IN RE: Richard Freymann

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Court of Appeals of Texas, Corpus Christi-Edinburg.

IN RE: Richard Freymann

NUMBER 13–15–00550–CV

Decided: January 22, 2016

Before Justices Garza, Benavides, and Longoria


Relator, Richard Freymann, filed a petition for writ of mandamus seeking to compel the trial court to grant his motion for a protective order and motion for case management order.  We dismiss this original proceeding as moot.

I. Background

This petition for writ of mandamus arises from litigation over property damage claims made against State Farm Lloyds and related companies as a result of hail storms which hit the Rio Grande Valley in spring of 2012.  Freymann worked for State Farm Fire and Casualty Company, which provided claims-related services for State Farm Lloyds.  Freymann worked in a managerial and supervisory position and served as the “Team Manager” for other State Farm employees adjusting some of the claims arising out of the hail storms.  In this original proceeding, Freymann contends that the trial court abused its discretion by “failing to protect [him] from discovery where he is subject to hundreds of lawsuits arising from insurance claims in which he had little or no personal involvement” and by “failing to enter a case management order” requiring the real party in interest, Angelica Moreno Gongora, “to submit evidence of Freymann's involvement in the underlying insurance claims before subjecting Freymann to discovery.” 1

This Court requested that Gongora, or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ of mandamus.  See Tex.R.App. P. 52.2, 52.4, 52.8.  Gongora informed us that she has nonsuited Freymann in the case below, thereby “rendering his mandamus petition moot.”  Freymann, in turn, contends that the “capable of repetition but evading review” exception to the mootness doctrine is applicable and, therefore, his petition for writ of mandamus is not moot and should not be dismissed.  Gongora has subsequently filed a motion to dismiss this original proceeding on grounds of mootness, and alternatively, a motion for extension of time to file her response to the petition for writ of mandamus.

II. Mootness

“[C]ourts have an obligation to take into account intervening events that may render a lawsuit moot.”  Heckman v. Williamson Cnty., 369 S.W.3d 137, 166–67 (Tex.2012).  Appellate courts lack jurisdiction to decide moot controversies and render advisory opinions.  See Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex.1999).  A justiciable controversy between the parties must exist at every stage of the legal proceedings, including the appeal, or the case is moot.  Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001).  “If a controversy ceases to exist—the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome—the case becomes moot.”  Id.;  see Tex. Health Care Info. Council v. Seton Health Plan, 94 S.W.3d 841, 846 (Tex.App.—Austin 2002, pet. denied).  The same is true if an appellate court's judgment cannot have any practical legal effect upon a then existing controversy.  Zipp v. Wuemling, 218 S.W.3d 71, 73 (Tex.2007) (“An appeal is moot when a court's action on the merits cannot affect the rights of the parties.”).

Relator contends that the issues in this original proceeding fall within the “capable of repetition yet evading review” exception to the mootness doctrine.  According to relator, the claims against him “may be reurged at any time as the nonsuit was without prejudice” and “he is still subject to discovery in about 200 cases in which he has little or no involvement.”  Relator thus contends that this case is not moot because the issue presented herein could arise in other litigation as well.

The “capable of repetition, yet evading review” exception applies only in rare circumstances.  Tex. A & M Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 290–91 (Tex.2011);  Williams, 52 S.W.3d at 184.  “To invoke the exception, a plaintiff must prove that:  (1) the challenged action was too short in duration to be litigated fully before the action ceased or expired;  and (2) a reasonable expectation exists that the same complaining party will be subjected to the same action again.”  Tex. A & M Univ.-Kingsville, 347 S.W.3d at 290;  Williams, 52 S.W.3d at 184–85;  Blum v. Lanier, 997 S.W.2d 259, 264 (Tex.1999);  Gen. Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990);  In re Fort Worth Star Telegram, 441 S.W.3d 847, 852 (Tex.App.—Fort Worth 2014, orig. proceeding).  “An issue does not evade appellate review if appellate courts have addressed the issue on the merits.”  Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 762 (Tex.App.—Fort Worth 2010, pet. denied).  “The mere physical or theoretical possibility that the same party may be subjected to the same action again is not sufficient to satisfy the test.”  City of Dallas v. Woodfield, 305 S.W.3d 412, 419 (Tex.App.—Dallas 2010, no pet.);  see Coburn v. Moreland, 433 S.W.3d 809, 826 (Tex.App.—Austin 2014, no pet.).

Freymann asserts that the instant case is controlled by the analysis in In re Allied Chemical Corp., 227 S.W.3d 652 (Tex.2007) (orig.proceeding).  In that case, which involved a mass tort chemical exposure, the trial court set the claims of five plaintiffs for a consolidated trial but did not require the plaintiffs to respond to basic discovery requests until shortly before trial.  See id. at 654.  The defendants sought mandamus relief and the trial court vacated its consolidated trial order and set the claims of a single plaintiff for trial.  See id. at 654–55.  The plaintiffs argued that the revised order rendered the original proceeding moot.  Id. The supreme court held that the mandamus was not moot.  Id. at 655.  In so holding, the court examined several factors.  First, a controversy still existed regarding whether the defendants were entitled to reasonable discovery in advance of trial.  See id.  “The trial court has withdrawn consolidation ․ but one plaintiff's claims have still been ordered to trial despite inadequate responses,” and “a controversy still exists whether they are entitled to that.”).  Id. In this regard, the plaintiffs' late supplementation of discovery responses failed to cure the timeliness of those responses.  See id.  Second, the plaintiffs have “refused to give any assurance that they will not seek future consolidated trials,” and thus the “situation that gives rise to this proceeding is thus fully capable of repetition.”  Id. Third, the supreme court vigorously rejected the concept that appellate review could be evaded by the modification of orders during pending mandamus proceedings:

[W]hile we encourage parties to work out pretrial disputes so appellate courts need never consider them, we cannot encourage parties to manipulate pretrial discovery to evade appellate review.  Pretrial cannot be conducted one way when appellate courts are looking and another way when they are not.  As hundreds of similar claims remain in this case and the plaintiffs stoutly maintain they had no duty to supplement their answers at all, the question before us is not moot as it is capable of repetition in a manner that evades review.

