                                       NO. 12-13-00182-CV

                          IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

IN RE:                                               §

MARATHON OIL (EAST TEXAS) L.P.,                      §                ORIGINAL PROCEEDING

RELATOR                                              §

                                       MEMORANDUM OPINION
         Marathon Oil (East Texas) L.P. seeks mandamus relief from the trial court’s orders
denying its motion for continuance and granting the motion of the real party in interest, Lillie
Mae Williamson, to quash Marathon’s deposition of the corporate representative of Blue Ridge
Group, Inc.1 We conditionally grant the petition.


                                                BACKGROUND
         This case arose as a suit by Williamson to remove an oil and gas lease as a cloud on her
title.
         Williamson is the owner of 152.125 acres in Shelby County. On February 3, 1997,
Williamson executed an oil and gas lease on the 152.125 acres to Marathon Oil Company for a
primary term of five years. On November 12, 1999, Marathon Oil Company executed an
assignment and quitclaim of the lease to Marathon Oil (East Texas) L.P. Shortly before the end
of the primary term, a well (the Savell 2-H) was successfully completed on a nearby property.
On January 23, 2002, Blue Ridge Group executed a declaration of a pooled unit for the Savell
2-H well. The declaration included in the unit an unspecified 12.5 acres out of Williamson’s
152.125 acres. Williamson executed a division order and for several years received the royalty


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          The respondent is the Honorable Charles R. Mitchell, Judge of the 273rd Judicial District Court, Shelby
County, Texas.
payments to which her fractional 12.5 acre interest in the pooled unit entitled her.          Then
Williamson received an offer to lease her 152.125 acres for $155,000. However, when the
prospective lessee discovered Marathon’s claim, it withdrew the offer.
         On January 12, 2010, Williamson initiated this suit, originally seeking only to remove the
Marathon lease as a cloud on her title. Marathon filed its Original Answer and Counterclaim
asserting various affirmative defenses including statute of limitations, waiver, estoppel, and
ratification, along with a counterclaim to remove Williamson’s claim as a cloud on Marathon’s
title.   In subsequent petitions, Williamson asserted additional claims for common law and
statutory fraud, securing execution of a document by deception, and slander of title.
         In March 2013, the trial court set the case for trial on June 3, 2013. The case was subject
to the default level II discovery control deadlines under which the discovery period ended on
March 26, 2011.
         On April 25, 2013, Marathon filed its Third Amended Original Answer alleging
additional affirmative defenses to Williamson’s claims. On May 9, 2013, twenty-five days prior
to the scheduled trial date, Williamson filed her Second Supplemental Petition and Second
Amended Original Answer pleading for the first time (1) statute of frauds, (2) unclean hands, (3)
release, (4) waiver, and (5) estoppel. She also added claims for rescission and disgorgement of
Marathon’s profits from the lease.
         On May 17, 2013, the trial court heard and denied Marathon’s motion to strike
Williamson’s newly asserted claims and defenses. Subsequently, on the same date, the trial
court denied Marathon’s motion for continuance that it sought in order to pursue discovery
relevant to Williamson’s new claims and defenses. On the afternoon of the same day, Marathon
noticed the deposition of the corporate representative of Blue Ridge Group, necessary, it
claimed, to prepare to defend against Williamson’s new claims and defenses. The trial court
granted Williamson’s motion to quash the deposition on May 20, 2013.
         On May 24, 2013, Marathon filed its petition for writ of mandamus requesting that we
direct the respondent trial judge to vacate his May 17, 2013 order denying Marathon’s motion for
continuance and that we direct the trial court to continue the trial setting for at least sixty days
allowing Marathon to conduct discovery relevant to the newly asserted claims and defenses. On
May 31, 2013, we granted an emergency stay of the trial court proceedings pending our
disposition of Marathon’s petition.

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                                 PREREQUISITES TO MANDAMUS
         Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of
discretion and there is no adequate remedy by appeal. In re Colonial Pipeline Co., 968 S.W.2d
938, 941 (Tex. 1998); see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.
2004).
         The denial of a motion for continuance is ordinarily not reviewable by mandamus. Gen.
Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997). However, an exception to the general
rule applies when other errors are present that are reviewable by mandamus. Id.
         In Walker v. Packer, the Supreme Court of Texas noted that, in the discovery context,
there are at least three situations where a remedy by appeal may be inadequate and review by
mandamus appropriate. 827 S.W.2d 833, 843 (Tex. 1992). Two of those situations are present
here. First, “an appeal will not be an adequate remedy where 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.” Id. Accordingly, mandamus is appropriate if a defendant has been denied a reasonable
opportunity to develop the merits of its defense. See Gen. Motors Corp. v. Tanner, 892 S.W.2d
862, 863 (Tex. 1995). Second, remedy by appeal may also be inadequate where the trial court
disallows discovery that cannot be made a part of the appellate record, effectively precluding
review of the trial court’s error. Walker, 827 S.W.2d at 843. Because either of those situations
renders an appeal inadequate, we focus solely on whether the trial court abused its discretion.
.
                                      ABUSE OF DISCRETION
         In this case, Marathon sought a continuance to pursue discovery relevant to Williamson’s
claims and defenses first alleged within twenty-five days of trial.
         A trial court must allow additional discovery when the pleadings are amended or
supplemented, or new information is disclosed in a discovery response, and the movant shows
(1) the pleadings or responses were made after or so near the deadline for discovery (2) that the
adverse party does not have an adequate opportunity to conduct discovery related to the new
matters (3) and would be unfairly prejudiced without the additional discovery. TEX. R. CIV. P.
190.5(a).



