In re Torres, NUMBER 13-17-00172-CV

IN RE KANDI TORRES, KEISHA COLLINS, OLIVER BELL, JENNIFER SMITH, AND JANET SALLAS

NUMBER 13-17-00172-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

June 21, 2017

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Hinojosa

Memorandum Opinion by Justice Rodriguez¹

Relators Kandi Torres, Keisha Collins, Oliver Bell, Jennifer Smith, and Janet Sallas filed a petition for writ of mandamus and emergency motion for temporary relief in the above cause on April 3, 2017. Through this original proceeding, relators, who are prison officials, seek to compel the trial court to vacate an order requiring them to respond todiscovery requests propounded by the real party in interest, inmate Michael A. McCann.² Relators contend that the trial court has abused its discretion in requiring them to respond to discovery pertaining to the merits of McCann's lawsuit while their jurisdictional plea remains pending. We conditionally grant the petition for writ of mandamus.

I. BACKGROUND

On August 23, 2013, McCann filed suit against multiple prison employees³ alleging that they had retaliated against him for utilizing the prison grievance system and alleging that they had stolen his postal stamps, withheld and destroyed his mail, and fraudulently identified his mail and legal work as prohibited "offender to offender mail" or as prohibited sexually explicit materials. McCann alleged that the defendants violated his constitutional right to freedom of speech and committed fraud, conspiracy to commit fraud, theft, conspiracy to commit theft, retaliation, and violations of RICO. See 15 U.S.C.A. §78j(b) (West, Westlaw through P.L. 115-22) (comprising the Racketeering Influenced and Corrupt Organizations Act). McCann sought declaratory and injunctive relief and the recovery of his court costs.

On June 9, 2016, this Court considered an interlocutory appeal arising from this cause and affirmed in part and reversed in part the trial court's denial of summary judgment regarding the prison officials' assertions of immunity. See Torres v. McCann,No. 13-15-00187-CV, 2016 WL 3225880, at *7 (Tex. App.—Corpus Christi June 9, 2016, no pet.) (mem. op.). We affirmed the trial court's denial of summary judgment regarding McCann's claims concerning theft, conspiracy to commit theft, fraud, conspiracy to commit fraud, and RICO violations, and we reversed the trial court's denial of summary judgment as to McCann's First Amendment and retaliation claims and rendered judgment in appellants' favor on these claims. See id.

On September 23, 2016, following remand, Torres, Collins, and Bell filed a motion to dismiss the case for lack of jurisdiction on grounds that McCann's causes were barred by sovereign and statutory immunity.

On October 10, 2016, McCann filed a first amended petition in which he eliminated some defendants and added some defendants.⁴ In this amended pleading, McCann expanded the factual allegations underlying his causes of action against the prison officials and added a request for punitive damages and prejudgment and postjudgment interest.

On October 14, 2016, Torres, Collins, Bell, Smith, and Sallas, relators herein, filed an amended motion to dismiss the case for lack of jurisdiction. Relators again asserted that McCann's claims were barred by sovereign immunity and statutory immunity under the Texas Torts Claims Act.

In November of 2016, McCann propounded requests for admissions, interrogatories, and requests for production to relators. These discovery requestsgenerally address the litigation and McCann's substantive claims against relators.⁵ Relators did not respond to the discovery requests, and some time thereafter, McCann filed a motion to compel.

On January 26, 2017, Torres, Collins, Smith, Sallas, and Bell filed objections to McCann's motion to compel and a motion for a protective order. They asserted that McCann's motion to compel was premature because their motion to dismiss was still pending, and a resolution of the motion to dismiss would potentially dismiss all of McCann's claims. These defendants sought a protective order against all discovery until the trial court ruled on their amended motion to dismiss for lack of jurisdiction.

The trial court set the defendants' amended motion to dismiss for hearing on February 1, 2017. The defendants filed a bench brief in support of their amended motion to dismiss on January 31, 2017.

At the February 1, 2017 hearing, the parties discussed the defendants' motion to dismiss, but also discussed the status of McCann's pending discovery requests. Counsel for the defendants requested a ruling on their motion to dismiss because, if meritorious, "there would be no reason to engage in discovery because the case would be dismissed." In turn, McCann alleged that the defendants' counsel had failed to give him "any discovery whatsoever." In discussing this issue, the trial court acknowledged having held a previous hearing on discovery and stated that "there's no discovery since the last order," and acknowledged that McCann had filed "a motion to compel the discovery that was agreed to and/or authorized that we talked about at our last hearing."At the hearing, the trial court appears to have agreed with McCann that the defendants had agreed to produce discovery at a previous hearing: "There's no doubt in my mind. They've reneged on their deal." The trial court stated that "[t]hey've reneged on my order" and "effectively violated my order." At the conclusion of further discussions, the trial court instructed counsel from the Office of the Attorney General (the OAG) that, "[s]pecifically, you guys are ordered to comply with my discovery order." The trial court then set a future hearing on the "status of discovery."

The trial court held a pretrial hearing on March 3, 2017, regarding the status of discovery and the trial setting. McCann alleged that the defendants had not responded to his requests for admissions or his interrogatories. He alleged that they had answered "a lot" of his requests for production, comprising "over 500 pages," but had failed to produce any "policies" that he had requested. Counsel for the defendants asserted that they had responded to the requests for admission "this week" and McCann probably had not received them yet. Counsel asserted that they were "still working" on the interrogatories, but referenced that it was "difficult" because a number of the relators were no longer employed with the TDCJ. Counsel acknowledged that he had neither requested an extension of time from McCann to file the answers nor filed a motion for extension of time to file the answers. The parties and the trial court spent some time discussing, in detail, the documents that were filed with this Court with regard to the previous appeal to this Court and whether or not McCann should be given copies of documents including sexually explicit images. In resolving the outstanding discovery matters, the trial court stated that he wanted the parties to be "on an even playing field" for the ultimate disposition of the case. The trial court stated that he had "ordereddiscovery, and I can't understand why I keep coming back time after time and this stuff is not being taken care of." The trial court ultimately stated:

So here is what I'm going to do today:

I want every admission responded to in group or otherwise. I don't care but in appropriate, legal form, and I want those on file. . . .

. . . .

But because I have made three sets of orders—or this is going to be my third set of orders about how discovery needs to be done, and it's not being done, I'm going to rewrite the rules for this case.

I want your discovery on file with the clerk. I want copies of it given to him. I want the admissions answered in 30 days. I want the interrogatories answered within 30 days.

And I'm going to tell you straight up, 30 days from now those interrogatories aren't responded to, you don't have the names of witnesses, they will not testify when we have this trial. I need the production that has—is appropriate to be produced.

I'm not ordering you to produce items that were seized from him and taken away from him and are part of an exhibit that has been looked at by the Court of Appeals. That's not what I want, but if it's one of your policies, give him the policy.

This original proceeding ensued.⁶ By one issue, relators contend that the trial court abused its discretion in ordering them to respond to McCann's "voluminousdiscovery requests not [related] to jurisdictional facts" while their plea to the jurisdiction is pending. This Court requested and received a response to the petition for writ of mandamus from McCann. McCann contends that the trial court's September 27, 2016 docket control order, which contains discovery and other pre-trial deadlines, indicates that relators "agreed" to produce discovery before the discovery deadline of November 27, 2016.⁷

II. STANDARD OF REVIEW

Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Christus Santa Rosa Health Sys., 492 S.W.3d 276 (Tex. 2016) (orig. proceeding). The relator bears the burden of proving both of these requirements. In re H.E.B. Grocery Co., L.P., 492 S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). An abuse of discretion occurs when a trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig.procee...