Petition for Writ of Mandamus Denied and Majority and Dissenting Opinions
filed January 30, 2020.




                                     In The

                        Fourteenth Court of Appeals

                                NO. 14-19-00585-CV



  IN RE TOTAL PETROCHEMICALS & REFINING USA, INC., Relator


                           ORIGINAL PROCEEDING
                             WRIT OF MANDAMUS
                                215th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2017-54808

                        DISSENTING OPINION

      This court should grant relator Total Petrochemicals & Refining USA, Inc.’s
petition for writ of mandamus. Because the court instead denies mandamus relief, I
respectfully dissent.

                                 I. BACKGROUND

      Relator Total Petrochemicals & Refining USA, Inc. (“Petrochemicals”)
produces polyethylene at its high-density polyethylene plant in Bayport, Texas. On
New Year’s Eve 2016, the Bay II compressor unit at the plant failed, which resulted
in the unplanned and complete shutdown of the Bay II unit for ten days.
Petrochemicals alleges that guard filters purchased from real party in interest White
Tucker Company (“White Tucker”) were to blame. The mandamus record showed
that guard filters serve as the last line of defense in preventing unwanted “fines”—
very small, abnormally shaped particles of high-density polyethylene created as a
byproduct of the high-density polyethylene manufacturing process—from entering
into and accumulating within the compressor unit, where the fines will melt and
cause a system shutdown. This undesired accumulation and melting of equipment
is called “fouling.” According to Petrochemicals, improperly fabricated guard filters
caused severe fouling within the compressor unit. Petrochemicals sued White
Tucker, a distributer of the filters and filter elements; Jonell Filtration Products, Inc.,
a manufacturer of the filters and filter elements; Texas Filtration, Inc., a
manufacturer of the filters and filter elements; and Filtration Group, LLC, a holding
company that owns Jonell (collectively, the “Defendants”).

      During the litigation, Petrochemicals produced a root-cause-analysis
memorandum and PowerPoint authored by an engineer, Julien Libeert, just days
after the shutdown.        The Defendants sought to take Libeert’s deposition.
Petrochemicals’s counsel advised the Defendants that because Libeert was not a
Petrochemicals employee, the Defendants would need to subpoena Libeert if they
wanted to depose him.

      The following month, the Defendants filed a joint emergency motion to
compel production of discovery and a motion to continue the trial date. The
Defendants sought, among other things, to compel Libeert’s deposition, contending
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that that Libeert was an employee of Petrochemicals or, alternatively, that Libeert
was otherwise subject to Petrochemicals’s control. Petrochemicals responded that
Libeert was not its employee or otherwise under its control and that Libeert works
for Total Research & Technology Feluy in Belgium (“Feluy”), which is a different
entity and not a party to the lawsuit. Petrochemicals had provided this information
to the Defendants several months before the Defendants filed their motion compel.
The Defendants did not serve Petrochemicals with a notice of deposition for Libeert.

      The trial court signed an order, dated June 28, 2019, compelling, among other
things, Petrochemicals to present Libeert for deposition within 45 days of the court’s
order (the “Deposition Order”).

                          II. MANDAMUS RELIEF WARRANTED

      In this mandamus proceeding, Petrochemicals asks this court to compel the
trial court to set aside the portion of the Deposition Order compelling Libeert’s
deposition. To get mandamus relief, Petrochemicals must show that the trial court
clearly abused its discretion, and that Petrochemicals lacks an adequate remedy by
appeal.1 Petrochemicals showed both.

      A.       Governing Rules of Civil Procedure

      Both Petrochemicals and the Defendants rely on the Ninth Court of Appeals’s
opinion in In re Reaud.2 The Reaud court examined the interplay between two Rules
of Civil Procedure to determine when a subpoena is required to compel the



      1
          In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per curiam).
      2
          See 286 S.W.3d 574 (Tex. App.—Beaumont 2009, orig. proceeding).
                                               3
attendance of a non-party witness. Rule 199.3, entitled “Compelling Witness to
Attend,” provides:

      A party may compel the witness to attend the oral deposition by serving
      the witness with a subpoena under Rule 176. If the witness is a party
      or is retained by, employed by, or otherwise subject to the control of a
      party, however, service of the notice of oral deposition upon the party’s
      attorney has the same effect as a subpoena served on the witness.3

Rule 205.1, entitled “Forms of Discovery; Subpoena Requirement,” provides in
relevant part:

      A party may compel discovery from a nonparty--that is, a person who
      is not a party or subject to a party’s control--only by obtaining a court
      order under Rules 196.7, 202, or 204, or by serving a subpoena
      compelling:

      (a) an oral deposition[.]4
      The Reaud court observed that Rules 199.3 and 205.1 encompass the
following three categories of nonparties who may be required to attend depositions
without being subpoenaed: (1) employees; (2) retained experts; and (3) witnesses
who are “otherwise subject to the control of a party[.]”5 For these categories, serving
the party’s attorney with a notice of deposition suffices to compel the nonparty
witness to appear for deposition.6




      3
          Tex. R. Civ. P. 199.3.
      4
          Tex. R. Civ. P. 205.1(a).
      5
          Id. at 579–80 (quoting Tex. R. Civ. P. 199.3).
      6
          Tex. R. Civ. P. 199.3.
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      As for nonparty employees, the Reaud court assumed the rule requires the
employee-nonparty-witness to appear because the employee-non-party witness’s
employer has the ability to establish the terms of employment, to fire the employee,
to control the employee’s pay, and to decide whether the employee receives a future
promotion or demotion.7 As to retained experts, the Reaud court reasoned that they,
too, can be “controlled” by the attorney for the party who, along with the client, has
the power to terminate the relationship in the event the expert failed to comply with
the attorney’s instruction to appear for deposition.8

      Nonparty witnesses who “otherwise [are] subject to the control of a party”
also may be compelled to appear for deposition with service of the notice on the
party’s attorney.9 The Reaud court observed that the rules do not define the term
“otherwise controlled.”10 The court looked to the doctrine of ejusdem generis and
found that it applies “to restrict the potentially broad meaning of ‘otherwise
controlled’ as used in Rules 199.3 and 205.1.”11 The doctrine holds that “when
words of a general nature are used in connection with the designation of particular
objects or classes of persons or things, the meaning of the general words will be
restricted to the particular designation.”12 The court reasoned that ejusdem generis
limits the undefined, general term “otherwise controlled” as used in 199.3 and 205.1


      7
          Reaud, 286 S.W.3d at 579.
      8
          Id. at 580.
      9
          Id. (quoting Tex. R. Civ. P. 199.3).
      10
           Id.
      11
           Id.
      12
           Id. (internal quotation marks and citations omitted).
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to include “only control of the same kind, class, or nature as the types of control
parties would have over employees or retained experts.”13 So, the Reaud court
concluded that, while the current rules contain text that allow them to reach beyond
retained experts and employees, these two rules do not extend to nonparties over
whom the party lacks the type of control it has over an employee or a retained
expert.14

      The Defendants contend that Libeert is a direct employee of Petrochemicals.
Brad Klussmann, the plant manager, testified at deposition that Libeert is “a process
expert for Total that’s part of the polymers technology group in — that’s in
Belgium.” Klussmann further testified that Libeert is “across different operating
facilities within Total.” Chad Gerard, the production superintendent, testified that
Libeert is “a process technology expert from Total in Europe.” Gerard further stated
that Libeert “does not normally work at the Bayport Plant. He’s based out of Europe
and travels to our site on occasion to help with investigations.”

      None of the deposition testimony the Defendants cite shows that
Petrochemicals had the requisite control over Libeert. Nothing in the mandamus
record shows that Petrochemicals could establish the terms of Libeert’s employment,
fire him, control his pay, or decide whether he would receive a future promotion or
demotion, necessary to establish that Libeert is an employee of Petrochemicals.15 At
best, the Defendants have shown that another Total-related entity employed Libeert.



      13
           Id.
      14
           Id.
      15
           See id. at 579.
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      Petrochemicals maintains that Libeert works for Feluy in Belgium. The
Defendants contend, even if Libeert is not a direct employee of Petrochemicals, he
is subject to Petrochemicals’s control because he “works for one or more entities
with Total, S.A., [Petrochemicals’s] parent company.” The Defendants claim that
Libeert has been required to complete a project for Total’s United States locations,
including the main investigation in this case. Klussmann testified that Libeert “was
brought . . . in for his expertise in the . . . polyethylene manufacturing process.”
Libeert also gave Klussmann “a report as background information to some slides.”

      The Defendants further state that Libeert (1) has a “Total” email address,
which is the same email address used by all other Petrochemicals employees; (2)
uses Total’s internal messaging system; and (3) and has a LinkedIn page showing
that he has been a process engineer at “Total” for several years. The Defendants
argue that “[Petrochemicals] exercises a sufficient amount of control over Libeert to
satisfy the control element of Rule 199.3, particularly because it is undisputed that
Libeert is an employee of an entity owned by [Petrochemicals’s] parent company,
Total.”      The evidence on which the Defendants rely does not reflect that
Petrochemicals has any control over Libeert as if he were a Petrochemicals employee
or that Libeert is otherwise subject to Petrochemicals’s control.16 Nothing in the
mandamus record shows Libeert would fall within the reach of deposition without
subpoena.




