In re Ferguson

445 S.W.3d 270

In re Terri Cox FERGUSON, Relator.

No. 01–12–00607–CV.

Court of Appeals of Texas, Houston (1st Dist.).

March 12, 2013.

Jeffrey A. Fanaff, Acosta, Shrode & Soule, Houston, TX, for Relator.

Robert E. Ammons, The Ammons Law Firm, LLP, Houston, TX, for Real Party in Interest.

Panel consists of Chief Justice RADACK and Justices JENNINGS and KEYES.

OPINION

TERRY JENNINGS, Justice.

Relator, Terri Cox Ferguson, has filed a motion for rehearing. See Tex.R.App. P. 49.3. We deny Ferguson's motion for rehearing. I withdraw my January 10, 2013 opinion and substitute this opinion in its place.

By petition for writ of mandamus, Ferguson challenges the trial court's order compelling her response to certain requests for admissions in the underlying suit filed by real party in interest, Mario Bernal.¹ In her sole issue, Ferguson contends that the trial court abused its discretion in ordering her to respond in violation of the United State Constitution's Fifth Amendment privilege against self-incrimination.

We deny the petition for writ of mandamus.

Background

In her petition, Ferguson represents that Bernal has filed a suit against her for wrongful death and survival, alleging that Ferguson negligently caused the death of Gabriela Deyanira Rodriguez. In his response to Ferguson's petition, Bernal asserts that Ferguson, “[w]hile intoxicated,” struck Rodriguez, a pedestrian, with her car and “continued driving for approximately 14.5 miles” before being stopped by a police officer. Bernal asserts that Rodriguez's injuries “were so severe that [she] eventually died.”

Ferguson also represents that a grand jury issued a true bill of indictment, accusing her of committing the offenses of intoxication manslaughter, failure to stop and render aid, and felony murder. And Bernal has attached to his response a copy of an indictment in which it is alleged that Ferguson committed the offense of intoxication manslaughter by “operating a motor vehicle in a public place while intoxicated and by reason of that intoxication, caus[ing] the death of ... Rodriguez.”

Bernal served Ferguson with requests for admissions, in which he asked Ferguson to:

1. Admit that You do not contend that any defect or failure on the part of Your Vehicle caused the Incident.

2. Admit that You do not contend there is a Responsible Third Party not named by Plaintiff as a defendant in this lawsuit.

3. Admit that You were not on any prescription medication at the time of the Incident.

4. Admit that You are not claiming that You suffered from any medical condition immediately prior to the Incident that caused the Incident.

5. Admit that You are not claiming that You suffered from any medical condition immediately prior to the Incident that contributed to causing the Incident.

6. Admit that Your Vehicle was involved in the Incident.

7. Admit that Gabriela Deyonira Rodriguez was killed as a result of the Incident.

8. Admit that You suffered no physical injuries as a result of the Incident.

9. Admit that You did not stop at the scene to render aid following the Incident.

10. Admit that You did not call 911 at any [time] following the Incident.

11. Admit that You did not return to the scene of the Incident voluntarily.

12. Admit that You struck Gabriela Deyonira Rodriguez with Your Vehicle.

14. Admit that You failed to maintain a single marked lane of travel at the time of the Incident.

15. Admit that You failed to drive in a single lane at the time of the Incident.

16. Admit that You operated Your Vehicle in a reckless manner at the time of the Incident.

17. Admit that You failed to control Your speed at the time of the Incident.

18. Admit that Gabriela Deyonira Rodriguez did not cause the Incident.

19. Admit that You owed a duty to Gabriela Deyonira Rodriguez to use ordinary care in the operation of Your Vehicle.

20. Admit that at the time of the Incident You breached the duty to use ordinary care in the operation of Your Vehicle.

21. Admit that Gabriela Deyonira Rodriguez sustained fatal injuries in the Incident.²

In her “Defendant's Objections and Responses to Plaintiffs Request for Admissions,” Ferguson responded, for each of the above requests, “On the advice of counsel, I hereby assert my rights under the Fifth Amendment to the United States Constitution and decline to answer this question.” She then, “[s]ubject to and without waiving the foregoing objection,” responded, “DENY” for each of the above requests.

Bernal then filed a Motion to Compel Ferguson's responses to the requests. Both Ferguson and Bernal represent that the trial court held two hearings on the motion. The trial court granted Bernal's motion and overruled Ferguson's assertion of the Fifth Amendment privilege for each of Bernal's requests.

