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IN RE: Terri BERRENBERG, Relator.
Relator Terri Berrenberg has filed a petition for a writ of mandamus challenging the ruling of the Honorable Alyssa Perez, Judge of the 210th Judicial District Court of El Paso County, in which she granted a motion to quash Relator's notice to depose John Pate, M.D. (Real Party in Interest), on March 31, 2020, at 2 p.m., at a location in El Paso. The trial court announced the order quashing the deposition notice verbally on March 11, 2020 and signed a written order on March 24, 2020. The written order also requires any future deposition of Real Party in Interest, whenever scheduled, to take place in Fort Worth absent a contrary agreement of the parties.
We grant mandamus relief in part and deny relief in part.1
This is a discovery mandamus proceeding pertaining to a medical negligence case filed by Relator in which she alleges that Real Party in Interest, while practicing medicine in El Paso in the specialty of plastic surgery, negligently performed a surgical procedure upon her eyelids which proximately caused personal injury damages. Although Real Party in Interest performed this surgery in El Paso County, he has since retired and moved from El Paso to Fort Worth.
Exhibits attached to the motion to quash show that the attorneys for the parties exchanged letters attempting to coordinate the scheduling of Real Party in Interest's deposition. Relator's counsel contacted opposing counsel requesting dates to schedule the deposition of Real Party in Interest. Responding, Real Party in Interest's counsel informed Relator's counsel that her client was available for deposition in Fort Worth on two dates, March 25 or March 31. Relator's counsel responded by accepting the proposed date of March 31 but further noted that he had not planned on deposing Real Party in Interest in Fort Worth. Explaining, Relator's counsel asserted, “all of this case took place in El Paso, Texas. As such, so will the deposition.” Counsel closed his letter by asking opposing counsel to confirm; he would then follow with a deposition notice. Rather than confirm, Real Party in Interest's counsel replied with three contrary points that addressed the scheduling of the deposition outside of El Paso. First, counsel asserted that the Rules of Civil Procedure permitted an oral deposition to be taken in the county of a witness's residence. Second, counsel claimed that it would be unreasonable for Real Party in Interest to be deposed outside of Fort Worth given that he provided care in his home to an elderly family member. And third, counsel asserted that Real Party in Interest was also recovering from an ankle fracture. Responding, Relator's counsel reiterated that Real Party in Interest was a party, not a witness, and attached a deposition notice scheduling his deposition on March 31, 2020, at 2 p.m., in El Paso. Replying, Real Party in Interest objected and filed a motion to quash the notice of deposition, pursuant to Tex. R. Civ. P. 199.4, contending that the time, place, and date of the deposition was unreasonable.
At the hearing 2 held on March 11, 2020, counsel for Relator asserted that Rule 199.2(2)(C) applied in this instance, given that Real Party in Interest was a party of the case and not a mere witness. He further argued that he did not want to travel as “this all happened here.” In response, counsel for Real Party in Interest informed the trial court that her client had retired before the case was filed and moved to Fort Worth, that family care responsibilities prevented him from traveling back to El Paso for deposition, and that March 31 would work as a date, but only if the deposition was held in Fort Worth. Counsel also stated that Relator herself resided in Albuquerque, not El Paso. As to this assertion, counsel for Relator raised no dispute. Other than argument from counsel, neither party offered testimony nor were any affidavits submitted with the motion.
In making its oral ruling, the trial court referenced “issues with travel” and possible “delay because of any travel restrictions” because “things are a little uncertain right now,” presumably referring to the ongoing COVID-19 situation,3 which at the time was beginning to unfold nationally and within Texas. The trial court orally denied the motion to compel while stating, “based on the circumstances, I was hoping there could be some accommodation or some agreement to maybe do it by video conference in some way. If that's not possible, so be it. I think right now it's somewhat risky, sounds like, to be traveling back and forth especially if your client has health concerns.”
On March 13, 2020, in response to Governor Greg Abbott's issuance of a COVID-19 disaster proclamation, the Texas Supreme Court issued its First Joint Emergency Order allowing all courts in Texas in any civil case to “[m]odify or suspend any and all ․ procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than 30 days after the Governor's state of disaster has been lifted” if doing so “avoid[ed] risk to ․ parties, attorneys, ․ and the public ․ without a participant's consent[.]” See Supreme Court of Texas, First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket 20-9042 (Tex. Mar. 13, 2020) at § 2(a) (hereinafter First Emergency Order). The initial state-level disaster declaration was followed in the days thereafter by various local and state-level orders and directives imposing restrictions on group size and travel. On March 24, 2020 at 10:10 a.m., the City and County of El Paso jointly issued a local emergency directive which took effect at 11:59 p.m. Mountain Standard Time requiring individuals living in the City of El Paso to stay at home or their place of residence and only leave to perform certain essential activities; to perform work in an essential business, government service, or in critical infrastructure (as defined by the order); or to engage in essential travel or minimum basic operations (as defined by the order). See City of El Paso Local Emergency Directive Dated March 24, 2020, 10:10 a.m., available online at http://www.epstrong.org/documents/covid19/Stay% 20Home,% 20Work% 20Safe% 20Order.pdf.
