Collier Services Corp. v. Salinas

• Decision Date: 19 June 1991
• Docket Number: No. 13-91-222-CV,13-91-222-CV
• Citation: 812 S.W.2d 372
• Parties: COLLIER SERVICES CORPORATION, Appellant, v. Hon. Homer SALINAS, Judge of the 92nd District Court of Hidalgo County, Texas, Appellee.
• Court: Texas Court of Appeals

Page 372

812 S.W.2d 372

COLLIER SERVICES CORPORATION, Appellant, v. Hon. Homer SALINAS, Judge of the 92nd District Court of Hidalgo County, Texas, Appellee.

No. 13-91-222-CV.

Court of Appeals of Texas Corpus Christi.

June 19, 1991.

Kevin D. Pagan, McAllen, for appellant.

Ronald G. Hole, McAllen, for appellee.

Before NYE, C.J., and DORSEY and HINOJOSA, JJ.

OPINION

NYE, Chief Justice.

This is an original proceeding for a writ of mandamus. Relator, Collier Services Corporation complains that the trial court abused its discretion by denying Collier's motion to compel post-judgment discovery under the provisions of Rule 621a in order to obtain information in aid of enforcing the judgment. The trial court originally entered an agreed judgment in favor of Collier and against LaMantia-Cullum-Collier & Company, Inc. (LCC), for $74,956.95. In order to find assets of LCC with which to satisfy the judgment, Collier sent interrogatories asking about other business interests owned by the directors of LCC in order to determine if they may have secreted assets in order to avoid execution. In addition, Collier deposed the corporate representative of LCC and sought information about settlement funds received in a non-related federal suit. LCC refused to provide the requested information, and Collier moved the trial court to compel discovery. The trial court's denial of Collier's motion to compel is the subject of the present petition for writ of mandamus.

Collier, however, has also filed an appeal from the same order, asserting that Texas law is unclear whether mandamus or direct appeal is the proper remedy by which to challenge an order concerning Rule 621a post-judgment discovery. Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex.1985). Therefore, we must first determine whether Collier has an adequate remedy by appeal.

Initially, we note that there is some disagreement about the appealability of an order rendered in the present type of post-judgment discovery proceeding under Tex.R.Civ.P. 621a. The Texas Rules of Civil Procedure provide two means by which a party may obtain post-judgment discovery in aid of enforcing a judgment. Rule 737 provides the traditional means of bringing a separate proceeding in the nature of a bill of discovery in accordance with the usages of courts of equity. In addition, Rule 621a provides for post-judgment discovery in the same court and suit, and in the same forms and under the same general rules as pre-trial discovery, specifically for the purpose of obtaining information to aid in the enforcement of a judgment. The difference between these two methods of obtaining post-judgment discovery is that Rule 621a discovery is filed ancillary to the main suit, while a Rule 737 bill of discovery is an independent suit. See Butler v. Stonewall Bank, 569 S.W.2d 542, 544 (Tex.Civ.App.--Corpus Christi 1978, no writ).

In Butler, plaintiff bank obtained a judgment against its debtor defendant and initiated post-judgment discovery under Rule 621a. The debtor then filed a response to the Rule 621a proceeding asserting a separate cause of action against third parties for the amount of the debt. The bank brought a motion to quash the reply, which the trial court granted and the debtor appealed to our court.

We initially analyzed the appealability of Rule 621a discovery orders, stating generally that, while a ruling on a discovery motion filed before or during pending litigation is not appealable, a ruling on a discovery motion brought in a post-judgment action either for a bill of discovery under Rule 737 or for discovery in aid of enforcement of judgment under Rule 621a is final and appealable. Id. at 544; see also Clear Lake City Water Authority v. Winograd, 678 S.W.2d 740, 742 (Tex.App.--Houston [14th Dist.] 1984, no writ) (an attempted appeal from a pre-trial discovery sanction in which the court cited Butler with approval for the proposition that discovery motions in post-judgment bills of discovery are final and appealable, as opposed to their pre-trial counterpart).

However, our discussion of the appealability of Rule 621a discovery orders was not dispositive of the real issue in Butler. We concluded that the order quashing the newly asserted claims did not involve discovery, though filed in a discovery proceeding, but that the order was final and appealable because it finally disposed of the newly asserted claims. Id. at 545; see also Transceiver Corp. of America v. Ring Around Products, Inc., 581 S.W.2d 712 (Tex.Civ.App.--Dallas 1979, no writ).

