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In Re David Barnes and LaSaundra Barnes, as Next Friends of Janie Doe, a Minor v. the State of Texas ( 2024 )


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  • CONDITIONALLY GRANT, DISMISS APPEAL and Opinion Filed June 5,
    2024
    S   In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-23-00774-CV
    IN RE DESOTO INDEPENDENT SCHOOL DISTRICT, Relator
    and
    DESOTO INDEPENDENT SCHOOL DISTRICT, Appellant
    v.
    DAVID BARNES AND LASAUNDRA BARNES, AS NEXT FRIENDS OF
    JANIE DOE, A MINOR, Appellees
    Original Proceeding and On Appeal from the 44th Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. DC-23-03760
    MEMORANDUM OPINION
    Before Justices Molberg, Pedersen, III, and Nowell
    Opinion by Justice Molberg
    In this consolidated interlocutory appeal and original proceeding, appellant
    and relator DeSoto Independent School District (DeSoto ISD) challenges the trial
    court’s July 20, 2023 order granting, in part, the amended verified petition for pre-
    suit discovery filed by appellees and real parties in interest,1 which ordered the pre-
    1
    Appellees and real parties in interest are David Barnes and LaSaundra Barnes, as next friends of Janie
    Doe, a minor.
    suit deposition2 of a corporate representative of DeSoto ISD on certain topics and
    required DeSoto ISD to produce certain documents and tangible items responsive to
    a subpoena duces tecum. In this memorandum opinion,3 because we conclude the
    trial court abused its discretion in entering the July 20, 2023 order and DeSoto ISD
    has no adequate remedy by appeal, we conditionally grant the writ of mandamus and
    dismiss the appeal as moot.
    I. BACKGROUND
    In March 2023, appellees and real parties in interest filed a “Verified Petition
    for Pre-Suit Discovery of Respondent DeSoto Independent School District,”
    alleging, in part, that their daughter’s third-grade teacher, a male employee of
    DeSoto ISD, forced their daughter to perform oral sex on him in October 2015, and
    sexually assaulted her multiple times over the months that followed. DeSoto ISD
    filed a response that included a plea to the jurisdiction and claimed its immunity was
    not waived. After a hearing, the trial court denied the petition “without prejudice to
    the refiling” and signed an order stating the cause “will remain pending” and that
    appellees “may file an amended petition.”
    About six weeks after that order was signed, appellees filed an “Amended
    Verified Petition for Pre-Suit Discovery of Respondent DeSoto Independent School
    District.” The amended petition made the same allegations regarding the teacher’s
    2
    See TEX. R. CIV. P. 202.
    3
    See TEX. R. APP. P. 47.4, 52.8(d).
    –2–
    conduct, again requested to depose the corporate representative of DeSoto ISD on
    certain topics and to have DeSoto ISD produce certain documents and tangible
    items, and indicated appellees sought this pre-suit discovery “to determine the
    potential basis for claims against” and “to investigate potential claims . . . against
    [the teacher], DeSoto ISD, and unknown DeSoto ISD employees.” DeSoto ISD
    again filed a response that included a plea to the jurisdiction and claimed its
    immunity was not waived. Appellees filed a motion to strike DeSoto ISD’s response
    as untimely.
    The appellate record contains a docket sheet that indicates the trial court heard
    appellees’ amended verified petition for pre-suit discovery on July 20, 2023, but the
    appellate record contains no hearing transcript. No evidence was presented in the
    hearing, according to the affidavit of counsel that accompanies the petition for
    mandamus filed by DeSoto ISD. See TEX. R. APP. P. 52.7(a)(2).4
    On July 20, 2023, the trial court signed the order at issue. The order granted
    in part and denied in part appellees and real parties in interest’s amended verified
    petition, ordered the pre-suit deposition of a corporate representative of DeSoto ISD
    on twenty-seven topics, required DeSoto ISD to produce ten categories of documents
    and tangible items responsive to a subpoena duces tecum. The order also included
    two findings, specifically, that allowing appellees and real parties in interest (1) to
    4
    DeSoto ISD’s counsel’s affidavit states, “No testimony was adduced in connection with this matter in
    the trial court, and the Real Parties in Interest did not offer any exhibits in any hearing in the trial court
    regarding the order that is the subject of this mandamus proceeding.” See TEX. R. APP. P. 52.7(a)(2).
    –3–
    take the oral and videotaped deposition of DeSoto ISD corporate representative on
    the topics included in Exhibit A attached to the order and (2) to submit the subpoena
    duces tecum attached as Exhibit A to the order “outweighs the burden or expense of
    the procedure.”
    DeSoto ISD appealed that order on August 2, 2023. By order dated September
    6, 2023, after noting DeSoto ISD had not requested a reporter’s record, we ordered
    the cause submitted without one.
    After submission, because it appeared clear that appellees and real parties in
    interest’s rule 202 petition sought a pre-suit deposition from DeSoto ISD as a
    potential defendant, we expressed a concern regarding our jurisdiction to hear the
    interlocutory appeal.5 On April 9, 2024, we requested by a particular date a letter
