in Re Midtown Surgical Center, Med-Psych Administrative Services, Inc. and Louis Varela, M.D.

Petition for Writ of Mandamus Denied and Memorandum Opinion filed April 15, 2010. In The Fourteenth Court of Appeals NO. 14-09-01011-CV In Re Midtown Surgical Center, Med-Psych Administrative Services, Inc., Louis Varela, M.D., AND LEVI J. BENTON, Relators ORIGINAL PROCEEDING WRIT OF MANDAMUS MEMORANDUM OPINION Relators Midtown Surgical Center, Med-Psych Administrative Services, Inc., Louis Varela, M.D. (the “Midtown Parties”) and Levi Benton have filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relators ask this court to compel the Honorable Steven E. Kirkland, presiding judge of the 215th District Court of Harris County, to set aside his November 18, 2009 order (1) granting the motion to compel discovery filed by real party in interest, Donna Woods-Jones, and (2) directing relators to pay Woods-Jones’s attorney $4,697.50 in fees and expenses as sanctions for discovery abuse. Background Woods-Jones brought suit against the Midtown Parties and two other defendants[1] for alleged violations of the Texas Deceptive Trade Practices Act[2] and fraud, alleging excessive charges for certain medical procedures performed on her. Woods-Jones served requests for production on the Midtown Parties and they objected that certain of the requests were overbroad, vague, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Woods-Jones filed a motion to compel discovery. At a hearing on October 30, 2009, the trial court granted the motion to compel discovery and instructed the parties to submit a proposed order to the court. On November 6, 2009, the Midtown Parties filed a motion to reconsider the trial court’s order granting the motion to compel discovery. On November 10, 2009, Woods-Jones filed a response to the motion to reconsider; the response included a request for sanctions. At a hearing on November 13, 2009, the trial court denied the Midtown Parties’ motion to reconsider and imposed sanctions against relators. On November 18, 2009, the trial court signed an order (1) directing the Midtown Parties to produce the subject documents on or before November 30, 2009, and (2) ordering relators, on or before November 30, 2009, to pay Woods-Jones’s attorney $4,697.50 in fees and expenses incurred in connection with the preparation and presentation of her motion to compel and her response to the Midtown Parties’ motion to reconsider as sanctions for discovery abuse. Standard of Review To be entitled to the extraordinary relief of a writ of mandamus, relators must show the trial court abused its discretion and there is no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding). Order Compelling Discovery The Midtown Parties claim the trial court abused its discretion by ordering them to produce documents that encompass activities, matters, and time periods beyond those at issue in the case.[3] Woods-Jones served 111 requests for production on the Midtown Parties and they objected to some of these requests for production as being overbroad, vague, irrelevant, and not reasonably calculated to lead to discovery. Following a hearing, the trial court ordered the Midtown Parties to produce responsive documents for 28 of the requests. In their petition for writ of mandamus, the Midtown Parties do not separately address each request to which the trial court ordered them to respond. Therefore, we need not address the Midtown Parties’ claim that the trial court abused its discretion by ordering production of documents responsive to the subject requests. See In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam) (“The burden of establishing an abuse of discretion and an inadequate appellate remedy is on the party resisting discovery, and this burden is a heavy one.”). Order for Sanctions Relators further contend that the trial court abused its discretion by imposing sanctions. In their motion to reconsider the trial court’s order compelling discovery, the Midtown Parties reasserted their prior objections to the requests for production and requested that the trial court abate the discovery order so they could file a no-evidence motion for summary judgment. In her response to the motion to reconsider, Woods-Jones sought sanctions “for not only this Motion, but for the pattern of abuse Plaintiff has been subjected to since this lawsuit began.” Specifically, Woods-Jones alleged that the Midtown Parties filed groundless pleadings, including the motion to reconsider with the proposed no-evidence motion for summary judgment, prior motion for death penalty sanctions, and a prior no-evidence motion for summary judgment. Woods-Jones also alleged that the Midtown Parties’ counsel refused to cooperate in submitting a proposed discovery order to the trial court after the October 30, 2009 hearing. At the beginning of the November 13, 2009 hearing on the Midtown Parties’ motion to reconsider, the trial court