in Re Cook Compression, LLC

• Court: Court of Appeals of Texas
• Decided: November 25, 2020
• Docket: 04-20-00517-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-20-00517-CV

IN RE COOK COMPRESSION LLC

Original Mandamus Proceeding 1 Proceeding Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Beth Watkins, Justice

Delivered and Filed: November 25, 2020

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

In the underlying personal injury lawsuit, the trial court granted the plaintiffs/real parties

in interest’s motion to compel the apex deposition of Marcell Ulrichs, who is the President of

Dover Precision Components, one of the related/parent entities of relator/defendant, Cook

Compression, LLC. The trial court also denied relator’s motion for protective order and sustained

plaintiffs’ objection to Ulrichs’ declaration filed in support of relator’s motion. Relator filed its

petition on October 22, 2020 and a motion for temporary relief. Although we did not request a

response, plaintiffs filed a response on October 27, 2020, to which relator later replied. We

conditionally grant the petition for writ of mandamus.

1 This proceeding arises out of Cause No. 2019CI02008, styled Luis Bazaldua, et al. v. Dover Energy, Inc. d/b/a Cook Compression, et al., pending in the 150th Judicial District Court, Bexar County, Texas. The Honorable Monique Diaz signed the order at issue in this original proceeding. 04-20-00517-CV

STANDARD OF REVIEW

Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of

discretion when there is no other adequate remedy at law. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d

619, 623 (Tex. 2007) (orig. proceeding). To satisfy the clear abuse of discretion standard, the

relator must show “that the trial court could reasonably have reached only one decision.” Liberty

Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig. proceeding) (quoting Walker

v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). “A trial court has no ‘discretion’

in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial

court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in

appellate reversal by extraordinary writ.” Walker, 827 S.W.2d at 840. “[A] party will not have an

adequate remedy by appeal when the appellate court would not be able to cure the trial court’s

discovery error.” Id. at 843.

With regard to apex depositions, a party may seek mandamus relief to determine whether

the trial court correctly ordered an apex deposition. See In re Alcatel USA, Inc., 11 S.W.3d 173,

175 (Tex. 2000) (orig. proceeding) (mandamus relief appropriate when trial court abused its

discretion by denying motion to quash apex depositions); see also In re Semgroup Corp., No. 04-

16-00230-CV, 2016 WL 3085875, at *1 (Tex. App.—San Antonio June 1, 2016, orig. proceeding)

(mem. op.) (granting mandamus relief because real parties in interest did not meet requirements

necessary to justify apex depositions). Thus, mandamus is the appropriate vehicle to challenge the

trial court’s order mandating that Ulrichs submit to plaintiffs’ deposition notice. See id.

DISCUSSION

In its petition for writ of mandamus, realtor raises two challenges to the trial court’s rulings.

First, relator asserts the trial court abused its discretion by sustaining plaintiffs’ objection to

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Ulrichs’ declaration and denying its motion for a protective order. Second, relator asserts the trial

court abused its discretion by granting plaintiffs’ motion to compel the apex deposition.

A. Governing Law

When a party seeks an apex deposition and the corporate official or corporation files a

motion for protective order accompanied by the official’s affidavit denying any knowledge of

relevant facts, the party seeking the deposition bears the burden of satisfying a two-step test.

Alcatel, 11 S.W.3d at 175-76. First, the trial court should determine whether the party seeking the

deposition has arguably shown the official has any unique or superior personal knowledge of

discoverable information. Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex.

1995) (orig. proceeding). If the party seeking the deposition fails to establish the first prong of the

test, the trial court should grant the motion for protection and “first require the party seeking the

deposition to attempt to obtain the discovery through less intrusive methods.” Id. at 128.

The second prong of the Crown Central test involves less intrusive methods of discovery,

which “could include the depositions of lower level employees, the deposition of the corporation

itself, and interrogatories and requests for production of documents directed to the corporation.”

Id. The party seeking the apex deposition must show the information it seeks cannot “be obtained

by less-intrusive methods.” In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000) (orig.

proceeding) (per curiam). “Merely completing some less-intrusive discovery does not trigger an

automatic right to depose the apex official.” Id. at 658. “After making a good faith effort to obtain

the discovery through less intrusive methods, the party seeking the deposition may attempt to show

(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.” Crown Cent., 904 S.W.2d at 128. “If the party seeking

the deposition makes this showing, the trial court should modify or vacate the protective order as

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appropriate.” Id. “If the party seeking the deposition fails to make this showing, the trial court

should leave the protective order in place.” Id.

B. Ulrichs’ Declaration

Relator filed a motion for protective order to prohibit the deposition accompanied by

Ulrichs’ “declaration” in which he stated:

I have no personal knowledge of facts relevant to this case, including the nature of the hiring, retention, training, entrustment, etc. of the Cook Compression driver involved, or of the accident itself (other than the fact that the accident occurred) or of its aftermath. Any and all information I have related to this case has been relayed to me by subordinates or by internal and outside counsel.

