Opinion issued July 2, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00161-CV ——————————— IN RE ROBERT WALSH, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Non-party Relator Robert Walsh filed a Petition for Writ of Mandamus
arguing the trial court abused its discretion by granting Real Party in Interest Johnson
Fence and Masonry, LLC’s Motion to Compel his oral deposition.
We conditionally grant the relief sought. Background
The underlying case is the second of two suits filed involving generally the
same underlying facts. In the first suit, currently pending before the 165th District
Court of Harris County, Relator Robert Walsh sued Real Party Johnson Fence and
Masonry, LLC, asserting that “[Relator] entered into a valid and enforceable
employment contract with [Real Party],” and that “[Real Party] breached the contract
. . . [by] fail[ing] to pay [Relator] [the] sums owed . . .” (“First Suit”).1 Real Party
deposed Relator and later sought to retake his deposition. On May 15, 2023, the trial
court denied without prejudice Real Party’s motion to retake Relator’s deposition.
In the second filed suit, currently pending before the 11th District Court of
Harris County, Real Party sued Relator’s brother, Stephen Anthony Walsh (“Steve
Walsh”), and other defendants for their alleged participation in tortious conduct and
for civil conspiracy (“Second Suit”).2 Relator is not a named party in the Second
Suit. The Second Suit is the underlying case in this original proceeding.
1 The first lawsuit, Cause No 2022-02795, Robert M. Walsh v. Johnson Fence and Masonry, LLC doing business as Johnson Services Company, is pending in the 165th District Court of Harris County, Texas. 2 The underlying case is Johnson Fence and Masonry, LLC v. Stephen Anthony Walsh, Anna Marie Valdez, Teresita Tezeno a/k/a Teresita N. Valdez, JBlakeConstruction LLC, ROS Construction Services, S.O.A. Construction Services, LLC, Amados Tractors Inc., Olver Amado Cureno-Nava, Fernando Ivan Cureno, Amado Cureno, Ayleen Estefania Esparza, Ballew Construction, LLC, Ashley Robert Ballew, Lena Cruz Ballew, Alexander Nicolas Valdez, and John Does 1–10, Cause No. 2022-75023, pending in the 11th District Court of Harris County, Texas, the Honorable Kristen Hawkins presiding.
2 On November 22, 2023, Real Party’s counsel emailed Relator’s counsel in the
First Suit to request the non-party deposition of Relator in the Second Suit. Relator
responded expressing opposition to the request. On December 28, 2023, Real Party
filed a Motion to Compel Relator’s deposition arguing that “[Relator] was the Vice
President of Operations for [Real Party][,] . . . [and had] hired [defendant] Steve
[Walsh to work] as a project manager, later promoting [him] to Senior Project
Manager.” Real Party argued that “[Relator] and [his brother] Steve [Walsh had]
used their senior positions with Real Party to enrich themselves . . . [and] . . . [i]n
light of [Relator’s] role in [d]efendants’ fraudulent and tortious conspiracy, his
deposition testimony [was] essential to Real Party’s prosecution of its claims against
[d]efendants.”
Real Party noticed its Motion to Compel for hearing on February 12, 2024.
Relator, a non-party to the Second Suit, did not appear at the hearing. After hearing
argument from Real Party’s counsel, the trial court granted an order compelling
Relator’s oral deposition.
Four days later, on February 16, 2024, Relator filed an Emergency Motion to
Reconsider and to Void the Court’s Order, asserting that because “[Relator] is not
before th[e] [c]ourt as a party and was never subpoenaed for a deposition, . . . [he]
3 has no legal obligation to participate in discovery.”3 Relator argued that Real Party
was “attempt[ing] to circumvent the 165th [District Court]’s denial of the same
request [Real Party] made [in the First Suit] on September 26, 2023, with the same
arguments repeated to this [c]ourt.” In addition to filing his Motion to Reconsider,
Relator sent a letter to the trial court in this matter and to the 165th District Court in
the First Suit, requesting an emergency hearing regarding the trial court’s February
12, 2024 Order compelling his oral deposition.
