Opinion
No. 04-18-00305-CV
06-20-2018
IN RE WPGL, LLC, Lin Indrio, Inc., and Lloyd Moody
DISSENTING OPINION
Original Mandamus Proceeding From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2017-CI-08598
The Honorable Angelica Jimenez, Judge Presiding Opinion by: Rebeca C. Martinez, Justice
Dissenting Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice
This proceeding arises out of Cause No. 2017-CI-08598, styled Castillon Construction, Inc. v. WPGL, LLC, Lin Indrio, Inc., and Lloyd Moody, pending in the 73rd Judicial District Court, Bexar County, Texas. The Honorable Angelica I. Jimenez signed the order at issue in the original proceeding.
Because I believe the trial court erred by ordering relators WPGL, LLC, Lin Indrio, Inc., and Lloyd Moody (collectively "WPGL") to provide real party in interest Castillon Construction, Inc. with notice and an opportunity to observe and inspect any testing or corrective action taken by WPGL on the real property in question, I would conditionally grant relator's petition for writ of mandamus and order the trial court to vacate its order. Accordingly, I respectfully dissent to the majority's opinion and order denying the petition for writ of mandamus.
BACKGROUND
Castillon Construction submitted a bid proposal to Lloyd Moody for construction of a convenience store on real property ("the convenience store property") owned by WPGL, LLC. According to Lloyd Moody, it discovered defects in the construction among other issues relating to the project. Lloyd Moody claims Castillon Construction abandoned the project before it was completed.
Subsequently, Castillon Construction filed a mechanics and materialman's lien on the convenience store property and brought suit against WPGL for judicial foreclosure and breach of contract. In its answer, WPGL asserted counterclaims for fraudulent lien, negligence, breach of contract, and fraud.
During the discovery process, Castillon Construction filed a "Motion to Coordinate Invasive Testing." In that motion, Castillon Construction asked the trial court to "notify [Castillon Construction's] attorney at least thirty (30) days in advance so it may have its agents, representatives and experts present at the time that testing is being performed." WPGL opposed the motion, arguing it exceeded the bounds of discovery as set forth in Rule 196.7 of the Texas Rules of Civil Procedure, which governs discovery motions relating to entry upon real property. See TEX. R. CIV. P. 196.7. At the hearing, counsel for Castillon Construction stated that if the trial court granted the motion, he would not "talk to anyone when I get there. I am going to go out there with my experts." He explained that if WPGL takes any invasive action at the convenience store property, i.e., breaks concrete, etc., he would "simply either take pictures, take notes, take measurements, and go home." He stated he would "not do anything but be there for those reasons."
After the hearing, the trial court rendered an order granting Castillon Construction's motion, ordering as follows:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED in the event any of the Defendants perform any invasive testing consisting of partially or fully tearing down any portion of a wall or roof constructed by the Plaintiff or cutting into concrete already in existence that was poured by the Plaintiff for the purpose of testing or examining Plaintiff's work related to complaints, Defendants shall provide Plaintiff's attorney with fourteen (14) days advance notice of a date and time to allow Plaintiff the opportunity to inspect the tested area for purposes of taking measurements, photographs, videos, and testing.Thus, considering the motion, the argument of Castillon Construction's attorney, and the order, it appears the trial court has ordered WPGL to give counsel for Castillon Construction fourteen-days' notice of the date and time of any invasive testing WPGL intends to perform so that counsel for Castillon Construction and its experts can be present to take measurements, photographs, videos, and conduct its own testing. Because this is contrary to the mandates of Rule 196.7, I believe the trial court abused its discretion in rendering the order.
ANALYSIS
In its petition, WPGL asserts the trial court clearly abused its discretion by requiring it to provide Castillon Construction's attorney with notice and an opportunity to inspect any invasive testing undertaken by WPGL on the convenience store property. WPGL further asserts it has no adequate remedy by appeal. I agree with both assertions.
Standard of Review
"Mandamus relief is available only to correct a 'clear abuse of discretion' when there is no other adequate remedy at law." In re Alcatel USA, Inc., 11 S.W.3d 173, 175 (Tex. 2000) (orig. proceeding); see In re M-I, L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (orig. proceeding). A trial court clearly abuses its discretion when its decision is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." M-I, L.L.C., 505 S.W.3d at 574 (quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). If the trial court fails to analyze or apply the law correctly, it has clearly abused its discretion. Id. With regard to the absence of an adequate remedy by appeal, "a party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court's discovery error." In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding) (quoting Walker, 827 S.W.2d at 843); In re Goodyear Tire & Rubber Co., 437 S.W.3d 923, 927 (Tex. App.—Dallas 2014, orig. proceeding). Accordingly, mandamus relief is available if a trial court compels production beyond the permissible bounds of discovery. In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009) (orig. proceeding).
Abuse of Discretion — Entry Onto Property of Another
Rule 196.7 of the Texas Rules of Civil Procedure governs discovery involving entry onto the real property of another to inspect, measure, survey, photograph, test, or sample the property or any designated object or operation. TEX. R. CIV. P. 196.7; In re SWEPI L.P., 203 S.W.3d 578, 583 (Tex. App.—San Antonio 2003, orig. proceeding). The trial court's order in this case permits counsel for Castillon — and presumably its experts — to enter onto WPGL's property for inspection and testing. Accordingly, Rule 196.7 controls.
