In Re: Coyt Randal Johnston, 06-10-00095-CV

• Decision Date: 08 October 2010
• Docket Number: No. 06-10-00095-CV,06-10-00095-CV
• Parties: In re: COYT RANDAL JOHNSTON
• Court: Texas Court of Appeals

IN RE: COYT RANDAL JOHNSTON

No. 06-10-00095-CV

Court of Appeals

Sixth Appellate District of Texas at Texarkana

Date Submitted: October 7, 2010

Date Decided: October 8, 2010

Original Mandamus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Coyt Randal Johnston has filed a petition asking this Court to issue a writ of mandamus to prevent an ordered pre-suit deposition. We have stayed the ordered deposition pending our decision in this proceeding.

Judge Carlos Cortez filed a petition in Dallas County¹ pursuant to Rule 202 of the Texas Rules of Civil Procedure in which he sought an order to take Johnston's pre-suit deposition. Tex. R. Civ. P. 202. The underlying facts show that Cortez, a Dallas district judge, is considering filing a defamation suit against Johnston, a Dallas attorney, based on allegedly defamatory statements² made by Johnston about Cortez to the media and to a number of attorneys and judges in Dallas in late October 2009.

Cortez sought to take only Johnston's deposition and named and served only Johnston in connection with his request. Cortez bases his anticipated lawsuit on e-mail correspondence sent by Johnston; Cortez's counsel stated at the hearing that "a suit can be brought against Mr. Johnston." At the hearing, Cortez's counsel testified that five other sitting judges or justices in Dallas were "mentioned in [Johnston's] e-mails." Counsel further stated that those five judges "may be the sources [of the information uttered by Johnston], or there may be other judges who arethe sources of this information."

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding); In re Pilgrim's Pride Corp., 187 S.W.3d 197, 198 (Tex. App.—Texarkana 2006, orig. proceeding). Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or, in the absence of another statutory remedy, when the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (orig. proceeding). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

"A trial court has no 'discretion' in determining what the law is or applying the law to the facts." In re Jorden, 249 S.W.3d 416, 424 (Tex. 2008); Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996); Walker, 827 S.W.2d at 840. Consequently, a trial court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion. Huie, 922 S.W.2d at 927-28.

Rule 202 of the Texas Rules of Civil Procedure permits a person to petition a trial court for an order authorizing a deposition before suit is filed. Tex. R. Civ. P. 202.1. The deposition maybe taken to perpetuate testimony for use in an anticipated suit or to investigate a potential claim or suit. Id. A deposition may be ordered only if the trial court finds that allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit or, where the deposition is to investigate a potential claim, that the likely benefit outweighs the burden or expense of the procedure. Tex. R. Civ. P. 202.4(a).

Appeal is not an adequate remedy from such an order. In re Christopher Allan, M.D., 191 S.W.3d 483 (Tex. App.—Tyler 2006, orig. proceeding), mand. granted, 249 S.W.3d 416 (Tex. 2008). The ruling is interlocutory if discovery is sought from a person against whom there is a suit pending or against whom a suit is specifically contemplated. IFS Sec. Group, Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 563 (Tex. App.—Dallas 2005, no pet.); Thomas v. Fitzgerald, 166 S.W.3d 746, 747 (Tex. App.—Waco 2005, orig. proceeding). Here, Cortez has identified Johnston as an anticipated defendant in a defamation action, and against others not so named in his petition. Because the order is interlocutory and not immediately appealable, this is a type of situation in which mandamus relief could be available, if the trial court abused its discretion.

The question, then, is whether mandamus relief is available on these facts under the application of this rule. We deny the petition because (1) the trial court was within its discretion in impliedly finding that Cortez did not identify any named judges as anticipated defendants; and (2) the trial court was within its discretion in finding that the deposition is necessary to avoid a failure or delay of justice and that the deposition's benefits outweigh its burdens.

(1) The Trial Court Was Within Its Discretion in Impliedly Finding that Cortez Did Not Identify any Named Judges as Anticipated Defendants

Johnston contends that, because Cortez did not serve notice on the five individual judges named at the hearing, the petition for deposition must be denied. Cortez argues that the rule requires service only on the individual sought to be deposed, relying on Rule 202.2(g) of the Texas Rules of Civil Procedure. In making this argument, Cortez disregards Rules 202.3(a) and 202.2(f)(1). Building on the foundation of Rule 202.2(f)(1), Rule 202.3(a) requires service not just on the witness, but also, "if suit is anticipated, on all persons petitioner expects to have interests adverse to petitioner's in the anticipated suit."

Johnston contends that, in mentioning the five judges at the hearing, Cortez identified them as potential defendants and, thus, should have been required to serve them with notice of the hearing to support a valid deposition order. We disagree.

A few judges were specifically identified by Cortez at the hearing as having been mentioned by Johnston in connection with his report or allegations against Cortez. At the hearing, Cortez's counsel testified in context about those judges:

I know that a suit can be brought against Mr. Johnston. What I don't know is who these judges are who purportedly made these remarks to him because there would be pretty obvious liability on their part. And it is not my practice and should not bethe practice of any lawyer to sue people that should not properly be a litigant or defendant.

There are at least five judges mentioned in [Johnston's] e-mails,... including [five specifically named here,] who may be the sources, or there may be other judges who are the sources of this information.

I have tried to obtain information as to who those judges were, and I have been unable to do so. And without filing a 202 petition, I cannot obtain the information about those judges, and I do not want to file a lawsuit that would name these judges or identify or sue these judges or any of them without having obviously [sic] evidence to support my allegation.

The foregoing testimony never accuses any of the judges of being a source of defamatory material. It simply says that they were mentioned in Johnston's e-mails and speculates that they may or may not have been Johnston's sources. While the trial court might have been within its discretion had it found that the five judges were thus identified as "persons [Cortez] expects to have interests adverse to [Cortez's] in the anticipated suit" against Johnston, such is not the case here. It was certainly well within the trial court's discretion to have found that they were not so identified. See Tex. R. Civ. P. 202.2(f)(2).

Therefore, we conclude that Cortez's failure to serve notice of the hearing on the five mentioned judges does not support Johnston's requested mandamus relief.³

(2) The Trial Court Was Within Its Discretion in Finding that the Deposition Is Necessary to Avoid a Failure or Delay of Justice and that the Deposition's Benefits Outweigh Its Burdens

The remaining arguments revolve around the application of Rule 202.4 of the Texas Rules of Civil Procedure. The rule states that the court

must order a deposition to be taken if, but only if, it finds that:

(1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or

(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.

In the order entered in this case, the trial court made the following findings:

The Court finds that allowing Petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; the likely benefit of allowing the Petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.

This language thus addresses both of the alternative justifications for such discovery that arespecified by Rule 202.4(a).

As Johnston correctly notes, the petition claimed only that the deposition was to obtain testimony in an anticipated suit and that to justify a presuit deposition under that state of affairs, the record must show that granting such would "prevent a failure or delay of justice." He argues that no evidence supports such a finding. We disagree.⁴

One significant factor bears on the potential for a "failure or delay of justice" in this case. The statute of limitations on a defamation lawsuit against Johnston and others may very well run near the end of October 2010. Yet, it would appear that Cortez has been aware of Johnston's utterances since shortly after they were made and has not actively pursued the available relief to resolution until less than two...