    brief from DeSoto ISD regarding our jurisdiction, and we provided a deadline by
    which appellees and real parties in interest could submit a response, if any. DeSoto
    ISD timely submitted a letter brief in response, arguing that we have jurisdiction to
    hear the appeal and expressing an intent, in any event, to file a petition for writ of
    mandamus. Real parties in interest filed no response regarding our jurisdiction.
    5
    See In re Jorden, 
    249 S.W.3d 416
    , 419 (Tex. 2008) (orig. proceeding) (“Presuit deposition orders are
    appealable only if sought from someone against whom suit is not anticipated; when sought from an
    anticipated defendant . . . , such orders have been considered ancillary to the subsequent suit, and thus
    neither final nor appealable.”); see also In re City of Dallas, No. 05-18-00289-CV, 
    2018 WL 5306925
    , at
    *3 (Tex. App.—Dallas, Oct. 26, 2018, orig. proceeding) (mem. op.) (in consolidated appeal and original
    proceeding brought by a governmental entity and potential defendant in a rule 202 proceeding, this Court
    concluded the appropriate remedy for an improper rule 202 order is a petition for a writ of mandamus, not
    an interlocutory appeal).
    –4–
    Soon after filing its letter brief, DeSoto ISD filed a petition for writ of
    mandamus, followed by an unopposed motion to consolidate the appeal with the
    mandamus proceeding.               We consolidated the mandamus proceeding into this
    proceeding and ordered real parties in interest and respondent to file a response to
    the petition for mandamus, if any, by a particular deadline.6 Neither filed a response.
    II. DISCUSSION
    We first consider DeSoto ISD’s petition for writ of mandamus regarding the
    trial court’s June 20, 2023 order.
    A.       Standards Regarding Mandamus and Rule 202
    To be entitled to mandamus relief, a relator must show: (1) the trial court has
    clearly abused its discretion; and (2) there is no adequate remedy by appeal. See In
    re Prudential Ins. Co. of Am., 
    148 S.W.3d 124
    , 135–36 (Tex. 2004) (orig.
    proceeding).
    A trial court abuses its discretion if it reaches a decision so arbitrary and
    unreasonable it amounts to a clear and prejudicial error of law or if it clearly fails to
    correctly analyze or apply the law. Id.; Walker v. Packer, 
    827 S.W.2d 833
    , 839–40
    (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what
    the law is or in applying the law to the facts and abuses its discretion when its
    6
    See TEX. R. APP. P. 52.8(b)(1) (“If the court is of the tentative opinion that relator is entitled to the
    relief sought or that a serious question concerning the relief requires further consideration . . . the court
    must request a response if one has not been filed. . . .”).
    –5–
    decision is arbitrary and capricious. See In re Prudential, 148 S.W.3d at 135;
    Walker, 827 S.W.2d at 840.
    “It is an abuse of discretion for a trial court to order a rule 202 deposition when
    the party seeking the deposition fails to provide any evidence to meet the burden of
    establishing the facts necessary to support ordering a rule 202 deposition.” In re
    City of Dallas, 
    2018 WL 5306925
    , at *4 (citations omitted).
    A relator has no adequate remedy by appeal from a trial court’s order granting
    a rule 202 deposition because his only opportunity to appeal the trial court’s order
    would be after the deposition occurred. 
    Id.
     (citations omitted).
    B.       DeSoto ISD’s Arguments and Application of Law to Facts
    In its petition for writ of mandamus, DeSoto ISD argues, in part, that the trial
    court’s July 20, 2023 order constituted an abuse of discretion because there is no
    evidence to support it and that mandamus relief is its only remedy. DeSoto ISD
    makes two other arguments as well, but in light of our conclusion below, we need
    not reach them.7
    7
    In light of our conclusions herein, we need not reach DeSoto ISD’s arguments that the trial court
    abused its discretion in entering the July 20, 2023 order because (1) rule 202 does not authorize a trial court
    to order production of documents, and (2) the amended rule 202 petition filed by appellees and real parties
    in interest failed to allege any potential claims over which the trial court would have jurisdiction. See TEX.
    R. APP. P. 47.1 (stating we “must hand down a written opinion that is as brief as practicable but that
    addresses every issue raised and necessary to final disposition of the appeal”); 52.8(d) (stating that, when
    granting relief in an original proceeding, we “must hand down an opinion as in any other case” and stating,
    with an exception not applicable here, “Rule 47 is applicable to an order or opinion by a court of appeals.”).
    However, although we do not decide those issues here, we do note we have previously rejected an argument
    similar to the first of the two arguments previously listed in this paragraph. See In re Perrilloux, No. 05-
    19-01584-CV, 
    2020 WL 2092483
    , at *4 (Tex. App.—Dallas May 1, 2020, orig. proceeding) (mem. op.)
    (“[T]he plain language of the rules permits a petition seeking a pre-suit deposition under Rule 202 to request
    –6–
    A trial court cannot grant a rule 202 petition without making the findings
    required by Rule 202.4. Patton Boggs LLP v. Moseley, 
    394 S.W.3d 565
    , 571 (Tex.
    App.—Dallas 2011, orig. proceeding); see also In re Campo, No. 05-13-00477-CV,
    
