












 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No.
06-10-00095-CV
                                                ______________________________
 
 
 
                                                                        IN
RE:
COYT
RANDAL JOHNSTON
 
 
                                                                                                  

 
                                                                                                                            

                                                     Original
Mandamus Proceeding
 
                                                                                                  

 
 
 
 
                                          Before
Morriss, C.J., Carter and Moseley, JJ.
                                        Memorandum
Opinion by Chief Justice Morriss
                                                                              
                                                                              




                                                      MEMORANDUM
OPINION
 
            Coyt Randal Johnston has filed a
petition asking this Court to issue a writ of mandamus to prevent an ordered
pre-suit deposition.  We have stayed the
ordered deposition pending our decision in this proceeding.
            Judge Carlos Cortez filed a petition
in Dallas County[1] pursuant to
Rule 202 of the Texas Rules of Civil Procedure in which he sought an order to
take Johnston’s pre-suit deposition.  Tex. R. Civ. P. 202.  The underlying facts show that Cortez,
a Dallas district judge, is considering filing a defamation suit against
Johnston, a Dallas attorney, based on allegedly defamatory statements[2]
made by Johnston about Cortez to the media and to a number of attorneys and
judges in Dallas in late October 2009.
            Cortez sought to take only Johnston’s
deposition and named and served only Johnston in connection with his
request.  Cortez bases his anticipated
lawsuit on e-mail correspondence sent by Johnston; Cortez’s counsel stated at
the hearing that “a suit can be brought against Mr. Johnston.”  At the hearing, Cortez’s counsel testified
that five other sitting judges or justices in Dallas were “mentioned in [Johnston’s]
e-mails.”  Counsel further stated that
those five judges “may be the sources [of the information uttered by Johnston],
or there may be other judges who are the sources of this information.”
            Mandamus issues only when the
mandamus record establishes (1) a clear abuse of discretion or the violation of
a duty imposed by law and (2) the absence of a clear and adequate remedy at
law.  Cantu
v. Longoria, 878 S.W.2d 131 (Tex.
1994) (orig. proceeding); Walker v.
Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding); In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198 (Tex.
App.—Texarkana 2006, orig. proceeding). 
Mandamus is an extraordinary remedy that will issue only to correct a
clear abuse of discretion or, in the absence of another statutory remedy, when
the trial court fails to observe a mandatory statutory provision conferring a
right or forbidding a particular action. 
Abor v. Black, 695 S.W.2d 564,
567 (Tex. 1985) (orig. proceeding).  A
trial court abuses its discretion when it acts without reference to any guiding
rules or principles or when it acts in an arbitrary or unreasonable
manner.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
            “A trial court has no ‘discretion’
in determining what the law is or applying the law to the facts.”  In re
Jorden, 249 S.W.3d 416, 424 (Tex. 2008); Huie v. DeShazo, 922 S.W.2d 920, 927–28 (Tex. 1996); Walker, 827 S.W.2d at 840.  Consequently, a trial court’s erroneous legal
conclusion, even in an unsettled area of law, is an abuse of discretion.  Huie,
922 S.W.2d at 927–28.
            Rule 202 of the Texas Rules of Civil
Procedure permits a person to petition a trial court for an order authorizing a
deposition before suit is filed.  Tex. R. Civ. P. 202.1.  The deposition may be taken to perpetuate
testimony for use in an anticipated suit or to investigate a potential claim or
suit.  Id.  A deposition may be
ordered only if the trial court finds that allowing the petitioner to take the
requested deposition may prevent a failure or delay of justice in an
anticipated suit or, where the deposition is to investigate a potential claim,
that the likely benefit outweighs the burden or expense of the procedure.  Tex.
R. Civ. P. 202.4(a).
            Appeal is not an adequate remedy
from such an order.  In re Christopher Allan, M.D., 191 S.W.3d 483 (Tex. App.—Tyler
2006, orig. proceeding), mand. granted,
249 S.W.3d 416 (Tex. 2008).  The ruling
is interlocutory if discovery is sought from a person against whom there is a
suit pending or against whom a suit is specifically contemplated.  IFS Sec.
Group, Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 563 (Tex. App.—Dallas
2005, no pet.); Thomas v. Fitzgerald,
166 S.W.3d 746, 747 (Tex. App.—Waco 2005, orig. proceeding).  Here, Cortez has identified Johnston as an
anticipated defendant in a defamation action, and against others not so named
in his petition.  Because the order is
interlocutory and not immediately appealable, this is a type of situation in
which mandamus relief could be available, if the trial court abused its
discretion.
            The question, then, is whether
mandamus relief is available on these facts under the application of this rule.  We deny the petition because (1) the trial
court was within its discretion in impliedly finding that Cortez did not
identify any named judges as anticipated defendants; and (2) the trial
court was within its discretion in finding that the deposition is necessary to
avoid a failure or delay of justice and that the deposition’s benefits outweigh
its burdens.
 