The rule states, in pertinent part:
A party may gain entry on designated land or other property to inspect, measure, survey, photograph, test, or sample the property or any designated object or operation thereon.TEX. R. CIV. P. 196.7. Thus, the rule, by its own language, contemplates a party's entry onto the land of another to perform its own inspection or testing, not to observe the inspection or testing of others. See id. However, in this case, Castillon Construction, in its motion, sought entry upon the convenience store property only "so it may have its agents, representatives and experts present at the time that testing is being performed." Thus, Castillon Construction sought entry not for the purposes of conducting its own inspection or testing, but to observe that conducted by WPGL. When the trial court's order is considered in light of the only relief requested by Castillon Construction — and in accordance with its argument at the hearing — it is clear the trial court's order exceeds the bounds of Rule 196.7 by allowing Castillon Construction to observe any testing conducted by WPGL.
* * *
The request for entry upon a party's property . . . must state the time, place, manner, conditions, and scope of the inspection and must specifically describe any desired means, manner, and procedure for testing or sampling, and the person or person by whom the inspection, testing, or sampling is to be made.
An almost identical situation was presented Teer v. Law Eng'g and Envtl. Servs., Inc., 176 F.R.D. 206 (E.D.N.C. 1997). Although Teer involved review under Rule 34 of the Federal Rule of Civil Procedure — the federal counterpart to Rule 196.7 — Texas courts have often relied on precedent interpreting Rule 34 when faced with issues arising under Rule 196.7. See, e.g., In re Michelin N. Am., No. 14-15-00578-CV 2015 WL 7456101, at *5 (Tex. App.—Houston [14th Dist.] Nov. 24, 2015, orig. proceeding [mand. denied]) (mem. op.); Goodyear Tire & Rubber, 437 S.W.3d at 928; In re Kimberly-Clark Corp., 228 S.W.3d 480, 486 (Tex. App.—Dallas 2007, orig. proceeding). In Teer, the Teers purchased shares in a company in reliance on an environmental site assessment of the company's real property provided by Law Engineering and Environmental Services, Inc. 176 F.R.D. at 206-07. According to the Teers, after the purchase, chemical pollutants were discovered on the property — pollutants that were not previously disclosed. Id. at 207. After the Teers were ordered by the North Carolina Department of Environment, Health and Natural Resources to neutralize or eliminate the pollutants, they brought suit against Law Engineering and Environmental Services, Inc. See id.
Rule 34 states, in pertinent part: "Any party may serve on any other party a request ... to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b)." FED. R. CIV. P. 34(a)(2).
During the course of discovery, Law Engineering and Environmental Services, Inc. sought an order compelling the Teers to give advance notice of any testing, assessment, or corrective actions on the property and to permit it to observe and record any actions taken. Id. The Teers objected, arguing this was beyond on the scope of Rule 34. Id. The court agreed and held the plain language of the rule would permit Law Engineering and Environmental Services, Inc. to access the property to take soil and water samples or do other things necessary to evaluate the extent of the pollution. Id. The rule would not, however, authorize Law Engineering and Environmental Services, Inc. or its experts to observe the Teers or their experts as they assess the contamination or take steps to correct it. Id.
The same is true in this case. Although Rule 196.7 might authorize Castillon Construction to enter the convenience store property to undertake its own testing, inspection, or a sampling, it does not permit Castillon Construction to enter the property to observe any testing conducted by WPGL. See TEX. R. CIV. P. 196.7; Teer, 176 F.R.D. at 207.
I would also point out that Rule 196.7 does not contemplate that notice of testing or inspection be provided by anyone other than the party seeking entry upon the land — in this case, Castillon Construction. See TEX. R. CIV. P. 196.7(b). Nevertheless, the trial court ordered WPGL to give Castillon Construction fourteen-days' notice of any invasive testing it might perform. This is directly contrary to Rule 196.7, which requires the party seeking entry for inspection, testing, etc. to provide notice of the time, place, manner, conditions, and scope of any inspection. See id. However, it is not surprising that the trial court erroneously ordered WPGL to provide fourteen-days' notice to Castillon Construction. Once the trial court erroneously decided to permit Castillon Construction to enter the convenience store property to observe testing by WPGL, it necessarily would have to require WPGL to give Castillon Construction notice of when any testing would occur. Thus, one error begat another.
I would therefore conclude the trial court abused its discretion in ordering WPGL to provide Castillon Construction with notice and an opportunity to observe any testing or corrective action taken by WPGL on the convenience store property. See M-I, L.L.C., 505 S.W.3d at 574.
Adequate Remedy By Appeal
I would also conclude WPGL has no adequate remedy by appeal. As set out above, a party is entitled to mandamus relief if a trial court compels production beyond the permissible bounds of discovery. Weekley Homes, L.P., 295 S.W.3d at 322. As discussed, I believe the trial court in this case compelled production beyond the bounds of Rule 196.7, which sets the limitations for discovery related to entry upon the real property of another. Accordingly, WPGL is entitled to mandamus relief. See id. Once Castillon Construction is allowed to enter the property and observe WPGL's testing, it cannot be undone on appeal. As Lady Macbeth stated, "what's done cannot be undone." WILLIAM SHAKESPEARE, MACBETH act 5, sc.1.
CONCLUSION
For the reasons set out above, I would conditionally grant WPGL's petition for writ of mandamus and order the trial court to vacate its order granting Castillon Construction's "Motion to Coordinate Invasive Testing," which requires WPGL to provide Castillon Construction with notice and an opportunity to observe and inspect any testing or corrective action taken by WPGL on the convenience store property. Accordingly, I respectfully dissent to the majority's denial of the petition for writ of mandamus.
Marialyn Barnard, Justice