Bay Area Citizens Against Lawsuit Abuse, In re

• Decision Date: 10 December 1998
• Docket Number: No. 97-0812,97-0812
• Citation: 982 S.W.2d 371
• Parties: In re BAY AREA CITIZENS AGAINST LAWSUIT ABUSE, Relator.
• Court: Texas Supreme Court

Page 371

982 S.W.2d 371

In re BAY AREA CITIZENS AGAINST LAWSUIT ABUSE, Relator.

No. 97-0812.

Supreme Court of Texas.

Argued Feb. 3, 1998.

Decided Dec. 10, 1998.

William W. Pierson, Myra K. Morris, Corpus Christi, Chester J. Makowski, Houston, for Relator.

Darrell L. Barger, Patricia ann Shackelford, Gonzalo Joseph Barrientos, Corpus Christi, David W. Holman, Houston, David L. Perry, Corpus Christi, for Respondent.

ABBOTT, Justice, delivered the opinion for a unanimous Court.

In this mandamus proceeding, Bay Area Citizens Against Lawsuit Abuse ("BACALA") complains of two discovery orders requiring BACALA to produce certain documents and answer certain deposition questions concerning the identities of its contributors. BACALA further complains that the trial court improperly denied its plea to the jurisdiction. We find that BACALA has failed to show that it lacks an adequate remedy by appeal from the trial court's denial of the plea to the jurisdiction; however, we conditionally grant mandamus relief with respect to those portions of the discovery orders requiring BACALA to disclose its contributors' identities.

I Background

In 1950, the City of Corpus Christi deeded property located at 1201 N. Shoreline to the Corpus Christi Chamber of Commerce. The deed provided that the Chamber would:

(a) ... erect upon the property herein conveyed a permanent building ... to house said Chamber ...;

(b) ... maintain ... a permanent all-year Tourist Information Bureau in said Building, and provide such literature as is customarily employed ... extolling the benefits and advantages of the City of Corpus Christi;

(c) ... provide in said building such space ..., for the displaying of exhibits, depicting the commercial, industrial, agricultural, mineral and maritime assets of the City....

The deed also contained the following reversion clause:

[I]n the event said grantee shall ... permit the use of said land or premises, or any part thereof, for any purpose other than herein provided without the written permission of the grantor, the property conveyed hereby together with all improvements thereon shall revert to the City of Corpus Christi....

In accordance with the deed, the Chamber built and has maintained a building on the property.

In response to the business community's support for tort reform, the Chamber created a lawsuit abuse committee. In 1994, the Chamber entered a joint venture agreement merging its lawsuit abuse committee with BACALA.

BACALA is a non-profit corporation organized under Texas law and qualifying under section 501(c)(6) of the Internal Revenue Code. According to its articles of incorporation, BACALA's purpose is to "promote common business interests and to better business conditions in the Corpus Christi Bay Area by effecting a basic change in the public's attitude toward liability and litigation so as to end this strangling lawsuit crisis and prevent its recurrence." BACALA has a board of trustees, but does not have members. It does, however, have contributors.

Soon after the BACALA/Chamber joint venture, the Chamber merged into the Greater Corpus Christi Business Alliance ("the Alliance"). The Alliance is a private, non-profit Texas corporation comprising the Chamber, the Convention and Visitors Bureau, and the Economic Development Corporation. Pursuant to a consulting agreement with the City, the Alliance took responsibility for tourist promotion, began receiving substantial tax monies from the City to promote convention and tourism, ¹ and moved into the Chamber building on the Shoreline property.

Although BACALA maintained a separate identity from the Alliance, the Alliance allowed BACALA to use rent-free office space on the Shoreline property from July 1994 to April 1997. During this time, BACALA used an Alliance telephone extension and other utilities, reimbursing the Alliance for long distance and postage. The building was divided such that departments funded by public tax monies were located on one side of the building while privately funded entities, including BACALA, were on the other. Other entities that have occupied the Shoreline building include Beautify Corpus Christi, SCORE, and the Minority Business Opportunity Commission.

