Writ of Mandamus is Conditionally Granted; Opinion Filed June 5, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-11-00935-CV

                   ICON BENEFIT ADMINISTRATORS II, L.P.,
                AMERICAN ADMINISTRATIVE GROUP, INC., AND
              HEALTHSMART PREFERRED CARE, II, L.P., Appellants
                                    V.
             JOELLA MULLIN, STANLEY SELF, ANDREA DAVENPORT,
            LEE ANN DUMBAULD, SCOTT SNIDER, LEISA HUTCHESON,
                DAVID MILLER, AND CITY OF LUBBOCK, Appellees

                       On Appeal from the County Court at Law No. 2
                                   Dallas County, Texas
                           Trial Court Cause No. CC-08-01067-B

                                          OPINION
                            Before Justices Francis, Lang, and Evans
                                   Opinion by Justice Evans
       ICON Benefit Administrators II, L.P., American Administrative Group, Inc., and

HealthSmart Preferred Care, II, L.P. (collectively ICON) filed this appeal challenging the trial

court’s order denying their postjudgment motion to enforce a pretrial protective order. By their

motion, ICON sought to prevent the City of Lubbock and certain individual City employees

(collectively the City) from publicly disclosing an audit concerning ICON’s administration of the

City’s health care plan in response to open records requests made under the Texas Public

Information Act. In response to the parties’ dispute regarding the proper procedural mechanism

for our review of this case, we conclude the trial court’s ruling on the postjudgment motion to

enforce a pretrial protective order is not subject to a direct appeal and that the proper procedural
vehicle to challenge it is by petition for writ of mandamus. At the request of the City and the

City employees, and in the interest of judicial economy, we treat this appeal as a petition for writ

of mandamus. Because the trial court’s order permitting disclosure of the audit contradicts the

plain meaning of its earlier protective order, we further conclude the order denying ICON’s

motion was a clear abuse of the trial court’s discretion and conditionally grant mandamus relief.

                                                         BACKGROUND

          From 2004 through 2006, the City contracted with ICON to provide third-party

administration and a “preferred provider” organization for the City of Lubbock’s self-funded

health care plan. In 2008, ICON filed suit in Dallas County against certain City employees

alleging the City employees made defamatory statements about ICON’s administration of the

City’s health care plan. 1 The City employees filed a counterclaim asserting, among other things,

abuse of process and malicious prosecution. Although the City and HealthSmart were not parties

to the Dallas lawsuit, they were involved in a separate ongoing arbitration proceeding with ICON

and AAG concerning the administration of the City’s health care plan.

           While both the lawsuit and the arbitration were pending, the City hired Sally Reaves to

conduct an audit of the administrative services ICON performed for the City’s health care plans.

The City employees sought pretrial discovery in the Dallas lawsuit of certain information for the

Reaves’s audit work. In response, ICON moved for, and was granted, a protective order in July

2009.       Among other things, the protective order defined certain categories of “Protected

Materials” and restricted the use and disclosure of “Protected Materials” and “all information

derived therefrom.” The protective order was later expanded to enable the City, as a non-party,

to obtain access to the “Protected Materials” for use in the arbitration and HealthSmart became a



   1
       ICON also sued employees of one of ICON’s competitors who lived in Dallas. They are not a party to this proceeding.



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beneficiary of the protective order. The City acknowledged in oral argument it became bound by

the protective order and to that extent subject to the jurisdiction of the trial court in Dallas.

        The parties eventually settled the Dallas lawsuit and the trial court signed an order

dismissing the case in November 2010, before Reaves completed her audit. At the time of the

settlement, the parties disputed whether the forthcoming Reaves Audit could be used in the

ongoing arbitration proceeding. In a meeting in October 2010, the arbitrator ruled that the City

could use the forthcoming Reaves Audit to which ICON and HealthSmart agreed. The arbitrator

signed a substantially identical protective order to the Dallas trial court’s protective order.

        The Reaves Audit was submitted to the City in March 2011 while the arbitration was still

on-going. The following month, the City received open record requests for the Reaves Audit

pursuant to the Texas Public Information Act. The City’s public information officer notified

ICON of these open record requests and also sought an advisory opinion from the Texas

Attorney General as to whether the Reaves Audit was subject to disclosure pursuant to the Act.

        In light of these developments, ICON filed a motion to enforce the protective order in the

dismissed Dallas lawsuit to prevent the public disclosure of the Reaves Audit. ICON argued that

because the Reaves Audit contains information from, and is derived from, “Protected Materials,”

the protective order prohibits disclosure to the public of the Reaves Audit. The City employees

filed a response in their individual capacities and a motion to clarify that included a request for a

declaration that disclosure of the Reaves Audit was not prohibited by the protective order. They

also submitted a copy of the Reaves Audit to the trial court for in camera review. The City filed

a separate response on its own behalf and on behalf of the City employees in their official

capacity.

