









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-09-00086-CV

______________________________




IN RE:

GLADEWATER HEALTHCARE CENTER, IN ITS 

ASSUMED OR COMMON NAME, ET AL.







Original Mandamus Proceeding











Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter





MEMORANDUM OPINION

	Relators are several corporate entities and individuals formerly involved in the operation of
nursing homes and defendants in long-pending healthcare liability actions. (1)  Relators have filed in
this Court a petition for writ of mandamus relating to the Honorable Lauren Parish's appointment
of a special master to preside in discovery and other pretrial matters filed in these two cases. 
Relators ask this Court to direct the trial court to vacate its order appointing the special master
because the case does not qualify as a case in which such appointment is permitted.  See Tex. R. Civ.
P. 171.  
I.	RELEVANT PROCEDURAL HISTORY
	On April 22, 2009, the trial court appointed Richard Davis as a special master "to handle the
discovery disputes and other matters, including all pretrial matters."  At that time, no objection was
made regarding the appointment.  On May 8, 2009, the parties appeared without objection before the
special master at a hearing on several pretrial motions.  On May 15, 2009, the special master made
several recommendations regarding pretrial matters adverse to Relators' positions. (2)  Of those several
recommendations, the master directed that Relators make certain high-ranking corporate officers
available for deposition.  It is from this adverse ruling on the apex deposition issue that Relators
previously and unsuccessfully sought mandamus relief from this Court. (3)
	On June 2, 2009, Relators filed with the trial court their objections to the appointment of the
special master in both causes.  After a hearing on those motions, the trial court overruled Relators'
objections.    



II.	APPLICABLE LAW
	A.	Availability of Mandamus
	Mandamus relief is available to correct a trial court's clear abuse of discretion or violation
of a ministerial duty when there is no adequate remedy at law.  Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992) (orig. proceeding).  A clear failure of the trial court to analyze or apply the law
correctly will constitute an abuse of discretion and may result in issuance of a writ of mandamus. 
See In re Tenet Hosp., Ltd., 116 S.W.3d 821, 825 (Tex. App.--El Paso 2003, orig. proceeding).
	B.	Appointment of Special Master and Objection to Appointment
	Rule 171 governs the appointment of masters in chancery:
	The court may, in exceptional cases, for good cause appoint a master in chancery,
who shall be a citizen of this State, and not an attorney for either party to the action,
nor related to either party, who shall perform all of the duties required of him by the
court, and shall be under orders of the court, and have such power as the master of
chancery has in a court of equity.

Tex. R. Civ. P. 171.
	Rule 171 does not specify a time by which a party must object to the appointment of a master. 
Owens-Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622, 624 (Tex. App.--Houston [1st Dist.]
1991, orig. proceeding).  Courts have concluded that a party objecting to a special master's
appointment must make an objection not within some arbitrary time period but before it has taken
part in proceedings before the master or before the parties, the master, and the court have acted in
reliance on the master's appointment.  Id. at 625; Zwick v. Zwick, No. 2-08-182-CV, 2009 Tex. App.
LEXIS 3949 (Tex. App.--Fort Worth June 4, 2009, no pet.) (mem. op.).  That is, a party's objection
to the master's appointment is timely if filed before the party participates in proceedings before the
master.  See Caldwell, 830 S.W.2d at 625.
III.	DISCUSSION
	A.	Preliminary Matter:  No Written Order Overruling Objections
 Relators concede that there are no written orders overruling the objections to the special
master's appointment.  They maintain, however, that the issue is properly before this Court.  We
agree.  "[I]t seems clear that if a court's ruling is adequately shown by the reporter's record, then a
formal written order is now unnecessary."  In re Perritt, 973 S.W.2d 776, 779-80 (Tex.
App.--Texarkana 1998, orig. proceeding), mand. granted on other grounds, 992 S.W.2d 444 (Tex.
1999) (orig. proceeding); see Tex. R. App. P. 52.3(k)(1)(A) (requiring that an appendix to a petition
seeking mandamus relief include "a certified or sworn copy of any order complained of, or any other
document showing the matter complained of") (emphasis added).  Sister courts have similarly held. 
See In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.--Houston [1st Dist.] 2006,
orig. proceeding); In re Vernor, 94 S.W.3d 201, 206 n.8 (Tex. App.--Austin 2002, orig.
proceeding); In re Bledsoe, 41 S.W.3d 807, 811 (Tex. App.--Fort Worth 2001, orig. proceeding). 
	The record before us indicates that the trial court had before it proposed orders available after
its oral ruling and that it has not, to date, signed one of those proposed orders. (4)  At the July 7 hearing,
however, the trial court clearly overruled Relators' objections:
	I'm going to deny it as to these two cases only and the other - as far as the rest I'll
leave that open for right now, okay, but I'm going to deny it on these two cases that
are specially set.  And will be - I'll hopefully receive an order very soon, and
therefore, any appellate, you know, measures that you-all feel you can take you can
take with expediency and we can get these cases moved.

