                            NUMBER 13-12-00431-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


                        IN RE JAMES SUMMERSETT III


                      On Petition for Writ of Mandamus.


                                   OPINION

     Before Chief Justice Valdez and Justices Garza and Longoria
                   Opinion by Chief Justice Valdez
      By petition for writ of mandamus, relator, James Summersett III, seeks to compel

the trial court to vacate its order mandating the production of documents.      By two

issues, Summersett contends that the trial court abused its discretion in compelling

discovery because: (1) the documents at issue are not within his “possession, custody,

or control” under Texas Rule of Civil Procedure 192.7(b); and (2) discovery was

suspended pending final resolution of Summersett’s motion to dismiss under the Texas

Citizens Participation Act (“TCPA”).    See TEX. R. CIV. P. 192.7(b) (defining the

“possession, custody, or control” of an item under the discovery rules); TEX. CIV. PRAC.
& REM. CODE ANN. §§ 27.001–27.011 (West Supp. 2011) (codifying the TCPA, which is

an anti-SLAPP (Strategic Lawsuit Against Public Participation) statute that provides for

the early dismissal of legal actions that involve the exercise of specified constitutional

rights). We deny the petition for writ of mandamus.

                                             I. BACKGROUND

      Real party in interest, Remi Jaiyeola, M.D., brought suit against Summersett and

Ruben Garza for tortious interference with existing and prospective business

relationships, unfair competition, defamation, and conspiracy.      At the time of suit,

Summersett was the president and chief executive officer of Knapp Medical Center

(“Knapp”) and Garza was the vice president of administrative services for Knapp.1

Jaiyeola is a board-certified gastroenterologist who has privileges and performs surgical

procedures at Knapp. She alleged that the defendants made false statements about

her regarding patient complaints and her willingness to “take call” for Knapp in order to

“cause her [economic] harm, force her out of business and so that both Defendants,

individually, could profit through a conspiracy designed to reduce income to their own

hospital in order to justify sale of said hospital.” Jaiyeola did not bring suit against

Knapp.

      On March 30, 2012, Jaiyeola served her first set of twenty-four requests for

production on Summersett. On May 2, 2012, Summersett responded to the requests for

production with multitudinous objections but did not produce any documents in




      1
          Garza is not a party to this original proceeding.


                                                      2
response to the requests.2 Summersett’s response to the requests for production did

not reference ownership or possession, custody, or control of the requested documents.

        On May 7, 2012, Summersett filed a motion to dismiss the lawsuit under the

TCPA. On May 11, 2012, Summersett filed a motion for leave to file the motion to

dismiss. In his motion for leave, Summersett asserted that because he “was never

properly served” with Jaiyeola’s petition, he did not believe that a motion for leave was

required in order for his motion to dismiss to be considered properly filed; however, he

was filing the motion for leave “out of an abundance of caution.” According to the

motion for leave:

        . . . Summersett’s Anti-SLAPP Motion to Dismiss involves a statutory
        deadline to file sixty days after being served. On Monday, May 7, 2012,
        Summersett learned that the return of service indicates he was personally
        served on March 5, 2012. If that service was proper (Summersett
        believes it was not), then sixty days from that date was May 4, 2012.
        Summersett filed his anti-SLAPP Motion to Dismiss on Monday, May 7,
        2012.

        . . . To date, Summersett has never been properly served with the
        summons in this case. While Summersett’s ability to contest service of
        process through a Motion to Quash is no longer an option because he has
        made an appearance, the fact remains that he was never properly served
        with Plaintiff’s Original Petition. Summersett received his citation and a
        copy of Plaintiff’s Original Petition from co-defendant, Ruben Garza, whom
        is not Summersett’s agent and, therefore, not authorized to accept service
        on his behalf.

        ....

        . . . Defendant Ruben Garza received Plaintiff’s Original Petition on March
        5, 2012, for Summersett . . . . It is in the course of Knapp Medical Center’s
        (the “Hospital’s”) business that Garza routinely accepts service on behalf


        2
          We note that the rules of discovery required Summersett to “comply with as much of the request
to which the party has made no objection unless it is unreasonable under the circumstances to do so
before obtaining a ruling on the objection.” TEX. R. CIV. P. 193.2; see also id. R. 193 cmt.2. We further
note that Summersett failed to file a withholding statement regarding any alleged claims of privilege. See
id. R. 193.3(a).

