENAVIDES.
OPINION
Opinion by Justice BENAVIDES.1
By petition for writ of mandamus, relators Mike East, Alice East, Lisa East, and Alejandro Urias seek to compel the trial court2 to vacate its order granting presuit depositions under
I. BACKGROUND
Real party in interest, Laura Salinas, filed a petition in her county of residence seeking to take the presuit depositions of relators. The petition, entitled “Petition Requesting Deposition Before Suit,” was filed against relators and states in relevant part that: Salinas requests the depositions of relators “to obtain and/or perpetuate testimony for use in an anticipated suit“; the subject matter of the anticipated litigation is the “intentional and [tortious] interference with the lawful use of property“; the testimony of relators is needed “to elicit exact ownership of the land where the fence causing the tort was erected; to determine whether the potential defendants are individuals, a partnership, a corporation, lessees or tenants in common and other relevant information necessary for the naming of all necessary, proper, and indispensable parties“; and that Salinas “cannot ascertain that all of the above named deponents would be available for trial at a future date and it is thus necessary to perpetuate their testimony.” The petition further requests that the deponents provide documents including: (1) “any and all deeds” and “probate court orders” and “any document evidencing title and ownership” of the “La Mula Pasture,” Santa Fe Ranch; (2) “any and all leases of property owned by deponents in Hidalgo County,” whether for minerals, recreation, or hunting; and (3) “any and all contracts” executed by the deponents or their agents in 2012 regarding the construction of a game-proof fence on “La Mula Pasture.” The petition is supported by a verification provided by Salinas.3
Relators filed an original answer to the petition, including a general denial of the
After a largely non-evidentiary hearing,4 the trial court granted the petition on grounds that Salinas had established that the depositions “may prevent a failure or delay of justice in an anticipated suit” and that the “likely benefit of allowing the depositions to investigate a potential claim outweighs the burden or expense of the procedure.” The trial court ordered the depositions of relators to be taken on specified days and further ordered relators to produce “any non-confidential documents relevant or calculated to lead to admissible evidence regarding the scope of [Salinas‘s] request.”
This original proceeding ensued. By three issues, relators contend that the trial court abused its discretion in granting the petition for presuit depositions. This Court requested and received a response to the petition for writ of mandamus from Salinas. Salinas asserts, inter alia, that relators attempt to set aside the order granting the depositions on grounds that were never presented to the trial court.
II. STANDARD FOR MANDAMUS REVIEW
Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Frank Motor Co., 361 S.W.3d 628, 630-31 (Tex.2012) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004) (orig. proceeding). “A trial court has no discretion in applying the law to the facts or determining what the law is.” In re Prudential Ins. Co. of Am., 148 S.W.3d at 135. We assess the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re State, 355 S.W.3d 611, 614-15 (Tex.2011) (orig. proceeding); In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.2008) (orig. proceeding). In performing this balancing, we look at a number of factors, including whether mandamus review “will spare litigants and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” In re State, 355 S.W.3d at 615 (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d at 136).
An improper order under Rule 202 may be set aside by mandamus. In re Wolfe, 341 S.W.3d 932, 933 (Tex.2011) (orig. proceeding); In re Jorden, 249 S.W.3d 416, 420 (Tex.2008) (orig. proceeding); In re PrairieSmarts LLC, 421 S.W.3d 296, 304 (Tex.App.-Fort Worth 2014, orig. proceeding); In re Reassure Am. Life Ins. Co., 421 S.W.3d 165, 171 (Tex.App.-Corpus Christi 2013, orig. proceeding); In re Emergency Consultants, Inc., 292 S.W.3d 78, 80 (Tex.App.-Houston [14th Dist.] 2007, orig. proceeding); In re Hewlett Packard, 212 S.W.3d 356, 360 (Tex.App.-Austin 2006, orig. proceeding
[mand. denied]).5 In this regard, we note that depositions, once taken, cannot be “untaken,” see In re Jorden, 249 S.W.3d at 419, and mandamus has historically issued for discovery that is “well outside the proper bounds.” In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998) (orig. proceeding); see In re Chernov, 399 S.W.3d 234, 235 (Tex.App.-San Antonio 2012, orig. proceeding) (holding that a party to a Rule 202 proceeding has no adequate remedy by appeal if the trial court abused its discretion in ordering discovery that would compromise procedural or substantive rights). We review a trial court‘s order granting a verified petition to take depositions before suit under an abuse of discretion standard. Patton Boggs LLP v. Moseley, 394 S.W.3d 565, 568-69 (Tex.App.-Dallas 2011, no pet.); In re Hewlett Packard, 212 S.W.3d at 360.