      16
           See id. at 578–80.

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       The majority concludes that the determination of whether Petrochemicals has
control over Libeert presents a fact issue.17 But, the majority points to no evidence
of the type of control necessary to obtain Libeert’s deposition without subpoena.
Though appellate courts do not grant mandamus relief if the evidence raises genuine
issues of material fact,18 there are none in this case.

       Under an abuse-of-discretion standard, we are to defer to the trial court’s
factual determinations if they are supported by the evidence, but we review de novo
the trial court’s legal determinations.19 If the evidence supports the trial court’s
factual determinations, we are not to disturb them in a mandamus proceeding.20 The
relator must show the trial court reasonably could have reached only one decision
and not the decision the trial court made.21

       The evidence in the mandamus record does not support the trial court’s
implied finding that Petrochemicals has sufficient control over Libeert under Rule
199.3 that to depose him, the Defendants need not get a subpoena but instead may




       17
            Ante, at 4.
       18
            In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding).
       19
            In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
       20
          In re La. Tex. Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 690 (Tex. App.—Houston
[14th Dist.] 2011, orig. proceeding).
       21
          Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992 (orig. proceeding); see also In re
RSR Corp., 568 S.W.3d 663, 665 (Tex. 2019) (orig. proceeding) (per curiam) (“An appellate court
cannot substitute its judgment for that of the trial court and may not set aside the trial court’s
findings as arbitrary and unreasonable unless the trial court could have reached only on decision.”).


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serve Petrochemicals’s counsel with a notice of Libeert’s deposition.22                    In the
absence of evidence that Petrochemicals is not Libeert’s employer with the ability
to establish the terms of Libeert’s employment, to fire him, to control his pay, and
decide on a future promotion or demotion or that Libeert otherwise is subject to
Petrochemicals’s control, the Defendants must serve a subpoena on Libeert if they
want to depose him.23

       A trial court clearly abuses its discretion if it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law or if it clearly
fails to analyze the law correctly or apply the law correctly to the facts. 24 Because
Petrochemicals has shown that the only decision the trial court reasonably could
have reached is that Libeert’s deposition could not be compelled without a subpoena,
this court should conclude that the trial court abused its discretion by granting the
Defendants’ motion to compel Libeert’s deposition without the Defendants’ having
served Libeert with a subpoena.

       B.        Lack of Adequate Remedy

       Courts determine the adequacy of an appellate remedy by balancing the
benefits of mandamus review against the detriments.25 Because this balance depends
heavily on circumstances, courts look to principles for guidance rather than rely on

       22
         See Labatt Food Serv., L.P., 279 S.W.3d at 643; La. Tex. Healthcare Mgmt., L.L.C., 349
S.W.3d at 690.
       23
            See Tex. R. Civ. P. 199.3, 205.1.
       24
          In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding)
(per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (per curiam).
       25
            In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding).
                                                 9
simple rules that treat cases as categories.26 In evaluating benefits and detriments,
the court is to consider (1) whether mandamus will preserve important substantive
and procedural rights from impairment or loss,27 (2) whether mandamus will “allow
the appellate courts to give needed and helpful direction to the law that would
otherwise prove elusive in appeals from final judgments,”28                    and (3) whether
mandamus will spare the litigants and the public “the time and money utterly wasted
enduring eventual reversal of improperly conducted proceedings.”                29
                                                                                     Appeal is not
an adequate remedy when the appellate court would not be able to cure the trial
court’s discovery error on appeal.30

       In determining whether a party has an adequate remedy by appeal, appellate
courts consider whether mandamus will preserve important substantive and
procedural rights from impairment or loss.31 Petrochemicals will have lost its right
to have the Defendants comply with the rules of discovery if the Defendants are
allowed to compel Libeert’s deposition without first serving a subpoena on him.
Because this error cannot be cured on appeal,32 Petrochemicals lacks an adequate
remedy by appeal.



       26
            In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding).
       27
            In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).
       28
            Id.
       29
            Id.
       30
         In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding) (per curiam); In
re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding).
       31
            Prudential Ins. Co. of Am., 148 S.W.3d at 136.
       32
            Dana Corp., 138 S.W.3d at 301; Ford Motor Co., 988 S.W.2d at 721.
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                                 III. CONCLUSION

      No fact issues preclude granting mandamus relief. The record evidence shows
Libeert is not an employee of Petrochemicals nor under Petrochemicals’s control.
So, the Defendants may obtain Libeert’s deposition only through a properly served
subpoena. The trial court abused its discretion by compelling Libeert’s deposition
without requiring that the Defendants serve a subpoena on him. Because
Petrochemicals lacks an adequate remedy by appeal, this court should grant
Petrochemicals’s petition for writ of mandamus and direct the trial court to set aside
the portion of the Deposition Order that compels Libeert’s deposition.




                                       /s/    Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices Spain and Poissant (Spain, J.,
majority)




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