A few citizens and taxpayers of Corpus Christi (collectively "taxpayers"), sued the Alliance, BACALA, and the City of Corpus Christi seeking to restrain and enjoin BACALA's and the Alliance's allegedly improper use of the Shoreline property and public tax revenues "for private special interests." The taxpayers allege that the City's transfer of public funds to the Alliance and its authorizing the Alliance's and BACALA's use of the Shoreline property constitute "the granting of public monies and other things of value to the Defendant corporations for special private purposes" in violation of Article III, Section 52 of the Texas Constitution. ² The taxpayers also seek to recover all allegedly illegal and unauthorized payments previously made by the City to the Alliance and BACALA, and to determine whether the Shoreline property has reverted to the City under the terms of the deed.

II Procedural History

BACALA filed a plea to the jurisdiction, arguing that the taxpayers lacked standing to sue BACALA. BACALA argued that because the taxpayers could not properly sue for the recovery of past expenditures and because BACALA had already vacated the Shoreline property, the trial court lacked subject matter jurisdiction. The trial court denied BACALA's plea.

During discovery, the taxpayers noticed the deposition of Kim Keef, BACALA's executive director and designated representative, and attached a subpoena duces tecum. In response, BACALA filed a motion to quash and for protective order, arguing that the taxpayers' claim for illegal expenditures of monies by the Alliance did not directly involve BACALA, and therefore BACALA should not be subject to harassing and burdensome discovery requests. The trial court ordered BACALA to produce Keef for deposition and to preserve all objections at that time. The court also ruled that disputes concerning the production of documents should be deferred until after the deposition. The deposition went forward as ordered; however, BACALA's counsel objected to approximately thirty questions on the basis that they violated BACALA's constitutional rights. The taxpayers filed a motion to compel answers to the deposition questions, arguing that the information sought concerning, among other things, BACALA's sources of funding and contributions was necessary "to determine the propriety of the use of public funds and public property."

The taxpayers also served a deposition on written questions on BACALA's custodian of records, requesting a broad range of BACALA's financial documents. BACALA produced some of the requested documents; however, it filed a motion for protective order asserting that some of the discovery requests violated the United States and Texas Constitutions, were overly broad, unduly burdensome, not calculated to lead to the discovery of admissible evidence, not relevant, and exceeded the scope of permissible discovery. In response, the taxpayers filed a motion to compel production of all documents and things sought in the subpoena duces tecum and the deposition on written questions. The motion to compel included BACALA's contributor lists.

The trial court ordered Keef to answer certain questions concerning BACALA's mailing and contributor lists, the creative sources and funding for BACALA's advertisements, any affiliation with other Citizens Against Lawsuit Abuse organizations, any use of out-of-state phone banks, and any relationship to a private industry. The trial court further ordered BACALA to produce "the list of donors and amounts of donations for the years 1994, 1995, and 1996," subject to a protective order limiting the information's use to preparation for this litigation.

BACALA filed a motion for leave to file a writ of mandamus with the Thirteenth Court of Appeals. The court of appeals granted an emergency stay and requested briefing, but subsequently denied the motion. BACALA then filed a petition for writ of mandamus with this Court. In its petition, BACALA complains of (1) the trial court's order denying BACALA's plea to the jurisdiction, (2) the order that BACALA produce a list of donors and their donation amounts, and (3) the order that Keef answer deposition questions concerning BACALA's donor list.

III Plea to the Jurisdiction

BACALA asserts that the taxpayers do not have standing to bring suit against BACALA and therefore the trial court abused its discretion by denying its plea to the jurisdiction. We hold that BACALA is not entitled to mandamus relief for the trial court's denial of its plea to the jurisdiction because BACALA has failed to show that it lacks an adequate remedy by appeal.

A party seeking relief must establish that it has no adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Generally, "appeal is an adequate remedy to address a trial court's denial of a plea to the jurisdiction, and therefore a writ of mandamus will not issue to correct it." Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 306, 308-09 (Tex.1994); see also Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex.1990) (quoting Abor v. Black, 695 S.W.2d 564, 566-67 (Tex.1985)). Although there may be some extraordinary situations in which remedy by appeal is inadequate and mandamus relief is justified, BACALA has made no showing that this case involves such a situation. Bell Helicopter, 787 S.W.2d at 955. Because BACALA has failed to show that it lacks an adequate remedy by appeal for the trial court's denial of its plea to the jurisdiction, we need not address whether the trial court abused its discretion in denying the plea. See Canadian Helicopters, 876 S.W.2d at 310.

IV Discovery Orders

BACALA complains of the trial court's discovery orders requiring BACALA to...