Saturday, May 10, 2008

Discovery: Does snap-back provision cover documents produced by nonparty?

In Re Heidi Ortuno (Tex.App.- Houston [14th Dist.] May 6, 2008)(per curiam) (discovery, nonparty, expert report, privilege, confidential documents, TRCP 193.3, snap-back) (request for protective order must first be presented to the trial court, mandamus relief not proper)
MOTION OR WRIT DENIED: Per Curiam Before Justices Brock Yates, Guzman and Brown
14-08-00227-CV In Re Heidi Ortuno, Individually and As Next Friend Of J. O.
Appeal from 215th District Court of Harris County
Trial Court Judge: Levi James Benton

PER CURIAM OPINION (Links not part of court's opinion)

Relator Heidi Ortuno has asked in this original proceeding that we issue a writ of mandamus requiring the respondent[1] to grant her motion for enforcement of Rule 193.3(d), thereby compelling the real party in interest to return an inadvertently-produced consulting expert report to non-party Texas Children's Hospital. Because we hold that Rule 193.3(d) does not apply to the production of privileged materials by a non-party, we deny the petition.

Background

Ortuno filed the underlying premises liability lawsuit against the corporate owner and management company for the Winkler Villa Apartments ("Winkler Villa") after her son J.O. fell from a second-story balcony and allegedly suffered injuries. During the prosecution of the lawsuit, Ortuno retained neuropsychologist Sue E. Caudle, Ph.D. as a consulting expert. Dr. Caudle performed an examination on J.O. in November 2007 and prepared a three-page report containing her expert opinions. Unbeknownst to relator, Dr. Caudle provided the report to her employer, Texas Children's Hospital, which compiled the report as an ordinary part of the child's medical records. When the attorney for Winkler Villa took the deposition upon written questions of Texas Children's custodian of records, Dr. Caudle's report was produced in discovery with the medical records.

Upon learning of the disclosure, Ortuno asserted that Dr. Caudle was her consulting expert, and demanded that Winkler Villa return Dr. Caudle's report to Texas Children's pursuant to the "snap-back" provision of Rule 193.3(d). See Tex. R. Civ. P. 193.3(d). When Winkler Villa resisted, Ortuno filed a motion to that effect with the trial court. The respondent denied the motion,[2] ruling that (1) Dr. Caudle is Ortuno's consulting expert, but that (2) Rule 193.3(d) does not apply to documents that were produced by non-parties.[3] This mandamus proceeding ensued.

Application of Rule 193.3(d)

Rule 193.3(d) provides as follows:

(d) Privilege Not Waived by Production. A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence if- within ten days or a shorter time ordered by the court, after the producing party actually discovers that such production was made - the producing party amends the response, identifying the material or information produced and stating the privilege asserted. If the producing party thus amends the response to assert a privilege, the requesting party must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege. Tex. R. Civ. P. 193.3(d).

Ortuno concedes that Rule 193.3(d) does not apply to privileged materials that are produced by a non-party, and she does not urge the rule's "snap-back" provision on that basis. Rather, she contends that a consulting expert is a "representative of the lawyer," and that Dr. Caudle's production of her report was therefore production by a party. We need not reach that contention, however, as Dr. Caudle's provision of her report to Texas Children's was not "production" within the context of Rule 193.3(d).

Although the terms "producing" and "production" have not been given formal definitions in this context, Rule 193.3 expressly applies to the production of privileged materials in the course of written discovery. See Tex. R. Civ. P. 193.3 ("A party may preserve a privilege from written discovery in accordance with this subdivision.") (emphasis added). Permissible forms of written discovery are set out in Rule 192.1, and include such devices as requests for production and depositions upon written questions. See Tex. R. Civ. P. 192.1. Even if Dr. Caudle - acting as a representative of Ortuno's lawyer - supplied the report to her employer, the actual production of the report in written discovery occurred when the Hospital's custodian of records was deposed by written questions and was required to produce the facility's records.[4]

Because the producing entity (Texas Children's Hospital) was not a party to this lawsuit and therefore outside the scope of Rule 193.3(d), we hold that the respondent did not abuse his discretion in declining to order that Winkler Villa return Dr. Caudle's report to Texas Children's Hospital.

Continued Use of Privileged Documents

Relator has also asked that we issue mandamus to compel the trial court to enter a protective order preventing the disclosure or use of the already-produced report. We agree that a protective order can be an appropriate remedy to prevent a party from disclosing or making use of confidential information. See In re AEP Texas Cent. Co., 128 S.W.3d 687, 694 (Tex. App. - San Antonio 2003, orig. proceeding) (mandating that the trial court "enter an order preventing the use of" privileged materials produced in discovery).