We have before us the reporter's record of that hearing.  Therefore, we conclude that the reporter's
record of the July 7 hearing and the trial court's apparent refusal to sign a written order in this case
are "sufficient to place before us the complaints made the basis of relators' petition for writ of
mandamus."  See Perritt, 973 S.W.2d at 779-80.
	B.	Challenging the Appointment
	Having concluded that the issue is before us, we move on to the substance of that issue. 
Relators contend that the trial court failed to make the required findings that these causes were
"exceptional cases" and that "good cause" existed for the appointment of the special master.  See
Simpson v. Canales, 806 S.W.2d 802 (Tex. 1991).
	Due to the procedural history of the underlying cases, however, we need not reach the merits
of the Rule 171 contention.  The record indicates that Relators have appeared before the special
master without objection.  Most notably, we look at Relators' participation in the pretrial hearing on
May 8, 2009.  The hearing addressed several pretrial matters, and at no time during that hearing did
Relators object to the appointment of the special master. (5)  We also note that Relators corresponded
with the special master and filed with the special master a number of motions. (6)  In Caldwell,
although the objections were lodged several months after the trial court signed its order appointing
the master, the objections were lodged before the objecting party's participation in matters before the
master.  830 S.W.2d at 626.  So, though we note that Relators objected approximately five weeks
after the appointment of the master, it is the level of participation here on which we concentrate.  By
fairly extensive participation in proceeding before the special master, Relators have waived their
objection to the appointment of the master.

IV.	CONCLUSION
	Relators have not shown that the trial court clearly abused its discretion by overruling
objections to the appointment of a special master when Relators have waived such objections by
appearing before the special master.  Relators have, therefore, failed to establish that they are entitled
to mandamus relief.  For this reason, we deny the petition.  Having done so, we deny as moot
Relators' motion for temporary relief. 


