JAMES T. WORTHEN Chief Justice

ORIGINAL PROCEEDING

MEMORANDUM OPINION

Rondal L. Hite filed this original proceeding in which he challenges Respondent's order requiring the production of his income tax return and reorganization of documents produced in discovery. In two issues, Relator maintains that Respondent's order constitutes an abuse of discretion. We deny the writ.

BACKGROUND

According to the record, Southern Sports Holdings, Inc. hired Hite, who owns and operates a construction company, to conduct certain construction activities on Southern's property. Hite hired Ark-La-Tex Electric, Inc. as a subcontractor. Ark-La-Tex subsequently sued Hite d/b/a Metron Construction for unpaid invoices. Hite filed a third party petition for breach of contract against Southern on grounds that Southern stopped paying Hite and owed Hite $159,945.31 plus attorney's fees. Southern filed a counterclaim against Hite d/b/a Metron and asserted claims for breach of contract, breach of implied warranty, breach of fiduciary duty, fraud, and violations of the Deceptive Trade Practices Act.

During the litigation, Southern filed a motion to compel production of documents, including Hite's 2016 income tax return. The record also indicates that Hite produced a voluminous amount of documents in response to Southern's request for production. At a hearing on Southern's motion to compel, Southern argued that (1) Hite's responsive documents must be preceded by the request to which they apply; and (2) Hite comingled his personal funds with Metron funds and that his 2016 income tax return is relevant to the amount Hite claims he lost. Hite's counsel argued that tax returns are not generally discoverable and that he produced documents to Southern's counsel as Hite kept them in the normal course of business. Respondent found that Southern made "a prima facie case for commingling, that a limited discovery of only the Schedule C 2016 return is not invasive of [Hite's] right of privacy and could possibly lead to discoverable evidence[.]" Respondent granted Southern's motion and ordered that:

...all answers be made to opposing counsel in accordance with Texas Rules of Civil Procedure 193.1. All responses must be preceded by the request to which they apply. [Hite] is hereby ordered to provide opposing counsel with specific delineation of which documents respond to which requests of [Southern] regardless of how [Hite] maintains his records.

PREREQUISITES TO MANDAMUS

Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator has the burden of establishing both of these prerequisites. In re Fitzgerald , 429 S.W.3d 886, 891 (Tex. App.—Tyler 2014, orig. proceeding.). "Mandamus will not issue when the law provides another plain, adequate, and complete remedy." In re Tex. Dep't of Family and Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding). "If an appellate court cannot remedy a trial court's discovery error, then an adequate appellate remedy does not exist." In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004).

ABUSE OF DISCRETION

In two issues, Hite argues that Respondent abused his discretion by ordering production of Hite's income tax return and reorganization of documents responsive to Southern's request for production. Income Tax Return

In issue one, Hite contends that his income tax return is irrelevant and would show all of Hite's income and expenses for 2016, regardless of their relation to the parties' contract. He contends that returns "do not show how much money is owed from one business to another, nor do they reflect whether a contract was breached or which business expenses relate to what project." In response, Southern states that it discovered during Hite's deposition that he did not file a 2016 tax return and, consequently, that issue is now moot. Attached to Southern's mandamus response is a motion to withdraw discovery request and for amended order. The motion states that Southern's counsel deposed Hite on May 22, 2018, during which Hite admitted that he did not prepare and file a 2016 income tax return, and that Southern "hereby withdraws [its] request for the production of the tax return." Southern further requested an amended discovery order striking the request for production.

If a controversy no longer exists between the parties, the case becomes moot. Reule v. RLZ Inv., 411 S.W.3d 31, 32 (Tex. App.—Houston [14th Dist.] 2013, no pet.). When a judgment "cannot have a practical effect on an existing controversy, the case is moot and any opinion issued on the merits in the appeal would constitute an impermissible advisory opinion." Id. An opinion is advisory when it neither constitutes specific relief to a litigant nor affects legal relations. See Houston Chronicle Publ'g Co . v. Thomas , 196 S.W.3d 396, 401 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

In this case, because Hite did not prepare and file a 2016 income tax return, there is no income tax return to produce. Accordingly, there no longer exists a controversy between the parties with respect to production of Hite's income tax return. Thus, we conclude that this issue is now moot and we need not address it. See Reule , 411 S.W.3d at 32; see TEX. R. APP. P. 47.1. Reorganization of Responsive Documents

In issue two, Hite maintains that Texas Rule of Civil Procedure 196.3(c) allows documents to be produced as they are kept in the usual course of business and there is no requirement that documents be reorganized to suit the requesting party's preferences. According to Southern, Texas Rule of Civil Procedure 193.1 requires a responding party's answers, objections, and other responses to be preceded by the request to which they apply.