However, mandamus is not available to compel an action that has not first been demanded and refused. Axelson, Inc. v. McIlhaney, 798 S.W.2d 550, 556 (Tex. 1990) (orig. proceeding); In re Houston Chronicle Pub. Co., 64 S.W.3d 103, 106 (Tex. App.- Houston [14th Dist.] 2001, orig. proceeding). From our review of the record, Ortuno has never asked the respondent to enter a protective order. We therefore decline to issue mandamus for relief that was not first requested in the court below. See Texas Farmers Ins. Co. v. Cooper, 916 S.W.2d 698, 701 n.3 (Tex. App. - El Paso 1996, orig. proceeding).

Accordingly, we deny the petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed, May 6, 2008.
Panel consists of Justices Yates, Guzman, and Brown.

[1] The Honorable Levi Benton, presiding judge of the 215th Judicial District Court of Harris County, Texas.
[2] The respondent initially granted Winkler Villa's motion to compel the production of Dr. Caudle's records but, after this proceeding was filed, issued supplemental orders clarifying that Dr. Caudle's records were protected from discovery under the consulting expert privilege. The portion of this proceeding that concerned this motion to compel is therefore moot.
[3] Judge Benton also ruled that there was no evidence that production of Dr. Caudle's report was inadvertent. See Tex. R. Civ. P. 193 cmt. 4 (noting that the rule applies to material or information "produced inadvertently"). Because of our resolution of this case, we need not reach the issue of whether the production of Dr. Caudle's report was "inadvertent."
[4] One of Ortuno's attorneys conceded this point when he testified by affidavit that the report was "produced as a part of the records produced by Texas Children's Hospital."

Real Estate Lit: Chappel Hill Bank vs Smith (Tex.App.-Houston [14th Dist.] 2008)

Chappell Hill Bank appeals the trial court's summary judgment in favor of Lillian Smith as well as the court's denial of the bank's summary-judgment motion. The bank and Smith each own property facing Main Street in the same block in the town of Chappell Hill.

In the action below, the bank sought (1) a declaratory judgment stating that a certain strip of land running behind its, Smith's, and other owners' properties is a public alley; (2) a mandatory injunction ordering Smith to remove any and all obstructions from the alley; (3) a prohibitive injunction enjoining Smith from obstructing the alley in the future; and (4) recovery of its attorney's fees.

The Fourteenth Court of Appeals, in a published opinion by Justice Jeff Brown, affirm the trial court's judgment against the bank, including the attorney's fee award to Smith.

Chappel Hill Bank v. Lillian Smith (Tex.App. - Houston [14th Dist.] May 8, 2008)(Brown) (real estate law, easement by estoppel, attorneys fees)
AFFIRMED: Opinion by Justice Brown Before Chief Justice Hedges, Justices Brown and Boyce
14-07-00099-CV Chappell Hill Bank v. Lillian Smith
Appeal from 335th District Court of Washington County
Trial Court Judge: Terry Flenniken

Conclusion

Undisputed evidence establishes as a matter of law that the bank is entitled to assert against Smith neither a private right of easement nor the public's right of use in the portion of the alley abutting her property in Block 1 of Chappell Hill, Texas. The trial court thus did not err in granting Smith's motion for summary judgment or denying the bank's motion. Because the objections the bank claims the trial court erroneously overruled do not involve the evidence on which the trial court's judgment is properly based, any such error did not result in the rendition of an improper judgment. Therefore, we do not address these rulings. Finally, the trial court's award of attorney's fees to Smith was not an abuse of discretion. We affirm the trial court's judgment.

Reasonable Reliance? - Biosilk Spa vs. HG Shopping Centers, LP (Tex.App.- Houston 2008)

Summary judgment appeal in Galleria signage dispute turns on reasonableness of reliance.

Appellant BioSilk Spa, L.P., f.k.a. One Marengo, L.P. appeals from a summary judgment granted in favor of appellee, HG Shopping Centers, L.P., on appellant's claims of fraud, fraudulent inducement, negligent misrepresentation and promissory estoppel. The court of appeals concludes that HG conclusively negated the element of reasonable reliance and affirm the trial court's judgment.

Biosilk Spa, LP v. HG Shopping Centers, LP (Tex.App.- Houston [14th Dist.] May 8, 2008)(Yates) (commercial lease cases, fraud, fraudulent inducement, negligent misrepresentation, and promissory estoppel, no reasonable reliance)
AFFIRMED: Opinion by Justice Brock Yates Before Price, Justices Brock Yates and Guzman
14-06-00986-CV Biosilk Spa, L.P., f.k.a. One Marengo, L.P. v. HG Shopping Centers, L.P.Appeal from 234th District Court of Harris County
Trial Court Judge: Reese Rondon

