Opinion
No. 06-09-00086-CV
Date Submitted: October 26, 2009.
Date Decided: October 27, 2009, November 5, 2009.
Original Mandamus Proceeding.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Relators are several corporate entities and individuals formerly involved in the operation of nursing homes and defendants in long-pending healthcare liability actions. Relators have filed in this Court a petition for writ of mandamus relating to the Honorable Lauren Parish's appointment of a special master to preside in discovery and other pretrial matters filed in these two cases. Relators ask this Court to direct the trial court to vacate its order appointing the special master because the case does not qualify as a case in which such appointment is permitted. See TEX. R. CIV. P. 171.
The underlying cases are docketed under trial court cause number 545-03 styled David Richardson, Individually, as the Representative for All Wrongful Death Beneficiaries, and as an Heir at Law and the Representative of the Estate of John Richardson, Deceased v. Gladewater Healthcare Center, in its Assumed or Common Name; Nexion Health at Gladewater, Inc.; Nexion Health, Inc.; Nexion Health Management, Inc.; Nexion Health at Texas, Inc.; Nexion Health Leasing Inc.; Nexion Health Realty, Inc.; Darlene Maloney, Individually; Bruce Henshaw, Individually; and Donna Albright, Individually and under trial court cause number 606-03 styled Bobby Green, as Temporary Administrator of the Estate of Bonnie Burcalow, Deceased v. Upshur Manor Nursing Home, Upshur County, Texas in Its Assumed or Common Name Nexion Health at Gilmer, Inc.; Nexion Health, Inc.; Nexion Health Management, Inc.; Nexion Health at Texas, Inc.; Nexion Health Leasing, Inc.; Nexion Health Realty, Inc.; Doyle Ross, Individually; Denise Honnoll, Individually; and Thyri Hawkins, Individually.
I. RELEVANT PROCEDURAL HISTORY
On April 22, 2009, the trial court appointed Richard Davis as a special master "to handle the discovery disputes and other matters, including all pretrial matters." At that time, no objection was made regarding the appointment. On May 8, 2009, the parties appeared without objection before the special master at a hearing on several pretrial motions. On May 15, 2009, the special master made several recommendations regarding pretrial matters adverse to Relators' positions. Of those several recommendations, the master directed that Relators make certain high-ranking corporate officers available for deposition. It is from this adverse ruling on the apex deposition issue that Relators previously and unsuccessfully sought mandamus relief from this Court.
Along with its order overruling Relators' motions to quash depositions of the corporate officers, the special master signed an order overruling Relator's objections to Real Parties in Interest's request to take judicial notice of an agreed order between Relator Darlene Maloney and the Texas Board of Nurse Examiners, an order overruling Relators' objections to Real Parties in Interest's request to take judicial notice of specific codified rules of agencies and specific public statutes for 2002, an order overruling Relators' objections to Real Parties in Interest's notice letter pursuant to TEX. R. CIV. P. 193.7, an order overruling objections and privileges to requests for production, and order granting Real Parties in Interest's motion for sanctions relating to defense counsel's violation of HIPAA. In this final order, the master found that defense counsel "improperly" contacted and "collud[ed] with" a doctor of one of the deceased plaintiffs, communicating ex parte with the doctor. As a result, the master prohibited defense counsel from contacting any of the Real Parties in Interest's healthcare providers without notice and opportunity to move for a protective order, struck the affidavit of Dr. Kenneth L. Skipper, and ordered production of a list of healthcare providers that were contacted in such manner.
See In re Gladewater, No. 06-09-00058-CV, 2009 Tex. App. LEXIS 5365 (Tex. App.-Texarkana July 14, 2009, orig. proceeding).
On June 2, 2009, Relators filed with the trial court their objections to the appointment of the special master in both causes. After a hearing on those motions, the trial court overruled Relators' objections.