In response to Relator’s Motion to Reconsider, Real Party argued that “[i]t
was not necessary for [Real Party] to issue a subpoena to [Relator]” under Texas
Rule of Civil Procedure 205.1 because “Rule 205.1 states that a party can compel
discovery from a non-party ‘by obtaining a court order,’ which [Real Party] plainly
did.”4 Real Party argued that Rule 205.1 applies only to a person “who is not a party
or subject to a party’s control.” Relying on Rule 199.3, Real Party argued that
because Relator “is employed by or subject to the control of [named] [d]efendant
S.O.A. Construction Services, LLC” (“S.O.A.”), Relator “is subject to the control of
a party to this case, [and as such,] notice alone was sufficient.”5 In support of its
3 Relator refiled his Motion to Reconsider, and noticed it for a ndanthearing on February 26, 2024. 4 See TEX. R. CIV. P. 205.1 (governing discovery from non-parties). 5 See TEX. R. CIV. P. 199.3 (stating that witness may be compelled to attend deposition either by subpoena, or if witness “is retained by, employed by, or
4 contention that Relator is employed by or subject to the control of S.O.A., Real Party
attached to its response an excerpt from the deposition of Steve Walsh dated
December 13, 2023, that stated:
Q. Where does [Relator] work now?
A. He does work for us at S.O.A.
Real Party argued that it had moved to compel Relator’s deposition because
Relator had refused to submit to a deposition, stating: “We do not agree. Let’s see
what the [c]ourt says.” Real Party continued, “[i]f [Relator] had stated a willingness
to sit for his deposition upon [Real Party’s] issuance of a subpoena, [Real Party]
would have obliged (despite having no obligation to do so).” Real Party argued that
the Order of the 165th District Court denying the reopening of Relator’s deposition
in the First Suit was irrelevant because “[Real Party] deposed [Relator] in a separate
lawsuit before [it] knew the details of the . . . conspiracy to defraud [it].” (emphasis
in original).
During the hearing on Relator’s Motion to Reconsider, the trial court asked
Relator:
So, we already had a hearing on this issue and you all chose not to participate. You didn’t file a response and you didn’t come to the hearing. Why should I reconsider my ruling?
otherwise subject to the control of a party,” by notice of deposition on the party’s attorney).
5 Relator responded:
So, we believe, it is our position, that we are – [Relator] was not subject to the jurisdiction of this court. There was no subpoena issued for him. He is not a party to this case.
And while I have read in [Real Party’s] response to our motion that he is working or under the control of S.O.A. Construction, which I believe is the defendant in this case, [Relator] is not an employee.
He has performed work as a 1099 contractor, but he was never actually employed by them or issued a W-2. And we did not receive a subpoena nor a notice of this deposition. We were just asked via email, basically, after the fact, with the order, when he would be available for a deposition.
At the conclusion of the hearing, the trial court orally denied Relator’s Motion to
Reconsider.
On February 27, 2024, Relator filed this Petition for Writ of Mandamus,
arguing that because he is “not a party before the trial court, and the trial court
compelled his deposition without issuance of a subpoena . . . the trial court abused
its discretion.” Relator argued that Real Party never served Relator with a notice of
deposition, and even if it had, it would have been insufficient because “[Relator] was
not employed by, retained by, or otherwise subject to the control of a party; [and]
therefore” a subpoena is required. Relator also filed an Emergency Motion to Abate
the trial court’s order compelling his deposition.
Real Party filed a response to Relator’s Petition for Writ of Mandamus and
his Motion to Abate. On February 29, 2024, this Court granted Relator’s Motion
6 and stayed his deposition pending this Court’s adjudication of his Petition for Writ
of Mandamus. Also on February 29, 2024, Real Party served Relator and S.O.A by
electronic service with a Notice of Intent to Take Oral Deposition on March 6, 2024.
Real Party also attempted to serve Relator with a Subpoena Duces Tecum, issued on
February 29, 2024, scheduling Relator’s deposition for March 6, 2024.