Plaintiffs objected to the declaration relying on Texas Civil Practice and Remedies Code

section 132.001, which provides, in relevant part, as follows:

(a) Except as provided by Subsection (b), an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law. ... (c) An unsworn declaration made under this section must be: (1) in writing; and (2) subscribed by the person making the declaration as true under penalty of perjury.

TEX. CIV. PRAC. & REM. CODE § 132.001(a, c).

A template jurat containing the declarant’s name, address, date of birth, and perjury

attestation appears at subsection (d). An unsworn declaration “must include a jurat in substantially

the following form”:

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“My name is (First) (Middle) (Last), my date of birth is _______________________, and my address is (Street) (City) (State) (Zip Code) and I declare under penalty of (Country) perjury that the foregoing is true and correct. Executed in __________ County, State of ____, on the ______ day of (Month) (Year) ____________________ Declarant”

Id. § 132.001(d) (emphasis added).

Plaintiffs argued Ulrichs’ declaration was not verified and, although made under penalty

of perjury, lacked the statutorily-required jurat for a declaration in lieu of an affidavit because it

lacked his date of birth, address, and the county and state in which the document was executed. In

support of their argument, plaintiffs cite to Hays St. Bridge Restoration Group v. City of San

Antonio, 570 S.W.3d 697, 702 (Tex. 2019). In Hays, before reaching the merits of the case, the

Supreme Court addressed the City’s motion to dismiss in which the City argued the case had been

moot the entire four years it was on appeal because the City complied with the trial court’s

judgment a few weeks after it was rendered. 2 The Court concluded the “motion offered no support

for its assertions other than a half-page declaration by” the City’s Assistant City Manager because

“the declaration was unverified, and while it state[d] that it is made under penalty of perjury, it

lack[ed] the statutorily required jurat for a declaration in lieu of an affidavit.” Id. In a footnote,

the Court cited to section 132.001(d), noting the declaration did not include the Assistant City

Manager’s date of birth. Id. at 702 n.15.

2 “The primary issue [in Hays was] whether the waiver of governmental immunity for certain claims provided by the Local Government Contract Claims Act . . . at the time this case arose applies when the remedy sought is specific performance rather than money damages.” Hays, 570 S.W.3d at 699. The case did not involve an apex deposition and the Court was not presented with the same issue as in this original proceeding.

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Therefore, plaintiffs conclude that, under Hays, Ulrichs’ declaration was inadmissible

hearsay and provided no support for relator’s motion for protective order. Plaintiffs argue that, on

this ground alone, the motion for protective order should be denied.

Relator counters that the declaration was in “substantially” the same form as the template

jurat because the declaration states:

My name is Marcell Ulrichs. I am over 21 years of age, of sound mind and otherwise competent to make this declaration. I have never been convicted of a felony, and, if called upon, I could and would testify competently to the facts contained herein, which are within my personal knowledge and are true and correct. I make this declaration under penalty of perjury and state as follows. . . . .. [Emphasis added.]

Relator contends plaintiffs’ objections are merely to the form of the declaration and should

be rejected because the defects are not fatal and the declaration contains the operative part of the

jurat, which is the portion subjecting the declarant to the penalty of perjury. We agree.

“Under section 132.001, the main requirements are that the declaration be in writing and

‘subscribed by the person making the declaration as true under penalty of perjury.’” Bonney v.

U.S. Bank Nat’l Ass’n, 05-15-01057-CV, 2016 WL 3902607, at *3 (Tex. App.—Dallas July 14,

2016, no pet.) (mem. op.) (concluding declaration substantially complied with section 132.001

even though declarant omitted her middle name, address, and date of birth). “If those requirements

are met, courts have found the jurat substantially complies with the statute.” Id.; see also United

Rentals, Inc. v. Smith, 445 S.W.3d 808, 813 (Tex. App.—El Paso 2014, no pet.) (holding, the

“[f]ailure to include the declarant’s birthdate or address is a formal defect having no effect on

whether a false statement would render the declarant liable for perjury” and did not render

declaration inoperative or convert it to unsworn hearsay).

We conclude the declaration substantially complies with the jurat, and the trial court erred

by sustaining plaintiffs’ objections to the declaration because the objections go to the form of the

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declaration and the declaration contains the operative part of the jurat, which is the portion

subjecting Ulrich to the penalty of perjury. In re BP Prods. N. Am. Inc., 01-06-00613-CV, 2006

WL 2192546, at *5 (Tex. App.—Houston [1st Dist.] Aug. 4, 2006, orig. proceeding) (mem. op.)

(“We think that the better rule is that a mechanical application of Crown Central in determining

the sufficiency of an affidavit to invoke the apex doctrine is to be rejected.”).