II. APPLICABLE LAW
A. Availability of Mandamus
Mandamus relief is available to correct a trial court's clear abuse of discretion or violation of a ministerial duty when there is no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). A clear failure of the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in issuance of a writ of mandamus. See In re Tenet Hosp., Ltd., 116 S.W.3d 821, 825 (Tex. App.-El Paso 2003, orig. proceeding). B. Appointment of Special Master and Objection to Appointment
Rule 171 governs the appointment of masters in chancery:
The court may, in exceptional cases, for good cause appoint a master in chancery, who shall be a citizen of this State, and not an attorney for either party to the action, nor related to either party, who shall perform all of the duties required of him by the court, and shall be under orders of the court, and have such power as the master of chancery has in a court of equity.
Rule 171 does not specify a time by which a party must object to the appointment of a master. Owens-Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622, 624 (Tex. App. 1991, orig. proceeding). Courts have concluded that a party objecting to a special master's appointment must make an objection not within some arbitrary time period but before it has taken part in proceedings before the master or before the parties, the master, and the court have acted in reliance on the master's appointment. Id. at 625; Zwick v. Zwick, No. 2-08-182-CV, 2009 Tex. App. LEXIS 3949 (Tex. App.-Fort Worth June 4, 2009, no pet.) (mem. op.). That is, a party's objection to the master's appointment is timely if filed before the party participates in proceedings before the master. See Caldwell, 830 S.W.2d at 625.
III. DISCUSSION
A. Preliminary Matter: No Written Order Overruling Objections
Relators concede that there are no written orders overruling the objections to the special master's appointment. They maintain, however, that the issue is properly before this Court. We agree. "[I]t seems clear that if a court's ruling is adequately shown by the reporter's record, then a formal written order is now unnecessary." In re Perritt, 973 S.W.2d 776, 779-80 (Tex. App.-Texarkana 1998, orig. proceeding), mand. granted on other grounds, 992 S.W.2d 444 (Tex. 1999) (orig. proceeding); see TEX. R. APP. P. 52.3(k)(1)(A) (requiring that an appendix to a petition seeking mandamus relief include "a certified or sworn copy of any order complained of, or any other document showing the matter complained of") (emphasis added). Sister courts have similarly held. See In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App. 2006, orig. proceeding); In re Vernor, 94 S.W.3d 201, 206 n. 8 (Tex. App.-Austin 2002, orig. proceeding); In re Bledsoe, 41 S.W.3d 807, 811 (Tex. App.-Fort Worth 2001, orig. proceeding).
The record before us indicates that the trial court had before it proposed orders available after its oral ruling and that it has not, to date, signed one of those proposed orders. At the July 7 hearing, however, the trial court clearly overruled Relators' objections:
An order pronounced in open court is considered "rendered" when it is officially announced, and it is valid from that time forward, so that formal entry is only a ministerial act. Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex. 1969); Bill Heard Chevrolet, Ltd., 209 S.W.3d at 314. Therefore, to be effective, all orders and rulings must be made on the record either in writing or in open court transcribed by the court reporter. See TEX. R. APP. P. 33.1(a)(2); Bill Heard Chevrolet, Ltd., 209 S.W.3d at 315. We note that Relators have not requested that this Court compel the trial court to sign a written order. The real parties in interest do not contend in their response that the absence of a written order precludes our review of the issue presented.
I'm going to deny it as to these two cases only and the other — as far as the rest I'll leave that open for right now, okay, but I'm going to deny it on these two cases that are specially set. And will be — I'll hopefully receive an order very soon, and therefore, any appellate, you know, measures that you-all feel you can take you can take with expediency and we can get these cases moved.
We have before us the reporter's record of that hearing. Therefore, we conclude that the reporter's record of the July 7 hearing and the trial court's apparent refusal to sign a written order in this case are "sufficient to place before us the complaints made the basis of relators' petition for writ of mandamus." See Perritt, 973 S.W.2d at 779-80.
B. Challenging the Appointment
Having concluded that the issue is before us, we move on to the substance of that issue. Relators contend that the trial court failed to make the required findings that these causes were "exceptional cases" and that "good cause" existed for the appointment of the special master. See Simpson v. Canales, 806 S.W.2d 802 (Tex. 1991).