        The trial court held a hearing on the motions on June 16, 2011. On July 14, 2011 the trial

court signed an order declaring that disclosure of the Reaves Audit was not prohibited by the

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terms of the protective order and denying the motion to enforce. ICON brought this appeal

challenging the trial court’s July 14 order.

                                               ANALYSIS

   I.      Mandamus, not Appeal, is the Proper Procedure for Appellate Review.

        Before analyzing the merits of ICON’s arguments with respect to the trial court’s order,

we must first address the proper procedural vehicle for raising such complaints. ICON argues it

can directly appeal the trial court’s postjudgment order denying its motion to enforce because it:

(1) operates as a final judgment, disposing of all parties and issues in the case, (2) denies a

request for injunctive relief, and (3) relates to the sealing or unsealing of court records. The City,

on the other hand, argues that review of the order can only be had by petition for writ of

mandamus and urges us to construe this appeal as a petition for writ of mandamus applying the

standard of review applicable to mandamus proceedings. See In re Ford Motor Co., 211 S.W.3d

295, 298 n.1 (Tex. 2006) (per curiam) (orig. proceeding). We agree with the City and conclude

Ford is controlling here.

        In Ford, two vehicle manufacturers sought a writ of mandamus to vacate a pretrial court

order declaring certain documents non-confidential under a provision in a pretrial protective

order. Id. at 296. The supreme court noted that an appeal is inadequate when the trial court

erroneously orders the production of confidential information or privileged documents. Id. at

298. The supreme court also indicated that mandamus was the only procedural option available

to the vehicle manufacturers because “the underlying dispute is over, having already gone to trial

and final judgment, so the instant controversy–whether the [plaintiffs] (or their counsel) can pass

around the Volvo materials–can only be resolved by mandamus.” Id. at 298 n.1. The case

before us fits squarely into the status articulated in Ford: the underlying lawsuit has been

concluded and now we must review the trial court’s decision whether the public disclosure of the
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Reaves Audit is prohibited by the pretrial protective order. ICON provides no compelling reason

why Ford does not control this case and require review by mandamus.

       In reaching our conclusion, we necessarily reject ICON’s contention that the mandamus

procedure applied in Ford only because the order was rendered before the final judgment. Other

than a few, mostly statutory exceptions, appeals are taken only from final judgments. See

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).             Generally, only one final

judgment shall be rendered in any cause except where it is otherwise specifically provided by

law, such as in certain probate and receivership proceedings. See TEX. R. CIV. P. 301; Lehmann,

39 S.W.3d at 195. In this case, the final judgment was the trial court’s November 2010 order

dismissing with prejudice all claims and counterclaims raised by the parties. Because the July 14

order is not a final judgment or an appealable order under any statutory exception to the general

rule that only a final judgment may be appealed, we conclude our review of the trial court’s order

must be by petition for writ of mandamus. See In re Ford, 211 S.W.3d at 298 n.1.

       In support of its contention that the order before us can be appealed directly, ICON cites

Garcia v. General Motors Corporation, 786 S.W.2d 12 (Tex. App.—San Antonio 1990, writ

withdrawn). Like here, Garcia was an appeal from a postjudgment order enforcing a pretrial

protective order. Id. at 13. The San Antonio court set aside the order concluding the trial court

lacked plenary jurisdiction without addressing the issue of whether the order was subject to a

direct appeal. Id. at 14–15. Accordingly, we do not view Garcia as persuasive authority on the

issue before us.

       In determining that the order before us cannot be appealed as a final judgment, we

decline ICON’s invitation to equate the trial court’s order denying its motion to enforce with a

family code protective order, which we have held is directly appealable. See Cooke v. Cooke, 65

S.W.3d 785 (Tex. App.—Dallas 2001, no pet.). As ICON acknowledges in its brief, the order in

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this case and a protective order under the family code involve different objects of protection.

Because Cooke is factually and procedurally distinguishable, its reasoning is not controlling here.

       We also reject ICON’s argument that the trial court’s order is directly appealable because

it denies a request for injunctive relief, i.e., barring public disclosure of the Reaves Audit. The

order before us is the result of ICON’s attempt to enforce an existing pretrial protective order. It

is no more the result of a request for a permanent or temporary injunction than the underlying

pretrial protective order prohibiting the use and disclosure of certain materials. A pretrial

protective order is interlocutory and not appealable. See Sobel v. Taylor, 640 S.W.2d 704, 705

(Tex. App.—Houston [14th Dist.] 1982, no writ) (pretrial order relating to protection of

documents not an appealable temporary injunction but nonappealable pretrial protective

discovery order).