                                                    3
      of the Hospital . . . . After receipt of Plaintiff’s Original Petition, Garza then
      realized that he and Summersett were being sued in their individual
      capacity . . . .Though he was never personally served, sometime later,
      Summersett received Plaintiff’s Original petition from Garza.

(footnote omitted). Summersett thus requested an extension of time to file the motion to

dismiss.

      On May 11, 2012, Jaiyeola filed a motion to compel Summersett to respond to

the requests for production and on May 16, 2012, filed a motion for sanctions against

Summersett’s counsel on grounds that the motion to dismiss was, inter alia, frivolous

and brought in bad faith.

      On May 21, 2012, Summersett filed a response to the motion to compel. This

response asserted that Jaiyeola failed to meet “her burden showing she is entitled to

any of the requested documents,” that Summersett’s tax returns, financial information,

and employment file are not discoverable, that Jaiyeola “requests documents which do

not belong to Summersett” but instead belong to Knapp, and that discovery was

suspended until the trial court rules on Summersett’s motion to dismiss. The response

did not include the objection that the requested documents were not in Summersett’s

possession, custody, or control. Summersett’s affidavit filed in support of his response

to the motion to compel did not address the alleged ownership or possession, custody,

or control of the documents subject to the requests for production.

      On June 6, 2012, the trial court denied Summersett’s motion for leave to file his

motion to dismiss and, concomitantly, denied Jaiyeola’s motion for sanctions based on

the motion to dismiss. Summersett filed an appeal concerning the trial court’s denial of




                                              4
the motion for leave to file the motion to dismiss which we have considered in a

separate cause.3

       On June 11, 2012, Summersett filed his first amended responses and objections

to Jaiyeola’s requests for production. Summersett included additional objections to the

discovery requests but, again, did not produce any documents in response to the

requests for production.      In his “amended” response to some of the requests,

Summersett included the language:        “Subject to and without waiving the foregoing

objections, Defendant answers: If any [such documents] do exist, they are the property

of Knapp Medical Center and/or Knapp Foundation.”

       That same day, Summersett also filed a supplemental response to the motion to

compel.    In his supplemental response, he asserted that the requested documents

belonged to Knapp or Knapp Foundation and, for the first time, stated that the

documents were not in Summersett’s possession, custody, or control. He attached an

additional affidavit to his supplemental response in which he averred that the

documents identified in specified requests for production “are not within my individual

personal possession, custody or control, and, therefore I cannot produce them as they

are the property of Knapp Medical Center and/or Knapp Foundation.”

       On June 18, 2012, the trial court held a hearing on the motion to compel. On

June 28, 2012, the trial court signed an order granting in part and denying in part

Jaiyeola’s motion to compel. The trial court sustained Summersett’s objections and did

not compel the production of documents pursuant to request numbers 3, 4, 9, 14, and

17 through 22. The trial court overruled Summersett’s objections and ordered him to


       3
        See Summersett v. Jaiyeola, No. 13-12-00442-CV, 2013 Tex. App. LEXIS ____ (Tex. App.—
Corpus Christi June __, 2013, no pet. h.) (dismissing appeal for lack of jurisdiction).

                                             5
produce documents responsive to request numbers 2, 5 through 8, 10 through 13, 23,

and 24. The trial court ordered all documents to be produced in accordance with the

parties’ agreed protective order.

       Summersett asserts that there are no documents responsive to requests 23 and

24, and this assertion is not contested by the real party in interest, thus the only

requests that are the subject of this original proceeding are requests 2, 5 through 8, and

10 through 13.     In general, these requests for production seek statements made

regarding the subject matter of the lawsuit (request for production number 2),

documents relating to any complaints against Summersett for the past five years

(request for production number 5), documents relating to performance evaluations

(request for production number 6), documents relating to complaints from Knapp

employees or medical providers against Summersett (requests for production numbers

7 and 8), documents or contracts relating to Summersett’s employment by Knapp or

Knapp Foundation (requests for production numbers 10 and 11), any documents

relating to Summersett’s interest in the potential sale of Knapp to South Texas Health

Systems (request for production number 12), and any documents relating to

Summersett’s compensation interest in the potential sale of Knapp to South Texas

Health System or its parent company (request for production number 13).

       Summersett filed this original proceeding and an emergency motion to stay the

trial court’s order on Jaiyeola’s motion to compel. This Court granted the emergency

motion to stay, and requested and received a response to the petition for writ of

mandamus from Jaiyeola.         Summersett subsequently filed a reply to Jaiyeola’s

response to the petition for writ of mandamus.



