In re Sw. Pub. Serv. Co.

Decision Date16 April 2020
Docket NumberNUMBER 13-19-00111-CV
CourtTexas Court of Appeals

On Petition for Writ of Mandamus.


Before Chief Justice Contreras and Justices Benavides and Hinojosa

Memorandum Opinion by Justice Benavides1

By petition for writ of mandamus, relators Southwestern Public Service Company (SPS), Xcel Energy Inc., and Xcel Energy Service Inc., seek to set aside (1) an order denying their motion to recuse the judge of the trial court, and (2) an order granting death penalty sanctions against relators.2 We deny the petition for writ of mandamus regarding recusal and conditionally grant the petition for writ of mandamus regarding the imposition of death penalty sanctions.


On October 26, 2016, Eduardo Munoz Jr. suffered severe personal injuries, including burns and permanent spinal cord injuries resulting in paralysis, from an electrical arc arising from a high voltage power line that was owned and operated by relators. Munoz had loaded a tractor-trailer rig with peanuts near the power line and was attempting to cover his load with a tarp when the accident occurred. The parties to this original proceeding offer different scenarios regarding the factual basis for the accident and its cause. However, the basic underpinnings of the incident are as follows, and additional facts will be discussed in connection with the specific issues raised in this original proceeding.

Wilco Peanut Co., Ltd. (Wilco) hired Munoz to pick up peanuts and deliver them to its peanut processing facility. Marco Sustayta, a Wilco employee, dispatched Munoz to retrieve peanuts from a peanut farm owned or operated by Dustin Nelson. Nelson's peanut farm utilized a conveyer belt, with a loading area beneath the conveyer belt, for trucks to use in loading the peanuts. The conveyer belt was positioned either underneath or near the power line operated by relators. After loading the peanuts into his trailer, Munoz had difficulty in covering his load with a tarp. Munoz's trailer was equipped with a crank rod which allowed the tarp to be rolled over the load; however, the tarp failed to unroll across the peanuts. Munoz climbed on top of the trailer to attempt to manually roll the tarp, and during his efforts, the metal crank arm which rolled the tarp either came in contact with or came into extreme proximity to the power line, thereby creating the electrical arc that caused Munoz's injuries. The day after the accident, relators investigated the incident with a team of ten employees who measured the height of the power line at the point of contact at 25.38 feet high.

Plaintiffs3 brought suit against Wilco, Sustayta, Nelson, and relators. The defendants other than relators have settled their claims with the plaintiffs and are not parties to this original proceeding. At the beginning of the lawsuit, the plaintiffs alleged a general negligence claim against relators.4 In their third amended petition filed on October 1, 2018, the live pleading at the time the orders subject to review were signed, the plaintiffs alleged that relators were negligent and grossly negligent in: transmitting excessive current on the subject power line causing it to sag dangerously; failing to timely de-energize the power line to prevent it from excessively sagging; violating Texas Utilities Code §§ 38.004, 181.045, "and/or similar statutes," by failing to operate and/or maintain the power line in accordance with the minimum ground clearance required by the National Electric Safety Code (NESC), that is, negligence per se; failing to maintain the height of the power line in accordance with the NESC, Part 2, § 23; failing to properly monitor the height of the power line; negligently operating and monitoring the electrical power transmission and communication systems; and failing to properly inspect the height of the power line. The plaintiffs also invoked the doctrine of res ipsa loquitur, pleading that "the character of the subject event is such that it would not ordinarily occur in the absence of negligence, and that the subject power line was under the management and control of [relators] at the time of the occurrence." The plaintiffs sought compensatory damages in the aggregate sum of $245,000,000.

In contrast, the relators asserted that their power line was properly maintained and operated, that the power line was maintained at an appropriate height, and that there were no overcurrent events or faults which would have caused the power line to sag. They asserted that Munoz climbed on top of the peanut trailer and physically lifted the tarp rod into contact with the power line, or otherwise brought the tarp rod into such close proximity to the power line that an electrical contact occurred. The relators further contended that, though the Texas Health and Safety Code required that they be notified if anyone planned to work near the power line, they did not receive any such required notification. The relators further filed a counterclaim against the plaintiffs and cross-claims against Wilco, Sustayta, and Nelson for indemnity.