       Finally, ICON argues the submission of the Reaves Audit to the trial court for an in

camera review transformed the trial court’s order denying their motion to enforce into an order

relating to the unsealing of a court record that can be appealed directly pursuant to rule 76a(8) of

the Texas Rules of Civil Procedure. We do not agree. The order before us addresses whether the

Reaves Audit was prohibited from public disclosure pursuant to the terms of the pretrial

protective order. It does not relate to the sealing or unsealing of court records. ICON’s reliance

on Chandler v. Hyundai Motor Company 829 S.W.2d 774 (Tex. 1992) and Clear Channel

Communications, Inc. v. United Services Automobile Association, 195 S.W.3d 129 (Tex. App.—

San Antonio 2006, no pet.), for its position is misplaced. Both Chandler and Clear Channel

involved orders that specifically addressed requests relating to the sealing or unsealing of records

made pursuant to rule 76a.

        In Chandler, the appellant sought to appeal the trial court’s denial of his request for a

hearing pursuant to 76a. Chandler, 829 S.W.2d at 774. In Clear Channel, the court addressed

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the ripeness of an appeal under rule 76a(8) when “no court record has been sealed” under the

order being challenged. Id. at 132–33. Noting that the appellees did not argue the order at issue

did not relate to the sealing of court records, the San Antonio court merely held that rule 76a(8)

did not require the trial court’s order to actually seal or unseal a court record to be appealable.

Id. at 133. In the present case, the Reaves Audit was submitted to the trial court in camera to

determine whether it was subject to the terms of the protective order. The trial court’s ruling on

this issue is not an order relating to sealing or unsealing of court records as contemplated in rule

76a.   Accordingly, we conclude the order before us is not an appealable order; it can be

challenged only by a petition for writ of mandamus. See In re Ford, 211 S.W.3d at 298 n.1.

       Although we would normally dismiss this appeal for want of jurisdiction, the City has

requested that we consider ICON’s improper appeal as a petition for writ of mandamus. In

certain circumstances, we have treated an improper appeal of a postjudgment discovery order as

a petition for writ of mandamus in the interest of judicial economy. See Bielamowicz v. Cedar

Hill Indep. Sch. Dist., 136 S.W.3d 718, 723 (Tex. App.—Dallas 2004, pet. denied). The Texas

Supreme Court has taken a similar approach with respect to an improper appeal of an

interlocutory arbitration order. See CMH Homes v. Perez, 340 S.W.3d 444, 484 (Tex. 2011). In

CMH Homes, the supreme court agreed with the court of appeals that an interlocutory appeal

from the order was not authorized, but it reversed the court of appeals’s dismissal and remanded

the case for consideration as a petition for writ of mandamus pursuant to the appellant’s request.

Id. at 446 (“we instruct the court of appeals to consider this appeal as a petition for writ of

mandamus”). Here, as in CMH Homes, requiring the filing of a separate mandamus proceeding

under the circumstances before us would unnecessarily waste the parties’ time and additional

judicial resources. See id. at 452–53. Accordingly, and pursuant to the City’s request, we will

treat this appeal as a petition for writ of mandamus.

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     II.        The Protective Order Prohibits Public Disclosure of the Reaves Audit.

           Mandamus relief is proper when the trial court has abused its discretion by committing a

clear error of law for which appeal is an inadequate remedy. In re Ford Motor Co., 211 S.W.3d

at 297–98. Having already concluded that ICON has no adequate remedy by appeal, we focus

our discussion on whether the trial court has abused its discretion in determining that disclosure

of the Reaves Audit was not prohibited by the protective order. 2                                          A trial court abuses its

discretion if (1) with respect to factual issues or matters committed to the trial court’s discretion,

the trial court could reasonably have reached only one decision, or (2) with respect to controlling

legal principles, the trial court reaches a decision so arbitrary and unreasonable as to amount to a

clear and prejudicial error of law, or clearly fails to correctly analyze or apply the law. Walker v.

Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). A trial court has no discretion in determining

what the law is or applying the law to the facts. Id. at 840.

           Here, the issue before the trial court was whether the protective order precluded public

disclosure of the Reaves Audit. In determining whether the trial court abused its discretion in

ruling on this issue, we view the trial court’s determination that the protective order did not

prohibit the disclosure of the Reaves Audit as a legal conclusion to be reviewed with limited

deference to the trial court. See Walker, 827 S.W.2d at 840. The parties agree that the protective

order at issue prevents two categories of materials from public disclosure: (1) “protected

materials” and (2) “all information derived” from “protected materials.” Noting the Reaves

Audit cites from and is based upon protected materials obtained under the protective order,

ICON contends the Reaves Audit necessarily constitutes information derived from protected

materials and is thus prohibited from public disclosure under the plain language of the protective

     2
        Even if we considered this matter as an appeal, we would still review the order before us under an abuse of discretion standard. See Gen.
Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998) (challenges to rulings on protective orders under civil procedure rule 166b [now rule
192.6] and appeals of rulings under rule 76a are reviewed for an abuse of discretion); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002) (appeal of order denying injunctive relief reviewed for abuse of discretion).