A trial court abuses its discretion by compelling production beyond the rules of procedure. In re Shipman , 540 S.W.3d 562, 565 (Tex. 2018). The rules at issue in this case are Rule 196.3(c) and Rule 193.1. Rule of civil procedure 196.3(c) requires the responding party to "either produce documents and tangible things as they are kept in the usual course of business or organize and label them to correspond with the categories in the request." TEX. R. CIV. P. 196.3(c). Rule 193.1 provides, in pertinent part, that the "responding party's answers, objections, and other responses must be preceded by the request to which they apply." TEX. R. CIV. P. 193.1.

At the hearing on Southern's motion, Southern's counsel stated that Hite provided seventeen PDF files, consisting of over six-hundred pages of documents, to Southern in response to Southern's production request. Southern's counsel characterized the response as a "mishmash of records," containing documents such as pleadings, pages regarding a soccer team, and blank pages. Hite's counsel acknowledged that the documents were "messy," but represented to Respondent that they were presented as Hite kept them in the normal course of business and that he could not "turn this into a corporate-looking set of records."

In In re Exmark Manufacturing Company , 299 S.W.3d 519 (Tex. App.—Corpus Christi 2009, orig. proceeding), Exmark complained that the trial court's discovery order unreasonably restricted its options and forced it to comply with requirements outside the scope of the rules of civil procedure. In re Exmark , 299 S.W.3d at 532. The order required Exmark to "identify each ... tangible item responsive to each Request for Production or by general categories of documents." Id. Exmark argued that the order compelled it to "organize its production in a manner more restrictive than the rules allow" by eliminating its ability to produce documents as they are kept in the normal course of business. Id. The Corpus Christi Court of Appeals, however, concluded that the order was not an abuse of discretion:

Contrary to Exmark's argument, the rules expressly and explicitly allow for the mode of production specified by the trial court and in fact, the trial court's order is less onerous than authorized by the rules because it allows Exmark to identify each item by "general categories of documents." According to Exmark, the time and expense required to organize and label documents tying them to one or more of the discovery requests prejudices relator as it is both unduly burdensome and contrary to the rules. Significantly, however, Exmark has produced no

evidence herein substantiating its claim that the trial court's order is overburdensome or unduly expensive.

Similarly, in this case, Hite presented no testimony, affidavits, or other evidence to support his objections to reorganization of the documents. See TEX. R. CIV. P. 193.4(a) ("party making the objection or asserting the privilege must present any evidence necessary to support the objection or privilege"). Even assuming no such evidence was necessary, the scope of discovery is generally within the trial court's discretion. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). Although Rule 196.3(c) allows a party to produce documents as they are kept in the usual course of business, Respondent's order tracks Rule 193.1 by instructing that Hite's responses be preceded by the request to which they apply. See TEX. R. CIV. P. 193.1. Requiring Hite to provide specific delineation of which documents respond to which request is, therefore, authorized by the rules of civil procedure, and is not tantamount to an improper discovery order that imposes more onerous requirements than the rules permit, such as an order requiring the creation of a document that does not already exist. See In re Colonial Pipeline Co ., 968 S.W.2d 938, 942 (Tex. 1998). Accordingly, it was not unreasonable for Respondent to require compliance with Rule 193.1's requirement that answers, objections, and other responses be preceded by the applicable request. See TEX. R. CIV. P. 193.1, 196.3(c); see also In re CSX Corp ., 124 S.W.3d at 152 (trial court must make efforts to impose reasonable discovery limits); see Texaco , Inc. v. Dominguez , 812 S.W.2d 451, 458 (Tex. App.—San Antonio 1991, orig. proceeding) ("We do not find it unreasonable for the trial court, in an effort to clarify discovery and meet the purposes of discovery (to try cases based on what the facts reveal, not what they conceal), to order the party producing the documents, and who is most familiar with them, to identify which documents satisfy which request").

Under these circumstances, we conclude that Respondent did not abuse his discretion by ordering Hite to produce documents in compliance with Rule 193.1. See Tex . Dep't of Family and Protective Servs., 210 S.W.3d at 613. For this reason, Hite fails to meet his burden of establishing both prerequisites to mandamus relief. See Cerberus Capital Mgmt ., L.P., 164 S.W.3d at 382; see also Fitzgerald , 429 S.W.3d at 891.

DISPOSITION

Having determined that Hite failed to establish his entitlement to mandamus relief, we deny the petition for writ of mandamus.

JAMES T. WORTHEN

Chief Justice Opinion delivered June 6, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

RONDAL L. HITE, Relator V. HON. DAVID SCOTT BRABHAM, Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by Rondal L. Hite; who is the relator in Cause No. 2016-1526-A, pending on the docket of the 188th Judicial District Court of Gregg County, Texas. Said petition for writ of mandamus having been filed herein on May 11, 2018, and the same having been duly considered, because it is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby denied.

James T Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.