Petition for Writ of Mandamus Conditionally Granted in Part and Denied in
Part and Majority and Dissenting Opinions filed July 2, 2019.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-19-00274-CV



     IN RE PREVENTATIVE PEST CONTROL HOUSTON, LLC AND
              NICHOLAS ANTHONY CHARLES, Relators


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              295th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2016-01076

                            MAJORITY OPINION

      Relators Preventative Pest Control Houston, LLC and Nicholas Anthony
Charles (collectively, the “Pest Control Parties”) have filed a petition for writ of
mandamus. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. They
ask this court to compel the Honorable Donna Roth, presiding judge of the 295th
District Court of Harris County, to vacate the orders she signed on February 25, 2019
and March 25, 2019, compelling the Pest Control Parties to create lists to satisfy
requests for production. They also claim that the trial court abused its discretion by
awarding attorney’s fees to the real party in interest, Karen Ackerman, as a discovery
sanction. We conditionally grant the petition, in part, and deny it, in part.

                                  I. BACKGROUND

      Charles, an employee of Preventative Pest Control, was driving a truck owned
or leased by the company when he hit Karen Ackermann as she was crossing a street
on foot. Ackermann sued the Pest Control Parties for negligence. In that litigation
Ackermann filed a motion to compel requesting the trial court to order the Pest
Control Parties to produce the following in response to her requests for production:
(1) Charles’s worker’s compensation file; (2) a signed authorization from Charles
allowing Ackermann to get his prior employment records and to disclose the names
of previous employers; (3) Charles’s work service records covering the period of his
employment at Preventative Pest Control; (4) Preventative Pest Control’s files
regarding any other motor-vehicle accidents for the two-year period before the
accident; and (5) a signed authorization allowing Ackermann to get Charles’s Sprint
Nextel records. Ackermann sought an order from the trial court compelling the Pest
Control Parties to supplement their answers to all discovery requests, including
Ackerman’s fourth set of discovery.



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      The Pest Control Parties responded that Ackermann had requested a
preferential trial setting on five occasions and represented that she was ready to try
the case. They pointed out that the discovery deadlines for earlier docket-control
orders had passed, and Ackerman had obtained almost every document in existence
with respect to the issues in the motion to compel.         The trial court granted
Ackermann’s motion, in part.

                               The Production Order

      The trial court ordered the Pest Control Parties to produce the following items
to satisfy Ackermann’s requests for production within ten days of the date of the
court’s order signed February 25, 2019 (“Production Order”): (1) a list of
medications taken by Charles during the 24-hour period before the accident
(“Medications List”); and (2) a list of Charles’s employers for the ten-year period
before the accident (“Employers List”); (3) Charles’s work service records for the
14-day period before the accident (“Work Service Records”); and (4) a signed
authorization allowing Ackermann to get Sprint Nextel records for Charles. The
trial court also ordered the Pest Control Parties to supplement and answer all
discovery requests, including Ackermann’s fourth set of discovery. The trial court
denied Ackermann’s request for Charles’s worker’s compensation file, a signed
employment authorization allowing Ackermann to get Charles’s prior employment
records, and Preventative Pest Control’s files regarding any other motor-vehicle
accidents for the two-year period before the accident.

      The Pest Control Parties responded to the court-ordered discovery by (1)
stating that no Medications List existed; (2) stating that no Employers List existed;
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and (3) attaching to their response the Work Service Records. Ackermann later filed
a motion to show cause for the Pest Control Parties’ purported failure to comply with
the Production Order. According to Ackermann, the Pest Control Parties’ response
that no Medications List and no Employers List existed violated the Production
Order.   Ackermann also complained that the Pest Control Parties had not
supplemented or answered all outstanding discovery requests.

                              The Show Cause Order

      The trial court signed an order on March 25, 2019 (“Show Cause Order”),
granting Ackermann’s motion to show cause for the Pest Control Parties’ failure to
comply with the Production Order. In the Show Cause Order, the trial court ordered
the Pest Control Parties to produce a Medications List and an Employers List and to
fully answer Ackermann’s fourth set of discovery. The trial court also ordered the
Pest Control Parties to pay Ackermann $1,500 for costs and expenses for having to
file the motion to show cause. The trial court advised the parties that it would
consider other sanctions, including the striking of the Pest Control Parties’
pleadings, if they did not comply with the Show Cause Order.

                           Request for Mandamus Relief

      In this mandamus proceeding, the Pest Control Parties assert that the trial
court abused its discretion by ordering them to create lists that do not exist and by
awarding attorney’s fees to Ackermann as a sanction. They assert they do not have
an adequate remedy by appeal.



                                         4
                              II. STANDARD OF REVIEW

      Ordinarily, to be entitled to a writ of mandamus, the relators must show that
the trial court abused its discretion and that they lack an adequate remedy by appeal.
In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per curiam).
The parties resisting discovery bear the burden of showing an abuse of discretion
and an inadequate remedy by appeal. In re CSX Corp., 124 S.W.3d 149, 151 (Tex.
2003) (orig. proceeding) (per curiam).