On March 2, 2024, the trial court signed a written order denying Relator’s
Motion to Reconsider and ordering Relator to submit to a deposition by no later than
March 8, 2024. In its order, the trial court stated that Relator had “neither filed a
response nor appeared at the [February 12, 2024] hearing” on Real Party’s Motion
to Compel his deposition. The trial court further held “there [was] evidence that
[Relator] is employed and under the control of Defendant[,]” and it held that “the
rulings of the 165th [District Court] [were] not binding.”
In its response to Relator’s Petition for Writ of Mandamus, Real Party argues,
among other things, that “[b]y failing to respond to [its] motion to compel, [Relator]
waived the issues he complains about in this original proceeding.” Real Party further
argues that “[t]he issues [Relator] complains about are moot” because after Relator
filed its Petition, Real Party issued a notice of deposition and a subpoena to Relator,
thus mooting his requested relief.
Relator replied, arguing that “[u]ntil a [c]ourt acquires proper jurisdiction over
a person, that person has no obligation to do anything — including respond[] to
7 motions.” Relator also argues that “the issue presented to this Court is not moot
because [Real Party] is relying [on the issuance of] a subpoena not yet served on
[Relator].”
Standard of Review
Mandamus relief is appropriate when the trial court abuses its discretion, and
the relator lacks an adequate remedy by appeal. In re AutoNation, Inc., 228 S.W.3d
663, 667 (Tex. 2007) (orig. proceeding); In re Prudential Ins. Co of America, 148
S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court abuses its
discretion when there is “a clear failure by the trial court to analyze or apply the law
correctly.” Walker v. Packer, 827 S.W.3d 833, 840 (Tex. 1992) (orig. proceeding).
“An order for discovery that is contrary to the Texas Rules is typically reviewable
by mandamus.” In re Prince, No. 14-06-00895-CV, 2006 WL 3589484, at *2 (Tex.
App.—Houston [14th Dist.] Dec. 12, 2006, original proceeding) (mem. op.).
Additionally, mandamus will lie to correct an order that the trial court had no power
or jurisdiction to render. Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431
(Tex. 1986) (orig. proceeding); Decker v. Lindsay, 824 S.W.2d 247, 249 (Tex.
App.—Houston [1st Dist.] 1992, orig. proceeding) (“Mandamus relief may be
afforded where the trial court’s order is void.”).
8 Discussion
“The scope of discovery is largely within the discretion of the trial court.” In
re Prince, 2006 WL 3589484, at *2 (citing Dillard Dep't Stores, Inc. v. Hall, 909
S.W.2d 491, 492 (Tex. 1995)). “However, the trial court abuses its discretion by
ordering discovery that exceeds [what is] permitted by the rules of procedure.” Id.
(citing Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995)).
A. There is No Evidence of Control
Under Texas Rules of Civil Procedure, a non-party witness may be compelled
to attend a deposition only by subpoena or as otherwise provided for under Rule
205.1. See TEX. R. CIV. P. 205.1. Rule 205.1, entitled “Forms of Discovery;
Subpoena Requirement,” states that “[a] party may compel discovery from a
nonparty—that is, a person who is not a party or subject to a party’s control—only
by obtaining a court order under Rules 196.7, 202, or 204, or by serving a subpoena
compelling: (a) an oral deposition.” Id.
Real Party did not compel non-party Relator to submit to a deposition with
the service of a subpoena as required by Rule 205.1.6 Nor did Real Party move for
6 When Real Party first moved to compel Relator’s deposition, Real Party did not serve Relator with a subpoena, nor did it serve Relator with a subpoena in response to Relator’s Motion to Reconsider. The record reflects that Real Party first requested issuance of a subpoena for Relator’s deposition after Relator filed his Petition for Writ of Mandamus, and the record reflects that the subpoena has not been served. In its response, Real Party claims that Relator “dodged [the subpoena] and would not accept service.” 9 a court order under Rules 196.7, 202, or 204.7 Real Party nonetheless argues that
the trial court’s order compelling Relator’s deposition was proper because Rule
205.1, “which requires a party to serve a subpoena on a nonparty, does not apply.”