 
 
 
 
(1)        The Trial Court Was Within Its Discretion in Impliedly
Finding that Cortez Did Not Identify any Named Judges as Anticipated Defendants
 
            Johnston contends that, because
Cortez did not serve notice on the five individual judges named at the hearing,
the petition for deposition must be denied. 
Cortez argues that the rule requires service only on the individual
sought to be deposed, relying on Rule 202.2(g) of the Texas Rules of Civil
Procedure.  In making this argument,
Cortez disregards Rules 202.3(a) and 202.2(f)(1).  Building on the foundation of Rule
202.2(f)(1), Rule 202.3(a) requires service not just on the witness, but also, “if
suit is anticipated, on all persons petitioner expects to have interests
adverse to petitioner’s in the anticipated suit.”
            Johnston contends that, in
mentioning the five judges at the hearing, Cortez identified them as potential
defendants and, thus, should have been required to serve them with notice of
the hearing to support a valid deposition order.  We disagree.
            A few judges were specifically
identified by Cortez at the hearing as having been mentioned by Johnston in connection with his report or allegations
against Cortez.  At the hearing, Cortez’s
counsel testified in context about those judges:
I know that a suit can be brought against Mr.
Johnston.  What I don’t know is who these
judges are who purportedly made these remarks to him because there would be
pretty obvious liability on their part. 
And it is not my practice and should not be the practice of any lawyer
to sue people that should not properly be a litigant or defendant.
 
There are at least five judges mentioned in
[Johnston’s] e-mails, . . . including [five specifically named here,] who may
be the sources, or there may be other judges who are the sources of this
information.
 
I have tried to obtain information as to who
those judges were, and I have been unable to do so.  And without filing a 202 petition, I cannot
obtain the information about those judges, and I do not want to file a lawsuit
that would name these judges or identify or sue these judges or any of them
without having obviously [sic] evidence to support my allegation.
 
The
foregoing testimony never accuses any of the judges of being a source of
defamatory material.  It simply says that
they were mentioned in Johnston’s e-mails and speculates that they may or may
not have been Johnston’s sources.  While
the trial court might have been within its discretion had it found that the
five judges were thus identified as “persons [Cortez] expects to have interests
adverse to [Cortez’s] in the anticipated suit” against Johnston, such is not
the case here.  It was certainly well
within the trial court’s discretion to have found that they were not so identified.  See
Tex. R. Civ. P. 202.2(f)(2).
            Therefore, we conclude that Cortez’s
failure to serve notice of the hearing on the five mentioned judges does not support
Johnston’s requested mandamus relief.[3]
 (2)      The Trial Court Was Within Its Discretion
in Finding that the Deposition Is Necessary to Avoid a Failure or Delay of
Justice and that the Deposition’s Benefits Outweigh Its Burdens
 
            The remaining arguments revolve
around the application of Rule 202.4 of the Texas Rules of Civil Procedure.  The rule states that the court 
must order a deposition to be taken if, but only
if, it finds that:
 
(1) 
allowing the petitioner to take the requested deposition may prevent a
failure or delay of justice in an anticipated suit; or
 
(2)  the
likely benefit of allowing the petitioner to take the requested deposition to
investigate a potential claim outweighs the burden or expense of the
procedure.  
 
In the
order entered in this case, the trial court made the following findings:
 
The Court finds that allowing Petitioner to take
the requested deposition may prevent a failure or delay of justice in an
anticipated suit; the likely benefit of allowing the Petitioner to take the
requested deposition to investigate a potential claim outweighs the burden or
expense of the procedure.
 
This
language thus addresses both of the alternative justifications for such
discovery that are specified by Rule 202.4(a).
            As Johnston correctly notes, the
petition claimed only that the deposition was to obtain testimony in an
anticipated suit and that to justify a presuit deposition under that state of
affairs, the record must show that granting such would “prevent a failure or
delay of justice.”  He argues that no evidence
supports such a finding.  We disagree.[4]
            One significant factor bears on the
potential for a “failure or delay of justice” in this case.  The statute of limitations on a defamation
lawsuit against Johnston and others may very well run near the end of October
2010.  Yet, it would appear that Cortez
has been aware of Johnston’s utterances since shortly after they were made and
has not actively pursued the available relief to resolution until less than two
months before the expiration of the statute of limitations.  Any “emergency” in that respect appears to be
of his own making.  Further, given his
knowledge as to Johnston, if Cortez believes he has a viable lawsuit against
Johnston, he could file it today, thus obviating any concern over failure or
delay of justice as to Johnston.
            Other potential parties, beyond Johnston,
pose a more sticky question and are the sole supporting reason provided by
Cortez to support his need for a deposition. 
Cortez claims that he does not know their identities and seeks to
determine such at the deposition.  This factor
would cut in favor of allowing the deposition to prevent a failure or delay of justice
in the anticipated suit.
            The second justification for
application of the pre-suit deposition rule—in investigating unknown potential
parties—is whether the “benefit” of ordering the deposition outweighs the “burden
or expense” of the procedure.  The trial court
is in a better position than this Court to perform this balancing test.  Plus, public policy favors discovery of
information.  See Garcia v. Peeples, 734 S.W.2d 343, 346–47 (Tex. 1987); Am. Honda Motor Co. v. Dibrell, 736
S.W.2d 257 (Tex. App.—Austin 1987, orig. proceeding).
            Relator argues that Cortez should
not be able to seek relief under this subsection because it was not pled and
then that Cortez has failed to establish that the benefit of allowing the
requested depositions outweighs the burden or expense of the procedure as required
by Rule 202.  See In re Hewlett Packard, 212 S.W.3d 356, 359 (Tex. App.—Austin
2006, orig. proceeding).
            Counsel for Johnston specifically
pointed out at the hearing that the only basis articulated by Cortez for the
deposition was the “anticipated suit” portion of the rule.  In response, Cortez’s counsel acknowledged
the applicability also of the second part of the rule—investigating unknown
potential parties—and suggested that the burden would be light, as he was
asking for only a single, hour-long deposition. 
It was within the trial court’s discretion to find that the benefits
described above outweighed the burden of one, hour-long deposition.
            Under this state of the evidence on
the arguments raised, we cannot conclude that the trial court acted outside the
parameters of its authority, or without reference to the guiding principles of
the rule at issue.  Accordingly, we find
no abuse of discretion.
 
