in Re Total Petrochemicals & Refining USA, Inc. ( 2020 )


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  • Petition for Writ of Mandamus Denied and Majority and Dissenting Opinions
    filed January 30, 2020.
    In The
    Fourteenth Court of Appeals
    NO. 14-19-00585-CV
    IN RE TOTAL PETROCHEMICALS & REFINING USA, INC., Relator
    ORIGINAL PROCEEDING
    WRIT OF MANDAMUS
    215th District Court
    Harris County, Texas
    Trial Court Cause No. 2017-54808
    DISSENTING OPINION
    This court should grant relator Total Petrochemicals & Refining USA, Inc.’s
    petition for writ of mandamus. Because the court instead denies mandamus relief, I
    respectfully dissent.
    I. BACKGROUND
    Relator Total Petrochemicals & Refining USA, Inc. (“Petrochemicals”)
    produces polyethylene at its high-density polyethylene plant in Bayport, Texas. On
    New Year’s Eve 2016, the Bay II compressor unit at the plant failed, which resulted
    in the unplanned and complete shutdown of the Bay II unit for ten days.
    Petrochemicals alleges that guard filters purchased from real party in interest White
    Tucker Company (“White Tucker”) were to blame. The mandamus record showed
    that guard filters serve as the last line of defense in preventing unwanted “fines”—
    very small, abnormally shaped particles of high-density polyethylene created as a
    byproduct of the high-density polyethylene manufacturing process—from entering
    into and accumulating within the compressor unit, where the fines will melt and
    cause a system shutdown. This undesired accumulation and melting of equipment
    is called “fouling.” According to Petrochemicals, improperly fabricated guard filters
    caused severe fouling within the compressor unit. Petrochemicals sued White
    Tucker, a distributer of the filters and filter elements; Jonell Filtration Products, Inc.,
    a manufacturer of the filters and filter elements; Texas Filtration, Inc., a
    manufacturer of the filters and filter elements; and Filtration Group, LLC, a holding
    company that owns Jonell (collectively, the “Defendants”).
    During the litigation, Petrochemicals produced a root-cause-analysis
    memorandum and PowerPoint authored by an engineer, Julien Libeert, just days
    after the shutdown.        The Defendants sought to take Libeert’s deposition.
    Petrochemicals’s counsel advised the Defendants that because Libeert was not a
    Petrochemicals employee, the Defendants would need to subpoena Libeert if they
    wanted to depose him.
    The following month, the Defendants filed a joint emergency motion to
    compel production of discovery and a motion to continue the trial date. The
    Defendants sought, among other things, to compel Libeert’s deposition, contending
    2
    that that Libeert was an employee of Petrochemicals or, alternatively, that Libeert
    was otherwise subject to Petrochemicals’s control. Petrochemicals responded that
    Libeert was not its employee or otherwise under its control and that Libeert works
    for Total Research & Technology Feluy in Belgium (“Feluy”), which is a different
    entity and not a party to the lawsuit. Petrochemicals had provided this information
    to the Defendants several months before the Defendants filed their motion compel.
    The Defendants did not serve Petrochemicals with a notice of deposition for Libeert.
    The trial court signed an order, dated June 28, 2019, compelling, among other
    things, Petrochemicals to present Libeert for deposition within 45 days of the court’s
    order (the “Deposition Order”).
    II. MANDAMUS RELIEF WARRANTED
    In this mandamus proceeding, Petrochemicals asks this court to compel the
    trial court to set aside the portion of the Deposition Order compelling Libeert’s
    deposition. To get mandamus relief, Petrochemicals must show that the trial court
    clearly abused its discretion, and that Petrochemicals lacks an adequate remedy by
    appeal.1 Petrochemicals showed both.
    A.       Governing Rules of Civil Procedure
    Both Petrochemicals and the Defendants rely on the Ninth Court of Appeals’s
    opinion in In re Reaud.2 The Reaud court examined the interplay between two Rules
    of Civil Procedure to determine when a subpoena is required to compel the
    1
    In re Dawson, 
    550 S.W.3d 625
    , 628 (Tex. 2018) (original proceeding) (per curiam).
    2
    See 
    286 S.W.3d 574
    (Tex. App.—Beaumont 2009, orig. proceeding).
    3
    attendance of a non-party witness. Rule 199.3, entitled “Compelling Witness to
    Attend,” provides:
    A party may compel the witness to attend the oral deposition by serving
    the witness with a subpoena under Rule 176. If the witness is a party
    or is retained by, employed by, or otherwise subject to the control of a
    party, however, service of the notice of oral deposition upon the party’s
    attorney has the same effect as a subpoena served on the witness.3
    Rule 205.1, entitled “Forms of Discovery; Subpoena Requirement,” provides in
    relevant part:
    A party may compel discovery from a nonparty--that is, a person who
    is not a party or subject to a party’s control--only by obtaining a court
    order under Rules 196.7, 202, or 204, or by serving a subpoena
    compelling:
    (a) an oral deposition[.]4
    The Reaud court observed that Rules 199.3 and 205.1 encompass the
    following three categories of nonparties who may be required to attend depositions
    without being subpoenaed: (1) employees; (2) retained experts; and (3) witnesses
    who are “otherwise subject to the control of a party[.]”5 For these categories, serving
    the party’s attorney with a notice of deposition suffices to compel the nonparty
    witness to appear for deposition.6
    3
    Tex. R. Civ. P. 199.3.
    4
    Tex. R. Civ. P. 205.1(a).
    5
    