                                            6
                                  II. STANDARD OF REVIEW

       To be entitled to the extraordinary relief of a writ of mandamus, the relator must

show that the trial court abused its discretion and that there is no adequate remedy by

appeal. In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 887 (Tex. 2010) (orig.

proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004)

(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding).    The relator has the burden of establishing both prerequisites to

mandamus relief.      In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.

proceeding).

       A trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable that it amounts to a clear and prejudicial error of law or it clearly fails to

correctly analyze or apply the law. In re Olshan Found. Repair Co., LLC, 328 S.W.3d at

888; Walker, 827 S.W.2d at 840. The second requirement for mandamus relief, that the

relator has no adequate remedy by appeal, “has no comprehensive definition.” See In

re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (citing In re

Prudential Ins. Co. of Am., 148 S.W.3d at 136).

       The scope of discovery is generally within the trial court’s discretion. Dillard

Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995).             Parties may seek

discovery “regarding any matter that is not privileged and is relevant to the subject

matter of the pending action . . . .” TEX. R. CIV. P. 192.3(a). Information is relevant if it

tends to make the existence of a fact that is of consequence to the determination of the

action more or less probable than it would be without the information. TEX. R. EVID. 401.

The rules governing discovery do not require that the information sought be admissible



                                             7
evidence; it is enough that the information sought appears reasonably calculated to lead

to the discovery of admissible evidence. See TEX. R. CIV. P. 192.3(a).

        Mandamus relief is available when the trial court compels production beyond the

permissible bounds of discovery. In re Weekley Homes, L.P., 295 S.W.3d 309, 322

(Tex. 2009) (orig. proceeding); In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.

1998) (orig. proceeding). Specifically, mandamus will issue to correct a discovery order

if the order constitutes a clear abuse of discretion and there is no adequate remedy by

appeal.     In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig.

proceeding). When determining whether the trial court abused its discretion, we are

mindful that the purpose of discovery is to seek the truth so that disputes may be

decided by what the facts reveal, not by what facts are concealed. Id. However, this

broad grant is limited by the legitimate interests of the opposing party to avoid overly

broad requests, harassment, or disclosure of privileged information. In re Am. Optical

Corp., 988 S.W.2d at 713.

                              III. POSSESSION, CUSTODY & CONTROL

        In his first issue, Summersett contends that the trial court clearly abused its

discretion by ordering Summersett to produce “his employer’s documents” that are not

within his “possession, custody, or control” under Texas Rule of Civil Procedure

192.7(b) and the Texas Supreme Court’s opinion in In re Kuntz, 124 S.W.3d 179 (Tex.

2003) (orig. proceeding).4




        4
         Jaiyeola contends that the trial court did not err in ordering the records produced because
Summersett failed to timely raise his objection that he did not have possession, custody, or control of the
documents. Rule 193 of the Texas Rules of Civil Procedure “imposes a duty upon parties to make a
complete response to written discovery based upon all information reasonably available, subject to

                                                    8
        Rule 192.3 of the Texas Rules of Civil Procedure is the principal rule regarding

the scope of discovery. It provides:

        (a)      Generally. In general, a party may obtain discovery regarding any
                 matter that is not privileged and is relevant to the subject matter of
                 the pending action, whether it relates to the claim or defense of the
                 party seeking discovery or the claim or defense of any other party.
                 It is not a ground for objection that the information sought will be
                 inadmissible at trial if the information sought appears reasonably
                 calculated to lead to the discovery of admissible evidence.

        (b)      Documents and Tangible Things. A party may obtain discovery of
                 the existence, description, nature, custody, condition, location, and
                 contents of documents and tangible things (including papers,
                 books, accounts, drawings, graphs, charts, photographs,
                 electronic or videotape recordings, data, and data compilations)
                 that constitute or contain matters relevant to the subject matter of
                 the action. A person is required to produce a document or tangible
                 thing that is within the person’s possession, custody, or control.




