In re Fedex Ground Package Sys., Inc.

• Citation: 609 S.W.3d 153
• Decision Date: 28 May 2020
• Docket Number: NO. 14-19-00861-CV,14-19-00861-CV
• Parties: IN RE FEDEX GROUND PACKAGE SYSTEM, INC., Relator
• Court: Texas Court of Appeals

609 S.W.3d 153

IN RE FEDEX GROUND PACKAGE SYSTEM, INC., Relator

NO. 14-19-00861-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed May 28, 2020

Rehearing En Banc Denied November 5, 2020

Ken Wise, Justice

Relator FedEx Ground Package System, Inc. filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 ; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Dedra Davis, presiding judge of the 270th District Court of Harris County, to vacate her October 28, 2019 orders denying FedEx's motions to quash subpoenas and for protective orders. We conditionally grant the petition

BACKGROUND

Zach Brown sued FedEx for personal injuries sustained in a collision between Brown's motorcycle and a FedEx vehicle. On January 25, 2019, Brown filed a motion to compel attendance of witnesses within FedEx's control. In the motion, Brown stated that his intent was to foreclose "any last-minute, meritless objections to their forthcoming subpoenas." In response, among other arguments, FedEx pointed out that Brown had not issued any trial subpoenas and contended that the motion was premature and Brown was asking the trial court to pre-emptively order FedEx to perform an action which it had not yet refused to do.

During discovery, Brown served a notice of his intent to take FedEx's deposition with a list of 10 topics on which he requested examination. FedEx identified Michael Sear, FedEx's manager of safety programs and response, who lives and works in Pennsylvania, as the witness for the deposition. Sear was deposed in Pittsburgh, Pennsylvania, on August 22, 2019.

The trial court heard Brown's January 25, 2019 motion to compel at an unrecorded pretrial conference on October 21, 2019. Brown asked the trial court to compel FedEx to require either Michael Sear or another unnamed corporate representative to appear at trial and testify in Brown's case-in-chief. According to FedEx, the trial court stated that FedEx was not required to bring Sear but granted the motion to compel the attendance of an unnamed corporate representative at trial. The trial court also stated that Brown should provide FedEx with a list of topics about which Brown intended to question the unnamed corporate representative.

The next day, on October 22, 2019, Brown issued and served two subpoenas on FedEx's general counsel: one to Sear as corporate representative for FedEx and the other to an unnamed corporate representative for FedEx. Each subpoena commanded the witness to appear before the trial court on October 28, 2019, to testify as corporate representative for FedEx on a list of 25 topics, and to attend trial daily until discharged.

On October 24, 2019, FedEx filed two motions to quash each subpoena and for protective orders. FedEx also filed an amended motion to quash the subpoena directed to Sear. On October 28, 2019, the trial court heard FedEx's motions to quash and for protective orders and denied the motions.

Also, on October 28, 2019, after the trial court denied FedEx's motions, FedEx filed a petition for writ of mandamus, asking this court to compel the trial court to set aside its October 28, 2019 order denying FedEx's motions to quash the subpoenas directed to Sear and the unnamed corporate representative. FedEx also requested a stay of all trial court proceedings. The following day, we denied the petition for mandamus, without prejudice to refiling, because FedEx had not provided either a written order or the reporter's record containing the trial court's ruling. See In re Fed Ex Ground Package Sys., Inc. , No. 14-19-00853-CV, 2019 WL 5581576, at *1 (Tex. App.—Houston [14th Dist.] Oct. 29, 2019, orig. proceeding) (mem. op.). We also denied the motion to stay. Id.

The following day, FedEx refiled its petition and cured the deficiency by providing copies of two orders signed by the trial court (1) denying FedEx's motion to quash the subpoena directed to FedEx's unnamed corporate representative and for a protective order; and (2) denying FedEx's motion to quash the subpoena directed to Sear and for protective order. That same day, this court issued an order staying all proceedings in the trial court.

