in Re Rius Rentals, LLC and Franklin Pohlmann ( 2021 )

Opinion filed November 4, 2021
In The
Eleventh Court of Appeals
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No. 11-21-00211-CV
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IN RE RIUS RENTALS, LLC AND FRANKLIN POHLMANN
Original Mandamus Proceeding
MEMORANDUM OPINION
Relators, Rius Rentals, LLC and Franklin Pohlmann, filed this original
petition for writ of mandamus in which they request that we instruct the Honorable
John Shrode, presiding judge of the 358th District Court of Ector County, to vacate
and reverse two orders signed on May 11, 2021, in cause number D-19-11-1455-
CV. In those orders, Judge Shrode denied Relators’ motions to compel Real Party
in Interest, Jaydon Darnes, (1) to sign authorizations to allow Relators to obtain his
cell phone records and documents relating to his driving history and driver training
and (2) to produce copies of his cell phone records. We conditionally grant the
petition for writ of mandamus, in part, and direct Judge Shrode to vacate the orders.
Because Judge Shrode considered neither the merits of Relators’ requested relief nor
Darnes’s objections to the requested discovery, we deny the petition for writ of
mandamus to the extent that Relators request that we direct Judge Shrode to grant
the motions to compel.
Background
This proceeding arises out of an automobile accident on June 29, 2018,
involving Darnes and Pohlmann. Darnes sued Relators, alleging that Rius Rentals
owned or leased the truck that was involved in the accident and that Pohlmann, who
was an employee or agent of Rius Rentals, was driving the truck when he ran a red
light and hit Darnes’s car. Darnes alleged that he was injured in the accident and
sought to recover damages in excess of $1,000,000.
Relator asserted an affirmative defense of comparative negligence. Relators
also retained an accident reconstructionist who opined that, if Darnes had been
reasonably vigilant, he would have been able to detect, perceive, and react to the
truck and could have safely stopped before the accident occurred. In the expert’s
opinion, Darnes’s failure to react to the approach of the truck suggested the
possibility that he was distracted as he was crossing the intersection. The expert
reserved the right to comment further on Darnes’s possible distraction after Darnes’s
cell phone records were made available.
Rius Rentals served Darnes with requests for production in which it requested
(1) that Darnes either produce documents related to his driving history and driver
training or sign an authorization to allow Rius Rentals to obtain these records and
(2) that Darnes both sign an authorization to allow Rius Rentals to obtain Darnes’s
cell phone records and produce his cell phone records from the day of the accident.
Darnes objected that the requests for production exceeded the permissible scope of
discovery and sought information that was not relevant.
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Relators filed a motion to compel Darnes to produce his cell phone records
from the date of the accident followed by a supplemental motion to require Darnes
to sign an authorization to allow Relators to obtain the cell phone records directly
from the service provider. Relators also filed a motion to compel Darnes to sign an
authorization to allow Relators to obtain documents related to Darnes’s driving
history and driver education. Darnes responded that the requested discovery was
neither supported by Relators’ pleadings nor relevant to any claim or defense in the
case, that Relators’ requests for information regarding his driver’s license and driver
training was duplicative and harassing, and that whether he had a driver’s license
was not admissible at trial as evidence of negligence.
At the hearing on Relators’ motions, Judge Shrode first considered the motion
to compel Darnes to sign the authorizations prepared by Relators. Judge Shrode
referred to In re Guzman, 19 S.W.3d 522 (Tex. App.—Corpus Christi–Edinburg
2000, orig. proceeding), which had not been cited by either party, for the proposition
that a court “cannot order someone to complete an authorization.” Judge Shrode
then stated that, to him, “that resolve[d] the matter” because if he ordered Darnes “to
sign an authorization, [he was] ordering [Darnes] to create a document.” Later in
the hearing, Judge Shrode reiterated:
[I]f you have a case that pretty much resolves the issue, which to me,
as much as I would like to order them to sign these authorizations, and
I’m not saying I would, because maybe they’re relevant and maybe
they’re not, but my point is that we don’t even have to get there because
I cannot order them to create a document.
Judge Shrode also considered Relators’ request that Darnes be compelled to
produce his cell phone records from the date of the accident. Judge Shrode stated
that the requested records were not within Darnes’s control unless he “actually [had]
them.” Judge Shrode stated:
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[T]hese are personal cell phone records. I don’t keep mine and I’m a
lawyer. I doubt very seriously if he keeps his. And as much as you
hate to do it, you know, I wish he kept them and we could look at them,
but it’s probably not real likely that you have them.
