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In re Newport Classic Homes, L.P. L.L.C.

Court of Appeals of Texas, Fourth District, San Antonio

May 2, 2018

IN RE NEWPORT CLASSIC HOMES, L.P. L.L.C.

          Original Mandamus Proceeding [1]

          Marialyn Barnard, Justice, Rebeca C. Martinez, Justice, Irene Rios, Justice

          MEMORANDUM OPINION

          Irene Rios, Justice

         On 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

          Dissenting Opinion by: Marialyn Barnard, Justice.

         Because 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.

         Background

         Relator 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 deposition.

         After a 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

         Newport 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 response.

         Analysis

         In its 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.

         Standard of Review

         "Mandamus 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 843).

         With 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.

         Procedural Objection to Application of Crown Central Test

         As a 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.[2]If this is the basis upon which the majority denied relief, I respectfully disagree.

         Although 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 information.
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 ...

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