Standard of Review

Mandamus is an extraordinary remedy that is available only when (1) a trial court clearly abuses its discretion and (2) there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.2004) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). With respect to a trial court's determination of legal principles, “[a] trial court has no ‘discretion’ in determining what the law is or applying the law to facts.” In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840 ).

Requests for Admissions and the Fifth Amendment Privilege

In her sole issue, Ferguson argues that the trial court erred in ordering her to respond to Bernal's requests for admissions because her responses “might tend to subject her to further criminal prosecution and/or aid the criminal prosecutor in the preparation of the criminal case currently pending against her.”

The United States Constitution both guarantees that a person may not be compelled to testify or give evidence against herself. SeeU.S. Const. amend. V ; Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975) ; In re Commitment of Lowe, 151 S.W.3d 739, 745 (Tex.App.-Beaumont 2004, no pet.). The Fifth Amendment can be asserted in civil cases “wherever the answer might tend to subject to criminal responsibility [she] who gives it.” Tex. Dept. of Pub. Safety Officers Ass'n v. Denton, 897 S.W.2d 757, 760 (Tex.1995) (quoting McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924) ). Thus, it may be asserted to avoid general civil discovery if the person invoking it reasonably fears the answer would tend to incriminate her. Id.; see also Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1086 (5th Cir.1979). However, blanket assertions of the privilege in civil cases are impermissible. See Lowe, 151 S.W.3d at 745 ; In re Commitment of Browning, 113 S.W.3d 851, 862 n. 10 (Tex.App.-Austin 2003, pet. denied). And the privilege must be asserted on a question-by-question basis. Lowe, 151 S.W.3d at 745 ; In re Verbois, 10 S.W.3d 825, 828 (Tex.App.-Waco 2000, orig. proceeding).

Moreover, in a civil suit, a witness's decision to invoke the privilege is not absolute. In re Speer, 965 S.W.2d 41, 45 (Tex.App.-Fort Worth 1998, orig. proceeding). A trial court is entitled to determine whether the assertion of the privilege appears to be based upon the good faith of the witness and is justifiable under all of the circumstances. Ex Parte Butler, 522 S.W.2d 196, 198 (Tex.1975) ; In re R.R., 26 S.W.3d 569, 574 (Tex.App.-Dallas 2000, orig. proceeding); Speer, 965 S.W.2d at 45. Before compelling answers to discovery in a civil case over an assertion of the Fifth Amendment privilege, the court must be “perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency to incriminate.” Butler, 522 S.W.2d at 198. Upon a party's assertion of the Fifth Amendment privilege to a discovery request in a civil suit, the trial court reviews the discovery request, applies the law of privilege, discovery, and protection to the request, and determines how best to protect the privilege, the right to proceed with the case, and the right to defend the suit. Speer, 965 S.W.2d at 45–46 ; see In re R.R., 26 S.W.3d at 574. “It is the trial court's duty to consider the witness's evidence and argument on each individual question and determine whether the privilege against self-incrimination is meritorious.” Lowe, 151 S.W.3d at 745 (quoting Speer, 965 S.W.2d at 46 ).

The inquiry by the court is necessarily limited because the witness only has to show that a response is likely to be hazardous to her. Speer, 965 S.W.2d at 45. The witness cannot be required to disclose the very information the privilege protects. Butler, 522 S.W.2d at 198 ; Speer, 965 S.W.2d at 45. Each question for which the privilege is claimed must be studied, and the court must forecast whether an answer to the question could tend to incriminate the witness in a crime. Speer, 965 S.W.2d at 45.

Critical to the analysis, in regard to requests for admissions, the Texas Rules of Civil Procedure provide that,

Any admission made by a party under this rule may be used solely in the pending action and not in any other proceeding.

Tex.R. Civ. P. 198.3 (emphasis added). And the primary purpose of requests for admissions is to simplify trials by eliminating matters about which there is no real controversy. Boulet v. State, 189 S.W.3d 833, 838 (Tex.App.-Houston [1st Dist.] 2006, no pet.) ; Peralta v. Durham, 133 S.W.3d 339, 341 (Tex.App.-Dallas 2004, no pet.).

In In re Speer, the First State Bank of Texas served Speer with “requests for admissions, requests for production of documents, and interrogatories” in the bank's suit against Speer for breach of contract. 965 S.W.2d at 44. Speer denied all the requests for admissions and answered only some of the interrogatories; asserting the Fifth Amendment privilege, he raised numerous objections to the unanswered...