Later in the hearing, Judge Shrode reiterated that:
If he can obtain [the cell phone records], that’s not what you get. You
get what he has, not what he can get. . . . So that means if he does not
have them in his possession, he doesn’t have to turn them over,
regardless of how much we would like to.
Darnes requested a protective order to prevent Relators from doing an “end
run” by sending a deposition for written questions to obtain the information. Judge
Shrode responded that, if Relators were to amend their pleadings, Darnes’s argument
that the requested information was not relevant “would kind of be null and void.”
Darnes responded, “Yes, it could be, as far as the cell phone records . . . but as far as
the driver’s license and driver’s education, it wouldn’t be, because --.” Judge Shrode
interrupted and stated, “I’m not there yet.” Judge Shrode later stated that it was
possible information about the type of training that Darnes received “could be
relevant” and that, “[i]f we get there,” he would address the issue.
Judge Shrode orally denied Relators’ motions to compel. He later signed
written orders denying the motions to compel without stating any basis for his
rulings.
Analysis
Mandamus is an extraordinary remedy issued at the discretion of the court. In
re K & L Auto Crushers, LLC, 627 S.W.3d 239, 247 (Tex. 2021) (orig. proceeding);
In re Reece, 341 S.W.3d 360, 374 (Tex. 2011) (orig. proceeding). To obtain relief
by mandamus, a relator must show that the trial court clearly abused its discretion
and that there is no adequate remedy by appeal. In re Texan Millwork, No. 20-0662,
2021 WL 4483506, at *3 (Tex. Oct. 1, 2021) (orig. proceeding) (per curiam); In re
Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 56 (Tex. 2019) (orig. proceeding). “A trial
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court abuses its discretion when it misinterprets or misapplies the law,” In re Texan
Millwork, 2021 WL 4483506, at *3, or when its ruling is “so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law,” In re K & L Auto
Crushers, 627 S.W.3d at 247 (quoting In re State Farm Lloyds, 520 S.W.3d 595,
604 (Tex. 2017) (orig. proceeding)).
As to whether there is an adequate remedy by appeal, a trial court’s refusal to
compel discovery is generally not reviewable by mandamus. In re Allied Chem.
Corp., 227 S.W.3d 652, 658 (Tex. 2007) (orig. proceeding). However, where the
trial court’s denial of discovery “prohibits a party from effectively preparing for trial,
‘his remedy by appeal is of doubtful value.’” In re K & L Auto Crushers, 627 S.W.3d
at 256 (quoting Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987) (orig.
proceeding)). As relevant here, a party may not have an adequate remedy by appeal
if the trial court’s discovery order vitiates or severely compromises the party’s ability
to present a viable claim or defense or when discovery is disallowed and cannot be
made part of the appellate record such that a reviewing court is unable to evaluate
the effect of the trial court’s erroneous ruling. Id. “A party’s ability to present and
develop its case may be severely compromised when the denied discovery goes ‘to
the very heart’ of a party’s case and prevents it from ‘developing essential elements’
of its claim or defense.” Id. (quoting Able Supply Co. v. Moye, 898 S.W.2d 766, 772
(Tex. 1995) (orig. proceeding)).
In their petition, Relators argue the Judge Shrode abused his discretion when
he denied the motions to compel because (1) the requested discovery goes to the
heart of Relator’s comparative negligence affirmative defense; (2) the Texas Rules
of Civil Procedure do not specifically prohibit, and actually contemplate, the use of
authorizations as a permissible discovery tool; and (3) Darnes is required to produce
records that are relevant and within his constructive possession, custody, and control.
Darnes responds (1) that even assuming that the Texas Rules of Civil Procedure
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allow for authorizations to be used as a discovery tool, none of the documents
requested by Relators are relevant and (2) that Relators have an adequate remedy by
appeal.
A. Bases for Rulings
In his response to Relators’ petition, Darnes contends that the written orders
denying the motions to compel do not state the bases for Judge Shrode’s rulings and
that the comments made by Judge Shrode during the hearing do not limit the ground
upon which his orders can be upheld on appeal. Darnes asserts that mandamus
should be denied because it is possible that Judge Shrode refused to grant the
motions to compel because the requested information either was not relevant or
could be obtained from a source other than Darnes and that the record does not reflect
that Judge Shrode clearly abused his discretion when he made those rulings.