On March 24, 2020 at 10:09 a.m., after the disaster declaration and the First Emergency Order were issued but before the deposition was scheduled to take place, the trial court signed a written order stating that the notice of deposition was quashed “and that Dr. Pate's deposition, whenever scheduled, shall be scheduled to take place in Fort Worth, Texas absent agreement to the contrary.”
Relator filed this mandamus petition challenging this order just over one month after the trial court issued its written decision.
Relator seeks a writ of mandamus to vacate the order quashing the Notice of Deposition of Real Party in Interest, and asserts that the court abused its discretion in ordering travel to Ft. Worth to depose said party, in a case to which he is a party, and which factually and procedurally occurred in El Paso, Texas.
Mandamus relief is appropriate (1) only to correct a clear abuse of discretion or to compel the performance of a ministerial duty, and (2) only where the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or it clearly fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
In the discovery context, the remedy by appeal is inadequate when (1) the appellate court would be unable to cure the trial court's discovery error, (2) the party's ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court's discovery error, or (3) the trial court disallows discovery and the missing discovery cannot be made part of the appellate record or the trial court, after a proper request, refuses to make it part of the record, and the reviewing court cannot evaluate the effect of the trial court's error. Id. at 843-44.
Here, given that we would be unable to cure the trial court's purported discovery error, which precludes an adequate remedy by appeal, we find the dispute is cognizable on mandamus review. See id. Thus, the question at hand is whether the trial court clearly abused its discretion in quashing the subject notice of deposition. A clear abuse of discretion, warranting correction by mandamus, occurs when a court issues a decision which is without a legal basis, or support in guiding principles of law. In re West, 346 S.W.3d 612, 615 (Tex.App.—El Paso 2009, orig. proceeding). While a trial court has great latitude in controlling discovery, it can abuse its discretion if it acts arbitrarily and unreasonably. Id. A trial court's determination of a factual issue is entitled to deference in a mandamus proceeding and should not be set aside unless it is clear from the record that only one decision could have been reached. Id. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. Id. “Mandamus will issue when a trial court orders a deposition to occur in a location contrary to the rules of procedure.” In re Wells Fargo Bank, N.A., No. 03-10-00469-CV, 2010 WL 3271159, at *1 (Tex.App.—Austin Aug. 16, 2010, orig. proceeding) (mem. op.) (citing Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153, 155 (Tex. 1988) (orig. proceeding) (per curiam) (discussing former Rule 201(3) of the Texas Rules of Civil Procedure, which is now Rules 176.6 and 199.2)).
Relevant to this mandamus proceeding, several provisions of the rules of procedure are applicable. A notice for an oral deposition must state a reasonable time and place for the deposition. Tex. R. Civ. P. 199.2(b)(2). The place may be in (1) the county of the witness's residence; (2) the county where the witness is employed or regularly transacts business in person; (3) the county of suit if the witness is a party or designated as a party representative under Rule 199.2(b)(1); (4) the county where the witness was served with the subpoena, or within 150 miles of the place of service, if the witness is not a Texas resident or is a transient person; or (5) subject to the foregoing, at any other convenient place directed by the court in which the cause is pending. Id. A party or witness may object to the time and place designated for an oral deposition by motion for protective order or by motion to quash the notice of deposition. Tex. R. Civ. P. 199.4.
A trial court may limit discovery methods permitted by the rules so long as it determines either that: (a) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or (b) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. Tex. R. Civ. P. 192.4. A movant seeking protection regarding the time or place of discovery must state a reasonable time and place for discovery with which it will comply. Tex. R. Civ. P. 192.6(a). To protect the movant, the court may make any order in the interest of justice, including an order that the discovery not be undertaken at the time or place specified. Tex. R. Civ. P. 192.6(b)(3).
In her sole issue, Relator asks this Court to vacate the trial court's order, which granted Real Party in Interest's motion to quash Relator's notice of his deposition, and argues that, because the factual and procedural events of the case occurred in El Paso, that the trial court abused its discretion by ordering counsel to travel to Fort Worth to conduct any future depositions of Real Party in Interest, absent an agreement of the parties to the contrary. We read Relator's petition as arguing for this Court to vacate the quashal order and thereby reinstate her original notice of deposition requiring Real Party in Interest to appear for deposition on a date certain (that has since passed) in El Paso. We agree to do so in part and decline in part.
We find that the portion of the order quashing the notice of deposition was proper insofar as it effectively cancelled the deposition slated to be held on March 31. This was not an abuse of discretion given the unfolding and uncertain situation with the COVID-19 pandemic and given that at the time the trial court's written order came down, the Texas Supreme Court's First Emergency Order was in effect, which provided trial courts with extra leeway in handling procedural matters in light of impending travel restrictions and shelter-in-place orders.