    Id. at 579–80
    (quoting Tex. R. Civ. P. 199.3).
    6
    Tex. R. Civ. P. 199.3.
    4
    As for nonparty employees, the Reaud court assumed the rule requires the
    employee-nonparty-witness to appear because the employee-non-party witness’s
    employer has the ability to establish the terms of employment, to fire the employee,
    to control the employee’s pay, and to decide whether the employee receives a future
    promotion or demotion.7 As to retained experts, the Reaud court reasoned that they,
    too, can be “controlled” by the attorney for the party who, along with the client, has
    the power to terminate the relationship in the event the expert failed to comply with
    the attorney’s instruction to appear for deposition.8
    Nonparty witnesses who “otherwise [are] subject to the control of a party”
    also may be compelled to appear for deposition with service of the notice on the
    party’s attorney.9 The Reaud court observed that the rules do not define the term
    “otherwise controlled.”10 The court looked to the doctrine of ejusdem generis and
    found that it applies “to restrict the potentially broad meaning of ‘otherwise
    controlled’ as used in Rules 199.3 and 205.1.”11 The doctrine holds that “when
    words of a general nature are used in connection with the designation of particular
    objects or classes of persons or things, the meaning of the general words will be
    restricted to the particular designation.”12 The court reasoned that ejusdem generis
    limits the undefined, general term “otherwise controlled” as used in 199.3 and 205.1
    7
    
    Reaud, 286 S.W.3d at 579
    .
    8
    
    Id. at 580.
          9
    
    Id. (quoting Tex.
    R. Civ. P. 199.3).
    10
    
    Id. 11 Id.
          12
    
    Id. (internal quotation
    marks and citations omitted).
    5
    to include “only control of the same kind, class, or nature as the types of control
    parties would have over employees or retained experts.”13 So, the Reaud court
    concluded that, while the current rules contain text that allow them to reach beyond
    retained experts and employees, these two rules do not extend to nonparties over
    whom the party lacks the type of control it has over an employee or a retained
    expert.14
    The Defendants contend that Libeert is a direct employee of Petrochemicals.
    Brad Klussmann, the plant manager, testified at deposition that Libeert is “a process
    expert for Total that’s part of the polymers technology group in — that’s in
    Belgium.” Klussmann further testified that Libeert is “across different operating
    facilities within Total.” Chad Gerard, the production superintendent, testified that
    Libeert is “a process technology expert from Total in Europe.” Gerard further stated
    that Libeert “does not normally work at the Bayport Plant. He’s based out of Europe
    and travels to our site on occasion to help with investigations.”
    None of the deposition testimony the Defendants cite shows that
    Petrochemicals had the requisite control over Libeert. Nothing in the mandamus
    record shows that Petrochemicals could establish the terms of Libeert’s employment,
    fire him, control his pay, or decide whether he would receive a future promotion or
    demotion, necessary to establish that Libeert is an employee of Petrochemicals.15 At
    best, the Defendants have shown that another Total-related entity employed Libeert.
    13
    