III. APPLICABLE LAW
- be verified;
- be filed in the proper court of any county where venue of an anticipated suit may lie or where the witness resides, if no suit is anticipated;
- be in the name of the petitioner;
- state either that the petitioner anticipates the institution of suit in which the petitioner may be a party or that the petitioner seeks to investigate a potential claim;
- state the subject matter of the anticipated action, if any, and the petitioner‘s interest therein;
- if suit is anticipated, state the names, addresses, and telephone numbers of the persons petitioner expects to have interests adverse to petitioner‘s, or state that this information cannot be ascertained through diligent inquiry and describe those persons;
- state the names, addresses, and telephone number of the persons to be deposed, the substance of the expected testimony, and the petitioner‘s reasons for wanting the testimony; and
- request an order authorizing the petitioner to take the depositions of the persons named in the petition.
See
72.
The trial court “must” order the deposition to be taken “if, but only if,” it finds that: (1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or (2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.
“Rule 202 depositions are not now and never have been intended for routine use. There are practical as well as due process problems with demanding discovery from someone before telling them what the issues are.” In re Jorden, 249 S.W.3d at 423. Accordingly, courts must strictly limit and carefully supervise presuit discovery to prevent abuse of the rule. In re Wolfe, 341 S.W.3d at 933; In re Reassure Am. Life Ins. Co., 421 S.W.3d at 172.
Rule 202 was not intended as a means of obtaining otherwise unobtainable discovery. See In re Wolfe, 341 S.W.3d at 933. (noting that petitioner “cannot obtain by Rule 202 what it would be denied in the anticipated action“). Rule 202 expressly limits the scope of discovery in depositions to “the same as if the anticipated suit or potential claim had been filed.” Id. (citing
IV. ANALYSIS
By their first and second issues, relators contend that the trial court erred in ordering the depositions because Salinas did not present evidence establishing that there would otherwise be a failure or delay of justice in the anticipated suit or that the likely benefit of allowing the requested depositions to investigate a potential claim outweighs the burden or expense of the procedure. By their third issue, relators contend the trial court abused its discretion in requiring them to produce the documents at the depositions as specified in Salinas‘s petition and the trial court‘s order. In response, the “summary of argument” provided by Salinas states as follows:
A party is limited to the theory on which he tries his case. Before the trial court, [relators] claimed that evidence in support of the merits was required to obtain discovery under
Tex.R. Civ. P. 202 . Having pitched its tent on this argu-
ment, this mandamus proceeding likewise rises or falls on this argument,
In short, Salinas contends that the relators may not obtain mandamus relief by asserting objections that were never made to the trial court. It is well established that arguments not presented to the trial court will not be considered in a petition for writ of mandamus. See In re Am. Optical Corp., 988 S.W.2d at 714; In re Advance Payroll Funding, Ltd., 254 S.W.3d 710, 714 (Tex.App.-Dallas 2008, orig. proceeding).
Salinas contends that relators only objected to the presuit depositions on grounds that they were entitled to immunity from suit regarding Salinas‘s complaints about the fence, and thus relators’ evidentiary issues have not been preserved for review in this original proceeding. In this case, relators filed an answer to the petition for presuit depositions in which they generally denied the allegations in Salinas‘s petition. The bulk of relators’ arguments at the hearing on the petition concerned the merits, or lack thereof, of a potential lawsuit filed by Salinas against relators. In fact, relators asserted that the trial court “has not heard any evidence at all on how this has been a tortious interference, how it could potentially harm [Salinas], especially in light of the fact that we have a state statute that gives us complete immunity.”
We agree with Salinas that relators’ merits-based defense to the potential lawsuit is not a valid objection to a petition seeking presuit depositions. See In re Emergency Consultants, Inc., 292 S.W.3d at 79 (noting that requiring a Rule 202 petitioner to plead a viable claim “would eviscerate the investigatory purpose of Rule 202“). However, at the hearing, the relators also asserted that it would be an abuse of discretion to grant the petition “in light of the fact that there is no evidence at all before the [trial court].” Relators further informed the trial court that its ruling was made “without any evidence at all” and was thus “an abuse of discretion.” Relators contended that “there‘s an absence of evidence, 100 percent absence of evidence as to why [she‘s] entitled to have [these] deposition[s].” Counsel expressly asserted that “just because you file a verified pleading is not sufficient.” We thus conclude that this issue was sufficiently presented to the trial court and preserved for our review. See
As stated previously, relators contend that the trial court abused its discretion in ordering the depositions because Salinas did not present any evidence that allowing her to take the depositions would prevent a failure or delay of justice in an anticipated suit, or that the likely benefit of allowing her to take the requested depositions to investigate her potential claim or suit outweighs the burden or expense of the procedure. In response, Salinas asserts that her verified petition provided sufficient evidence to support the trial court‘s findings that the depositions were necessary.