However, in Parks v. Huffington, 616 S.W.2d 641, 644-45 (Tex.Civ.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.), the Court clearly held that Rule 621a provides no authority for granting an appeal from the denial of a motion for post-judgment discovery. The Court reasoned that Rule 621a itself indicates, by applying pre-trial discovery rules to post-judgment discovery, that no appeal lies from an order concerning such discovery. Therefore, the only relief from such an order is either by way of a writ of mandamus or to further seek an order under an appealable Rule 737 bill of discovery. Id. at 645.

The Texas Supreme Court has spoken only briefly on the appealability of Rule 621a orders in a footnote to Arndt v. Farris, 633 S.W.2d 497, 500 n. 5 (Tex.1982). In Arndt, relator brought an original mandamus proceeding to compel the trial court to vacate an order imposing Rule 215a sanctions against him as applied under Rule 621a for his failure to appear at a post-judgment deposition. Relator complained both that the trial court had no jurisdiction to impose sanctions and that the sanctions imposed were improper. The Supreme Court held that the trial court had jurisdiction to impose the sanctions, but refused to review the propriety of the sanctions imposed on the ground that "[a]dequate and effective review of discovery sanctions can be obtained by appeal once the sanctions become part of a final judgment." Id. at 500. By footnote 5, the Supreme Court further explained, citing Parks, that "[t]rial court orders granting or denying particular post-judgment discovery requests are not appealable until a final judgment is rendered disposing of all issues between the parties." Id. at 500; Parks, 616 S.W.2d at 644. Although Arndt does not explain what the Court meant by a "final judgment" in terms of post-judgment discovery, the footnote concludes that an order imposing monetary sanctions "would be final and appealable when the sanctions are reduced to a judgment and execution is authorized thereon."

Nevertheless, although the terms of the footnote appear somewhat unclear, Arndt indicates generally the Supreme Court's acceptance of the Parks approach to Rule 621a orders, that they are not final or appealable in themselves. We agree and disavow any suggestion to the contrary in Butler. Were we to allow every post-judgment order concerning discovery under Rule 621a to be treated as a separate, final and appealable judgment of the trial court, we would open the door to numerous separate appeals of the type that are disallowed as interlocutory in terms of pre-trial discovery orders. Because an appeal will not lie from the present order, we may review the order under the present petition for writ of mandamus to determine whether the trial judge has abused his discretion. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex.1985).

After receiving a substantial judgment in its favor against LCC, Collier apparently found no assets on which to execute. Thus, Collier began Rule 621a post-judgment discovery in aid of enforcement. The present controversy centers around LCC's refusal to answer two separate requests for discovery, one by interrogatory and the other by deposition question to LCC President Steven LaMantia.

First, Collier began by sending interrogatories to LCC, one of which asked about other businesses with which the directors of LCC were associated, in order to determine if any of LCC's assets had been transferred in order to avoid execution. LCC objected to the interrogatory and refused to answer it on the grounds that the information requested was irrelevant and invaded the directors' right of privacy.

Second, having heard about a suit in federal court in which LCC supposedly received a settlement award, Collier asked LaMantia by deposition question about the terms of that settlement. LaMantia, however, refused to answer any questions about the settlement agreement because of his assertion that the federal court order had made it confidential.

Collier then brought its Motion to Compel and For Sanctions, which the trial court denied after a brief hearing at which neither party presented any evidence. Collier argues generally that the trial court erred in denying discovery without receiving evidence or requiring LCC to prove its defenses to discovery.

By points of error one, two, four and five, Collier complains that the trial court erred in denying its motion to compel discovery of other businesses with which LCC directors were associated. By Post-Judgment Interrogatory No. 9, Collier asked LCC, with regard to each of its directors for the past five years, for the full name and complete business address of each business in which a director is associated in any way, or by which the director is employed. LCC objected on the grounds that the information requested was not relevant and that it invaded the directors' right of privacy.

The burden is on the party seeking to avoid discovery to plead the basis for exemption or immunity and to produce evidence supporting that claim. State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991); Jordan v. Court of Appeals for the Fourth Supreme Judicial District, 701 S.W.2d 644, 648-49 (Tex.1985); Tex.R.Civ.P. 166b(4). This includes proving that the...