Also, although Ulrich did not file an affidavit, we believe his declaration satisfied the

Crown Central requirements because he denied having any personal knowledge of facts relevant

to the case, “including the nature of the hiring, retention, training, entrustment, etc. of the Cook

Compression driver involved, or of the accident itself.” See In re Tex. Genco, LP, 169 S.W.3d

764, 768 (Tex. App.—Waco 2005, orig. proceeding) (in determining sufficiency of corporate

official’s affidavit, the question is whether the official “sufficiently denied knowledge of any

relevant facts regarding” the subject matter of the litigation”); In re Burlington N. & Santa Fe Ry.

Co., 99 S.W.3d 323, 326 (Tex. App.—Fort Worth 2003, orig. proceeding) (“BNSF properly

initiated the apex guideline proceedings set forth in Crown Central by moving for protection and

filing Rose’s affidavit denying any knowledge of relevant facts.”). Because we conclude the

declaration satisfies Crown Central, the burden shifted to plaintiffs to satisfy their burden under

Crown Central. See Burlington, 99 S.W.3d at 326.

C. Apex Deposition

Under Crown Central, the trial court first had to determine whether plaintiffs had arguably

shown Ulrichs had any unique or superior personal knowledge of discoverable information.

Crown Cent., 904 S.W.2d at 128. A showing of “unique or superior knowledge” requires “some

showing beyond mere relevance, such as evidence that a high-level executive is the only person

with personal knowledge of the information sought or that the executive arguably possesses

relevant knowledge greater in quality or quantity than other available sources.” Alcatel, 11 S.W.3d

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at 179. “[E]vidence that an apex official received information requires something more to establish

that the apex [official] has unique or superior knowledge of discoverable information.” Id.

Under the second prong of the Crown Central test, the trial court had to determine whether

plaintiffs made a good faith effort to obtain the discovery through less intrusive methods. Id. A

“discovering party’s burden is not perfunctorily met by any showing that the party employed less-

intrusive discovery methods.” Daisy Mfg., 17 S.W.3d at 658. “Crown Central states only that

‘[d]epending upon the circumstances of the particular case, [less intrusive] methods could include

the depositions of lower level employees, the deposition of the corporation itself, and

interrogatories and requests for production of documents directed to the corporation.” Id.

(emphasis in original) (quoting Crown Cent., 904 S.W.2d at 208). “Crown Central rather, instructs

courts to measure whether the discovering party made a reasonable effort to obtain discovery

through less-intrusive methods. Merely completing some less-intrusive discovery does not trigger

an automatic right to depose the apex official.” Id.

The hearing on the motion for protective order and motion to compel was held on

September 24, 2020. At 8:01 p.m. on September 23, plaintiffs filed their response and objections

to relator’s motion for protective order. Attached to plaintiffs’ pleading were almost 500 pages of

various documents. However, the hearing consisted entirely of arguments by counsel and none of

the documents attached to plaintiffs’ response were admitted into evidence. It is also clear from

the record of the hearing that the trial court did not consider any of these documents because the

judge ruled at the end of the hearing. Because the trial court did not require plaintiffs to satisfy

their burden with evidence, as opposed to arguments of counsel, we conclude the trial court abused

its discretion by denying relator’s motion for protective order and granting plaintiffs’ motion to

compel. Under these circumstances, an appellate court would not be able to cure the trial court’s

error; thus, relator lacks an adequate remedy by appeal. Walker, 827 S.W.2d at 843; AMR Corp.

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v. Enlow, 926 S.W.2d 640, 644 (Tex. App.—Fort Worth 1996, orig. proceeding) (holding, “no

adequate remedy by appeal exists on this ruling because an appellate court could not cure the trial

court’s error in ordering the apex deposition”); see also Alcatel, 11 S.W.3d at 181 (granting

mandamus relief because trial court abused its discretion by failing to properly apply guidelines

set forth in Crown Central); Semgroup Corp., 2016 WL 3085875, at *3 (granting mandamus relief

because plaintiffs did not satisfy requirements necessary to justify taking apex depositions).

CONCLUSION

For the reasons stated above, we conclude the trial court abused its discretion by sustaining

plaintiffs’ objections to the Declaration of Marcell Ulrichs and by granting plaintiffs’ motion to

compel the deposition without requiring plaintiffs to satisfy their burden. 3 Therefore, we

conditionally grant the petition for writ of mandamus and direct the trial court to vacate its

September 29, 2020, Order (1) granting Plaintiffs’ Motion to Compel the deposition of Marcell

Ulrichs, (2) sustaining the objections to the Declaration of Marcell Ulrichs, and (3) denying

relator’s Motion for Protective Order, no later than fifteen days from the date of this opinion.

Relator’s motion for temporary relief is denied as moot.

Sandee Bryan Marion, Chief Justice

3 We express no opinion on the merits of plaintiffs’ motion to compel the deposition of Marcell Ulrichs.

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