Ex Parte Guaranty Pest Control, Inc.

• Citation: 21 So.3d 1222
• Decision Date: 24 April 2009
• Docket Number: 1080386.
• Parties: Ex parte GUARANTY PEST CONTROL, INC. (In re A. Vincent Brown, Jr. v. Guaranty Pest Control, Inc.)
• Court: Supreme Court of Alabama

21 So.3d 1222

Ex parte GUARANTY PEST CONTROL, INC. (In re A. Vincent Brown, Jr. v. Guaranty Pest Control, Inc.)

1080386.

Supreme Court of Alabama.

April 24, 2009.

Edgar M. Elliott IV, Michael A. Vercher, and Richard M. Thayer of Christian & Small LLP, Birmingham, for petitioner.

Thomas F. Campbell and D. Keiron McGowin of Campbell Law, P.C., Birmingham, for respondent.

LYONS, Justice.

Guaranty Pest Control, Inc. ("Guaranty"), has filed a petition for a writ of mandamus requesting that this Court direct the Jefferson Circuit Court to vacate its orders granting a motion to compel filed by A. Vincent Brown, Jr., and denying Guaranty's motion for a protective order. We grant the petition in part, deny it in part, and issue the writ.

I. Factual Background and Procedural History

Brown sued Guaranty on May 4, 2006, alleging that Brown owned an office building ("the office") that Guaranty had inspected for possible infestation of wood-destroying organisms ("WDO"), including termites. The complaint¹ also alleged that Guaranty had treated the office to prevent infestation by WDOs but that the office had been infested and had suffered extensive damage. Brown, among other things, asserted a claim of fraud with respect to Guaranty's inspection and treatment of the office.

With his complaint, Brown served Guaranty with discovery requests, including the following requests for production of documents, pursuant to Rule 34, Ala. R. Civ. P.:

"13. For each date on which the [office] received treatment for termites from [Guaranty], please produce the customer file for each of [Guaranty's] customers who received a treatment for termites during the same week which was performed by the same person.

"....

"20. For each date on which the [office] received an annual renewal inspection from [Guaranty], please produce the customer file for each of [Guaranty's] customers who received an annual renewal inspection during the same week, performed by the same inspector.

"21. For each date on which the [office] received an inspection for the purpose of completing an Official Alabama Wood Infestation Inspection Report from [Guaranty], please produce the customer file for each of [Guaranty's] customers who received such an inspection during the same week from the same inspector.

"....

"27. Please produce all documents relating to all properties placed under WDO contracts during the month that the [office] was originally placed under contract with [Guaranty] (January 1991), the month that [Brown] became a party to a termite contract with [Guaranty] (October 1995), and each property placed under contract in the month immediately preceding and immediately following those months (November 1990, February 1991, September 1995 and November 1995)."

Guaranty objected to requests 13, 20, 21, and 27 ("the requests") on the grounds that they were overly broad and unduly burdensome.

Eventually, on October 10, 2008, Brown moved to compel responses to the requests. Guaranty responded to Brown's motion, arguing primarily that the requests were unduly burdensome. Guaranty relied on an affidavit of its vice president, who stated that responding to the requests would require a manual review of some 20,000 to 25,000 files. Guaranty estimated that the cost of responding to the requests would be approximately $16,000. The trial court granted Brown's motion to compel on October 22, 2008. On October 31, 2008, Guaranty moved for a protective order.²

The trial court held a hearing on Guaranty's motion for a protective order on November 18, 2008. That hearing was not transcribed. On the same day, the trial court rendered the following order by handwritten notation on the trial court's docket sheet: "[Brown] is entitled to customer files at the time of the original treatment and 3 months before and after and at the time [Brown] took over the [office] and 3 months before and after." See Rule 58(a), Ala. R. Civ. P. It is unclear whether this order was ever entered pursuant to Rule 58(c), Ala. R. Civ. P., which prescribes the requirements for the entry of an order. On December 22, 2008, the trial court entered an order denying Guaranty's motion for a protective order. The December 22, 2008, order did not include any findings similar to those in its November 18, 2008, order. Guaranty subsequently petitioned this Court for a writ of mandamus directing the trial court to vacate its November 18, 2008, and December 22, 2008, orders.

II. Standard of Review

"A writ of mandamus will be `issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)."

Ex parte Horton Homes, Inc., 774 So.2d 536, 539 (Ala.2000). Regarding discovery matters specifically, this Court has stated:

"Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991). Accordingly, mandamus will issue to reverse a trial court's ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.

"Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court's review of a petitioner's grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order."

Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (footnote omitted). In Ocwen, this Court identified "four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus." Ex parte Dillard Dep't Stores, Inc., 879 So.2d 1134, 1137 (Ala.2003)(citing Ocwen). Those circumstances include:

"(a) [W]hen a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala.2001); (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala.1996); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party's entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court's alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala.1992)."

Dillard, 879 So.2d at 1137.

III. Analysis

Guaranty argues in its petition that the trial court erred in denying its motion for a protective order as to the requests as they were written. Guaranty contends that each of the requests was unduly burdensome. Guaranty therefore argues that its petition falls within the second circumstance identified by Ocwen and Dillard, supra, in which this Court may review a discovery order by a petition for a writ of mandamus where the discovery requested "imposes a burden on the producing party far out of proportion to any benefit received by the requesting party." Dillard, 879 So.2d at 1137. In its petition, Guaranty relies, as it did before the trial court, on the affidavit of its vice president.

Although the trial court's December 22, 2008, order denied Guaranty's motion for a protective order in its entirety, Brown contends in his answer to the petition that the trial court in fact granted Guaranty's motion with respect to requests 13, 20, and 21. Accordingly, Brown argues that the issues Guaranty raises in its petition relative to requests 13, 20, and 21 are moot; Brown consequently does not respond substantively to Guaranty's petition regarding those requests. Regarding request 27, Brown contends that Guaranty admitted that that request was not burdensome.

Brown bases his contention regarding requests 13, 20, and 21 on the trial court's November 18, 2008, order, which is silent as to those requests, and on arguments made by counsel for the parties at the November 18, 2008, hearing. Brown maintains that Guaranty's admission regarding request 27 also occurred at the November 18, 2008, hearing. To support these assertions, Brown attached to his answer an affidavit from one of his attorneys who attended the hearing. In that affidavit, Brown's counsel states, among other things:

"In response to questioning by Judge King [at the November 18, 2008, hearing,] Guaranty's lawyer ... admitted his client could identify and locate customer records by date service was initiated for Vince Brown in 1995 and the prior owner in 1991. However, [Guaranty's counsel] stated that Guaranty could not easily identify information responsive to [requests 13, 20, and 21].... [In the November 18, 2008, order,] Judge King essentially ruled for Guaranty on the two items that [Guaranty's counsel] said presented difficulty and ruled for the plaintiff on the issue that [Guaranty's counsel] conceded did not present difficulty."

Without citing authority, Guaranty has moved to strike the affidavit on the ground...