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
consists of Chief Justice Frost and Justices Jewell and
Thompson Frost Chief Justice
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.
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.
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.
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.
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.
Show Cause Order
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.
for Mandamus Relief
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 ...