    2013 WL 3929251
    , at *1 (Tex. App.—Dallas July 26, 2013, orig. proceeding) (mem.
    op.). As the rule 202 petitioners, appellees and real parties in interest had the burden
    to both plead and prove that they were entitled to a pre-suit deposition. TEX. R. CIV.
    P. 202.1(b), 202.4(a)(2). This required the presentation of evidence, not simply
    reliance on a verified petition and argument. See In re Noriega, No. 05-14-00307-
    CV, 
    2014 WL 1415109
    , at *2 (Tex. App.—Dallas Mar. 28, 2014, orig. proceeding)
    (mem. op.); see also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 
    904 S.W.2d 656
    , 660 (Tex. 1995) (“Generally, pleadings are not competent evidence, even if
    sworn or verified.”). In Noriega, we stated,
    It is an abuse of discretion for a trial court to find that the likely benefit
    of a Rule 202 deposition outweighs the burden of the deposition when
    the party seeking the deposition fails to provide any evidence on which
    the court could have based such a finding. In re Campo, No. 05-13-
    00477-CV, 
    2013 WL 3929251
    , at *1 (Tex. App.—Dallas July 26, 2013,
    orig. proceeding) (mem. op.) (mandamus conditionally granted where
    no evidence was presented to the trial court at the hearing on the motion
    and party seeking Rule 202 deposition did not formally offer or admit
    its verified pleading at the hearing). The trial court did just this and in
    so doing abused its discretion.
    