							Jack Carter
							Justice

Date Submitted:	October 26, 2009
Date Decided:		October 27, 2009



ON MOTION FOR REHEARING

	Relators have filed a motion for rehearing in connection with their petition seeking
mandamus relief.  See Tex. R. App. P. 52.9.  In their petition, Relators asked this Court to vacate the
trial court's appointment of a special master to preside over discovery and other pretrial matters in
two causes, which we will refer to as the Richardson case and the Burcalow case. (7)  In light of the
apparent settlement of the dispute in the Richardson case, Relators concede that the issues
concerning the appointment of the special master as it relates to that case are now moot.  They,
however, have asked us to reconsider mandamus relief as it relates to the remaining case, the
Burcalow case.
I.	PROCEDURAL HISTORY
	In our opinion denying their petition, we concluded that the Relators' participation and
appearance before the special master served to waive their objection to his appointment.  In their
motion for rehearing, Relators maintain that their participation before the special master concerned
the now-moot Richardson case, rather than the still-pending Burcalow case.  Indeed, the bulk of the
discussion at the May 8 hearing before the master concerned issues arising in the Richardson case,
and the record before us suggests that the master's recommendations that followed the hearing were
limited to the Richardson case.  We will now turn to an more in-depth examination of the record
before us to determine whether Relators otherwise participated in the Burcalow matter in such a way
that it could be said that they waived their objection to the appointment of the master.
II.	APPLICABLE LAW
	First, we revisit the standard by which we measure whether a party waived an objection to
the appointment of a master under Tex. R. Civ. P. 171.  A party objecting to a special master's
appointment must make an objection not within some arbitrary time period but before it has taken
part in proceedings before the master or before the parties, the master, and the court have acted in
reliance on the master's appointment.  Owens-Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622,
625 (Tex. App.--Houston [1st Dist.] 1991, no writ); see also Zwick v. Zwick, No. 02-08-00182-CV,
2009 Tex. App. LEXIS 3949, at *8-9 (Tex. App.--Fort Worth June 4, 2009, no pet.) (mem. op.)
(discussing reliance aspect of Caldwell court's conclusion).
	Relators maintain that they did not participate in proceedings before the master relating
specifically to the Burcalow case to the degree that such participation would constitute a waiver of
their objection to the appointment.  We disagree.  Though Relators' participation relating to the
Burcalow case was more limited than their participation in connection with the Richardson case, the
record before us contains sufficient indicia of waiver by Relators' participation, albeit more limited,
and their actions demonstrating an acceptance of the appointment and inviting reliance on the
appointment.
III.	DISCUSSION
	First, we note the correspondence from Relators to opposing counsel regarding the
conference call with the special master.  Relators specifically mention the upcoming May 8 hearing
without objection, noting that they are available on that date.  Relators refer to both the Richardson
and Burcalow cases.
	Both cases were indeed taken up at the May 8 hearing.  At the very beginning of the hearing,
the special master clearly announces that "two cases" will be taken up and names both the
Richardson and Burcalow cases.  Neither an objection was lodged, nor was there any other
expression that would suggest the parties intended to appear in the Richardson case only.  Early in
the proceedings, it appears that the parties requested that certain motions relating to the Burcalow
matter be heard later to allow a witness to be available.  The special master went on to hear several
pretrial matters relating primarily to the Richardson case.  The Burcalow case was discussed to a
much more limited degree, however.
	Relators agreed at the May 8 hearing to hear certain motions in the Burcalow case on
June 12.  Again, as counsel and the special master discussed this scheduling, there was no indication
that Relators objected to the appointment as it related to the Burcalow case.  The master explained
that he was available on certain dates and allowed counsel to express their preferences regarding the
best date for their schedules as well.  Relators would later send to opposing counsel correspondence
dated May 12, 2009, confirming the date of the hearing in the Burcalow case and attaching a notice
of hearing in the Burcalow case.  So, while much less was done at the hearing in terms of disposition
of motions in connection with the Burcalow case, Relators did appear in the matter and agreed that
motions in the Burcalow case would be heard later on a date certain when Relators' witness was
available.  Their later correspondence expresses their own reliance on the agreed time and subject
matter of the hearing before the master and could serve to invite opposing counsel to rely on the
same.   
	Next, though Relators attempt to minimize the import of participation in conference calls
with the special master in which the parties scheduled a hearing relating to both the Richardson and
Burcalow cases, we cannot simply overlook such activity.  While we agree with Relators that on
these facts, such participation does not constitute an appearance before the master, such activity,
especially without the suggestion of any objection to the appointment, would certainly serve to
support a conclusion that the parties, the trial court, and the special master relied on the appointment. 
When considered in the context of the rest of the record before us, Relators' participation in
conference calls regarding scheduling in the Burcalow matter and their later confirmation of the
dates at which the parties arrived suggest, at a minimum, a tacit acceptance of the appointment and
would serve to demonstrate reliance, even their own reliance, on the appointment of the special
master.
IV.	CONCLUSION
	The conference calls, the appearance, and discussion at the May 8 hearing, and Relators' own
correspondence all suggest that Relators, opposing counsel, the trial court, and the special master
acted in reliance on the appointment.  As a result, Relators' June 2 objection to the appointment of
the special master in the Burcalow case, after all this activity, was too late. 
	Mandamus will issue to correct a clear abuse of discretion when there is no adequate remedy
at law.  See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).  Because
Relators participated before the special master in the Burcalow matter without objection in such a
manner and to such a degree that opposing counsel, the trial court, and the special master relied on
the appointment, we cannot say that the trial court abused its discretion by overruling Relators'
objection to the appointment of the special master as it relates to the Burcalow case.  Relators have,
therefore, failed to establish that they are entitled to mandamus relief.  With this opinion clarifying
the distinction between Relators' participation in the Richardson and Burcalow cases, we deny
Relators' motion for rehearing.  Relators have also filed a motion to reconsider temporary relief.  See
Tex. R. App. P. 52.10.  Having concluded that Relators have failed to establish that they are entitled
to mandamus relief, we again deny as moot Relators' motion for temporary relief.