      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 the trial
court clearly fails to analyze the law correctly or apply the law correctly to the facts.
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). A trial court abuses its discretion if it
orders discovery that exceeds what the rules of civil procedure permit. In re N.
Cypress Med. Ctr. Operating Co., Ltd., 559 S.W.3d 128, 130–31 (Tex. 2018); In re
Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 802 (Tex. 2017).

      Courts are to assess the adequacy of an appellate remedy by balancing the
benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256
S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). Because this balancing depends in
large measure on the circumstances presented, courts look to principles rather than
simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d
458, 464 (Tex. 2008) (orig. proceeding). Whether an appeal amounts to an adequate
remedy depends heavily on the circumstances. In re Garza, 544 S.W.3d 836, 840
                                      5
(Tex. 2018) (orig. proceeding) (per curiam). Mandamus review may be necessary
to prevent the loss of substantive or procedural rights. In re Reece, 341 S.W.3d 360,
374 (Tex. 2011) (orig. proceeding). Appeal is not an adequate remedy when the
appellate court would not be able to cure the trial court’s discovery error. In re Dana
Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding) (per curiam).

                                   III. DISCOVERY

      The Pest Control Parties complain that the trial court abused its discretion by
ordering them to produce lists that do not exist. Under Texas procedure, litigants
are not required to produce documents or tangible things unless those items lie
within their possession, custody, or control. In re Colonial Pipeline Co., 968 S.W.2d
938, 942 (Tex. 1998) (orig. proceeding); see also Tex. R. Civ. P. 192.3 (“A person
is required to produce a document or tangible thing that is within the person’s
possession, custody, or control.”). A document that does not exist is not within a
party’s possession, custody, or control. Colonial Pipeline Co., 968 S.W.2d at 942.
Therefore, parties cannot be forced to create documents that do not exist for the sole
purpose of complying with a request for production. McKinney v. Nat’l Union Fire
Ins. Co. of Pittsburgh, Pa., 772 S.W.2d 72, 73 n.2 (Tex. 1989); In re Jacobs, 300
S.W.3d 35, 46–47 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding [mand.
dism’d]); In re Guzman, 19 S.W.3d 522, 525 (Tex. App.—Corpus Christi 2000, orig.
proceeding) (citing Tex. R. Civ. P. 192.3(b)). Yet, the trial court ordered the Pest
Control Parties to do just that.

      Ackermann contends that the rule that one cannot be forced to create a
document that does not exist is based on Texas Rule of Civil Procedure 166b(2)(b),
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which was repealed effective January 1, 1999. See GTE Comm’n Sys. Corp. v.
Tanner, 856 S.W.2d 725, 728–29 (Tex. 1993) (original proceeding) (“A person is
not required to produce a document or tangible thing unless it is within the person’s
possession, custody or control. Possession, custody or control includes constructive
possession such that the person need not have actual physical possession. . . .”)
(quoting former Tex. R. Civ. P. 166b(2)(b))). But, current Rule 192.3(b) provides
that “[a] person is required to produce a document or tangible thing that is within the
person’s possession, custody, or control.” Tex. R. Civ. P. 192.3(b). Under Rule
192.3(b), one cannot be forced to create a document that does not exist solely to
comply with a request for production. Guzman, 19 S.W.3d at 525 (citing Tex. R.
Civ. P. 192.3(b)). This court’s precedent holds the same. See Jacobs, 300 S.W.3d
at 46–47.

       Despite the trial court’s order for the Pest Control Parties to create lists going
against both the plain language of the rules and this court’s precedent, Ackermann
posits that ordering the Pest Control Parties to create lists amounted to a reasonable
and proportionate decision for the equitable adjudication of the case. Specifically,
she argues that by applying Rule 192.4’s1 proportionality factors, the trial court did
not abuse its discretion by ordering the creation of the lists. See In re State Farm
Lloyds, 520 S.W.3d 595, 604, 608–12 (Tex. 2017) (orig. proceeding). The Supreme
Court of Texas has set forth the following proportionality factors: (1) the likely


       1
         Tex. R. Civ. P. 192.4. Rule 192.4 provides a trial court should limit discovery methods
to those which are more convenient, less burdensome, and less expensive, or when the burden or
expense of the proposed discovery outweighs its likely benefit. Id.
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benefit of the requested discovery; (2) the needs of the case; (3) the amount in
controversy; (4) the parties’ resources; (5) the importance of the issues at stake in
the litigation; (6) the importance of the proposed discovery in resolving the
litigation; and (7) any other articulable factor bearing on proportionality. Id. In
identifying these factors the high court recognized that “all discovery is subject to
the proportionality overlay embedded in our discovery rules,” and “the discovery
rules imbue trial courts with the authority to limit discovery based on the needs and
circumstances of the case[.]” Id. at 599. But, in today’s case the trial court has not
limited discovery methods. Instead, the trial court has ordered production of
documents in response to a specific request for production that exceeds what the
discovery rules allow. The rules do not permit a trial court to order parties to create
documents for the purposes of discovery. See Tex. R. Civ. P. 192.3(b); Colonial
Pipeline Co., 968 S.W.2d at 942; McKinney, 772 S.W.2d at 73 n.2; Jacobs, 300
S.W.3d at 46–47; Guzman, 19 S.W.3d at 525. Nothing in Rule 192.4 allows the trial
court to order discovery that exceeds what the applicable rules of discovery permit.

