in Re Asplundh Tree Expert Co. ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00782-CV
In re Asplundh Tree Expert Co.
ORIGINAL PROCEEDING FROM BASTROP COUNTY
CONCURRING OPINION
The Court has conditionally granted mandamus relief to Relator Asplundh Tree
Expert Co., concluding that Asplundh is entitled to protection from the depositions of two of its
corporate officers, George Graham and Dennis Stapola, under the rules applicable to apex
depositions. Graham, the President of Asplundh, is unquestionably entitled to apex protection based
on the record before us and the supreme court’s decision in In re Alcatel USA, Inc., 11 S.W.3d 173
(Tex. 2000).
The deposition of Stapola, however, is a closer question. At the outset of the
apex-deposition analysis, a court normally must first determine whether the apex-deposition
rules apply at all to the executive or officer in question. See In re Taylor, 401 S.W.3d 69, 72
(Tex. App.—Houston [14th Dist.] 2009, orig. proceeding). Here, Stapola is the “Vice President,
Director of Risk Management” for Asplundh. Based on the record before us, it is unclear whether
Stapola is at the level within the Asplundh corporate hierarchy necessary to qualify for apex
protection. See Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995) (noting
that apex doctrine applies to deposition of “corporate president or other high level corporate
official”). The record contains no evidence of where Stapola fits within Asplundh’s corporate
hierarchy other than his title, much less whether he can properly be considered a “high level
corporate official” under Crown Central and its progeny.
The Court in this case, however, did not need to decide this issue because no party
raised it in the trial court or in this Court. See Tex. R. Civ. P. 33.1(a) (preservation of appellate
complaints). And, it is apparent from the trial court record that the trial court assumed that the apex-
deposition rules were applicable. The majority, therefore, correctly assumed that the depositions
sought qualified as apex depositions, without actually deciding that issue or mentioning it. See
In re Alcatel, 11 S.W.3d at 175 (noting parties’ agreement that depositions sought were apex
depositions and assuming that fact). Having assumed that the deposition of Stapola was, in fact, an
apex deposition, the Court concluded that Asplundh was entitled to apex protection from his
deposition. I write separately only to note the Court’s implied assumption. Based on that assumption,
I concur in the Court’s judgment.
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Goodwin and Field
Filed: February 5, 2014
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