However, we further find that the portion of the order requiring any future deposition of Real Party in Interest to take place in Fort Worth, at whatever point the future deposition is later scheduled, to be an abuse of discretion under these circumstances for two reasons. First, where a witness is a party, the Rules of Civil Procedure expressly provide that the place of a deposition may be the county of suit. See Tex. R. Civ. P. 199.2(b)(2)(C). By scheduling Dr. Pate's deposition in the county of suit, Relator designated a place which is permitted given his undisputed status as a party of the suit. Id. Second, based on the record before us, there is insufficient evidence to support a finding of undue hardship or unnecessary expense for the deposition of Real Party in Interest to take place outside of the county of suit. See Tex. R. Civ. P. 192.4. Apart from a series of brief letters indicating an impasse over the deposition location, there was no testimony or affidavit evidence offered either at the hearing or attached to a pleading that would support the trial court's implicit determination that a party-deposition in El Paso would cause undue hardship to Real Party in Interest. Only the argument of counsel appears in our record. Although Relator did not object to the lack of evidence in the trial court, it is well-settled that the argument of counsel is not evidence. See Grant v. Espiritu, 470 S.W.3d 198, 203 (Tex.App.—El Paso 2015, no pet.).
A trial court cannot exercise its discretion in the absence of evidence. See Grass v. Golden, 153 S.W.3d 659, 663 (Tex.App.—Tyler 2004, orig. proceeding) (a trial court abuses its discretion when it limits discovery in the absence of substantiating evidence in the record). Because the arguments of counsel and the pleadings were unsupported by actual affirmative evidence in the record, the trial court could not make a determination that Real Party in Interest would suffer undue hardship or unnecessary expense, and without a predicate finding of such conditions supported by more than a scintilla of affirmative evidence, it was an abuse of discretion to order the deposition to proceed in Fort Worth. Id.
As such, we will grant mandamus relief in part and strike the requirement to conduct all future depositions of Real Party in Interest in Fort Worth. However, because we determine that it was not an abuse of discretion for the trial court to quash the notice of deposition in light of COVID-19 travel concerns and the First Emergency Order's grant of expanded authority to the trial court in managing docketing concerns, we will deny mandamus relief to the extent that Real Party in Interest seeks to have her original notice of deposition reinstated and an order from this Court stating that a deposition of Real Party in Interest must occur in El Paso without further consideration of emergency orders of the Supreme Court of Texas, if any.
The practical effect of our holding is to reset this controversy over deposition time and location and put it on a clean slate. This mandamus decision does not prejudice Relator from attempting to notice another deposition of Real Party in Interest in El Paso County pursuant to Rule 199.2(b)(2)(C). Nor, however, does it prevent Real Party in Interest from offering evidence supporting an argument for limitations on discovery pursuant to Rule 192.4(a) or (b). We hold only that (1) the trial court's quashal order was proper insofar as it cancelled the deposition on March 31 due to the COVID-19 pandemic but (2) the trial court's order abused its discretion by ordering the deposition to take place in Fort Worth insofar as it was not supported by sufficient evidence establishing grounds for limitations on otherwise permissible discovery.
The writ of mandamus is conditionally granted, in part. We direct the trial court to remove from the quashal order the requirement that future depositions of Real Party in Interest take place in Fort Worth. The writ will issue only if the trial court does not comply within a reasonable period of time.
1. Because this case is fully briefed on the merits, because we have a record before us sufficient to allow us to make a decision, and because any delay in a decision from this Court would not further the interests of justice, the Court invokes Rule 2 of the Texas Rules of Appellate Procedure, suspends regular order and ordinary submission procedures and timelines, and allows for the expedited submission of this opinion and for issuance of this decision immediately following this panel's vote on the merits. See In re Nichol, No. 08-19-00234-CV, 602 S.W.3d 595, 600–01 (Tex.App.—El Paso Sept. 20, 2019, orig. proceeding) (publication pending).
2. The record identifies the proceeding below as a Motion to Compel hearing although our record lacks any such motion.
3. In late 2019, a novel coronavirus that had not been previously identified emerged from Wuhan, China and began causing a respiratory disease known as COVID-19 that spreads from person to person. See Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions, available online at https://www.cdc.gov/coronavirus/2019-ncov/faq.html. On March 11, 2020, the World Health Organization (WHO) characterized the COVID-19 outbreak as a pandemic with global reach, with the head of the WHO stating that as of that date, there were 118,000 cases reported globally in 114 countries. See World Health Organization, WHO Director-General's opening remarks at the media briefing on COVID-19 11 March 2020, available online at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19--11-march-2020.On March 13, 2020, the City of El Paso Department of Public Health announced the first presumptive positive case of COVID-19 reported in El Paso in a male patient in his 40's who had a history of “recent domestic travel.” See City of El Paso News Release, First Presumptive Positive Case of Novel Coronavirus (COVID-19) Reported in El Paso (3/13/2020), available online at https://www.elpasotexas.gov/~/media/files/coep/public% 20health/Coronavirus/News% 20release% 20-% 20first% 20covid-19% 20case% 20in% 20el% 20paso.ashx?la=en. That same day, the City of El Paso and the County of El Paso both issued emergency disaster declarations in response to the global COVID-19 outbreak.
GINA M. PALAFOX, Justice
Response sent, thank you
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Docket No: No. 08-20-00104-CV
Decided: July 23, 2020
Court: Court of Appeals of Texas, El Paso.
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