						Jack Carter
						Justice

Date Decided:	November 5, 2009
 


1. The underlying cases are docketed under trial court cause number 545-03 styled David
Richardson, Individually, as the Representative for All Wrongful Death Beneficiaries, and as an Heir
at Law and the Representative of the Estate of John Richardson, Deceased v. Gladewater Healthcare
Center, in its Assumed or Common Name; Nexion Health at Gladewater, Inc.; Nexion Health, Inc.;
Nexion Health Management, Inc.; Nexion Health at Texas, Inc.; Nexion Health Leasing Inc.; Nexion
Health Realty, Inc.; Darlene Maloney, Individually; Bruce Henshaw, Individually; and Donna
Albright, Individually and under trial court cause number 606-03 styled Bobby Green, as Temporary
Administrator of the Estate of Bonnie Burcalow, Deceased v. Upshur Manor Nursing Home, Upshur
County, Texas in Its Assumed or Common Name Nexion Health at Gilmer, Inc.; Nexion Health, Inc.;
Nexion Health Management, Inc.; Nexion Health at Texas, Inc.; Nexion Health Leasing, Inc.; Nexion
Health Realty, Inc.; Doyle Ross, Individually; Denise Honnoll, Individually; and Thyri Hawkins,
Individually.
2. Along with its order overruling Relators' motions to quash depositions of the corporate
officers, the special master signed an order overruling Relator's objections to Real Parties in Interest's
request to take judicial notice of an agreed order between Relator Darlene Maloney and the Texas
Board of Nurse Examiners, an order overruling Relators' objections to Real Parties in Interest's
request to take judicial notice of specific codified rules of agencies and specific public statutes for
2002, an order overruling Relators' objections to Real Parties in Interest's notice letter pursuant to
Tex. R. Civ. P. 193.7, an order overruling objections and privileges to requests for production, and
order granting Real Parties in Interest's motion for sanctions relating to defense counsel's violation
of HIPAA.  In this final order, the master found that defense counsel "improperly" contacted and
"collud[ed] with" a doctor of one of the deceased plaintiffs, communicating ex parte with the doctor. 
As a result, the master prohibited defense counsel from contacting any of the Real Parties in Interest's
healthcare providers without notice and opportunity to move for a protective order, struck the
affidavit of Dr. Kenneth L. Skipper, and ordered production of a list of healthcare providers that were
contacted in such manner.  
3. See In re Gladewater, No. 06-09-00058-CV, 2009 Tex. App. LEXIS 5365 (Tex.
App.--Texarkana July 14, 2009, orig. proceeding).
4. An order pronounced in open court is considered "rendered" when it is officially announced,
and it is valid from that time forward, so that formal entry is only a ministerial act.  Dunn v. Dunn,
439 S.W.2d 830, 832 (Tex. 1969); Bill Heard Chevrolet, Ltd., 209 S.W.3d at 314.  Therefore, to be
effective, all orders and rulings must be made on the record either in writing or in open court
transcribed by the court reporter.  See Tex. R. App. P. 33.1(a)(2); Bill Heard Chevrolet, Ltd., 209
S.W.3d at 315.  We note that Relators have not requested that this Court compel the trial court to
sign a written order.  The real parties in interest do not contend in their response that the absence of
a written order precludes our review of the issue presented.
5. It is because of the significant participation in matters placed before the special master that
we need not address the real parties in interest's contention that Relators consented to the
appointment of a special master.  In their response, the real parties in interest refer to a conference
call with the trial court and opposing counsel during which all parties agreed to the appointment. 
We expressly avoid addressing the consent issue as it relates to the time period before the
appointment.
6. The record indicates that the parties participated in a conference call with the special master
on April 28 to discuss scheduling matters.  Further, it appears that Relators filed several motions
with the special master, including a supplemental motion for summary judgment, motion for
continuance, and a motion to strike.  Relators also submitted to the special master their proposed
order following the May 8 hearing.
7. The underlying cases are docketed under trial court cause number 545-03 styled David
Richardson, Individually, as the Representative for All Wrongful Death Beneficiaries, and as an Heir
at Law and the Representative of the Estate of John Richardson, Deceased v. Gladewater Healthcare
Center, in its Assumed or Common Name; Nexion Health at Gladewater, Inc.; Nexion Health, Inc.;
Nexion Health Management, Inc.; Nexion Health at Texas, Inc.; Nexion Health Leasing Inc.; Nexion
Health Realty, Inc.; Darlene Maloney, Individually; Bruce Henshaw, Individually; and Donna
Albright, Individually and under trial court cause number 606-03 styled Bobby Green, as Temporary
Administrator of the Estate of Bonnie Burcalow, Deceased v. Upshur Manor Nursing Home, Upshur
County, Texas in Its Assumed or Common Name Nexion Health at Gilmer, Inc.; Nexion Health, Inc.;
Nexion Health Management, Inc.; Nexion Health at Texas, Inc.; Nexion Health Leasing, Inc.; Nexion
Health Realty, Inc.; Doyle Ross, Individually; Denise Honnoll, Individually; and Thyri Hawkins,
Individually.


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                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-09-00201-CR
                                                ______________________________
 
 
                            DANIEL DONGRELE LINDLEY,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                         On Appeal from the 8th Judicial District Court
                                                           Hopkins County, Texas
                                                          Trial Court
No. 0819780
 
                                                        
                                          
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                        Memorandum Opinion by Chief Justice Morriss




                                                      MEMORANDUM OPINION
 
            Daniel
Dongrele Lindley has appealed the trial courts judgment adjudicating him
guilty of attempted capital murder and sentencing him to forty-five years
incarceration.  We overrule Lindleys
points of error and affirm the trial courts judgment and sentence for the
reasons set forth in our opinion issued this date in Lindleys companion case, Lindley v. State, cause number 06-09-00200-CR.  Please see our opinion in that case for a
detailed examination of the issues and law governing these cases.[1]  
             
 
                                                                        Josh
R. Morriss, III
                                                                        Chief
Justice
 
Date Submitted:          November
30, 2010
Date Decided:             December
17, 2010
 
Do Not Publish           
 
 
 
 
 




[1]Lindley
has addressed both trial court causes in a single brief, and the issues and
facts in the two cases are the same.  


