by Kyle Lawrence, Beck Redden LLP

In re Preventative Pest Control Houston, LLC, No. 14-19-00274-CV, __ S.W.3d __, 2019 WL 2897542(July 2, 2019, orig. proceeding)

After the plaintiff was struck by a Preventative Pest Control Houston truck, she sued the company and its employee truck driver (collectively, the “Pest Control Parties”) for negligence. In the ensuing litigation, the plaintiff moved to compel the Pest Control Parties to produce (among other things) the following information in response to her requests for production: the driver’s worker’s compensation file; a signed authorization from the driver allowing her to obtain the driver’s prior employment records; and the driver’s work service records for the period of his employment.

The trial court granted plaintiff’s motion, in part. Specifically, the trial court ordered production of: (1) a list of medications taken by the driver within 24 hours before the accident (the “Medications List”); (2) a list of the driver’s employers for the 10-year period before the accident (the “Employers List”); and various other items not relevant to the Fourteenth Court of Appeals’ decision.

But instead of complying with the order and producing the discovery, the Pest Control Parties responded by stating that no Medications List or Employers List existed. The trial court then entered a show cause order and ordered the Pest Control Parties to pay plaintiff’s costs and expenses in the amount of $1,500. The Pest Control Parties sought mandamus relief, arguing that the trial court abused its discretion by ordering them to create Lists that did not exist.

A split panel of the Fourteenth Court conditionally granted mandamus relief. The majority (Frost, C.J., joined by Jewell, J.) explained that, under Rule 192.3, litigants are not required to “produce documents unless those items lie within their possession, custody, or control,” and a “document that does not exist is not within a party’s possession, custody, or control.” Having concluded that the “rules do not permit a trial court to order parties to create documents for the purposes of discovery,” the majority determined that the trial court abused its discretion.

In dissent, Justice Bourliot noted that plaintiff’s original requests for production “were reasonable and well within the allowable scope of discovery.” And by ordering creation of the Medications and Employers Lists instead of granting the plaintiff’s motion to compel, the trial court essentially “turned [plaintiff’s] requests for production into interrogatories” to make discovery “less burdensome for the Pest Control Parties.” In the dissent’s view, the trial court’s action was permissible under Rule 191, which allows discovery to be modified for good cause.

Methodist Hosp. v. Addison, 574 S.W.3d 490, 506–11 (Tex. App.—Houston [14th Dist.] Dec. 21, 2018 no pet. h.) (Christopher, J., concurring in denial of en banc reconsideration)

Appellate courts frequently state that they “generally do not consider issues raised for the first time in a reply brief.”  HMT Tank Service, LLC v. Am. Tank & Vessel, Inc., 565 S.W.3d 799, 812 n.10 (Tex. App.—Houston [14th Dist.] 2018, no pet.).  An interesting test of this principle arose in Methodist Hosp. v. Addison, an interlocutory appeal of a Chapter 74 motion to dismiss health-care liability claims.  Appellate practitioners will be particularly interested in Justice Christopher’s concurrence in the Fourteenth Court’s recent denial of en banc reconsideration of the case.

In the trial court, plaintiff Cheryl Addison alleged that she had been injured due to the negligence of Defendant Methodist Hospital’s pharmacy personnel, as well as a student nurse.  Methodist objected that the plaintiff’s Chapter 74 expert reports were insufficient because they did not implicate Methodist or any of its employees.  Addison responded that Methodist “is vicariously liable for the conduct of its pharmacy staff.”

The parties appellate briefing similarly focused on the pharmacy staff rather than the student nurse.  At oral argument, however, a panel of the Fourteenth Court drew the parties’ attention to Addison’s allegation that the student nurse was acting as the “agent, servant, and/or employee of Defendant Baylor College of Medicine and/or Methodist.”  Ultimately, the panel relied on this allegation to hold that the expert reports were adequate.

Methodist filed a motion for en banc reconsideration in which it argued that the panel erred by considering an argument that had been raised for the first time during oral argument.  The en banc Fourteenth Court denied the motion.  Justice Christopher concurred in the denial but wrote separately to address the “argument that the panel decided Methodist’s appeal on ‘an argument that” was “waived” or “abandoned” by virtue of having been raised for the first time during oral argument.

Justice Christopher pointed to the Texas Supreme Court’s frequent statements that it does not consider issues that had not been raised below, but that parties are free to construct new arguments in support of issues properly before the court.” She noted, for example, that in Greene v. Farmers Insurance Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014), the Supreme Court considered an argument that had been raised for the first time in the respondent’s brief on the merits. She then reasoned that, “if, as in Greene, a court can consider a new argument raised nearly a year after the court of appeals ruled, then surely a court can consider an argument raised at the same time that the case was submitted to the court of appeals for decision.”

In short, Justice Christopher viewed “Greene and its progeny as authorization to consider a belatedly raised argument.” Importantly, however, she “express[ed] no opinion as to whether the Court must do so.”