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order. The City, on the other hand, argues that because the Reaves Audit merely contains the

opinions and conclusions of an auditor regarding ICON’s performance in administering the

City’s health plan after reviewing confidential and proprietary data and does not actually disclose

confidential or proprietary information, the protective order does not prohibit its disclosure.

       We construe orders under the same rules of interpretation as those applied to other

written instruments. Payless Cashways, Inc. v. Hill, 139 S.W.3d 793, 795 (Tex. App.—Dallas

2004, no pet.). When a written instrument is so worded that it can be given a certain or definite

legal meaning or interpretation, the court will construe the document as a matter of law. See

Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Even under an abuse of discretion standard,

we do not defer to the trial court on questions of law, which we review de novo. See Perry

Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008). If an order is unambiguous, we must construe

it in light of the literal meaning of the language used. Hill, 139 S.W.3d at 795. The protective

order before us broadly and unambiguously restricts the use and disclosure not only of

information or documents referred to as “Protected Materials,” but also “all information derived

therefrom.”

       Neither “information” nor “derived” are defined in the protective order and no other

section of the order reveals the terms’ meanings. When a term is not defined, we presume the

parties intended its plain and generally accepted meaning. See Epps v. Fowler, 351 S.W.3d 862,

866 (Tex. 2011). “Information” is defined as the communication or reception of knowledge or

intelligence. WEBSTER’S THIRD NEW INT’L DICTIONARY 1160 (1993). “Derive” means to take

or receive, especially from a source. Id. at 608. The order on its face prohibits public disclosure

not only of protected materials but also any knowledge or intelligence taken from or received by

those protected materials. It is undisputed that the Reaves Audit was created using and analyzing

protected materials. It is also beyond dispute that the Reaves Audit refers to certain discounts,

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fee schedules, and fee structures quoted from certain protected materials. Because the Reaves

Audit is based on the analysis of protected materials and discloses information from protected

materials, the Reaves Audit is information derived from protected materials and the

unambiguous terms of the protective order prohibit its disclosure to the public. In light of both

parties’ acknowledgments that the Reaves Audit was created by reviewing materials that were

produced under the protective order and that the audit recites certain information obtained from

protected materials, any evidence that the Reaves Audit was not wholly derived from ICON’s

protected material and did not disclose any protected material, confidential or proprietary

information, is irrelevant.

       In reaching our conclusion, we necessarily reject the City’s construction of “information

derived therefrom” to include only those documents containing confidential or proprietary

information from protected materials.      In support of its position, the City contends it is

undisputed that the protective order’s purpose is to protect confidential patient health information

and ICON’s proprietary and confidential information. It argues that because the trial court could

have found the Reaves Audit does not disclose confidential or proprietary information, the trial

court did not abuse its discretion in concluding the Reaves Audit was not subject to the

protective order. The City supports its construction of “information derived therefrom” by

referencing the protective order’s provision requiring protected materials to be returned to the

producing party at the conclusion of the litigation and that “summaries, memoranda and notes

reflecting the contents or substance” of documents subject to the protective order be destroyed.

Based on this provision, the City contends that “information derived therefrom” means “any

document containing or reflecting the actual contents or substance of [confidential patient

information] or confidential information such as ‘summaries, memoranda, or notes of that data.’”

We disagree. The protective order’s use of the phrase “and information derived therefrom”

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belies the City’s narrow construction. Because the plain language of the protective order at issue

prohibits public disclosure of the Reaves Audit as information derived from protected materials,

it was a clear abuse of discretion for the trial court to hold otherwise and deny ICON’s motion to

enforce. In light of our conclusion, we need not address ICON’s challenges to the sufficiency of

the evidence supporting the trial court’s rulings. 3

                                                           CONCLUSION

           We conditionally grant a writ of mandamus directing the trial court to vacate its July 14,

2011 order denying ICON’S motion to enforce in which the trial court ruled disclosure of the

Reaves Audit is not prohibited by the terms of the protective order and authorized disclosure of

the Reaves Audit. Further, we direct the trial court to render an order granting ICON’s motion to

enforce and ruling the protective order prohibits public disclosure of the Reaves Audit. We are

confident that the trial court will promptly comply and our writ will issue only if the trial court

fails to do so.




                                                                           /David W. Evans/
                                                                           DAVID EVANS
110935F.P05                                                                JUSTICE




     3
        Under an abuse of discretion standard, legal and factual sufficiency are not independent grounds for reversal. See Beaumont Bank, N.A. v.
Buller, 806 S.W.2d 223, 226 (Tex. 1991). However, the sufficiency of the evidence is a relevant factor in determining whether the trial court had
sufficient evidence to exercise its discretion. Id.



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