At issue in this dispute is HG's refusal to allow BioSilk to post on the exterior walls of the Houston Galleria a sign containing the tag line "Chi Color Salon."[1] Under a lease agreement (Lease) dated December 31, 2002, BioSilk rented space in the Galleria from HG. The terms of the Lease limited signage to BioSilk's trade name and specifically required BioSilk to obtain HG's approval before posting any signs, either inside the mall or on the exterior walls of the mall.[2] The Lease also contained "merger" and Adisclaimer of reliance" language stating that all changes or additions to the agreement between the parties would be in writing and that BioSilk would not rely on any representations, oral or otherwise, not contained in the Lease.[3]

SP Midtown Ltd v. Urban Storage, LP (Tex.App.- Houston [14th Dist.] 2008)

This is an appeal from the granting of a no-evidence summary judgment in favor of appellees, Urban Storage, L.P. d/b/a Midtown Mini Storage and d/b/a Midtown Mini Warehouse and d/b/a/ Midtown Self Storage, Midtown Storage, L.L.C., and The Jenkins Organization, Inc. In two issues, appellant, SP Midtown, Ltd. d/b/a/ Space Place Midtown argues (1) the trial court erred in granting Midtown's no-evidence motion for summary judgment because Space Place presented more than a scintilla of evidence on each challenged element, and (2) the trial court erred in denying Space Place's objections to Midtown's summary judgment evidence. The Fourteenth Court of Appeals, in opinion by Justice John Anderson, affirms in part, and reverses and remands in part.

SP Midtown Ltd. v. Urban Storage, LLC (Tex.App.- Houston [14th Dist.] May 8, 2008)(Anderson) (summary judgment case, trade secrets, tortious interference)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Boyce
14-07-00717-CV SP Midtown Ltd. d/b/a Space Place Midtown v. Urban Storage, L.P. d/b/a Midtown Mini Storage and d/b/a Midtown Mini Warehouse and d/b/a Midtown Self Storage , Midtown Storage, L.L.C. and The Jenkins Organization, Inc.
Appeal from 80th District Court of Harris County
Trial Court Judge: Lynn M. Bradshaw-Hull

CONCLUSION

We reverse the judgment of the trial court granting Midtown's summary judgment motion as to Space Place's causes of action for theft, misappropriation, and/or misuse of confidential information and/or trade secrets; unjust enrichment; tortious interference with contractual relationships; and conspiracy to misappropriate, tortiously interfere with contractual relationships, and induce the breach of a fiduciary duty. We remand these portions of the judgment to the trial court for further proceedings consistent with this opinion. We affirm the judgment of the trial court granting Midtown,s summary judgment motion as to Space Place's causes of action for tortious interference with prospective business relationships and conspiracy to tortiously interfere with prospective business relationships.

Attorney Disciplinary Proceeding Settled While on Appeal

Hayes v. Comm. for Lawyer Discipline (Tex.App.- Houston [14th Dist.] May 8, 2008) (per curiam) (joint motion to vacate, settlement)
VACATED AND REMANDED: Per Curiam
Before Justice Brock Yates, Justice John Anderson, and Justice Jeff Brown
14-07-00848-CV Thomas Hayes, IV v. Commission for Lawyer Discipline
Appeal from 281st District Court of Harris County
Trial Court Judge: The Honorable Laurine Blake

M E M O R A N D U M O P I N I O N

This is an appeal from a judgment signed September 10, 2007.
On April 9, 2008, the parties filed a joint motion to set aside or vacate the judgment and remand the cause to the trial court for rendition of judgment in accordance with the parties' settlement agreement. See Tex. R. App. P. 42.1. The motion is granted.

Accordingly, we vacate the judgment signed September 10, 2007, and we remand the cause to the trial court for rendition of judgment in accordance with the parties' agreement.

PER CURIAM

Judgment rendered and Memorandum Opinion filed May 8, 2008.
Panel consists of Justices Yates, Anderson, and Brown.

Failure to Perform Ministerial Duty required for appellate court to issue mandamus

Court of appeals declines to grant mandamus relief against judge on finding that order sought involved discretion rather than ministerial duty

In re Walker II (Tex. App. - Houston [14th Dist.] May 8, 2008)(per curiam)
(mandamus re order to respond to ineffective assistance of counsel claim)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Brock Yates, Anderson and Brown
14-08-00347-CV In Re James Andrew Walker, II
Appeal from 240th District Court of Fort Bend County
Trial Court Judge: Thomas Ralph Culver

PER CURIAM OPINION ON PETITION FOR WRIT OF MANDAMUS

On April 29, 2008, relator, James Andrew Walker, II, filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.

In the petition, relator asks this court to compel the Honorable John Ellisor, presiding judge of the 240th District Court of Brazoria County, to compel relator's trial attorney to comply with the trial court's December 18, 2007 order by filing an affidavit responding to the ineffective assistance of counsel claims raised in his application for writ of habeas corpus.

A court of appeals abuses its discretion in granting a mandamus when the act sought to be compelled is not ministerial. State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). Because the act relator seeks to compel is not ministerial, he has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator's petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed May 8, 2008.
Panel consists of Justices Yates, Anderson and Brown.