Early in the case, the defendants in the lawsuit sought to transfer venue from Hidalgo County, Texas, to Yoakum County, Texas. In response, the plaintiffs requested that the trial court grant "emergency relief" allowing extensive discovery regarding the venue facts underlying the case. On June 27, 2017, the trial court signed an Emergency Discovery Order at the plaintiffs' behest. This order is not limited in scope to discovery regarding venue but extends to substantive discovery on the merits. The Emergency Discovery Order, which is twenty-four pages long, included industry definitions, ordered the relators to designate Rule 199.2 corporate representatives to testify about twenty- seven topics, and required the production of fifty-seven categories of documents. See TEX. R. CIV. P. 199.2. The Emergency Discovery Order provided, inter alia, that the plaintiffs' depositions were to take place after all of the defendants' depositions had been taken. After entry of this order, the plaintiffs thereafter propounded requests for production and interrogatories to relators requesting the same and similar information as designated in the Emergency Discovery Order.

On July 10, 2017, the plaintiffs filed a Motion to Compel Disclosures, Motion for Order Shortening Time to Answer Interrogatories, and Motion for Rule 215 Sanctions. The plaintiffs alleged that the relators had not responded to the plaintiffs' requests for disclosure which had been due between June 1 and June 6, 2017. The plaintiffs further alleged that relators had violated the Emergency Discovery Order by noticing Munoz's deposition even though the relators' witnesses had not yet been deposed. The plaintiffs asked the trial court to shorten the time for relators to respond to interrogatories and to impose sanctions because of the relators' "bad faith conduct" and "discovery abuse." On July 25, 2017, the trial court granted the plaintiffs' motion, in part, and ordered relators to provide responses to requests for disclosure and answer interrogatories by July 28, 2017.

The parties continued to engage in a series of protracted and rancorous discovery disputes. Of relevance here, on June 13, 2018, the plaintiffs filed a Motion to Compel Deposition of Maria Vasquez and Motion for Rule 215 Sanctions. The plaintiffs alleged that, although the Emergency Discovery Order required relators to produce witnesses "with the best knowledge" of various topics, which included "all aspects of the investigation of the incident," relators produced only Cory Wood, who worked in the construction department and did not participate in the accident investigation, and not Vasquez, who actually handled the accident investigation and interviewed the witnesses to the incident. On July 27, 2018, the trial court entered an Order Compelling Deposition of Maria Vasquez and also entered an Order Granting Plaintiffs' Motion to Compel Deposition of Maria Vasquez and Motion for Rule 215 Sanctions against relators. The July 27, 2018 sanction order concludes that relators violated the June 27, 2017 Emergency Discovery Order and various rules of civil procedure by: (1) producing only one corporate representative, Wood, to testify about twenty-seven different topics, because he lacked relevant knowledge, was evasive, and was unprepared for the deposition; and (2) failing to produce Vasquez for deposition, even though she was the claims investigator who examined the scene immediately after the accident. The trial court concluded that relators' alleged discovery abuse hindered and obstructed the plaintiffs' prosecution of their lawsuit. The trial court ordered relators to:

[D]esignate as many individuals as necessary to testify on their behalf regarding all aspects of the investigation of the [relators regarding] the incident made the basis of suit, and the [relators] shall fully prepare all such individuals as to all matters that are known or reasonably available to the [relators] in accordance with TEX. R. CIV. P. 199.2(b)(1) and this Court's order of June 27, 2017.

The trial court ordered relators to pay: (1) "all court reporter and videographer fees and costs in connection with the deposition of the corporate representative witness(es)," (2) "monetary sanctions for the preparation and prosecution of this Motion in the amount of hotel, air flight, rental car & meals" to plaintiffs' counsel, (3) "travel and lodging costs incurred to attend the hearing of this motion" to plaintiffs' counsel, and (4) "monetary sanctions for the preparation and prosecution of the Joinder in Plaintiffs' Motion to Compel Oral Deposition of Maria Vasquez and Motion for Sanctions, filed by [Wilco] in the amount of hotel, air flight, rental car & meals," to counsel for Wilco.

On February 28, 2018, SPS moved for...

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