 
 
 
 
 
 
 
 
            We deny the petition for writ of
mandamus and lift our stay of the deposition.
 
 
 
                                                                                    Josh
R. Morriss, III
                                                                                    Chief
Justice
 
Date
Submitted:          October 7, 2010          
Date
Decided:             October 8, 2010




[1]Originally
filed in the Fifth Court of Appeals, this original proceeding was transferred
to this Court by the Texas Supreme Court because all justices on the Fifth
Court of Appeals recused.  We are unaware
of any conflict between precedent of the Fifth Court of Appeals and that of
this Court on any relevant issue.  See Tex.
R. App. P. 41.3.
 


[2]Johnston’s
statements related to a complaint he had earlier made to the State Judicial
Conduct Commission concerning Cortez.  We
have no information regarding whether the Commission has made any disposition
of Johnston’s complaint.


[3]In
passing, we note an apparent defect in the underlying procedure, but which also
does not support issuance of a writ of mandamus here.  Rule 202.2(f)(2) requires—if suit is
anticipated, but there are unknown potential defendants—that petitioner state
that the names cannot be ascertained through diligent inquiry.  Of course, here there were unknown potential
parties Cortez seeks to identify through the deposition.  Rule 202.3(b) provides that such “[u]nnamed
persons who would be expected to have interests adverse to petitioner’s in the
anticipated suit” are to be served by publication by describing them in lieu of
naming them.  Those requirements were not
met here, but such deficiency was not argued to the trial court as a reason to
deny the deposition and is not argued to this Court as being a defect
supporting the requested relief here. 
Rule 33.1 of the Texas Rules of Appellate Procedure requires that a
party must first present its complaint to the trial court and obtain a ruling
on that complaint in order to preserve the issue on appeal.  This requirement applies to mandamus
proceedings.  West v. Solito, 563 S.W.2d 240, 244–45 (Tex. 1978) (orig.
proceeding); In re E. Tex. Med. Ctr.
Athens, 154 S.W.3d 933, 936 (Tex. App.—Tyler 2005, orig. proceeding).  As one court recognized in the mandamus
context, “it would be hard to conclude, without circumstances that were highly
unusual or that made a trial court’s ruling void, that a trial court could
abuse its discretion in making a ruling for a reason that was never presented
to the court.”  In re Bank of Am., No. 01-02-00867-CV, 2003 WL 22310800, at *2
(Tex. App.—Houston [1st Dist.] Oct. 9, 2003, orig. proceeding) (mem. op., not
designated for publication).
                Several
courts of appeals have applied Rule 33.1 or its predecessor in original
proceedings.  See In re Polymerica, LLC, 271 S.W.3d 442, 448 (Tex. App.—El Paso
2008, orig. proceeding); In re Senior
Living Props., L.L.C., 63 S.W.3d
594, 598 (Tex. App.—Tyler 2002, orig. proceeding); In re United Supermarkets, Inc., 36 S.W.3d 619, 622 (Tex.
App.—Amarillo 2000, orig. proceeding); Dallas
Fire Ins. Co. v. Davis, 893 S.W.2d 288, 293 (Tex. App.—Fort Worth 1995,
orig. proceeding); Susman Godfrey, L.L.P.
v. Marshall, 832 S.W.2d 105, 109 (Tex. App.—Dallas 1992, orig.
proceeding).  Whether Rule 33.1 applies
directly or only by analogy is not the critical question:  the point is that a party seeking the
extraordinary writ generally must have apprised the trial court of the
arguments on which the party later bases its mandamus petition.  See Bank
of Am., 2003 WL 22310800, at *2.


[4]There
is no suggestion or proof in this case that could support this ruling based on
a claim of any potential loss or destruction of evidence.