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       Williamson brought suit over three years ago. Governed by level II discovery deadlines,
the discovery period ended in March 2011. It was not until twenty-five days before trial that she
pleaded numerous claims and defenses for the first time. Marathon’s motion to strike the new
claims and defenses was denied as was its motion for continuance. The trial court then quashed
the noticed deposition of Blue Ridge, which Marathon claims is necessary to meet Williamson’s
statute of frauds claim. Marathon insists that a continuance was mandated by Rule 190.5(a) so
that it might conduct discovery relevant to the newly asserted claims and defenses.
       Marathon contends that it needs to take a supplemental deposition of Williamson or her
representative regarding her new allegations. Marathon also contends it is critical that it be
allowed to depose Blue Ridge to obtain evidence in support of its estoppel and partial and full
performance defenses to Williamson’s recently raised statute of frauds allegations. Finally,
Marathon claims it needs to depose Russell Vera, who was the president of Fortune Operating
Company at the time it assigned its interest in the Savell 2-H well to Blue Ridge.
       A defendant is only required to meet the plaintiff’s case as pleaded.          SmithKline
Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex. 1995). A defendant is “not required to guess
what unpleaded claims might apply and negate them.” Via Net v. TIG Ins. Co., 211 S.W.3d
310, 313 (Tex. 2006). Twenty-five days before trial, Williamson pleaded, for the first time,
statute of frauds, release, waiver, estoppel, rescission, and disgorgement of profits. Rule 190.5
says the trial court must allow additional discovery in such circumstances if the trial court
believes the adverse party would be unfairly prejudiced without such discovery. It is difficult to
apprehend how Marathon could properly prepare to meet Williamson’s new theories of recovery
and defenses if denied adequate time to pursue pertinent discovery. Our rules do not require that
Marathon foresee what claims and defenses Williamson might plead and undertake costly and
wasteful discovery to confront legal theories never pleaded. In denying Marathon’s motion for
continuance and in quashing the Blue Ridge deposition, the trial court effectively foreclosed
Marathon’s opportunity to conduct discovery necessary to meet the newly pleaded allegations.
Therefore, the trial court’s rulings constitute an abuse of discretion.


                                            CONCLUSION
       The trial court abused its discretion in denying Marathon’s motion for continuance and
quashing the Blue Ridge deposition. Because Marathon’s ability to present a viable defense at

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trial has been vitiated or severely compromised, and the disallowed discovery cannot be made a
part of the appellate record, appeal is an inadequate remedy. See Walker, 827 S.W.2d at 843.
Accordingly, we conditionally grant Marathon’s petition for writ of mandamus and direct the
trial court to vacate its order of May 17, 2013 denying Marathon’s motion for continuance. We
further direct the trial court to issue an order granting the motion and continuing the trial setting
for at least sixty (60) days from the date of the order to allow Marathon to conduct discovery.
We are confident that the trial court will promptly comply with this opinion and the
corresponding order. The writ will issue only if the trial court fails to do so within ten (10) days
of the date of this opinion and order. The trial court shall furnish this court, within the time for
compliance with this court’s opinion and order, a certified copy of its order evidencing such
compliance. This court’s stay is lifted.
                                                                BILL BASS
                                                                   Justice



Opinion delivered August 7, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.




                                                    (PUBLISH)



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                                 COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                            ORDER

                                        AUGUST 7, 2013


                                      NO. 12-13-00182-CV


                           MARATHON OIL (EAST TEXAS) L.P.,
                                       Relator
                                         v.
                             HON. CHARLES R. MITCHELL,
                                     Respondent




                                    ORIGINAL PROCEEDING


                       ON THIS DAY came to be heard the petition for writ of mandamus filed
by MARATHON OIL (EAST TEXAS) L.P., who is the relator in Cause No. 10CV30,899,
pending on the docket of the 273rd Judicial District Court of Shelby County, Texas. Said
petition for writ of mandamus having been filed herein on May 24, 2013, and the same having
been duly considered, because it is the opinion of this Court that the petition is meritorious, it is
therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of
mandamus be, and the same is, hereby conditionally granted.
                       And because it is further the opinion of this court that the trial judge will
act promptly and vacate his order of May 17, 2013, denying Marathon’s motion for continuance,
and issue an order granting the motion and continuing the trial setting for at least sixty (60 days
from the date of the order, the writ will not issue unless the Honorable Charles R. Mitchell,
Judge of the 273rd Judicial District Court fails to comply with this court’s opinion and order
within ten (10) days from the date of this order.
                       It is further ORDERED that LILLIE MAE WILIAMSON pay all costs
incurred by reason of this proceeding.
                       Bill Bass, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired, J.,
                       Twelfth Court of Appeals, sitting by assignment.




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