In re Lee

686 S.W.3d 449

IN RE Dr. Victor L. LEE and Lee Orthodontics, PLLC

No. 11-23-00254-CV

Court of Appeals of Texas, Eastland.

Opinion filed February 29, 2024

Original Mandamus Proceeding, James Eidson, Judge

Stephen A. Kennedy, 1445 Ross Avenue, Suite 2750, Dallas, TX 75202, Cynthia Hollingsworth, Hollingsworth Walker LLC, Campbell Centre II Suite 100, 8150 N. Central Expressway, Dallas, TX 75206, for Relator.

Seth M. Tatom, R. Scott Westlund, Ketterman Rowland & Westlund, 19122 US Highway 281 N. Suite 324, San Antonio, TX 78258, for Real Party in Interest.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

W. BRUCE WILLIAMS, JUSTICE

This mandamus proceeding arises from the trial court’s order requiring a Professional Limited Liability Company to waive its claims for affirmative relief unless its member/owner agreed to waive his privilege against self-incrimination in connection with allegations brought against him for sexual assault. On January 29, 2018, Melissa Barnes, the Real Party in Interest, sent an e-mail to Morris Dental Associates using a Gmail account bearing the name "kris zander" (kriszzander@gmail.com). The e-mail expressed "shock" that Morris Dental was referring children to Relator Victor L. Lee, an orthodontist in Abilene, and indicated that Dr. Lee had been arrested for family violence and that he was well known in the community and to law enforcement for "crimes against multiple women." Dr. Lee’s petition for mandamus indicates that he and Barnes are former intimate partners, and Barnes claims in her petition that she is one of his victims.

Barnes filed a lawsuit against Dr. Lee and Lee Orthodontics, PLLC and sought to depose Dr. Lee. Dr. Lee appeared for the deposition but, to the vast majority of questions asked, invoked the privilege against self-incrimination. See U.S. Const. amend. V; Tex. Const. art I, § 10.¹ Relator PLLC, of which Dr. Lee is a member and owner, brought claims against Barnes for tortious interference with contract and defamation arising in part out of Barnes’ email to Morris Dental. Barnes then sought to depose Dr. Lee again in connection with PLLC’s claims.

In this mandamus proceeding, we are asked to determine whether the trial court abused its discretion when it ordered that Relators "elect to litigate affirmative claims against [Barnes], submitting to discovery and waiving Fifth Amendment privilege, or whether [Relators] elect to maintain the Fifth Amendment privilege." Stated otherwise, did the trial court abuse its discretion when it ordered that PLLC’s claims against Barnes would be dismissed unless Dr. Lee agreed to waive his privilege against self-incrimination?²

Factual Background

In her petitions, Barnes claims that Dr. Lee assaulted her on multiple occasions between May 2016 and May 2017. She alleges that, on at least one of these occasions, Dr. Lee video-recorded a sexual assault, which occurred while she was unconscious. Both Dr. Lee and PLLC deny the allegations.

On January 29, 2018, Barnes sent the e-mail in question to Morris Dental Associates. The e-mail read as follows:

I recently was made aware of your affiliation with Dr Lee of Lee Orthodontics. It’s shocking to find out you would recommend CHILDREN who are patients of yours to a man who has a criminal record and was arrested back in September 2017 for family violence and incidents involving young children. The cases are all still active and the state of Texas has 4 criminal complaints against this man. He is also WELL KNOWN with the community and law enforce-merit for crimes against multiple women. Some of who [sic] are finally coming forward thanks to the #metoo campaign going on across the country.

I know you to be a great man, and your family has a great reputation in the area. So, I would bargain that you were somehow unaware of his background.

On the following day, Courtney Shelby, an employee of Morris Dental, forwarded the e-mail to PLLC.

Dr. Lee and PLLC also maintain that, on April 3, 2018, a Facebook user under the name of "Kendall" created a page called "Local Mugshots." The first post on the new page includes what appears to be a police photograph of Dr. Lee. The page is titled "Seems to be a local orthodontist … BUSTED." In a response to a comment on the page, the Local Mugshots account also indicated that "his ex wife also has had several restraining orders [against him]."

In response to these events, Dr. Lee and PLLC filed a petition under Rule 202 of the Texas Rules of Civil Procedure requesting the depositions of Alphabet, Inc.³ and Facebook, Inc. for the purpose of identifying the account owners. Suspecting that Barnes may have been involved in one or both communications, Dr. Lee and PLLC also sought the deposition of Barnes, who at the time was known by the surname Coelho.