According to Real Party, “there is evidence in the record to support the trial court’s
factual determination that [Relator] is subject to the control of a defendant in the
underlying action,” and thus Real Party “was not required to serve him with a
subpoena.”
Real Party relies on Rules 199.3 and 205.1 for the premise that Relator is
employed by or otherwise subject to the control of defendant S.O.A., and
consequently, a subpoena was not necessary to compel his deposition. See TEX. R.
CIV. P. 199.3, 205.1. Rule 199.3, entitled “Compelling Witness to Attend,” provides
that:
A party may compel [a] witness to attend the oral deposition by serving the witness with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the notice of oral deposition upon the party’s attorney has the same effect as a subpoena served on the witness.
TEX. R. CIV. P. 199.3. Rule 199.3 and Rule 205.1 together encompass three
categories of nonparties who may be compelled to a deposition without being
7 Rule 196.7 relates to a request or motion for entry upon property. See TEX. R. CIV. P. 196.7. Rule 202 governs the taking of depositions in anticipation of a suit or to investigate claims. See TEX. R. CIV. P. 202. And Rule 204 governs mental or physical examinations. See TEX. R. CIV. P. 204. None of these situations are applicable in this case. 10 subpoenaed: (1) employees; (2) retained experts; and (3) witnesses who are
“otherwise subject to the control of a party.” In re Reaud, 286 S.W.3d 574, 578
(Tex. App.—Beaumont 2009, orig. proceeding) (analyzing Rules 199.3 and 205.1,
and concluding that the rules permit deposition of non-party witness without
subpoena in only three situations).
Real Party contends that Relator “is subject to the control of a defendant in
the underlying action” and thus, pursuant to Rule 199.3, a subpoena was not
necessary. But the record does not support Real Party’s proposition. When Real
Party first moved to compel Relator’s deposition, and the trial court granted his
Motion to Compel, Real Party did not argue that Relator was subject to the control
of a party in the underlying action.8 The trial court thus could not have granted the
motion on that basis. It was not until Relator filed its Motion to Reconsider that Real
Party argued for the first time that Relator was “subject to the control” of a defendant
in the First Suit. But the evidence Real Party submitted does not support its
argument.
The only evidence Real Party produced in support of its argument that Relator
is subject to the control of a party in the lawsuit is a one-page excerpt from the
8 In its Motion to Compel, Real Party argued only that the trial court should order the deposition of Relator because Relator possessed “discoverable information” relevant to Real Party’s underlying claims. Real Party did not cite Rule 205.1 or Rule 199.3 in its Motion to Compel. 11 deposition of Steve Walsh, which Real Party attached to its response. The one-page
deposition excerpt redacts all but two lines from the deposition page and states,
without more:
Based on this excerpt, which provides no context or explanation, Real Party argues
that Relator is subject to the control of S.O.A. But the quoted excerpt does not
support such a leaping conclusion.
Rule 199.3 and Rule 205.1 do not define what it means to be “otherwise subject
to the control of a party.” TEX. R. CIV. P. 199.3. But other appellate courts have
12 clarified that the doctrine of ejusdem generis9 “limits the undefined, general term
‘otherwise controlled’ as used in Rules 199.3 and 205.1 to include only control of
the same kind, class, or nature as the types of control parties would have over
employees or retained experts.” In re Reaud, 286 S.W.3d at 580 (holding that “these
two rules do not extend to nonparties over whom the party does not have the type of
control as it has over an employee or retained expert”). “Although the rationale is
not expressed in the rules, we assume the employee-nonparty-witness is required to
appear because his employer has the ability to establish his terms of employment, to
fire him, and to decide whether he received a future promotion or demotion.” Id. at
579.
There was no evidence presented to the trial court that S.O.A. employs
Relator, or that S.O.A has the type of control over Relator that it has over employees.
During the hearing on his Motion to Reconsider, Relator explained to the trial court
that he “is not an employee” of S.O.A. and that he “was never actually employed by
[S.O.A] or issued a W-2[,]” but rather “he ha[d] performed work as a 1099
contractor.” The only evidence Real Party produced in response was a two-line
deposition excerpt from Steve Walsh stating that Relator “does work” for S.O.A.
