in Re Katherine Louise King

Opinion

Opinion issued August 6, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00434-CV ——————————— IN RE KATHERINE LOUISE KING, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Katherine Louise King, has filed a petition for writ of mandamus,

challenging the trial court’s two orders of May 6, 2013, in which it denied her

amended plea to the jurisdiction, appointed a discovery master, and ordered the

parties to provide $10,000 “up-front security” to the discovery master.1 Katherine

1 The underlying case is styled In the Matter of Marriage of Katherine Louise King and Christopher Michael King and In the Interest of R.A.K., a Child, No. 2011- 23444, in the 311th District Court of Harris County, Texas, the Honorable Denise V. Pratt presiding. contends that the trial court abused its discretion in denying her amended plea to

the jurisdiction and the appointment of a discovery master violates Texas Rule of

Civil Procedure 171.

We conditionally grant the writ in part, and deny mandamus relief in part.

Background

Katherine and Christopher King were married in 1998, had one child, and

separated in 2005. In 2007, Christopher suffered a traumatic brain injury in a car

accident, and, in 2011, Katherine initiated divorce proceedings. Christopher’s

father, Rodney King, appeared in the case as the guardian of Christopher’s person

and estate. The parties contested the division of the community estate, visitation

rights to the child, and the management of the child’s trust fund. After Rodney

sought production of documents from the child’s trust fund, the trial court, on its

own motion, appointed a discovery master. Katherine objected, and has refused to

participate in any proceedings before the discovery master. After hearing

additional arguments, including the discovery master’s motion for deposit of costs,

the trial court overruled Katherine’s objections to appointment of the discovery

master and issued an amended order appointing a discovery master. It further

ordered both parties to pay the discovery master $5,000 for her initial “fees and

expenses.”

2 Appointment of Discovery Master

Katherine argues that the trial court erred in appointing the discovery master

because there is no evidence to “justify the appointment,” there is no “highly

complex, technical issue,” the appointed master has “no technical skills,” and there

are “no specifics on the discovery master’s duties.” Rodney argues that Katherine

is not entitled to mandamus relief because she has not sought vacatur from the trial

court nor requested a modification, clarification, or limitation of the amended order

appointing a discovery master. Nevertheless, he concedes that although “the

ultimate issues in this case are factually and emotionally difficult,” they are “not

sufficiently technical to warrant a global order relative to discovery” and the trial

court’s order “lacks specificity” on the reasons for the appointment and the

discovery master’s expertise. Rodney further agrees that there is no factual basis

to support the trial court’s order that the parties pay an up-front security deposit to

the discovery master.

The appointment of a discovery master is within the discretion of the trial

court and should only be overruled when there is a clear abuse of discretion. See

Simpson v. Canales, 806 S.W.2d 802, 811 (Tex. 1991); see also In re Harris, 315

S.W.3d 685, 704 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding). A trial

court clearly abuses its discretion when its action is “so arbitrary and unreasonable

as to amount to a clear and prejudicial error of law.” In re CSX Corp., 124 S.W.3d

3 149, 151 (Tex. 2003). A trial court’s improper appointment of a discovery master

is reviewable by mandamus because requiring the parties to reserve their complaint

until appeal would effectively deny them relief from the trial court’s order. See

Simpson, 806 S.W.2d at 812; In re Xeller, 6 S.W.3d 618, 624 (Tex. App.—

Houston [14th Dist.] 1999, orig. proceeding).

The power to appoint a discovery master stems from rule 171, which states

that:

The court may, in exceptional cases, for good cause appoint a master in chancery, who shall be a citizen of this State, and not an attorney for either party to the action, nor related to either party, who shall perform all of the duties required of him by the court, and shall be under orders of the court, and have such power as the master of chancery has in a court of equity.

TEX. R. CIV. P. 171; see In re Harris, 315 S.W.3d at 703–04 (“[Rule 171] is the

exclusive authority for the appointment of masters in Texas state courts.”). Every

referral to a discovery master, “unless authorized by statute or consented to by the

parties, must comply with Rule 171.” Simpson, 806 S.W.2d at 810. The

“exceptional condition” requirement of rule 171 cannot be met by showing that a

case is complicated or time-consuming or that the trial court is busy. See La Buy v.

Howes Leather Co., 352 U.S. 249, 259, 77 S. Ct. 309, 315 (1957); Simpson, 806

S.W.2d at 811. However, it is appropriate to appoint a discovery master when

comprehensive analysis of highly technical data is necessary. See TransAmerican

Natural Gas Corp. v. Mancias, 877 S.W.2d 840, 843 (Tex. App.—Corpus Christi

4 1994, orig. proceeding) (noting that even with highly technical data, duty remains

with trial judge to review documents and “make the ultimate determination”).

