Petition for Writ of Mandamus Denied and Opinion filed August 13, 2020.




                                      In The

                       Fourteenth Court of Appeals

                                NO. 14-20-00276-CV



                     IN RE TEXAN MILLWORK, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              333rd District Court
                             Harris County, Texas
                       Trial Court Cause No. 2017-20205

                         MEMORANDUM OPINION

      On Tuesday, April 14, 2020, Texan Millwork filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017);
see also Tex. R. App. P. 52. In the petition, relator asks this Court to compel the
Honorable Daryl L. Moore, presiding judge of the 333rd District Court of Harris
County, to vacate his April 1, 2020 order compelling relator to produce Lazaro
Cabrera for deposition in 21 days. See Tex. R. Civ. P. 199.3. Relator also filed a
motion for temporary relief, seeking a stay of the order. See Tex. R. App. P. 52.10.
That motion was granted by our order of April 17, 2020. A response was requested
and has been filed by the real parties in interest, Sejal and Kavan Adeshara. Relator
filed a reply.

       To be entitled to a writ of mandamus, a relator must show that the trial court
clearly abused its discretion, and that it lacks an adequate remedy by appeal. In re
Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per curiam).
Relator contends the trial court abused its discretion by compelling it to produce
Cabrera for deposition, without a subpoena, because Cabrera is not relator’s
employee or under relator’s control. Thus, relator argues, Cabrera’s deposition may
only be obtained by personally serving Cabrera with a subpoena. See Tex. R. Civ.
P. 199.3 (providing that party may compel nonparty witness to attend deposition
by serving witness with subpoena; if witness is retained by, employed by, or
otherwise subject to control of party, attorney for party may be served with notice
of oral deposition); Tex. R. Civ. P. 205.1(a) (providing that party may compel
deposition of nonparty by serving subpoena).

       By its order compelling Cabrera’s deposition without service of a subpoena,
the trial court impliedly found Cabrera is either relator’s employee or otherwise
subject to relator’s control. See In re Total Petrochemicals & Ref. USA, Inc., 595
S.W.3d 904, 905–07 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Relator
contends it conclusively proved Cabrera is neither. The real parties in interest
counter that they produced sufficient evidence to demonstrate Cabrera was
otherwise subject to relator’s control.

       Our review of the record reveals the trial court decided a fact issue in this
case. There is evidence in the record that Cabrera worked for relator installing
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granite countertops, an employee of relator arranged for Cabrera to pick up the
granite the day of the incident, relator’s employee was with Cabrera on the day of
the incident and they selected the granite slabs together, and Cabrera was the only
person installing granite countertops for relator at the time of the incident. Thus,
the record before this court does not demonstrate there is no evidence to support
the trial court’s implied finding that Cabrera is relator’s employee or that he is
otherwise under relator’s control. While there is evidence to the contrary, it is well-
settled law that appellate courts do not deal with disputed areas of fact in original
proceedings. In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding).
Factual determinations by the trial court may not be disturbed by mandamus
review if those determinations are supported by the evidence. In re La. Tex.
Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 690 (Tex. App.—Houston [14th Dist.]
2011, orig. proceeding).

      Relator has not established “that the trial court could reasonably have
reached only one decision.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)
(orig. proceeding). Accordingly, relator has not shown it is entitled to mandamus
relief. We deny the petition for writ of mandamus and lift our stay of the trial
court’s order.


                                        PER CURIAM


Panel consists of Justices Bourliot, Hassan, and Poissant.




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