Due to the procedural history of the underlying cases, however, we need not reach the merits of the Rule 171 contention. The record indicates that Relators have appeared before the special master without objection. Most notably, we look at Relators' participation in the pretrial hearing on May 8, 2009. The hearing addressed several pretrial matters, and at no time during that hearing did Relators object to the appointment of the special master. We also note that Relators corresponded with the special master and filed with the special master a number of motions. In Caldwell, although the objections were lodged several months after the trial court signed its order appointing the master, the objections were lodged before the objecting party's participation in matters before the master. 830 S.W.2d at 626. So, though we note that Relators objected approximately five weeks after the appointment of the master, it is the level of participation here on which we concentrate. By fairly extensive participation in proceeding before the special master, Relators have waived their objection to the appointment of the master.
It is because of the significant participation in matters placed before the special master that we need not address the real parties in interest's contention that Relators consented to the appointment of a special master. In their response, the real parties in interest refer to a conference call with the trial court and opposing counsel during which all parties agreed to the appointment. We expressly avoid addressing the consent issue as it relates to the time period before the appointment.
The record indicates that the parties participated in a conference call with the special master on April 28 to discuss scheduling matters. Further, it appears that Relators filed several motions with the special master, including a supplemental motion for summary judgment, motion for continuance, and a motion to strike. Relators also submitted to the special master their proposed order following the May 8 hearing.
IV. CONCLUSION
Relators have not shown that the trial court clearly abused its discretion by overruling objections to the appointment of a special master when Relators have waived such objections by appearing before the special master. Relators have, therefore, failed to establish that they are entitled to mandamus relief. For this reason, we deny the petition. Having done so, we deny as moot Relators' motion for temporary relief.
ON MOTION FOR REHEARING
Relators have filed a motion for rehearing in connection with their petition seeking mandamus relief. See TEX. R. APP. P. 52.9. In their petition, Relators asked this Court to vacate the trial court's appointment of a special master to preside over discovery and other pretrial matters in two causes, which we will refer to as the Richardson case and the Burcalow case. In light of the apparent settlement of the dispute in the Richardson case, Relators concede that the issues concerning the appointment of the special master as it relates to that case are now moot. They, however, have asked us to reconsider mandamus relief as it relates to the remaining case, the Burcalow case.
The underlying cases are docketed under trial court cause number 545-03 styled David Richardson, Individually, as the Representative for All Wrongful Death Beneficiaries, and as an Heir at Law and the Representative of the Estate of John Richardson, Deceased v. Gladewater Healthcare Center, in its Assumed or Common Name; Nexion Health at Gladewater, Inc.; Nexion Health, Inc.; Nexion Health Management, Inc.; Nexion Health at Texas, Inc.; Nexion Health Leasing Inc.; Nexion Health Realty, Inc.; Darlene Maloney, Individually; Bruce Henshaw, Individually; and Donna Albright, Individually and under trial court cause number 606-03 styled Bobby Green, as Temporary Administrator of the Estate of Bonnie Burcalow, Deceased v. Upshur Manor Nursing Home, Upshur County, Texas in Its Assumed or Common Name Nexion Health at Gilmer, Inc.; Nexion Health, Inc.; Nexion Health Management, Inc.; Nexion Health at Texas, Inc.; Nexion Health Leasing, Inc.; Nexion Health Realty, Inc.; Doyle Ross, Individually; Denise Honnoll, Individually; and Thyri Hawkins, Individually.
I. PROCEDURAL HISTORY
In our opinion denying their petition, we concluded that the Relators' participation and appearance before the special master served to waive their objection to his appointment. In their motion for rehearing, Relators maintain that their participation before the special master concerned the now-moot Richardson case, rather than the still-pending Burcalow case. Indeed, the bulk of the discussion at the May 8 hearing before the master concerned issues arising in the Richardson case, and the record before us suggests that the master's recommendations that followed the hearing were limited to the Richardson case. We will now turn to an more in-depth examination of the record before us to determine whether Relators otherwise participated in the Burcalow matter in such a way that it could be said that they waived their objection to the appointment of the master.