We recognize that oral comments from the bench are not written findings of
fact and conclusions of law and, therefore, do not limit the grounds upon which a
ruling can be upheld. See In re Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002); In re
W.E.R., 669 S.W.2d 716, 716–17 (Tex. 1984) (per curiam). However, when an
abuse-of-discretion standard applies to a pretrial discovery ruling, a trial court’s oral
explanation in the record may be sufficient to guide the appellate court in
determining in a mandamus proceeding whether the trial court exercised its
discretion in a reasonable and principled fashion. Chrysler Corp. v. Blackmon, 841
S.W.2d 844, 852 (Tex. 1992) (orig. proceeding); see also In re BP Prods. N. Am.,
244 S.W.3d 840, 846 n.6 (Tex. 2008) (orig. proceeding).
In this case, Judge Shrode specifically stated during the hearing that he could
not compel Darnes (1) to create a document by signing the provided authorizations
or (2) to produce any cell phone records that were not in his physical possession.
Judge Shrode repeatedly confirmed that he was not reaching the issue of whether the
requested information was relevant and orally denied the motions to compel at the
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conclusion of the hearing. Under these circumstances, Judge Shrode’s oral
statements from the hearing are a sufficient guide for us to ascertain that he did not
reach the issue of whether the requested information was relevant. See Blackmon,
841 S.W.2d at 851–52.
Relying on Rule 192.4(a) of the Texas Rules of Civil Procedure, Darnes also
contends that Judge Shrode could have reasonably determined that it was more
convenient, less burdensome, or less expensive for Relators to subpoena the cell
phone records from the carrier rather than to require Darnes to sign the requested
authorization. During the hearing, the parties discussed with Judge Shrode other
possible avenues by which Relators could obtain information related to Darnes’s
driving history. However, as to his cell phone records, Darnes argued only that the
records were not relevant and that Relators’ pleading did not support the requested
discovery. Because Darnes did not argue before Judge Shrode that there were more
convenient, less burdensome, or less expensive methods by which Relators could
obtain Darnes’s cell phone records other than to require Darnes to sign an
authorization, we will not consider that argument in this original proceeding. See In
re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding) (per
curiam) (declining to consider in mandamus proceeding specific objections that were
not raised in the trial court).
We hold that, on this record, Judge Shrode denied Relators’ motions to compel
solely on the grounds that he could not require Darnes to create a document by
signing the provided authorizations and could not require Darnes to produce
documents that were not in Darnes’s physical possession.
B. Authorizations
We turn first to whether Judge Shrode abused his discretion when he
determined that he did not have power to order Darnes to sign the provided
authorization. In making this determination, Judge Shrode specifically relied on In
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re Guzman, in which the Corpus Christi–Edinburg Court of Appeals determined that
the effect of requiring the plaintiff to sign an authorization would be to order the
plaintiff to create a document which did not exist. 19 S.W.3d at 525. The In re
Guzman court held that the Texas Rules of Civil Procedure “do not permit the trial
court to force a party to create documents which do not exist, solely to comply with
a request for production.” Id. However, the Corpus Christi–Edinburg Court of
Appeals recently questioned the viability of its holding in In re Guzman. See In re
Flores, No. 13-20-00105-CV 2020 WL 1951540, at *5 n.4 (Tex. App.—Corpus
Christi–Edinburg Apr. 17, 2020, orig. proceeding) (mem. op.) (noting that the scope
of In re Guzman’s holding that a trial court did not have the power “to order the
creation of an authorization for a third party to deliver information to a litigant” was
“unclear in the wake of the numerous intervening changes to the rules of civil
procedure” and that discovery procedures could be modified by agreement of the
parties or by court order for good cause). Further, other courts of appeals have held
that a trial court does not impermissibly require a party to create a document by
ordering the party to sign an authorization for the release of documents. See
Martinez v. Rutledge, 592 S.W.2d 398, 400 (Tex. App.—Dallas 1979, writ ref’d
n.r.e.) (“The tangible thing here sought is the record which is in existence. The
authorization is merely the means of acquiring that which is sought. We do not agree
that the order required the creation of a document.”); see also In re Shipmon, 68
S.W.3d 815, 819–20 (Tex. App.—Amarillo 2001, orig. proceeding [mand. denied]).
The discovery rules delineate the permissible forms of discovery. TEX. R.
CIV. P. 192.1. Although the discovery rules provide for the use of authorizations to
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obtain records in certain circumstances,1 they do not list authorizations to obtain
records as a generally available form of discovery. See TEX. R. CIV. P. 192.1.
