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In re Mustang Asset Recovery, Ltd.

Court of Appeals of Texas, Fifth District, Dallas

December 6, 2019

IN RE MUSTANG ASSET RECOVERY, LTD., Relator

          Original Proceeding from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-11-16417

          Before Justices Myers, Molberg, and Nowell

          MEMORANDUM OPINION

          LANA MYERS, JUSTICE

         Relator Mustang Asset Recovery, Ltd., as the assignee of a judgment arising from a divorce, seeks to collect more than $2 million owed by real party in interest, Rebecca Lange. Mustang served a post-judgment deposition notice seeking Lange's deposition, and, on Lange's motion, the trial court quashed the deposition and entered a protective order disallowing Lange's deposition "at this time." Contending the trial court abused its discretion in quashing its rule 621a deposition, Mustang seeks a writ vacating the order. After reviewing the petition, the response, and the record, we conditionally grant the writ.

         Background and Procedural History

         Mustang Asset Recovery, Ltd., is the successor-in-interest to a judgment obtained by James Dondero against Rebecca Lange f/k/a Rebecca Dondero in the amount of $1, 994, 600, plus post-judgment interest at the rate of five percent, as set forth in the second amended final decree of divorce dated June 28, 2016. In connection with its pursuit of non-exempt assets, Mustang requested and obtained a turnover order and the appointment of a receiver on February 7, 2019.

         On March 8, 2019, Lange filed a motion to dissolve the appointment of a receiver, a request for a temporary restraining order, and, in the alternative, an emergency motion for early payment of child support (the motion to dissolve). On direct examination at the April 3, 2019 hearing on the motion to dissolve, and in response to her counsel's questions, Lange testified she had no nonexempt assets; she had no income; she depended on her ex-husband for child support; and she depended on her current husband for all other financial needs. She testified that her financial status had not changed since she had answered lengthy written discovery requests regarding her assets, expenditures, and income. At the hearing, Mustang's counsel cross-examined Lange briefly but generally regarding issues pertaining to the receiver's actions rather than her assets. On April 4, 2019, the trial court signed an order granting the motion to dissolve and vacating the February 7 turnover order.

         After the receiver was discharged, and after Lange's counsel refused to provide available dates for her deposition, Mustang served Lange with a deposition notice in April 2019. Within three days of service of that notice, Lange filed a motion to quash the deposition and motion for protective order on April 16, 2019. Lange attached an unauthenticated copy of the deposition notice to the motion, but she provided no other evidence. Mustang's response to the motion included the declaration of its counsel and authenticated emails that were exchanged between Mustang's counsel and counsel for Lange concerning Lange's refusal to provide dates for the deposition.

         At the May 20, 2019 hearing on the motion to quash, attorneys for both parties argued, but no evidence was presented. Echoing arguments raised in her motion, Lange argued that her testimony at the motion to dissolve hearing had rendered the deposition noticed by Mustang unnecessary, cumulative, and duplicative, and she argued the deposition was sought for purposes of harassment. She also argued that her continuing obligation to supplement her answers to Mustang's written discovery would suffice to update Mustang as to any changes in her financial condition. In addition, Lange argued that 621a of the rules of civil procedure[1] expressly provided post-judgment discovery was subject to the same "judicial supervision" as pre-judgment discovery.

         Mustang argued it had received no notice Lange was going to testify at the hearing on the motion to dissolve; it had no documents regarding Lange's financial condition to use in cross-examining her at that hearing; and Lange's testimony at the hearing was not a substitute for deposition testimony. Mustang also argued that rule 190.6[2] exempted its post-judgment discovery from the limits imposed on discovery by rule 190, and it argued that rule 621a imposed no limits on the number of depositions to which a judgment creditor was entitled. Mustang also asserted that even if the six-hour time limit for depositions provided by rule 199.5(c)[3] applied, Lange's two prior post-judgment depositions (one taken approximately a year and a half before the hearing, according to Mustang's counsel, and the other taken about eight months earlier) had taken less than three hours total. Mustang further argued that supplementing the written discovery requests would take far more time for Lange than appearing for the deposition; and, regardless of the answers to the written discovery, it was entitled to Lange's deposition.

         After listening to the parties' arguments, the trial court stated that it would grant the motion to quash and deny the deposition "at this time." Counsel for Mustang asked if they would have the opportunity to revisit the issue "at some point down the road," to which the trial court replied, "Yes, sir. Just depends on the facts and circumstances as they develop."

         On May 20, 2019, the trial court signed an order granting Lange's motion to quash her deposition and motion for a protective order. The order states that "[t]he Court finds that Mother has provided testimony in open Court in the presence of Judgment Creditor Mustang Asset Recovery, Ltd.," and that this "wholly obviates conducting a deposition of Mother." The order also stated that the "[j]udgment Creditor Mustang Asset Recovery, Ltd. shall not conduct a deposition of Rebecca Lange, at this time." Mustang then filed this petition for writ of mandamus.

         Discussion

         To be entitled to mandamus relief, a relator must demonstrate that the trial court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Lee, 411 S.W.3d 445, 463 (Tex. 2013) (orig. proceeding); In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze ...


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