Court of Appeals of Texas, Fourth District, San Antonio
IN RE NEWPORT CLASSIC HOMES, L.P. L.L.C.
Original Mandamus Proceeding 
Marialyn Barnard, Justice, Rebeca C. Martinez, Justice, Irene
March 1, 2018, relator filed a petition for writ of mandamus,
and the real party in interest filed a response. After
considering the petition and response, this court concludes
relator is not entitled to the relief sought. Accordingly,
the petition for writ of mandamus is DENIED. See
Tex. R. App. P. 52.8(a).
Dissenting Opinion by: Marialyn Barnard, Justice.
I believe the trial court erred by ordering the apex
deposition of Marcus Hiles, president and owner of Newport
Classic Homes, L.P., L.L.C., I would conditionally grant
relator's petition for writ of mandamus and order the
trial court to vacate its order granting the motion to compel
his deposition. Accordingly, I respectfully dissent to the
majority's opinion and order denying the petition for
writ of mandamus.
Newport Classic Homes, L.P., L.L.C. is the general contractor
on a large construction project. Western Rim Properties owns
the project. Hiles is the president of Newport and Western
Rim. Real party in interest and plaintiff below, Rafael
Lagunes, was employed by Associated Interiors, Inc., a
subcontractor that performed drywall work on the project.
Lagunes was injured in a workplace accident, and brought suit
against Newport and others, asserting claims for negligence
and gross negligence. In his petition, Lagunes alleged
Newport had contractual and actual control of the
construction site and job. Lagunes sought to depose Hiles,
but Newport moved to quash the deposition. In an affidavit in
opposition to the deposition, Hiles averred he did "not
have any unique or superior knowledge of any facts and/or
evidence surrounding the construction project and/or incident
involving Lagunes." Hiles claimed the only information
he had would have been received from corporate representative
Eric Robinson, who is Newport's vice president of
construction. Lagunes filed a motion to compel Hiles's
hearing, the trial court signed an order granting
Lagunes's motion to compel Hiles's deposition,
listing the following topics as subjects for the deposition:
a. Jobsite safety regarding Fall Protection
b. Subcontracts with Parties: Bid process, change orders,
violations or breach by subcontractors, duties and
responsibilities under the contracts for safety
c. Contract with Owner, Western Rim, if any d.
[Plaintiffs'] incident of October 13, 2013
e. Marcus Hiles's Site visits
filed a motion to reconsider the trial court's order, but
the motion was denied. Subsequently, the trial court granted
Lagunes's motion to enforce, ordering the parties to
agree to a deposition date within fourteen days of the date
of the order. Newport then filed a petition for writ of
mandamus in this court, challenging the trial court's
order granting the motion to compel. Lagunes filed a
petition, Newport contends the trial court clearly abused its
discretion in compelling Hines's deposition. Newport
argues Lagunes failed to meet the requirements that would
permit the taking of an apex deposition under the
requirements set out by the Texas Supreme Court in Crown
Central Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex.
1994) (orig. proceeding). Newport further asserts it has no
adequate remedy by appeal.
relief is available only to correct a 'clear abuse of
discretion' when there is no other adequate remedy at
law." In re Alcatel USA, Inc., 11 S.W.3d 173,
175 (Tex. 2000) (orig. proceeding); see In re M-I,
L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (orig.
proceeding). A trial court clearly abuses its discretion when
its decision is "so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law. M-I,
L.L.C., 505 S.W.3d at 574 (quoting Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.
proceeding)). If the trial court fails to analyze or apply
the law correctly, it has clearly abused its discretion.
Id. With regard to the absence of an adequate remedy
by appeal, "a party will not have an adequate remedy by
appeal when the appellate court would not be able to cure the
trial court's discovery error." In re Christus
Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016)
(orig. proceeding) (quoting Walker, 827 S.W.2d at
regard to apex depositions, the supreme court has
specifically held that a party may seek mandamus relief to
determine whether the trial court correctly ordered an apex
deposition. Alcatel USA, Inc., 11 S.W.3d at 180
(mandamus relief appropriate when trial court abused its
discretion by denying motion to quash apex deposition);
see also In re Semgroup Corp., 04-16-00230-CV, 2016
WL 3085875, at *1 (Tex. App.-San Antonio June 1, 2016, orig.
proceeding) (mem. op.) (granting mandamus relief because real
parties in interest did not meet requirements necessary to
justify apex deposition). Thus, mandamus is the appropriate
vehicle to challenge the trial court's order mandating
that Hiles submit to Lagunes's deposition notice. See
Alcatel USA, Inc., 11 S.W.3d at 180; Semgroup
Corp., 2016 WL 3085875, at *1.
Objection to Application of Crown Central Test
preliminary matter, Lagunes contends the petition for writ of
mandamus should be denied because Newport failed to file a
motion for a protective order. According to Lagunes, this
failure relieved him of any obligation to satisfy the
requirements set out in Crown Central
test.If this is the basis upon which the
majority denied relief, I respectfully disagree.
the mandates of Crown Central are activated by
moving for protection and filing the corporate official's
affidavit denying any knowledge of relevant facts, I have
found no authority, nor has Lagunes cited any, holding that a
motion for protective order is a mandatory prerequisite.
See Alcatel USA, Inc., 11 S.W.3d at 175;
Semgroup Corp., 2016 WL 3085875, at *1. Rather,
Alcatel USA, Inc. requires only that the party
resisting the apex deposition file a motion to quash or
otherwise seek to prohibit the deposition. Alcatel USA,
Inc., 11 S.W.3d at 175. A review of Alcatel USA,
Inc. shows the most important aspect in resisting an
apex deposition is the filing of the corporate
representative's affidavit denying any knowledge of
relevant facts. Id. at 175-76. Here, relator
"moved for protection" by filing a response to
plaintiff's motion to compel the deposition in which
relator argued Hiles lacked unique or superior knowledge of
discoverable information. Hiles's affidavit was attached
to the response and states:
I am the CEO of NEWPORT CLASSIC HOMES, LP. I do not have any
unique or superior knowledge of any facts and/or evidence
surrounding the construction project and/or incident
involving [plaintiff]. All of the information I have in
regard to the construction project and/or subject incident
involving [plaintiff] is information I gathered only from Mr.
Robinson's responsibilities on the subject project [sic]
were to establish proper policies and procedures for the
subject project, including hiring and staffing the project
and training those individuals.
In my role as CEO, I make occasional site visits. I did not
personally interview any persons regarding the incident nor
visit the location of the incident. Any information I learned
regarding the incident would have been from Mr. Eric Robinson
as part of normal management reporting and I have no other
Additionally, [Lagunes's] counsel has secured the
deposition of the Corporate Representative of Newport Classic
Homes, who was Eric Robinson, taken on October 15, 2015.
[Lagunes's] counsel examined Mr. Robinson for 113 pages
in regards to policies, procedures, training, supervision and
details regarding the subject incident. Not once did Mr.
Robinson defer to Mr. Hiles or suggest that Mr. Hiles had
additional, unique, and/or superior ...