On October 30, 2019, Brown filed a motion for dissolution of our temporary stay as moot and to dismiss the petition for mandamus as moot. Brown advised that he had notified the trial court that he was withdrawing the subpoenas and requesting the trial court to vacate its orders denying FedEx's motions to quash.

FedEx responded that its request for relief is not moot because (1) Brown's counsel provided no assurance that he would not re-issue the subpoenas at a later time; and (2) Brown's counsel sent FedEx's counsel an email that morning stating that counsel continued to insist on Sear's attendance at trial and would seek appropriate sanctions if FedEx did not comply. FedEx further asserted the withdrawal of the subpoenas would not affect the underlying dispute because the trial court had denied FedEx's request for protective orders. On October 4, 2019, we denied Brown's motion for dissolution of the stay order.

In this mandamus proceeding, FedEx argues that the trial court abused its discretion by denying FedEx's motions because (1) a witness, who is not individually a party to the suit, cannot be compelled by subpoena to attend trial more than 150 miles from where the witness resides; and (2) there is no rule or statute or other authority by which the trial court can compel a party to produce a corporate representative to testify on 25 topics.

STANDARD OF REVIEW

Ordinarily, to be entitled to a writ of mandamus, the relator must show that the trial court clearly abused its discretion, and that the relator lacks an adequate remedy by appeal. In re Dawson , 550 S.W.3d 625, 628 (Tex. 2018) (orig. proceeding) (per curiam). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B. Grocery Co., L.P. , 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per curiam) ; In re Cerberus Capital Mgmt., L.P. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam).

The adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P. , 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). Because this balance depends heavily on circumstances, it must be guided by analysis of principles rather than simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc. , 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). In evaluating benefits and detriments, we consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). We also consider whether mandamus will "allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments." Id. Finally, we consider whether mandamus will spare the litigants and the public "the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings." Id.

ANALYSIS

I. This Proceeding is Not Moot

As discussed above, after this court issued the stay order, Brown filed a motion to dissolve the stay, advising that he had withdrawn the two subpoenas and would not reissue them. Brown argued that, in light of his having withdrawn the subpoenas, FedEx's petition must be dismissed as moot and the stay lifted. We denied Brown's motion to dissolve our stay.

In his response to FedEx's mandamus petition, Brown reiterates his argument that FedEx's petition is moot because he withdrew the subpoenas and he has no intention of reissuing the subpoenas when the trial is reset, thereby rendering FedEx's request for relief moot. See In re Tyson Foods, Inc. , No. 12-17-00156-CV, 2017 WL 3225051, at *2 (Tex. App.—Tyler July 31, 2017, orig. proceeding) (mem. op.) (holding trial subpoena expired after court of appeals stayed all proceedings in trial court and relator's request for relief from order granting a motion to quash was moot); see also In re Kellogg Brown & Root, Inc. , 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding) ("A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal.").

FedEx responds that its request for relief is not moot because Brown's counsel (1) has given no assurance that the subpoenas will not be reissued; and (2) sent FedEx's counsel an email the same morning that Brown filed the motion to dissolve the stay, stating that counsel continued to insist on Sear's attendance at trial and would seek appropriate sanctions if FedEx did not comply. The email reads as follows:

We are hereby withdrawing our trial subpoenas issued to Michael Sear as corporate rep for FedEx Ground Package System Inc. and the separate subpoena issued to FedEx Ground Package System Inc. This withdrawal shall have no impact on the Court's prior Order granting our motion to compel witnesses within your clients [sic] control issued on Monday October 21^st, 2019.

We expect full compliance therewith and will seek appropriate sanctions to the extent you and your clients continue to ignore the Court's Order in that regard. To date you have failed to confirm Mr. Sear's attendance/unavailability for trial as ordered by the Court and you have failed to identify the individual you intend to make available as our first witness should Mr. Sear have some impediment which prevents him from being in Court.

An appellate court is prohibited from deciding moot controversies. Nat'l Collegiate Athletic Ass'n v. Jones , 1 S.W.3d 83, 86 (Tex. 1999). This prohibition is rooted in the separation of powers doctrine in the United...