objections and privileges.” TEX. R. CIV. P. 193 cmt. 1. Rule 193.2 specifically requires objections to
written discovery to be in writing, stating the specific legal or factual basis for the objection and the extent
to which the party is refusing to comply with the request. TEX. R. CIV. P. 193.2(a); Bielamowicz v. Cedar
Hill I.S.D., 136 S.W.3d 718, 723 (Tex. App.—Dallas 2004, pet. denied). The objections must be made
“within the time for response.” TEX. R. CIV. P. 193.2(a); In re Gore, 251 S.W.3d 696, 700–01 (Tex. App.—
San Antonio 2007, no pet.) (stating that failure to timely plead and prove privilege from discovery can
operate as waiver); see also TEX. R. APP. P. 33.1(a) (requiring timely objection to trial court in order to
preserve the right to appeal). Responses to requests for production are due within thirty days after the
date of service. TEX. R. CIV. P. 196.2(a). Rule 193.2(e) provides that an “objection that is not made within
the time required . . . is waived unless the court excuses the waiver for good cause shown.” Id. R.
193.2(e); Bielamowicz, 136 S.W.3d at 723.

        Jaiyeola served requests for production by mail or facsimile on March 30, 2012. Allowing an
additional three days to respond, since service was by mail or fax, Summersett’s deadline to respond and
object was 33 days later, on May 2, 2012. TEX. R. CIV. P. 21a, 196.2(a). Summersett responded by this
deadline, but did not object on grounds that the documents sought were not within his custody or control.

         Summersett counters this “waiver” argument by pointing out that Jaiyeola never made this
argument to the trial court, and accordingly, we should not consider this argument on review.
Summersett also contends that his responses were timely under Texas Rule of Civil Procedure 193.2(d)
and 193.4(a). See TEX. R. CIV. P. 193.2(d) (allowing a party to amend or supplement an objection to
written discovery that “at the time the objection or response was initially made, either was inapplicable or
was unknown after reasonable inquiry”); id. R. 193.4(a) (concerning the timing for filing any evidence
necessary to support an objection). Under the governing standard, the trial court's decision must be
affirmed if it can be upheld under any legal theory finding support in the record. See In re Williams, 328
S.W.3d 103, 113 (Tex. App.—Corpus Christi 2010, orig. proceeding). Nevertheless, we assume for
purposes of this opinion, without deciding, that Summersett’s objection was properly before the trial court.


                                                       9
TEX. R. CIV. P. 192.3(a) & (b) (emphasis added). In short, Rule 192.3(b) provides that a

party may request discovery of relevant documents and the other party is required to

produce those documents that are within the person’s “possession, custody, or control.”

Id. R. 192.3(b).

       “Possession, custody, or control” of an item for purposes of discovery means that

the “person either has physical possession of the item or has a right to possession of

the item that is equal or superior to the person who has physical possession of the

item.” Id. R. 192.7(b). According to the Texas Supreme Court, the phrase “possession,

custody or control” within the meaning of Rule 192.3(b) includes not only actual physical

possession, but constructive possession, and the right to obtain possession from a third

party such as an agent or representative. GTE Commc’ns Sys. Corp. v. Tanner, 856

S.W.2d 725, 729 (Tex. 1993). The right to obtain possession is a legal right based on

the relationship between the party responding to discovery and the person or entity that

has actual possession.    Id.; Kia Motors Corp. v. Ruiz, 348 S.W.3d 465, 487 (Tex.

App.—Dallas 2011, pet. granted).

       Because the discovery rules often apply to reach information not within a party’s

physical possession, a party may often not have actual knowledge of the existence of

information or documents in the possession of others “but may be nevertheless

obligated to gain knowledge of them.” In re Certain Underwriters at Lloyd’s London, 294

S.W.3d 891, 903 (Tex. App.—Beaumont 2009, orig. proceeding). Thus, in evaluating

the scope of a given request to produce, the duty to produce is not always satisfied by

producing the documents that are in the party’s immediate physical possession but

“may often extend to documents in the possession of persons or entities that are not



                                           10
parties to the suit.” Id. The party seeking production has the burden of proving that the

relator has constructive possession or the right to obtain possession of the requested

documents. See GTE Commc’ns Sys. Corp., 856 S.W.2d at 729; In re U-Haul Int’l, 87

S.W.3d 653, 656 (Tex. App.—San Antonio 2002, orig. proceeding).

      Summersett’s contention that the trial court abused its discretion in compelling

the production at issue is premised on the Texas Supreme Court’s examination of the

concept of “possession, custody, and control” in In re Kuntz, 124 S.W.3d 179. In Kuntz,

the relator’s ex-wife brought suit against the relator therein, her ex-husband, for

enforcement, clarification, or amendment of the division of the marital estate. Id. at

181–82. As part of her share of the estate, she had received a percentage of overriding

royalty interests that relator received “by virtue of employment or as a partner of CLK”

from McMoRan Offshore Exploration Co. (“McMoRan”). Id. at 182.