However, “[e]xcept where specifically prohibited, the procedures and limitations set
forth in the rules pertaining to discovery may be modified in any suit by the
agreement of the parties or by court order for good cause.” TEX. R. CIV. P. 191.1.
“In individual instances,” a trial court may order, or the parties may agree, that the
parties will “use discovery methods other than those prescribed in [the discovery
rules] if appropriate.” TEX. R. CIV. P. 191.5, cmt. 1. We note that authorizations for
the release of records related to a party may be an efficient means to obtain records
that are in the possession of a third party, particularly if that third party requires such
authorizations in order to avoid potential claims. Therefore, it is within a trial court’s
discretion to order a party to sign an authorization. In re Mitsubishi Heavy Indus.
Am., Inc., 269 S.W.3d 679, 680 (Tex. App.—Dallas 2008, orig. proceeding); see
also In re BP Prods. N. Am., Inc., 244 S.W.3d at 846 (“Consistent with its powers
over discovery, a trial court may modify discovery procedures and limitations for
‘good cause.’” (citing TEX. R. CIV. P. 191.1)).
We hold that Judge Shrode abused his discretion when he categorically held
that he could not order Darnes to sign the requested authorizations. However, we
express no opinion on whether, under the “individual instances” in this case, the
requested authorizations are an appropriate form of discovery. See TEX. R. CIV. P.
191.5, cmt. 1.
1
See TEX. R. CIV. P. 194.2(j) (providing that, in a suit alleging physical or mental injury and
damages from the occurrence that is the subject of the suit, a party may respond to a request for disclosure
of medical records and bills that are reasonably related to the injuries or damages asserted by providing an
authorization permitting the disclosure of medical records and bills), amended by Dec. 23, 2020 Tex. S. Ct.
Order No. 20-9153 (effective January 1, 2021); TEX. R. CIV. P. 196.1(c) (providing that a party who has
requested that another party produce medical or mental health records of a nonparty is not required to serve
the nonparty with the request if the nonparty has signed a release of the medical or mental health records
that is effective as to the requesting party).
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C. Cell Phone Records
Relators also requested that Darnes produce his cell phone records from the
date of the accident. Judge Shrode denied Relators’ motions to compel Darnes to
produce the records because the records were not in Darnes’s physical possession.
Generally, the scope of discovery includes any unprivileged information that
is relevant to the subject of the action, even if it would be inadmissible at trial, as
long as the information is reasonably calculated to lead to the discovery of
admissible evidence. TEX. R. CIV. P. 192.3(a); In re USAA Gen. Indem. Co., 624
S.W.3d 782, 787–88 (Tex. 2021) (orig. proceeding). The phrase “relevant to the
subject matter” is to be “liberally construed to allow the litigants to obtain the fullest
knowledge of the facts and issues prior to trial.” Ford Motor Co. v. Castillo, 279
S.W.3d 656, 664 (Tex. 2009) (quoting Axelson, Inc. v. McIlhany, 798 S.W.2d 550,
553 (Tex. 1990)). In response to a valid request for production, a party must produce
responsive, non-privileged documents within his possession, custody, or control.
TEX. R. CIV. P. 192.3(b).
“Possession, custody, or control” 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.” TEX. R. CIV. P. 192.7(b).
“Thus, a party must produce items it either physically possesses or constructively
possesses, meaning the party has the right to obtain possession from a third party,
such as an agent or representative.” Jurgens v. Martin, No. 11-18-00316-CV, 2021
WL 1033306, at *14 (Tex. App.—Eastland Mar. 18, 2021, no pet.) (citing GTE
Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993)); see also In re
Kuntz, 124 S.W.3d 179, 181 (Tex. 2003) (orig. proceeding). “[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 parties to the suit.’” In re Summersett, 438 S.W.3d 74, 81
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(Tex. App.—Corpus Christi-Edinburg 2013, orig. proceeding [mand. denied])
(quoting In re Certain Underwriters at Lloyd’s London, 294 S.W.3d 891, 903 (Tex.
App.—Beaumont 2009, orig. proceeding [mand. denied])).
“The right to possession is a legal right based upon the relationship between
the party from whom the document is sought and the party who has actual possession
of it.” GTE Commc’ns, 856 S.W.2d at 729; see also In re Kuntz, 124 S.W.3d at 181.
