Johnny Carroll, Individually, and as of the Ray Carroll Estate and as Trustee v. Whitney Independent School District

IN THE TENTH COURT OF APPEALS No. 10-00-269-CV      JOHNNY CARROLL, INDIVIDUALLY,      AND AS EXECUTOR OF THE RAY      CARROLL ESTATE AND AS TRUSTEE,                                                                               Appellant      v.      WHITNEY INDEPENDENT SCHOOL      DISTRICT, ET AL.,                                                                               Appellees From the 66th District Court Hill County, Texas Trial Court # 7970-A                                                                                                                 MEMORANDUM OPINION                                                                                                                       On the record before us it is uncontroverted that Johnny Carroll was never served in his capacity as executor or as trustee. It is also uncontroverted that the attorney representing Carroll in his individual capacity at trial had not been authorized to make a general appearance on behalf of Carroll as executor or as trustee. Further, it is uncontroverted that the recitation in the judgment that Carroll in his capacity as executor and as trustee had filed a written answer was erroneous. It is axiomatic that before a valid judgment may be taken against a defendant the defendant must have been properly served, waived citation, or generally appeared in the suit. See Werner v. Colwell 909 S.W.2d 866, 869-870 (Tex. 1995).       Accordingly, it was error for the trial court to render judgment against Carroll in his capacity as executor or as trustee. The judgment of the trial court is reversed and remanded for proceedings consistent with this opinion.                                                                     PER CURIAM Before Chief Justice Davis,       Justice Vance, and       Justice Gray Reversed and remanded Opinion delivered and filed May 23, 2001 Do not publish erations, the value, [and] the way the Limestone Plant is run from an operations point of view”; and (3) the contemplated deposition is “not overburdensome” or “undue.”          CenterPoint replied that McClanahan should not be ordered to submit to a deposition because Valence did not show that he possesses unique or superior personal knowledge of discoverable information.          Respondent denied CenterPoint’s motion for protective order.          CenterPoint contends that the court abused its discretion by permitting Valence to depose McClanahan because Valence did not show that: (1) McClanahan has “any unique or superior personal knowledge of discoverable information”; or (2) less intrusive means of discovery have proven insufficient.          According to the apex deposition doctrine, when a party seeks to depose a high level corporate official, a corporation may seek to shield the official from the deposition by filing a motion for protection supported by the official’s affidavit denying knowledge of any relevant facts. In re Alcatel USA, Inc., 11 S.W.3d 173, 175 (Tex. 2000) (orig. proceeding). A trial court determines such a motion by first deciding whether “the party seeking the deposition has ‘arguably shown that the official has any unique or superior personal knowledge of discoverable information.’” Id. at 175-76 (quoting Crown C. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995) (orig. proceeding)).          “If the party seeking the deposition cannot show that the official has any unique or superior personal knowledge of discoverable information, the trial court should” not allow the deposition to go forward without a showing, after a good faith effort to obtain the discovery through less intrusive means, “(1) that there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate.”  Id. at 176 (quoting Crown C. Petroleum, 904 S.W.2d at 128).          Valence cites In re Columbia Rio Grande Healthcare, L.P. for the proposition that McClanahan’s affidavit did not adequately deny knowledge of relevant facts. 977 S.W.2d 433 (Tex. App.—Corpus Christi 1998, orig. proceeding). CenterPoint relies on a more recent decision of the Fort Worth Court to support its contention that McClanahan’s affidavit is sufficient. See In re Burlington N. & Santa Fe Ry., 99 S.W.3d 323 (Tex. App.—Fort Worth 2003, orig. proceeding).          In Columbia Rio Grande Healthcare, a negligent credentialing case, Columbia identified its CEO in discovery as “the person most knowledgeable regarding [physician contracts].” 977 S.W.2d at 434. The plaintiffs sought to depose the CEO, and Columbia filed a motion to quash the deposition notice. The trial court denied this motion. The appellate court denied Columbia’s mandamus petition, concluding that, even though the CEO in his affidavit “denied personal knowledge of many aspects of the lawsuit,” he did not deny knowledge of the hospital’s physician contracts or of the hospital’s credentialing practices, and he did not broadly deny “any knowledge of relevant facts.” Id.          Conversely, in the Burlington Northern case, the court concluded that the corporate executive’s statements in his affidavit (1) that he had no knowledge of the facts of the suit, (2) that he had “no unique or superior knowledge or information regarding any aspect of this case,” and (3) that he had “no personal knowledge of the condition of [the railroad] crossing at the time of the accident made the basis of this suit,” were sufficient to invoke the apex deposition analysis, even though the executive did not generally deny knowledge of any relevant facts. 99 S.W.3d at 326 n.3.          Here, McClanahan stated in his affidavit that he has “no unique or specialized knowledge regarding any aspect of this case” and that he has “never been involved in the day-to-day operations of the Limestone Station and [has] no personal knowledge of its operations.”          The issue in the underlying lawsuit is whether Valence’s proposed well will preclude or impair “an existing use by the surface owner.” Tarrant County Water Control & Improvement Dist. v. Haupt, Inc., 854 S.W.2d 909, 911 (Tex. 1993) (quoting Getty Oil Co. v. Jones, 470 S.W.2d 618, 622 (Tex. 1971)).          McClanahan denied having any specialized or unique knowledge of the day-to-day operations of the Limestone Plant. Thus, he sufficiently denied knowledge of any relevant facts regarding any existing usage of the disposal site to shift the burden to Valence to show otherwise. See Alcatel USA, 11 S.W.3d at 175-76; Burlington N. & Santa Fe Ry., 99 S.W.3d at 326.          Valence responded by arguing that McClanahan’s executive position with CenterPoint and the length of his tenure there establishes that McClanahan “knows about the operations, the value, [and] the way the Limestone Plant is run from an operations point of view.” However, Valence presented no evidence to support this argument. Accordingly, we hold that Valence failed to arguably show that McClanahan “has any unique or superior personal knowledge of discoverable information.” See Alcatel USA, 11 S.W.3d at 175.          Nevertheless, Valence also contends that it has been unable to obtain the discovery it seeks by less intrusive means. Id. at 176. At the hearing, Valence referred to a May 5 deposition notice it served on CenterPoint under Rule of Civil Procedure 199.2(b)(1) requiring CenterPoint to designate a representative to testify on its behalf. This notice states that the contemplated deposition would be conducted on May 25, two weeks after the hearing on CenterPoint’s motion for protective order.          This single deposition notice does not satisfy Valence’s burden to show that it has “made a reasonable effort” to obtain the information sought through less intrusive means of discovery.[1] See In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000) (orig. proceeding) (per curiam). Thus, Respondent abused his discretion by denying CenterPoint’s motion for protective order.          CenterPoint has no adequate remedy at law.  In re El Paso Healthcare Sys., 969 S.W.2d 68, 75 (Tex. App.—El Paso 1998, orig. proceeding). Therefore, we conditionally grant the requested writ of mandamus.  The writ will issue only if Respondent fails to advise this Court in writing within fourteen days after the date of this opinion that he has vacated the order requiring CenterPoint to produce McClanahan for deposition.  FELIPE REYNA Justice  Before Justice Vance and Justice Reyna Petition conditionally granted Opinion delivered and filed June 29, 2005 [OT06] [1]          Respondent granted CenterPoint’s motion to quash the corporate representative deposition notice. Nevertheless, this does not change the fact that Valence did not even begin to try to obtain discovery from CenterPoint of the information it seeks from McClanahan until less than a week before the hearing on the motion for protective order.