      The relator was a minority owner and the general manager of CLK and was one

of the four members of CLK’s board. Id. CLK evaluated oil and gas prospects for

McMoRan. Id. After evaluating a property, CLK created and forwarded to McMoRan a

letter of recommendation (“LOR”) detailing its findings and recommendations. Id. A

copy of each LOR was traditionally maintained in CLK’s offices and relator and the other

CLK principals had unrestricted access to those copies. Id.

      The consulting agreement between McMoRan and CLK provided that data and

information obtained or compiled by CLK for McMoRan belonged exclusively to

McMoRan and prohibited disclosure of that data and information to a third party without

McMoRan’s written consent. Id. CLK’s operating agreement obligated the relator to

maintain the confidentiality of data and information acquired during his employment and



                                           11
prohibited him from disclosing it to a third party without the written consent of CLK’s

board. Id.

       Relator’s ex-wife filed a motion to compel discovery, requesting that relator be

ordered “to produce all LORs that are ‘positive.’” Id. In response, relator asserted that

he did not have possession, custody, or control of the documents and that the

documents contained privileged matters belonging to McMoRan. Id. at 182–83. The

trial court granted the ex-wife’s motion to compel. Id.

       In granting mandamus relief, the Texas Supreme Court noted that it was

undisputed that relator’s employer, CLK, had actual physical possession of the relevant

documents, that the documents were owned by McMoRan, a client of relator’s

employer, and that McMoRan claimed the documents contained its privileged trade

secrets.     Id. at 180.   The supreme court held that a person’s mere access to a

document does not constitute “physical possession” of the document under the

definition of “possession, custody or control” stated in Rule 192.7(b). Id. at 184. In

addition, relator’s production of the documents would have violated the confidentiality

agreement with his employer, CLK, and the consulting agreement between his

employer and its client, thereby subjecting relator to potential liability. Id.; see also In re

Shell E&P, Inc., 179 S.W.3d 125, 127 (Tex. App.—San Antonio 2005, orig. proceeding)

(following Kuntz in granting mandamus relief in favor of relators who had custody, but

not possession within Rule 192.7, of documents belonging to Shell where the

production of documents would violate a protective order and subject the relators to to a

potential suit for damages by Shell).




                                              12
      We examine the facts of this case under the foregoing law.           Summersett’s

argument and evidence assert that the requested documents are not within his

“individual personal possession, custody or control” and “therefore” he cannot produce

them because they are the property of Knapp.          This assertion is premised on a

misunderstanding of the applicable law. Summersett does not need “individual personal

possession, custody or control” to be required to produce documents under the rules of

civil procedure; rather, the law requires only that he have either actual physical

possession, or constructive possession, or the right to obtain possession from a third

party such as an agent or representative. See GTE Commc’ns Sys. Corp., 856 S.W.2d

at 729. Unlike the facts in Kuntz, Summersett is the president and chief medical officer

of Knapp. He has a right to possession of the requested documents that is equal or

superior to any other employee of Knapp, including those employees who may be

charged with maintaining records for Knapp. The affidavits filed in this cause do not

suggest otherwise. Based on the record currently before us, there are no privileged

trade secrets or protective orders at issue in this case, which further distinguishes this

case from Kuntz.    Further, unlike Kuntz, there is no confidentiality agreement here

which would subject Summersett to potential liability for producing the requested

documents.

      After comparing the proof offered to support the objection in Kuntz and the proof

offered by Summersett, we overrule Summersett’s first issue.

                                 IV. MOTION TO DISMISS

      By his second issue, Summersett contends the trial court erred in ordering him to

produce documents because discovery was suspended pending final disposition of



                                           13
Summersett’s motion to dismiss under the TCPA. Summersett’s motion to dismiss was

filed on May 7, 2012. Summersett’s motion for leave to file the motion to dismiss was

filed on May 11, 2012. The trial court denied Summersett’s motion for leave on June 6,

2012. Having denied Summersett’s motion for leave, the trial court did not rule on the

motion to dismiss.     The order compelling discovery was issued on June 28, 2012.

Summersett contends that discovery was stayed from May 7, the date that the motion to

dismiss was filed, until, “at a minimum,” July 6, 2012, the date that the motion to dismiss

“was denied by operation of law.”