    2014 WL 1415109
    , at *3.
    the production of documents as well.”) (first citing TEX. R. CIV. P. 205.1(c); then citing In re City of Tatum,
    
    567 S.W.3d 800
    , 808 (Tex. App.—Tyler 2018, orig. proceeding)). We also stated, “Of course, the
    requesting party and the trial court should be mindful of the burden requests for production impose on non-
    parties and carefully balance the burdens of discovery in view of the non-party status.” 
    Id.
    –7–
    The same is true here. As a result, we conclude the trial court abused its
    discretion in finding that the likely benefit of the deposition of DeSoto ISD’s
    corporate representative outweighs the burden or expense of the procedure because,
    according to the record before us, appellees and real parties in interest failed to
    provide any evidence on which the trial court could have based such a finding. 
    Id.
    We also conclude DeSoto ISD has no adequate remedy by appeal. See In re
    City of Dallas, 
    2018 WL 5306925
    , at *4 (“A relator has no adequate remedy by
    appeal from a trial court’s order granting a rule 202 deposition because his only
    opportunity to appeal the trial court’s order would be after the deposition
    occurred.”).
    Thus, because DeSoto ISD has satisfied both standards for mandamus relief,
    we conditionally grant DeSoto ISD’s petition for writ of mandamus and direct the
    trial court to vacate its July 20, 2023 Order Regarding Pre-Suit Discovery and to file
    with this Court, within thirty (30) days, a copy of its order issued in compliance with
    this order. A writ will issue only in the event the trial court fails to comply.
    In light of our ruling, we dismiss DeSoto ISD’s appeal as moot. See id., at *6
    (concluding appeal need not be considered under similar circumstances); Tandem
    Energy Corp. v. State ex rel. Dept. of Transp., No. 14-03-00815-CV, 
    2003 WL 22349032
    , at *1 (Tex. App.—Houston [14th Dist.] Oct. 16, 2003, no pet.) (mem.
    op.) (per curiam) (appeal challenging order granting rule 202 petition was moot
    –8–
    because appellate court ruled on merits of petition for writ of mandamus concerning
    same order).
    III. CONCLUSION
    We conditionally grant DeSoto ISD’s petition for writ of mandamus and
    dismiss its appeal as moot. A writ will issue only in the event the trial court fails to
    vacate its July 20, 2023 Order Regarding Pre-Suit Discovery and to file with this
    Court, within thirty (30) days, a copy of its order issued in compliance with our
    ruling.
    /Ken Molberg/
    230774F.P05                                 KEN MOLBERG
    JUSTICE
    –9–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    IN RE DESOTO INDEPENDENT                       On Appeal from the 44th Judicial
    SCHOOL DISTRICT, Relator                       District Court, Dallas County, Texas
    Trial Court Cause No. DC-23-03760.
    and                                            Opinion delivered by Justice
    Molberg. Justices Pedersen, III and
    DESOTO INDEPENDENT                             Nowell participating.
    SCHOOL DISTRICT, Appellant
    No. 05-23-00774-CV
    v.
    DAVID BARNES AND
    LASAUNDRA BARNES, AS NEXT
    FRIENDS OF JANIE DOE, A
    MINOR, Appellees
    In accordance with this Court’s opinion of this date, the appeal from the trial
    court’s July 20, 2023 Order Regarding Pre-Suit Discovery is DISMISSED.
    It is ORDERED that appellant DeSoto Independent School District recover
    its costs of this appeal from appellees David Barnes and LaSaundra Barnes, as next
    friend of Janie Doe, a minor.
    Judgment entered this 5th day of June 2024.
    –10–
    

Document Info

Docket Number: 05-23-00774-CV

Filed Date: 6/5/2024

Precedential Status: Precedential

Modified Date: 6/12/2024