Id.According to the supreme court, to hold otherwise would put the defendants “to the repeated expense of seeking review only to have it denied by last-minute changes in the trial court's orders,” and “[a]n appellate court's jurisdiction cannot be manipulated in this way.”  Id. at 655.

This case is distinguishable from Allied.  First, as a significant and substantive distinction, there is no controversy still in existence between Freymann and Gongora given that he has been nonsuited from the case.  In Allied, the trial court's modification of its order requiring a consolidated trial for five plaintiffs in favor of a trial for only one plaintiff failed to remedy the plaintiffs' delay in responding to basic discovery, whereas in contrast, in this case, the nonsuit eliminated all claims between the parties.

Second, the nature of the actions at issue in the two cases are different and carry different consequences.  In Allied, the supreme court was considering the trial court's actions in issuing a consolidated trial order that did not meet the requirements previously enunciated by the supreme court, the trial court's failure to require plaintiffs to respond in a timely manner to discovery requests, and the trial court's subsequent modification of its order after the inception of appellate review.  In contrast, this case concerns a nonsuit taken by Gongora against relator.  Gongora has an absolute right to file a nonsuit, and the trial court had no discretion to refuse an order dismissing a case because of a nonsuit unless collateral matters remain.  See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862–63 (Tex.2010);  Villafani v. Trejo, 251 S.W.3d 466, 468–69 (Tex.2008).  A nonsuit extinguishes a case or controversy from the moment the motion is filed or an oral motion is made in open court.  Travelers Ins. Co., 315 S.W.3d at 862–63;  Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex.2006) (per curiam).  It renders the merits of the nonsuited case moot.  See Travelers Ins. Co., 315 S.W.3d at 862–63;  Villafani, 251 S.W.3d at 469;  Gen. Land Office, 789 S.W.2d at 571.  Accordingly, the case before this Court is more akin to General Land Office, in which the supreme court held that as a consequence of the trial court's granting a nonsuit, a temporary injunction ceased to exist and the appeal from that temporary injunction became moot.  See Gen. Land Office, 789 S.W.2d at 571;  see also Gutierrez v. Amherst Computer Products Sw., L.P., No. 08–04–00005–CV, 2004 WL 1197406, at *1 (Tex.App.—El Paso May 27, 2004, no pet.) (mem.op.)  (“As a consequence of Amherst taking a nonsuit in the underlying case, the temporary injunction at issue in this appeal dissolved automatically without need for a separate order and the appeal became moot.”).

In this case, the trial court's refusal to grant Freymann's motion for protective order and motion for case management order became irrelevant when Gongora nonsuited Freymann in the underlying proceeding.  As a result, the controversy underlying this original proceeding has become moot.  See Nat'l Collegiate Athletic Ass'n, 1 S.W.3d at 86.  Further, the capable of repetition yet evading review exception does not apply because the challenged action, that is Freymann's request for protection for discovery and for a case management order, was not too short in duration to be litigated fully before the action ceases or expires.  And while Freymann contends that he has a reasonable expectation that he will be subjected to the same action again given the other lawsuits that have been filed against him, that does not mean that the issue evades review.  See Gen. Land Office of State of Tex., 789 S.W.2d at 571 (“The GLO's contention that the temporary injunction was of such short duration that it evaded review fails to recognize that two cases are pending in which the same issues are presented.”).  Given the rare circumstances in which the “capable of repetition yet evading review” exception applies, we conclude that Freymann failed to show that the exception applies to the claims in this original proceeding.  See Williams, 52 S.W.3d at 184.

Based on the foregoing, we conclude that this original proceeding has become moot, no exception to the doctrine of mootness applies, and we lack jurisdiction over this proceeding.  Accordingly, we grant Gongora's motion to dismiss this original proceeding.  We dismiss Gongora's motion for extension of time to file her response to the petition for writ of mandamus as moot.  We dismiss the petition for writ of mandamus for want of jurisdiction.


1.   Freymann concedes that Gongora alleged in her pleadings that he failed to train and supervise the adjusters that handled her claim, however, he contends that Gongora should be required to make a “threshold factual showing” regarding his involvement in her claim before he should be required to respond to discovery.  According to Freymann:Respondent abused its discretion by failing to recognize that Freymann has become a pawn in mass litigation, and that he has been unreasonably burdened with mass discovery that will consume an unreasonable amount of time and resources, and that employees and middle managers deserve the same respect and consideration in the litigation process that protects corporate executives from abusive discovery requests.We note that a party is entitled to discovery that is relevant to the subject matter of the claim and which appears reasonably calculated to lead to the discovery of admissible evidence.  To this date, the Texas Supreme Court has only required threshold showings, such as those requested by Freymann, for apex corporate officials.  See, e.g., Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 127 (Tex.1995) (orig.proceeding).

Memorandum Opinion Per Curiam

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