in Re Blue Creek Real Properties, LLC and Thomas Dan Friedkin

NUMBER 13-18-00308-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE BLUE CREEK REAL PROPERTIES, LLC
AND THOMAS DAN FRIEDKIN
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa 1
Relators Blue Creek Real Properties, LLC (Blue Creek) and Thomas Dan Friedkin
filed a petition for writ of mandamus in the above cause seeking to quash the deposition
of Friedkin under the “apex” deposition doctrine. See Crown Cent. Petroleum Corp. v.
Garcia, 904 S.W.2d 125, 128–29 (Tex. 1995) (orig. proceeding); see also In re Daisy Mfg.
Co., Inc., 17 S.W.3d 654, 656–60 (Tex. 2000) (orig. proceeding) (per curiam); In re Alcatel
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); id. R. 47.4 (distinguishing opinions and memorandum opinions).
USA, Inc., 11 S.W.3d 173, 175–81 (Tex. 2000) (orig. proceeding). This case arises from
a multi-party suit over the construction of a grass turf runway and holding apron on Blue
Creek Ranch in El Campo, Texas. Blue Creek, the leaseholder of the ranch, hired
Gadberry Construction Company, Inc. (Gadberry) to construct the runway project. Blue
Creek ultimately brought suit against Gadberry alleging that it “failed to properly plan,
staff, manage or execute the work, . . . its work failed to conform with the contract
requirements with regard to both time and quality; it failed to pay many of its
subcontractors, . . . and it ultimately abandoned the Project before it was substantially
complete.” In turn, Gadberry filed suit against Blue Creek and third-party defendants
Friedkin Companies, Inc., The Friedkin Group, Inc., and the Thomas H. Friedkin Trust,
alleging, inter alia, that Blue Creek routinely increased Gadberry’s scope of work,
modified specifications, altered contract requirements, and interfered with Gadberry’s
work causing significant costs and delays. Friedkin serves as the chairman and chief
executive officer of The Friedkin Group, Inc., but is not a party to the underlying litigation.
Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d
300, 302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to
correct a clear abuse of discretion when there is no adequate remedy by appeal. In re
Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding).
Relators bear the burden of proving both requirements. In re H.E.B. Grocery Co., 492
S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
An abuse of discretion occurs when a trial court’s ruling is arbitrary and unreasonable or
is made without regard for guiding legal principles or supporting evidence. In re
2
Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford
Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of
an appellate remedy by balancing the benefits of mandamus review against the
detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding);
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).
As it pertains to the specific issue presented in this original proceeding, mandamus
relief is appropriate when a trial court abuses its discretion by denying a motion to quash
an apex deposition. In re Alcatel USA, Inc., 11 S.W.3d at 175; In re TMX Fin. of Tex.,
Inc., 472 S.W.3d 864, 872 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding) (“A
party may properly seek mandamus relief to determine whether the trial court correctly
ordered an apex deposition.”); In re Miscavige, 436 S.W.3d 430, 435 (Tex. App.—Austin
2014, orig. proceeding) (“Mandamus relief is appropriate when a trial court allows an apex
deposition to go forward in violation of the standard governing such discovery.”).
We conclude that relators have not met their burden to obtain mandamus relief.
See In re H.E.B. Grocery Co., 492 S.W.3d at 302; Walker, 827 S.W.2d at 840. First,
relators have failed to meet the requirements to quash an apex deposition as expressly
delineated by the Texas Supreme Court insofar as the record fails to include an affidavit
by Friedkin denying any knowledge of relevant facts. See In re Alcatel USA, Inc., 11
S.W.3d at 175 (“A party initiates the Crown Central guideline proceedings by moving for
protection and filing the corporate official’s affidavit denying any knowledge of relevant
facts.”); Crown Cent. Petroleum Corp., 904 S.W.2d at 128 (providing “guidelines” for
determining when a party seeks to depose an apex official requiring the movant to file a
3
“motion for protective order to prohibit the deposition accompanied by the official’s
affidavit denying any knowledge of relevant facts”). As an intermediate appellate court,
we are not at liberty to alter this existing precedent. See Dallas Area Rapid Transit v.
Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex. 2008). Second,
based on the record presented, the trial court acted within its discretion in determining
that Friedkin has unique and superior personal knowledge of discoverable information
related to the construction project at issue pertaining to, inter alia, the timeline for
completion and various design decisions pertaining to the project, including the style and
size for the hangar, the number of airplanes to be stored there, the size and construction
materials for the ramp, the runway width and length, the installation of an irrigation
system, and the site layout. See In re Alcatel USA, Inc., 11 S.W.3d at 177; Cent.
Petroleum Corp., 904 S.W.2d at 128. Third, and finally, we note that the mandamus
record contains flatly conflicting statements by various witnesses regarding Friedkin’s
knowledge of the project. We may not resolve disputed facts in an original proceeding.
In re Woodfill, 470 S.W.3d 473, 478 (Tex. 2015) (orig. proceeding); In re Angelini, 186
S.W.3d 558, 560 (Tex. 2006) (orig. proceeding).
The Court, having examined and fully considered the petition for writ of mandamus,
the response filed by Gadberry, the reply filed by relators, and the record presented, is of
the opinion that relators have not established their right to mandamus relief. In so
holding, we note that the trial court has endeavored to balance the rights of the parties by
initially proceeding with depositions on written questions and by partially granting relators’
motion to quash and motion for protection. We are confident that the trial court will
4
ensure that further discovery is conducted in accordance with the Texas Rules of Civil
Procedure. We deny the petition for writ of mandamus without prejudice to any other
issues that might arise pertaining to the forthcoming deposition.
LETICIA HINOJOSA
Justice
Delivered and filed the
26th day of July, 2018.
5