The law is clear that a petitioner seeking a presuit deposition must present evidence to meet its burden to establish the facts necessary to obtain the deposition. See, e.g., In re Hochheim Prairie Farm Mut. Ins. Ass‘n, 115 S.W.3d at 796; see also In re Dallas Cnty. Hosp. Dist., No. 05-14-00249-CV, 2014 WL 1407415, at *2 (Tex.App.-Dallas Apr. 1, 2014, orig. proceeding) (mem. op.). In examining this evidentiary requirement, we are cognizant that sworn, verified pleadings are generally not considered competent evidence to prove the facts asserted in the pleading. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995). Moreover, the argument of counsel is not evidence. See Love v. Moreland, 280 S.W.3d 334, 336 n. 3 (Tex. App.-Amarillo 2008, no pet.); Potter v. GMP, LLC, 141 S.W.3d 698, 704 (Tex. App.-San Antonio 2004, pet. dism‘d). Several cases have applied these basic principles to the Rule 202 burden of proof. See, e.g., In re Dallas Cnty. Hosp. Dist., 2014 WL 1407415, at *2 (stating that neither verified pleadings nor the argument of counsel are generally considered competent evidence to provide the basis for granting a Rule 202 deposition); In re Noriega, No. 05-14-00307-CV, 2014 WL 1415109, at *2 (Tex.App.-Dallas Mar. 28, 2014, orig. proceeding) (mem. op.) (same and asserting that “even if real party had been able to overcome relator‘s objection to the verification on the petition that it was not based on personal knowledge of real party‘s counsel, the verified petition would not have been admissible evidence in support of the Rule 202 petition“); In re Contractor‘s Supplies, Inc., 2009 WL 2488374, at *5 (holding that the Rule 202 petition itself does not constitute evidence for purposes of supporting the required findings); In re Rockafellow, No. 07-11-00066-CV, 2011 WL 2848638, at *4 (Tex. App.-Amarillo July 19, 2011, orig. proceeding) (concluding that the trial court abused its discretion in ordering presuit depositions because neither the verified petition nor the arguments of counsel constituted evidence in support of the petition
Salinas asserts that her verified petition provides sufficient evidence to support the trial court‘s order granting the presuit depositions. Although Salinas asserts that the “trial court clearly considered such evidence” when it granted the petitions, we note that the petition was not offered into evidence at the hearing on the petition. The petition asserts that the depositions are “necessary for the naming of all necessary, proper[,] and indispensable parties;” that Salinas “cannot ascertain that all of the above named deponents would be available for trial at a future date and it is thus necessary to perpetuate their testimony;” and that the depositions “may prevent a failure or delay of justice in the anticipated suit.” The petition does not otherwise contain any allegations regarding why the depositions would prevent a failure or delay of justice in an anticipated suit or why the likely benefit of the depositions outweighs their burden or expense. See
The Dallas, Tyler, and Amarillo courts of appeals have rejected Salinas‘s assertion that a verified petition constitutes competent evidence in support of a presuit deposition. See, e.g., In re Dallas Cnty. Hosp. Dist., 2014 WL 1407415, at *2; In re Noriega, 2014 WL 1415109, at *2; In re Contractor‘s Supplies, Inc., 2009 WL 2488374, at *5; In re Rockafellow, 2011 WL 2848638, at *4. We need not reach that issue here, however, because the verified petition did not contain sufficiently detailed recitations to satisfy the burden of proof. The petition is vague and conclusory insofar as it merely tracks the language of the statute and does not include any explanatory facts regarding why allowing the depositions would prevent an alleged failure or delay of justice in an anticipated suit, or why the benefit of allowing the depositions outweighs the burden or expense of the procedure. A petition that merely tracks the language of Rule 202 in averring the necessity of a presuit deposition, without including any explanatory facts, is insufficient to meet the petitioner‘s burden. See In re Does, 337 S.W.3d at 865 (noting that the petitioner “made no effort to present the trial court with a basis for the [Rule 202] findings” where the allegations in its petition and motion to compel were “sketchy“); In re Reassure Am. Life Ins. Co., 421 S.W.3d at 173 (stating that the petition must do more reiterate the language of the rule and must include explanatory facts). It is not sufficient to articulate a “vague notion” that evidence will become unavailable by the passing of time without producing evidence to support such a claim. See In re Hochheim Prairie Farm Mut. Ins. Ass‘n, 115 S.W.3d at 795-796; see also In re Dallas Cnty. Hosp. Dist., 2014 WL 1407415, at *2. It is likewise insufficient to state that the depositions are necessary in order to identify the required and correct parties without further explanation and evidence. Cf. In re Hochheim Prairie Farm Mut. Ins. Ass‘n., 115 S.W.3d at 795-96.7
Having concluded that Salinas failed to meet her burden under Rule 202 to obtain the presuit depositions
V. CONCLUSION
The trial court‘s order of May 30, 2014 granting Salinas‘s petition for presuit de-
positions constituted an abuse of discretion because Salinas failed to meet the requirements of
James FRAZIER, Appellant, v. GNRC REALTY, LLC, Appellee.
No. 13-14-00447-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
Aug. 29, 2014.