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In re Preventative Pest Control Houston, LLC

Court of Appeals of Texas, Fourteenth District

July 2, 2019

IN RE PREVENTATIVE PEST CONTROL HOUSTON, LLC AND NICHOLAS ANTHONY CHARLES, Relators

          ORIGINAL PROCEEDING WRIT OF MANDAMUS 295th District Court Harris County, Texas Trial Court Cause No. 2016-01076

          Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.

          MAJORITY OPINION

          Kem Thompson Frost Chief Justice

         Relators Preventative Pest Control Houston, LLC and Nicholas Anthony Charles (collectively, the "Pest Control Parties") have filed a petition for writ of mandamus. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. They ask this court to compel the Honorable Donna Roth, presiding judge of the 295th District Court of Harris County, to vacate the orders she signed on February 25, 2019 and March 25, 2019, compelling the Pest Control Parties to create lists to satisfy requests for production. They also claim that the trial court abused its discretion by awarding attorney's fees to the real party in interest, Karen Ackerman, as a discovery sanction. We conditionally grant the petition, in part, and deny it, in part.

         I. Background

         Charles, an employee of Preventative Pest Control, was driving a truck owned or leased by the company when he hit Karen Ackermann as she was crossing a street on foot. Ackermann sued the Pest Control Parties for negligence. In that litigation Ackermann filed a motion to compel requesting the trial court to order the Pest Control Parties to produce the following in response to her requests for production: (1) Charles's worker's compensation file; (2) a signed authorization from Charles allowing Ackermann to get his prior employment records and to disclose the names of previous employers; (3) Charles's work service records covering the period of his employment at Preventative Pest Control; (4) Preventative Pest Control's files regarding any other motor-vehicle accidents for the two-year period before the accident; and (5) a signed authorization allowing Ackermann to get Charles's Sprint Nextel records. Ackermann sought an order from the trial court compelling the Pest Control Parties to supplement their answers to all discovery requests, including Ackerman's fourth set of discovery.

          The Pest Control Parties responded that Ackermann had requested a preferential trial setting on five occasions and represented that she was ready to try the case. They pointed out that the discovery deadlines for earlier docket-control orders had passed, and Ackerman had obtained almost every document in existence with respect to the issues in the motion to compel. The trial court granted Ackermann's motion, in part.

         The Production Order

         The trial court ordered the Pest Control Parties to produce the following items to satisfy Ackermann's requests for production within ten days of the date of the court's order signed February 25, 2019 ("Production Order"): (1) a list of medications taken by Charles during the 24-hour period before the accident ("Medications List"); and (2) a list of Charles's employers for the ten-year period before the accident ("Employers List"); (3) Charles's work service records for the 14-day period before the accident ("Work Service Records"); and (4) a signed authorization allowing Ackermann to get Sprint Nextel records for Charles. The trial court also ordered the Pest Control Parties to supplement and answer all discovery requests, including Ackermann's fourth set of discovery. The trial court denied Ackermann's request for Charles's worker's compensation file, a signed employment authorization allowing Ackermann to get Charles's prior employment records, and Preventative Pest Control's files regarding any other motor-vehicle accidents for the two-year period before the accident.

         The Pest Control Parties responded to the court-ordered discovery by (1) stating that no Medications List existed; (2) stating that no Employers List existed; and (3) attaching to their response the Work Service Records. Ackermann later filed a motion to show cause for the Pest Control Parties' purported failure to comply with the Production Order. According to Ackermann, the Pest Control Parties' response that no Medications List and no Employers List existed violated the Production Order. Ackermann also complained that the Pest Control Parties had not supplemented or answered all outstanding discovery requests.

         The Show Cause Order

         The trial court signed an order on March 25, 2019 ("Show Cause Order"), granting Ackermann's motion to show cause for the Pest Control Parties' failure to comply with the Production Order. In the Show Cause Order, the trial court ordered the Pest Control Parties to produce a Medications List and an Employers List and to fully answer Ackermann's fourth set of discovery. The trial court also ordered the Pest Control Parties to pay Ackermann $1, 500 for costs and expenses for having to file the motion to show cause. The trial court advised the parties that it would consider other sanctions, including the striking of the Pest Control Parties' pleadings, if they did not comply with the Show Cause Order.

         Request for Mandamus Relief

         In this mandamus proceeding, the Pest Control Parties assert that the trial court abused its discretion by ordering them to create lists that do not exist and by awarding attorney's fees to Ackermann as a ...


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