II. APPLICABLE LAW
First, we revisit the standard by which we measure whether a party waived an objection to the appointment of a master under TEX. R. CIV. P. 171. A party objecting to a special master's appointment must make an objection not within some arbitrary time period but before it has taken part in proceedings before the master or before the parties, the master, and the court have acted in reliance on the master's appointment. Owens-Corning Fiberglas Corp. v. Caldwell, 830 S.W.2d 622, 625 (Tex. App. 1991, no writ); see also Zwick v. Zwick, No. 02-08-00182-CV, 2009 Tex. App. LEXIS 3949, at *8-9 (Tex. App.-Fort Worth June 4, 2009, no pet.) (mem. op.) (discussing reliance aspect of Caldwell court's conclusion).
Relators maintain that they did not participate in proceedings before the master relating specifically to the Burcalow case to the degree that such participation would constitute a waiver of their objection to the appointment. We disagree. Though Relators' participation relating to the Burcalow case was more limited than their participation in connection with the Richardson case, the record before us contains sufficient indicia of waiver by Relators' participation, albeit more limited, and their actions demonstrating an acceptance of the appointment and inviting reliance on the appointment.
III. DISCUSSION
First, we note the correspondence from Relators to opposing counsel regarding the conference call with the special master. Relators specifically mention the upcoming May 8 hearing without objection, noting that they are available on that date. Relators refer to both the Richardson and Burcalow cases.
Both cases were indeed taken up at the May 8 hearing. At the very beginning of the hearing, the special master clearly announces that "two cases" will be taken up and names both the Richardson and Burcalow cases. Neither an objection was lodged, nor was there any other expression that would suggest the parties intended to appear in the Richardson case only. Early in the proceedings, it appears that the parties requested that certain motions relating to the Burcalow matter be heard later to allow a witness to be available. The special master went on to hear several pretrial matters relating primarily to the Richardson case. The Burcalow case was discussed to a much more limited degree, however.
Relators agreed at the May 8 hearing to hear certain motions in the Burcalow case on June 12. Again, as counsel and the special master discussed this scheduling, there was no indication that Relators objected to the appointment as it related to the Burcalow case. The master explained that he was available on certain dates and allowed counsel to express their preferences regarding the best date for their schedules as well. Relators would later send to opposing counsel correspondence dated May 12, 2009, confirming the date of the hearing in the Burcalow case and attaching a notice of hearing in the Burcalow case. So, while much less was done at the hearing in terms of disposition of motions in connection with the Burcalow case, Relators did appear in the matter and agreed that motions in the Burcalow case would be heard later on a date certain when Relators' witness was available. Their later correspondence expresses their own reliance on the agreed time and subject matter of the hearing before the master and could serve to invite opposing counsel to rely on the same.
Next, though Relators attempt to minimize the import of participation in conference calls with the special master in which the parties scheduled a hearing relating to both the Richardson and Burcalow cases, we cannot simply overlook such activity. While we agree with Relators that on these facts, such participation does not constitute an appearance before the master, such activity, especially without the suggestion of any objection to the appointment, would certainly serve to support a conclusion that the parties, the trial court, and the special master relied on the appointment. When considered in the context of the rest of the record before us, Relators' participation in conference calls regarding scheduling in the Burcalow matter and their later confirmation of the dates at which the parties arrived suggest, at a minimum, a tacit acceptance of the appointment and would serve to demonstrate reliance, even their own reliance, on the appointment of the special master.
IV. CONCLUSION
The conference calls, the appearance, and discussion at the May 8 hearing, and Relators' own correspondence all suggest that Relators, opposing counsel, the trial court, and the special master acted in reliance on the appointment. As a result, Relators' June 2 objection to the appointment of the special master in the Burcalow case, after all this activity, was too late.
Mandamus will issue to correct a clear abuse of discretion when there is no adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Because Relators participated before the special master in the Burcalow matter without objection in such a manner and to such a degree that opposing counsel, the trial court, and the special master relied on the appointment, we cannot say that the trial court abused its discretion by overruling Relators' objection to the appointment of the special master as it relates to the Burcalow case. Relators have, therefore, failed to establish that they are entitled to mandamus relief. With this opinion clarifying the distinction between Relators' participation in the Richardson and Burcalow cases, we deny Relators' motion for rehearing. Relators have also filed a motion to reconsider temporary relief. See TEX. R. APP. P. 52.10. Having concluded that Relators have failed to establish that they are entitled to mandamus relief, we again deny as moot Relators' motion for temporary relief.