Mere access to documents does not constitute possession if the person with access
does not have a legal right to produce the relevant documents. In re Kuntz, 124
S.W.3d at 184. However, a person has “possession, custody, or control” of
documents if the documents can be obtained after the party provides an
authorization. In re Home State Cty. Mut. Ins. Co., No. 12-07-00033-CV, 2007 WL
1616823, at *3 (Tex. App.—Tyler June 6, 2007, orig. proceeding) (mem. op.); see
also Jurgens, 2021 WL 1033306, at *14 (holding that a party had constructive
possession over bank records because they were either her own accounts or accounts
over which she had authority).
Darnes had “possession, custody, or control” of his cell phone records if those
records were in his physical possession, if he had a right to access and produce those
records, or if the records could be obtained pursuant to an authorization that he
signed. See TEX. R. CIV. P. 192.3(b), 192.7(b); In re Topletz, No. 05-19-00327-CV,
2019 WL 4302254, at *4 (Tex. App.—Dallas Sept. 11, 2019, orig. proceeding)
(mem. op.); In re Home State Cty. Mut. Ins., 2007 WL 1616823, at *3. Therefore,
Judge Shrode abused his discretion when he denied Relators’ motion to compel on
the basis that Darnes could be required to produce only those documents in his
physical possession. We express no opinion on whether Relators established either
that they were entitled to the production of the requested information or that Darnes
has constructive possession of the documents. In re Univ. of Tex. at San Antonio,
No. 04-20-00439-CV, 2021 WL 185529, at *3 (Tex. App.—San Antonio Jan. 20,
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2021, orig. proceeding) (mem. op.) (“The party seeking production has the burden
of proving that the [other party] has constructive possession or the right to obtain
possession of the requested documents.” (citing GTE Commc’ns Sys., 856 S.W.2d at
729)).
D. Adequate Remedy by Appeal
The adequacy of an appellate remedy depends heavily on the circumstances
and requires a balancing of the benefits of mandamus review against the detriments.
In re Coppola, 535 S.W.3d 506, 509 (Tex. 2017) (orig. proceeding) (per curiam).
“A party will not have an adequate remedy by appeal when the appellate court would
not be able to cure the trial court’s discovery error.” In re Kuntz, 124 S.W.3d at 181.
Judge Shrode denied Relators’ motions to compel without considering either
the merits of Relators’ arguments that they needed the documents to pursue their
defense of comparative responsibility or Darnes’s objections to producing the
documents. Judge Shrode did not review the documents and did not rule on whether
the requested documents were relevant and subject to being produced by Darnes or
through authorizations signed by Darnes. The requested documents are not in the
record, cannot be made a part of the record because they are in the possession of
third parties, and cannot be reviewed in any subsequent appeal. See Walker v.
Packer, 827 S.W.2d 833, 843–44 (Tex. 1992) (orig. proceeding). Therefore, on
appeal, the reviewing court would not be able to determine whether the lack of the
requested documents erroneously affected the outcome of the trial. See In re K & L
Auto Crushers, 627 S.W.3d at 257; Walker, 827 S.W.2d at 843–44. Under these
circumstances, Relators do not have an adequate remedy by appeal. See In re K & L
Auto Crushers, 627 S.W.3d at 256; Walker, 827 S.W.2d at 843–44.
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E. Conclusion
We hold that Relators are entitled to mandamus relief from Judge Shrode’s
rulings that he did not have the authority to compel Darnes to sign authorizations or
to produce documents that were not in Darnes’s physical possession. However,
Judge Shrode did not consider whether Relators were entitled to the substantive
relief requested in their motions to compel. Judge Shrode has discretion in
determining whether a discovery request falls within the permissible scope of
discovery, see In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 802 (Tex. 2017) (orig.
proceeding), and Judge Shrode, not this court, should make that initial
determination. See In re Eurecat US, Inc., 425 S.W.3d 577, 583 (Tex. App.—
Houston [14th Dist.] 2014, orig. proceeding) (declining to consider in mandamus
proceeding any alleged reason that discovery was relevant and necessary that was
not presented to the trial court).
This Court’s Ruling
We grant the petition for writ of mandamus, in part, and direct the Honorable
John Shrode to vacate the orders that he signed on May 11, 2021, in which he denied
Relators’ motions to compel. A writ of mandamus will issue only if Judge Shrode
fails to act by November 15, 2021. We deny the petition for writ of mandamus to
the extent that Relators request that we direct Judge Shrode to grant the motions to
compel.
PER CURIAM
November 4, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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