       Our resolution of this issue depends on the construction of the statutory

language. Where the resolution of an issue requires us to construe statutory language,

we review statutory construction de novo. Entergy Gulf States, Inc. v. Summers, 282

S.W.3d 433, 437 (Tex. 2009); TDIndustries, Inc. v. Rivera, 339 S.W.3d 749, 752 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). Once we determine the proper construction of

the statute, we determine whether the trial court abused its discretion in the manner in

which it applied the statute to the instant case. Rivera, 339 S.W.3d at 752; Capital One

v. Carter & Burgess, Inc., 344 S.W.3d 477, 479–80 (Tex. App.—Fort Worth 2011, no

pet.). In this regard, a trial court has no discretion in determining what the law is or in

applying the law to the facts. In re Frank Kent Motor Co., 361 S.W.3d 628 (Tex. 2012)

(orig. proceeding).

       Section 27.003 of the TCPA is entitled “Motion to Dismiss.” TEX. CIV. PRAC. &

REM. CODE ANN. § 27.003. Under this section, “[i]If a legal action is based on, relates to,

or is in response to a party’s exercise of the right of free speech, right to petition, or right

of association, that party may file a motion to dismiss the legal action.” Id. § 27.003(a).



                                              14
A motion to dismiss a legal action must be filed not later than the sixtieth day after the

date of service of the legal action. Id. § 27.003(b). The court may extend the time to file

a motion under this section on a showing of good cause. Id. On the filing of a motion to

dismiss pursuant to section 27.003(a), all discovery in the legal action is suspended

until the court has ruled on the motion to dismiss, except as provided by section

27.006(b). Id. § 27.003(c). Section 27.006(b) states, “[o]n a motion by a party or on the

court’s own motion and on a showing of good cause, the court may allow specified and

limited discovery relevant to the motion.” Id. § 27.006(b). If a court does not rule on a

motion to dismiss under Section 27.003 in the time prescribed by statute, the motion is

considered to have been denied by operation of law and the moving party may appeal.

Id. § 27.008(a).

       The record before us indicates that the trial court denied Summersett’s motion for

leave to file the motion to dismiss on June 6, 2012, and subsequently, on June 28,

2012, entered the subject order compelling discovery. The trial court did not grant the

motion for leave and did not enter an order denying the motion to dismiss. The plain

language of the TCPA does not contemplate staying discovery pending resolution of a

motion for leave or extension of time to file a motion to dismiss. Accordingly, the trial

court did not abuse its discretion in granting Jaiyeola’s motion to compel. We overrule

Summersett’s second issue.

                                     V. CONCLUSION

       The Court, having examined and fully considered the petition for writ of

mandamus, the response thereto, the reply, and the applicable law, is of the opinion

that relator has not met his burden to obtain mandamus relief. See In re Prudential Ins.



                                            15
Co. of Am., 148 S.W.3d at 135–36. Accordingly, the stay previously imposed by this

Court is LIFTED. See TEX. R. APP. P. 52.10(b) (“Unless vacated or modified, an order

granting temporary relief is effective until the case is finally decided.”). The petition for

writ of mandamus is DENIED. See id. 52.8(a).

       In so holding, we note that immediately prior to the oral argument of this cause,

Summersett filed a letter with the Court “to advise the Court of circumstances that have

changed since the filing of these appellate matters that may be relevant to the Court’s

analysis of the issues presented.” According to the letter, since the mandamus and

related appeal were filed: (1) Knapp has been acquired by Prime Healthcare Services;

(2) Summersett is no longer employed by Knapp and is now employed by Prime; (3)

Jaiyeola no longer practices at Knapp; and (4) Summersett’s co-defendant in the trial

court, Ruben Garza, is no longer employed by Knapp.

       We express no opinion herein regarding these allegations.           Any contentions

regarding the effect of these allegedly changed factual circumstances should be

addressed in the first instance by the trial court. See, e.g., Henderson v. Floyd, 891

S.W.2d 252, 255 (Tex. 1995) (orig. proceeding); see also In re Emex Holdings L.L.C.,

No. 13-11-00145-CV, 2013 Tex. App. LEXIS 4802, at **31–35 (Tex. App.—Corpus

Christi Apr. 18, 2013, orig. proceeding) (mem. op. en banc).

                                                  ___________________
                                                  ROGELIO VALDEZ
                                                  CHIEF JUSTICE


Delivered and filed the
18th day of July, 2013.




                                             16
