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In re Berry

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 16, 2019

IN RE DENNIS W. BERRY, MARVIN G. BERRY, BAY INC., BERRY GP, INC. D/B/A BERRY CONTRACTINGANDBERRY CONTRACTING, LP D/B/A BAY LTD

          On Petition for Writ of Mandamus.

          Before Chief Justice Contreras and Justices Longoria and Perkes

          OPINION

          GREGORY T. PERKES JUSTICE. [1]

         Relators Dennis W. Berry, Marvin G. Berry, Bay Inc., Berry GP, Inc. d/b/a Berry Contracting and Berry Contracting, LP d/b/a Bay Ltd, filed a petition for writ of mandamus seeking to compel the trial court[2] to vacate the March 4, 2019 "Order Granting Plaintiffs' Motion for Substituted Service of Allen L. Berry." Through this order, the trial court allowed service of a subpoena and notice of an oral deposition on a non-party witness by leaving a copy of these documents with someone over the age of sixteen at the witness's alleged residence or by attaching a subpoena to the front door of the witness's alleged residence. Concluding that the Texas Rules of Civil Procedure do not authorize this procedure for discovery from a non-party witness, we conditionally grant the petition for writ of mandamus.

         I. Background

         Real party in interest Kenneth L. Berry filed suit individually and in a derivative capacity for Skyeagle, Inc. (Skyeagle) against relators for, inter alia, breach of fiduciary duty, conspiracy, usurpation of corporate opportunity, and unjust enrichment. The gravamen of the suit concerned the transfer of a railway easement. Kenneth sought injunctive relief, declaratory relief and disgorgement, attorney's fees and costs, and punitive damages. Bay Inc., Berry GP, Inc. d/b/a Berry Contracting and Berry Contracting, LP d/b/a Bay Ltd. (the corporate defendants), filed an answer and a counterclaim, and Dennis and Marvin filed answers. Real party Kenneth and relators Dennis and Marvin are brothers and they each own one-third of the shares of Skyeagle.

         During discovery, Kenneth filed "Plaintiffs' Motion for Substituted Service of Allen L. Berry." Allen L. Berry (Lawrence) is the younger brother to Kenneth, Dennis, and Marvin and is not a party to the lawsuit. According to the motion, Kenneth had unsuccessfully attempted to serve a subpoena on Lawrence to appear and testify at a deposition. Kenneth requested that the trial court "allow for substituted service under Texas Rule of Civil Procedure 106(b)." See Tex. R. Civ. P. 106 (governing service of citation).

         According to the motion, on October 9, 2018, counsel for Kenneth sent a letter to counsel for the corporate defendants requesting available dates for Lawrence's deposition. The letter also requested that counsel for the corporate defendants advise Kenneth if Lawrence was "not subject to the control" of any of the companies.

         On October 11, 2018, counsel for the corporate defendants responded to this inquiry by letter stating that he was unable to produce Lawrence for deposition but suggesting that Kenneth contact Lawrence's personal attorney. The letter specifically provided that "you can see if you can work something out with [Lawrence's] personal attorney, Butch Boyd, copied herein." This letter included Boyd's contact information.

         On October 12, 2018, Kenneth's counsel sent a letter to Boyd, informed him that he wished to take Lawrence's deposition in connection with this lawsuit, and requested Boyd to provide available dates for the deposition.

         Boyd did not respond to this request. On or about October 29, 2018, Kenneth served relators' counsel with a notice of oral deposition and subpoena to testify which commanded Lawrence to appear at a specific date and place for deposition. Kenneth enlisted process server Marcus Brown to effect service of the subpoena on Lawrence. Brown made several unsuccessful attempts to personally serve the subpoena on Lawrence and prepared an affidavit detailing his efforts. He testified that he attempted to serve the subpoena on Lawrence at 5418 Willers Way in Houston, Texas on four occasions: (1) on October 30, 2018 at 11:18 a.m.; (2) November 1, 2018 at 11:56 a.m.; (3) November 3, 2018 at 12:08 p.m.; and (4) again on November 3, 2018 at 7:14 p.m. Brown documented that for each attempt, he received no response at the door, no neighbors could or were available to verify Lawrence's address, and he left a delivery notice at the residence.[3]

         Kenneth's motion for substituted service alleged that Lawrence's "apparent evasion of service is unsurprising, given his documented hostility toward a process server in another case." The motion recounted that, in a separate case, in which Kenneth and Lawrence were both parties, Lawrence "used a handgun to threaten a process server who was attempting to serve him at his residence." Kenneth included an affidavit from the process server in that case stating that "Houston Police Dept. called, he pulled [a] handgun out and threatened to shoot me if I didn't leave his property. He would not hold the papers so I [d]ropped served [sic] at door of 5418 Willers Way, Houston, Texas 77056 with police escort."

         The motion for substituted service asserted that "Lawrence Berry's prior conduct, and Brown's failure to serve Lawrence Berry at his residence after multiple attempts, together demonstrate the difficulty and the danger of personally serving Lawrence Berry." The motion concluded that:

[B]ecause of the diligent yet unsuccessful efforts to serve Lawrence Berry by traditional means, and the known physical location where he can probably be found is reasonably calculated to provide him with notice, Plaintiff seeks an order from the Court authorizing substituted service as requested below as authorized by Tex.R.Civ.P. 106(b).

         Relators filed a "Response to Plaintiffs' Motion for Substituted Service of Allen L. Berry and Request for Oral Hearing." Relators contended that Rule 106 only applies to service of citation at the inception of a lawsuit and provides no authority for serving a deposition notice or subpoena on a non-party by simply attaching it to the non-party's front door or leaving it at a residence. Relators further argued that Kenneth had not produced evidence that the address at which he attempted to serve Lawrence was, in fact, his residence.

         On March 4, 2019, without holding a hearing, the trial court granted Kenneth's motion for substituted service and ordered, in relevant part, as follows:

THEREFORE, pursuant to Texas Rule of Civil Procedure 106(b), Plaintiff is hereby authorized to serve:
1. This Order;
2. Subpoena to Allen L. Berry to Appear and Testify at a ...

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