Barnes answered with a general denial and filed a counterclaim against Dr. Lee and PLLC for multiple causes of action. The trial court denied the Rule 202 petition but allowed Barnes to convert her response into a lawsuit for damages—Barnes’s suit alleged various claims, including assault, false imprisonment, terroristic threats, and invasion of privacy by Dr. Lee and negligence by Dr. Lee and by PLLC.

On January 25, 2021, Dr. Lee appeared for a deposition. During the deposition, Dr. Lee repeatedly asserted the privilege against self-incrimination. Dr. Lee asserted the privilege in connection with 103 out of approximately 108 total questions—primarily those about his alleged sexual assaults of Barnes. Following the deposition, Dr. Lee and PLLC filed counterclaims against Barnes for tortious interference and defamation.

In early 2023, the parties each filed motions to compel. Dr. Lee and PLLC sought access to Barnes’s cell phone and computer in order to obtain the alleged video of the sexual assault.⁴ Barnes sought to compel written discovery from Dr. Lee and, in light of the counterclaims, sought to compel Dr. Lee "to appear for [another] deposition and provide full and complete answers." Alternatively, Barnes asked that Dr. Lee "be barred from presenting evidence relating to his counterclaims" as a result of the offensive use of the privilege against self-incrimination. Thereafter Dr. Lee, but not PLLC, nonsuited his counterclaims against Barnes.

On March 15, 2023, the trial court conducted a hearing on the motions to compel. The mandamus record does not include a transcript of the hearing. Approximately six months later, Barnes filed a motion that requested the trial court to enter an order based on the outcome of the hearing. In the motion, Barnes maintained that "[t]he Court orally ruled to compel" the deposition of Dr. Lee, and that Dr. Lee’s counsel had since refused to cooperate or approve of Barnes’s proposed orders relating to the ruling. In response, Dr. Lee filed a motion to quash his deposition and to compel discovery from Barnes.

On October 5, 2023, the trial court conducted a hearing on the motion to enter an order as well as Dr. Lee’s motion to quash. At the outset of the hearing, the trial court indicated that, among other things, it had ruled in the previous hearing that Dr. Lee would be deposed. In response, counsel for Dr. Lee asked the trial court to defer a ruling on Dr. Lee’s assertion of the privilege against self-incrimination, as well as his second requested deposition, until after Dr. Lee obtained testimony from Barnes and other witnesses and secured a ruling on a motion for summary judgment against Barnes. The trial court then indicated that, since Dr. Lee stood to benefit from the counterclaims filed and maintained by PLLC, it would strike those counterclaims unless Dr. Lee testified. Thereafter, the trial court entered an order requiring Dr. Lee to file a written election indicating whether he would waive his "Fifth Amendment privilege."⁵ The order further provided that if Dr. Lee did not elect to waive his Fifth Amendment privilege within fourteen days, PLLC’s affirmative claims would be "summarily dismissed."

The order also ordered both parties to produce electronic devices⁶ that were "in use at the time of the occurrence made basis of this suit" for examination by a neutral, third-party forensics expert. It indicated that the contents of Dr. Lee’s devices would be designated as "Confidential Discovery," which could only be disclosed to the parties, their attorneys, the trial court, and related staff. Likewise, the order provided that any testimony given by Dr. Lee would be "subject to a protective order" that is "substantially equivalent" to its other orders relating to Dr. Lee’s devices.

Following entry of the order, Dr. Lee and PLLC filed this petition for writ of mandamus.

Mandamus

[1–4] Mandamus is an "extraordinary" remedy that is "available only in limited circumstances." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). A writ of mandamus will issue only if the trial court clearly abused its discretion, and the relator has no adequate remedy on appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). With respect to the first requirement, a trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). In addition, because a trial court has no discretion in determining what the law is or in applying it to the facts, a trial court abuses its discretion if it fails to correctly analyze or apply the law. See Prudential, 148 S.W.3d at 135; see also In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding).

[5, 6] "[W]hen a trial court imposes discovery sanctions which have the effect of precluding a decision on, the merits of a party’s claims—such as by striking plead- ings, dismissing an action, or rendering default judgment—a party’s remedy by eventual appeal is inadequate, unless the sanctions are...