in Re Angleton Sand and Robert Peterson ( 2013 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April
4, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00160-CV
IN RE ANGLETON SAND AND ROBERT PETERSON, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
149th District Court
Brazoria County, Texas
Trial Court No. 57875
MEMORANDUM OPINION
Relators Angleton Sand and Robert Peterson filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code §22.221; see also Tex. R. App. P.
52. In the petition, relators ask this court to compel the Honorable Terri Holder,
presiding judge of the 149th District Court in Brazoria County, to set aside her
order granting the motion to compel discovery and for sanctions filed by the real
party in interest, Roger Kroschel, III.
Robert Peterson and Roger Kroschel, III formed Angleton Sand, referred to
as a “single purpose joint venture,” to mine and sell sand. In September 2009,
Peterson asserts that he learned that Kroschel converted Angleton Sand’s profits
for his own use. The partnership ended, and Peterson sued Kroschel.
During the operation of the company, it had purchased a John Deere tractor
with an attached scraper. The mandamus record indicates that the use of the tractor
may have been billed by Terra Dragline, another company owned by Peterson, and
the funds received used to pay the note for the tractor’s purchase, for which
Peterson is obligated. This discovery dispute results from Kroschel’s efforts to
obtain documentation concerning the revenues produced by the use of the
tractor/scraper when it is leased out to others. Kroschel’s second request for
production, served August 1, 2012, includes a request for “[a]ny and all documents
evidencing any payments made to you since January 1, 2009 that are related to
Angleton Sand.” According to the request, “you” includes Peterson, Terra
Dragline, Angleton Sand Company, and its agents.
The court ordered production of any bills and records of payment for use of
the tractor so that an accounting can be made.1 In addition, the trial court granted
sanctions against relators in the amount of $2,500. This proceeding followed.
1
Specifically, the court granted the motion to compel, ordering production of the following:
1. Any and all documents evidencing payments made to Robert “Butch” Peterson,
Individually and as the Representative of Terra Dragline and the Sole Survivor of
Angleton Sand, a Joint Venture since January 1, 2009 that are related to Angleton
Sand.
2. Any and all documents evidencing payments made to Robert “Butch” Peterson,
Individually and as the Representative of Terra Dragline and the Sole Survivor of
Angleton Sand, a Joint Venture since January 1, 2009 for the use of the 9520
tractor and/or 3100 scraper.
2
Mandamus is an extraordinary remedy that will issue only if (1) the trial
court clearly abused its discretion and (2) the party requesting mandamus relief has
no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135–36 (Tex. 2004). We determine the adequacy of an appellate remedy by
balancing the benefits of mandamus review against its detriments. Id. at 136. In
evaluating benefits and detriments, we consider whether mandamus will preserve
important substantive and procedural rights from impairment or loss. Id.
A trial court 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 or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164
S.W.3d 379, 382 (Tex. 2005). When reviewing the trial court’s decision for an
abuse of discretion, we may not substitute our judgment for that of the trial court
with respect to the resolution of factual issues or matters committed to the trial
court’s discretion. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).
Relators raise three issues. In issues two and three, relators challenge the
award of attorney’s fees as costs. Relators have a remedy by appeal for the
attorney’s fees awarded to Kroschel as a sanction for discovery abuse. See Tex. R.
Civ. P. 215.3 (providing that an order awarding costs after finding discovery abuse
is “subject to review on appeal from the final judgment.”); see also Street v.
Second Ct. of Appeals, 715 S.W.2d 638, 639-40 (Tex. 1986). The sanction amount
is not so large that it might preclude relators’ ability to proceed with the litigation.
See Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991) (holding that appeal is
not an adequate remedy for monetary sanctions for discovery abuse ordered to be
paid before final judgment if the party’s continuation of the litigation is
threatened). Relators have an adequate remedy from the award of sanctions by
appeal after final judgment. Accordingly, we overrule issues two and three.
3
In their first issue, relators assert that the trial court abused its discretion by
compelling production because the discovery requests are overbroad. Our record
contains no objections to discovery asserting overbreadth, or any other ground.
Relators also contend that the court’s order requires production beyond what was
requested. We disagree. The trial court’s order does not exceed the information
sought in Kroschel’s requests for production.
Texas Rule of Civil Procedure 193.2 specifically requires objections to
written discovery to be in writing and to provide the specific legal or factual basis
for the objection. Tex. R. Civ. P. 193.2(a). A party seeking to exclude any matter
from discovery must assert any objection to a request for production in writing
within its response. Tex. R. Civ. P. 196.2(b); Bielamowicz v. Cedar Hill I.S.D., 136
S.W.3d 718, 723 (Tex. App.—Dallas 2004, pet. denied).
Although the scope of discovery is broad, requests must be reasonably
tailored to include only relevant matters. In re CSX Corp., 124 S.W.3d 149, 152
(Tex. 2003). Overbroad requests for irrelevant information are improper. Id. at
153. The requirement for a written objection applies to a complaint that the subject
discovery is overbroad, and a party who fails to comply waives the objection. See
In re HEB Grocery Co., L.P., 375 S.W.3d 497, 501 (Tex. App.—Houston [14th
Dist.] 2012, orig. proceeding). Because no written objections are included in our
record, relators waived this complaint.
Moreover, the requests are not overbroad. They are specifically related to the
main issue in the case, and the requests are limited to the time period at issue.
Relators have not established that the trial court abused its discretion in compelling
the discovery at issue. We overrule relators’ first issue.
4
Relators have not established their entitlement to extraordinary relief.
Accordingly, relators’ petition for writ of mandamus is denied.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
5