Here, in its order referring the matter to a discovery master, the trial court

stated simply: “The Court finds good cause exists in this exceptional case

involving at least one technical issue that Donna Detamore be appointed discovery

master in this case.” The order is a “blanket” order and contains no limits or

exclusions. Even in exceptional cases, the Texas Supreme Court has expressed

reluctance to approve a trial court’s delegation of all discovery to a discovery

master. See Simpson, 806 S.W.2d at 812.

The underlying case involves the division of the community estate between

Christopher and Katherine, and a Suit Affecting the Parent-Child Relationship

(“SAPCR”), including the management of the child’s trust fund. The record does

not demonstrate that the discovery matters in this dispute, including the financial

records of the trust, rise to the level of technical complexity required for the

delegation to a discovery master as provided in rule 171. The issues are ones in

which the trial court has experience. And even though financial documents will be

included in the litigation, the record does not demonstrate that the discovered

material will be too complex for the trial court to consider. See Simpson, 806

S.W.2d 802 (denying appointment of discovery master in complex toxic-tort case).

5 Additionally, there is no evidence in the record that the appointed discovery

master has expertise relative to the issues that the trial court lacks. A special

master must possess specialized knowledge or skill that the trial court does not

have, but needs to decide a particular case. See In re Harris, 315 S.W.3d at 704

(determining special master not required in defamation suit because discovery was

not of a “highly technical nature”); Hourani v. Katzen, 305 S.W.3d 239, 247–48

(Tex. App.—Houston [1st Dist.] 2009, no pet.) (appointment of a special master

with engineering expertise may be required to assist trial court); TransAmerican,

877 S.W.2d at 843 (complex documents may require analysis by individual with

technical and legal background). Here, nothing in the record indicates that the

appointed master has any unique legal expertise or technical background to assist

the trial court. Although she is a family law attorney, the appointed master does

not possess any special skills that the trial court lacks regarding the financial

documents related to the child’s trust.

Finally, Katherine argues that the trial court erred in requiring the parties to

pay $5,000 each for the discovery master’s “fees and expenses” because such “up-

front security costs” are prohibited by rule 171 and are excessive. Rodney agrees

that “under the present circumstances [there is] no factual basis to support the kind

of up front deposit by the parties to the discovery master.”

6 A trial court “shall award reasonable compensation to such master to be

taxed as costs of suit.” TEX. R. CIV. P. 171. However, a trial court may not require

the parties to pay anticipated costs or security for costs which have not accrued.

TransAmerican, 877 S.W.2d at 844 (abuse of discretion for trial court to order

advance payment of $10,000 security).

Rule 143 provides the only basis for requiring a party to give security for

costs before a final judgment is issued. “A party seeking affirmative relief may be

ruled to give security for costs at any time before final judgment, upon motion of

any party, or any officer of the court interested in the costs accruing in such suit, or

by the court upon its own motion.” TEX. R. CIV. P. 143. Although rule 143

generally allows a trial court to require parties to post a security for costs that have

already accrued, it does not contemplate security fees for anticipated costs. See

TransAmerican, 877 S.W.2d at 844; Johnson v. Smith, 857 S.W.2d 612, 615–16

(Tex. App.—Houston [1st Dist.] 1993, orig. proceeding). A trial court abuses its

discretion in improperly ordering parties to pay a fixed amount of security prior to

the issuance of a final judgment. See Johnson, 857 S.W.2d at 615–16; Hackler v.

N.D., No. 02-08-392, 2009 WL 2138945, at *4 (Tex. App.—Fort Worth July 16,

2009, no pet.) (mem. op.). Here, the trial court abused its discretion by requiring

that each party pay $5,000 for the discovery master’s “fees and expenses” because

there is no evidence that any costs have accrued.

7 We conclude that the record reveals that this case does not meet the

“exceptional case” and “good cause” requirements of rule 171. Accordingly, we

hold that the trial court erred in appointing a discovery master. We further hold

that the trial court erred in requiring the parties to pay “up-front security” costs to

the discovery master.

Conclusion

We conditionally grant a writ of mandamus directing the trial court to vacate

its May 6, 2013 Amended Order Appointing Discovery Master, referring the

underlying proceeding to a discovery master and requiring the parties to each pay

the discovery master $5,000 for security for her fees and expenses. However, this

writ will issue only if the trial court fails to comply with the order of this Court.

We deny mandamus relief concerning the trial court’s May 6, 2013 order denying

Katherine’s plea to the jurisdiction.

Terry Jennings Justice

Panel consists of Justices Jennings, Brown, and Huddle.