    Id. 14 Id.
          15
    See 
    id. at 579.
                                              6
    Petrochemicals maintains that Libeert works for Feluy in Belgium. The
    Defendants contend, even if Libeert is not a direct employee of Petrochemicals, he
    is subject to Petrochemicals’s control because he “works for one or more entities
    with Total, S.A., [Petrochemicals’s] parent company.” The Defendants claim that
    Libeert has been required to complete a project for Total’s United States locations,
    including the main investigation in this case. Klussmann testified that Libeert “was
    brought . . . in for his expertise in the . . . polyethylene manufacturing process.”
    Libeert also gave Klussmann “a report as background information to some slides.”
    The Defendants further state that Libeert (1) has a “Total” email address,
    which is the same email address used by all other Petrochemicals employees; (2)
    uses Total’s internal messaging system; and (3) and has a LinkedIn page showing
    that he has been a process engineer at “Total” for several years. The Defendants
    argue that “[Petrochemicals] exercises a sufficient amount of control over Libeert to
    satisfy the control element of Rule 199.3, particularly because it is undisputed that
    Libeert is an employee of an entity owned by [Petrochemicals’s] parent company,
    Total.”      The evidence on which the Defendants rely does not reflect that
    Petrochemicals has any control over Libeert as if he were a Petrochemicals employee
    or that Libeert is otherwise subject to Petrochemicals’s control.16 Nothing in the
    mandamus record shows Libeert would fall within the reach of deposition without
    subpoena.
    16
    See 
    id. at 578–80.
    7
    The majority concludes that the determination of whether Petrochemicals has
    control over Libeert presents a fact issue.17 But, the majority points to no evidence
    of the type of control necessary to obtain Libeert’s deposition without subpoena.
    Though appellate courts do not grant mandamus relief if the evidence raises genuine
    issues of material fact,18 there are none in this case.
    Under an abuse-of-discretion standard, we are to defer to the trial court’s
    factual determinations if they are supported by the evidence, but we review de novo
    the trial court’s legal determinations.19 If the evidence supports the trial court’s
    factual determinations, we are not to disturb them in a mandamus proceeding.20 The
    relator must show the trial court reasonably could have reached only one decision
    and not the decision the trial court made.21
    The evidence in the mandamus record does not support the trial court’s
    implied finding that Petrochemicals has sufficient control over Libeert under Rule
    199.3 that to depose him, the Defendants need not get a subpoena but instead may
    17
    Ante, at 4.
    18
    In re Angelini, 
    186 S.W.3d 558
    , 560 (Tex. 2006) (orig. proceeding).
    19
    In re Labatt Food Serv., L.P., 
    279 S.W.3d 640
    , 643 (Tex. 2009) (orig. proceeding).
    20
    In re La. Tex. Healthcare Mgmt., L.L.C., 
    349 S.W.3d 688
    , 690 (Tex. App.—Houston
    [14th Dist.] 2011, orig. proceeding).
    