stated: THE COURT: Counsel, what did I miss last time? You just disagree with my ruling or you have something that I didn’t hear? The court engaged in the following colloquy with the Midtown Parties’ counsel: MIDTOWN PARTIES’ COUNSEL: Dr. Shanti performed the service. He’s not my client. The essence of her claim is that the bills are too high. What do my client’s financial records — he knows, he knows who the owners are. What do bank records, tax ID, correspondence have to do — how are they relevant to whether or not there was a misrepresentation made that was false, that she acted on in reliance? Judge, again, if you — THE COURT: All right. The only thing I think I got wrong last time was I didn’t order sanctions last time. You have a cost? COUNSEL FOR WOODS-JONES: I can prepare that. I didn’t know if the Judge would entertain that but I can prepare that and submit it. MIDTOWN PARTIES’ COUNSEL: Excuse me, Your Honor. Am I being sanctioned? THE COURT: Yes. MIDTOWN PARTIES’ COUNSEL: May I ask what I’m being sanctioned for? THE COURT: Discovery abuse. You don’t get to say I am not guilty, my client is not guilty, I will not participate in discovery. MIDTOWN PARTIES’ COUNSEL: That’s not what — THE COURT: That’s exactly what you have been saying. That’s exactly the way I read what your behavior is and I won’t stand for it. So you are sanctioned. You have already told me you are going to appeal my ruling. Go do it. MIDTOWN PARTIES’ COUNSEL: Your Honor, I dare say I respectfully say I have done nothing that is sanctionable. Every party who is sued has right to defend itself and that’s all we have done. THE COURT: All right. Submit your order, your bill of costs motion and order for sanctions. Anything else? The Supreme Court of Texas has held that monetary sanctions are generally not subject to review on mandamus. See Braden v. Downey, 811 S.W.2d 922, 928–29 (Tex. 1991) (orig. proceeding) (“If the imposition of monetary sanctions threatens a party’s continuation of the litigation, appeal affords an adequate remedy only if payment of the sanctions is deferred until final judgment is rendered and the party has the opportunity to supersede the judgment and perfect his appeal”). Additionally, the Supreme Court of Texas has held that parties have an adequate appellate remedy as to sanctions orders. See In Re Ford Motor Co., 988 S.W.2d. 714, 722 (Tex. 1998) (orig. proceeding). In this case, the trial court ordered relators to pay the sanction directly to opposing counsel before rendition of an appealable judgment. There is no contention that immediate payment of the sanction amount before a final judgment is signed threatens relators’ ability to continue the litigation. After considering the circumstances presented in this case and carefully balancing the jurisprudential considerations that determine when appellate courts will utilize original mandamus proceedings to review the actions of lower courts, we conclude that the benefits of mandamus review of the trial court’s sanctions order are outweighed by the detriments. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136–37 (Tex. 2004) (orig. proceeding). Therefore, relators have an adequate appellate remedy. See id.; In Re Ford Motor Co., 988 S.W.2d at 722; see also In re Onstad, 20 S.W.3d 731, 733 (Tex. App.—Texarkana 2000, orig. proceeding [mand. denied]). In light of this conclusion, we do not address in this mandamus proceeding the propriety of the trial court’s actions or whether, on this record, the imposition of sanctions constitutes an abuse of discretion. Conclusion Relators have not shown that they are entitled to the extraordinary relief of a writ of mandamus. Accordingly, we deny relators’ petition for writ of mandamus. However, we suspend that portion of the trial court’s November 18, 2009 order directing relators to make payment directly to counsel for Woods-Jones by November 30, 2009, and we ORDER that the amount ordered by the trial court as a sanction instead be paid into the registry of the trial court within 30 days of this opinion, to be deposited by the clerk pursuant to law. See In re Onstad, 20 S.W.3d at 733. Such sum shall remain in the court’s registry until the final conclusion of the underlying proceeding and any appeal thereof, or until such time, if any, that the sanctions order is rescinded or vacated by the trial court. See id. The stay imposed by this court on November 30, 2009, is lifted. PER CURIAM Panel consists of Justices Frost, Seymore, and Boyce. [1] The other defendants are Ihsan Shanti, M.D. and Surgical Department, L.P. [2] See Tex. Bus. & Com. Code Ann. § 17.01 et seq. (Vernon 2002 & Supp. 2009). [3] See In re Alford Chevrolet-Geo, 997 S.W.2d 173, 180 n.1 (Tex. 1999) (orig. proceeding) (“We have identified as overbroad requests encompassing time periods, products, or activities beyond those at issue in the case—in other words, matters of questionable relevancy to the case at hand.”).