                                 Abuse of Discretion

      The trial court exceeded the proper scope of discovery by going beyond what
the rules of civil procedure permit. See N. Cypress Med. Ctr. Operating Co., Ltd.,
559 S.W.3d at 130–31 (stating that it is an abuse of discretion for the trial court to
order discovery that exceeds what the rules of civil procedure permit); Nat’l Lloyds
Ins. Co., 532 S.W.3d at 802 (stating that a discovery order that compels production
beyond what the rules of procedure allow amounts to an abuse of discretion).
Therefore, the trial court abused its discretion by directing the Pest Control Parties
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to create a Medications List an Employers List solely for purpose of responding to
discovery. See Colonial Pipeline Co., 968 S.W.2d at 942; Jacobs, 300 S.W.3d at
46–47; Guzman, 19 S.W.3d at 525. Having determined that the trial court abused
its discretion by ordering the Pest Control Parties to create the lists, we now turn to
consider whether they have an adequate remedy by appeal.

                             No Adequate Remedy by Appeal

       An adequate remedy by appeal does not exist when parties stand to lose a
substantive or procedural right. Reece, 341 S.W.3d at 374. The Pest Control Parties
risk losing the right not to be forced to create lists—an action the trial court cannot
order under the Texas Rules of Civil Procedure and governing precedent. See Tex.
R. Civ. P. 192.3(b); Colonial Pipeline Co., 968 S.W.2d at 942; McKinney, 772
S.W.2d at 73 n.2; Jacobs, 300 S.W.3d at 46–47; Guzman, 19 S.W.3d at 525. This
error cannot be cured on appeal because by the time of the appeal, the Pest Control
Parties already will have created the lists. See Dana Corp., 138 S.W.3d at 301.
Under the circumstances presented, the Pest Control Parties lack an adequate remedy
by appeal as to the portions of the orders directing them to create the Medications
List and the Employers List.2

                                      III. SANCTIONS

       The Pest Control Parties also complain that the $1,500 assessment of costs
and fees amounts to an arbitrary punishment and violates due process. Ordinarily,

       2
         The Pest Control Parties do not challenge the portions of the orders directing them to
supplement and answer all of Ackermann’s discovery requests, including her fourth set of
discovery requests.
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relators have an adequate remedy by appeal from an order awarding sanctions. In
re RH White Oak, LCC, 442 S.W.3d 492, 503 (Tex. App.—Houston [14th Dist.]
2014, orig. proceeding [mand. denied]) (citing Braden v. Downey, 811 S.W.2d 922,
928 (Tex. 1991) (orig. proceeding)). But, when a monetary sanction is so severe as
to threaten their continuation of litigation, an appeal stands as an adequate remedy
only if the trial court defers payment until final judgment when the sanctioned parties
can supersede the judgment and perfect an appeal. Id. (citing Prime Group, Inc. v.
O’Neill, 848 S.W.2d 376, 378–79 (Tex. App.—Houston [14th Dist.] 1993, orig.
proceeding)). Though the trial court did not defer payment of the sanctions in this
case, the Pest Control Parties have not made the necessary allegations and showing
to trigger that exception to the general rule that an appeal from an order awarding
sanctions provides an adequate remedy

      The Pest Control Parties assert only that the trial court’s monetary sanctions
amount to arbitrary punishment and violate due process, not that the sanction is so
severe as to threaten their ability to continue litigation. Thus, the Pest Control Parties
have not shown that they lack an adequate remedy by appeal. See id. at 503–04
(holding that the relators did not show that they lacked an adequate remedy on appeal
where they failed to explain why the sanctions were so severe as to threaten their
ability to continue litigation); In re Christus Health, 276 S.W.3d 708, 709 n.2 (Tex.
App.—Houston [1st Dist.] 2008, orig. proceeding [mand. denied]) (holding that the
relators did not establish an adequate remedy by appeal as to monetary sanctions
because they only contended that such sanctions were an abuse of discretion).
Because they have failed to make this showing, we need not address in this

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proceeding whether the trial court abused its discretion by awarding Ackermann the
$1,500 assessment of costs and fees as a sanction.

                                   IV. CONCLUSION

      We conclude that the trial court abused its discretion by ordering the Pest
Control Parties to create a Medications List and an Employers List. We therefore
conditionally grant the petition for writ of mandamus in part and direct the trial court
to set aside those portions of the Production Order and the Show Cause Order. We
deny the remainder of the petition for mandamus relief. The writ will issue only if
the trial court fails to act in accordance with this opinion.

      We lift the stay this court issued on April 2, 2019.




                                         /s/    Kem Thompson Frost
                                                Chief Justice



Panel consists of Chief Justice Frost and Justices Jewell and Bourliot. (J., Bourliot,
dissenting).




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