    21 Walker v
    . Packer, 
    827 S.W.2d 833
    , 840 (Tex. 1992 (orig. proceeding); see also In re
    RSR Corp., 
    568 S.W.3d 663
    , 665 (Tex. 2019) (orig. proceeding) (per curiam) (“An appellate court
    cannot substitute its judgment for that of the trial court and may not set aside the trial court’s
    findings as arbitrary and unreasonable unless the trial court could have reached only on decision.”).
    8
    serve Petrochemicals’s counsel with a notice of Libeert’s deposition.22                    In the
    absence of evidence that Petrochemicals is not Libeert’s employer with the ability
    to establish the terms of Libeert’s employment, to fire him, to control his pay, and
    decide on a future promotion or demotion or that Libeert otherwise is subject to
    Petrochemicals’s control, the Defendants must serve a subpoena on Libeert if they
    want to depose him.23
    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 if it clearly
    fails to analyze the law correctly or apply the law correctly to the facts. 24 Because
    Petrochemicals has shown that the only decision the trial court reasonably could
    have reached is that Libeert’s deposition could not be compelled without a subpoena,
    this court should conclude that the trial court abused its discretion by granting the
    Defendants’ motion to compel Libeert’s deposition without the Defendants’ having
    served Libeert with a subpoena.
    B.        Lack of Adequate Remedy
    Courts determine the adequacy of an appellate remedy by balancing the
    benefits of mandamus review against the detriments.25 Because this balance depends
    heavily on circumstances, courts look to principles for guidance rather than rely on
    22
    See Labatt Food Serv., 
    L.P., 279 S.W.3d at 643
    ; La. Tex. Healthcare Mgmt., 
    L.L.C., 349 S.W.3d at 690
    .
    23
    See Tex. R. Civ. P. 199.3, 205.1.
    24
    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).
    25
    In re Team Rocket, L.P., 
    256 S.W.3d 257
    , 262 (Tex. 2008) (orig. proceeding).
    9
    simple rules that treat cases as categories.26 In evaluating benefits and detriments,
    the court is to consider (1) whether mandamus will preserve important substantive
    and procedural rights from impairment or loss,27 (2) whether mandamus will “allow
    the appellate courts to give needed and helpful direction to the law that would
    otherwise prove elusive in appeals from final judgments,”28                    and (3) whether
    mandamus will spare the litigants and the public “the time and money utterly wasted
    enduring eventual reversal of improperly conducted proceedings.”                29
    Appeal is not
    an adequate remedy when the appellate court would not be able to cure the trial
    court’s discovery error on appeal.30
    In determining whether a party has an adequate remedy by appeal, appellate
    courts consider whether mandamus will preserve important substantive and
    procedural rights from impairment or loss.31 Petrochemicals will have lost its right
    to have the Defendants comply with the rules of discovery if the Defendants are
    allowed to compel Libeert’s deposition without first serving a subpoena on him.
    Because this error cannot be cured on appeal,32 Petrochemicals lacks an adequate
    remedy by appeal.
    26
    In re McAllen Med. Ctr., Inc., 
    275 S.W.3d 458
    , 464 (Tex. 2008) (orig. proceeding).
    27
    In re Prudential Ins. Co. of Am., 
    148 S.W.3d 124
    , 136 (Tex. 2004) (orig. proceeding).
    28
    
    Id. 29 Id.
           30
    In re Dana Corp., 
    138 S.W.3d 298
    , 301 (Tex. 2004) (orig. proceeding) (per curiam); In
    re Ford Motor Co., 
    988 S.W.2d 714
    , 721 (Tex. 1998) (orig. proceeding).
    31
    Prudential Ins. Co. of 
    Am., 148 S.W.3d at 136
    .
    32
    Dana 
    Corp., 138 S.W.3d at 301
    ; Ford Motor 
    Co., 988 S.W.2d at 721
    .
    10
    III. CONCLUSION
    No fact issues preclude granting mandamus relief. The record evidence shows
    Libeert is not an employee of Petrochemicals nor under Petrochemicals’s control.
    So, the Defendants may obtain Libeert’s deposition only through a properly served
    subpoena. The trial court abused its discretion by compelling Libeert’s deposition
    without requiring that the Defendants serve a subpoena on him. Because
    Petrochemicals lacks an adequate remedy by appeal, this court should grant
    Petrochemicals’s petition for writ of mandamus and direct the trial court to set aside
    the portion of the Deposition Order that compels Libeert’s deposition.
    /s/    Kem Thompson Frost
    Chief Justice
    Panel consists of Chief Justice Frost and Justices Spain and Poissant (Spain, J.,
    majority)
    11