9 Ejusdem generis means that “when words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation.” State v. Fidelity and Deposit Co. of Maryland, 223 S.W.3d 309, 312 (Tex. 2007). 13 This evidence, alone, is insufficient to establish that Relator was employed by or
otherwise subject to the control of S.O.A. for purposes of Rule 199.3. In re Reaud,
286 S.W.3d at 580 (explaining that “otherwise subject to the control of a party”
contemplates that party has same types of control employer has over employee).
There was thus no evidence to support the trial court’s finding that Relator “is
employed and under the control of [S.O.A.].” Consequently, a subpoena was
necessary to compel Relator’s deposition and it was error for the trial court to issue
an order compelling Relator’s deposition without one. See TEX. R. CIV. P. 205.1; In
re Mosser Mallers PLLC, No. 05-08-00259-CV, 2008 WL 963170, at *2 (Tex.
App.—Dallas Apr. 9, 2008, orig. proceeding) (mem. op.) (holding that “real parties
did not compel . . . non-party relator with the service of subpoena as required by rule
205” and “conclud[ing] [that] the trial court acted without personal jurisdiction over
the [non-party] relator and abused its discretion in granting real parties’ motion to
compel”); Cf. In re Prince, 2006 WL 3589484, at *3 (holding that real party
“properly moved to compel [non-party relator’s] compliance with [a] subpoena”;
granting mandamus relief on other grounds).
B. Relator’s Actions Did Not Waive the Subpoena Requirement
Real Party argues that “[Relator] waived the issues he now complains about”
in his Petition for Writ of Mandamus because “he failed to respond to [Real Party’s]
14 motion [to compel] or attend the hearing [on the motion],” even though he “had
notice of the motion and hearing to compel [his] deposition.” We disagree.
To issue a binding order against a party, a trial court must possess personal
jurisdiction over that party in the proceeding in which the order is rendered. See
CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) (orig. proceeding). “Generally,
a trial [court] has control over only those parties properly before the court.” In re
Proassurance Ins. Co., No. 05-15-01256-CV, 2016 WL 25645, at *3 (Tex. App.—
Dallas Jan. 4, 2016, orig. proceeding) (mem. op.) (citing Haas v. George, 71 S.W.3d
904, 915 (Tex. App.—Texarkana 2002, no pet.)). When a trial court lacks
jurisdiction to render a particular order, the order is void. See In re Green Oaks
Hosp. Subsidiary, L.P., 297 S.W.3d 452, 455-56 (Tex. App.—Dallas 2009, orig.
proceeding); Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 635–36 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied) (holding trial court’s order enforcing
confidentiality agreement between former intervenor and party to lawsuit, void
because former intervenor was nonparty to suit when trial court issued order).
Relator is not a named party in the First Suit. Thus, irrespective of his absence
from the hearing on Real Party’s motion to compel or his lack of response, the trial
court lacked jurisdiction to issue an order compelling his deposition without the
issuance of a subpoena. See In re Proassurance Ins. Co., 2016 WL 25645, at *2
15 (trial court “lacked jurisdiction to order . . . non-party . . . to appear”). Relator
therefore did not waive the issues he raises in his petition.
C. Relator’s Petition for Writ of Mandamus is Not Moot
After Relator filed his Petition for Writ of Mandamus, Real Party issued a
Notice of Intent to Take the Oral Deposition of Relator and a Subpoena Duces
Tecum, scheduling Relator’s deposition for March 6, 2024. As a result, Real Party
contends Relator’s Petition is moot. We disagree.
A notice of deposition alone is insufficient to compel Relator’s deposition
because, as we have already concluded, the record does not support Real Party’s
argument that Relator is employed by or otherwise subject to the control of S.O.A.
And while Real Party asserts that it has now “issued a subpoena,” Real Party
concedes that Relator has not been served.10 Moreover, even though a subpoena has
issued, the trial court’s order compelling Relator’s deposition without a subpoena
remains, and as we have concluded, it was an abuse of discretion for the court to
have entered it. We thus do not agree that Relator’s Petition for Writ of Mandamus
seeking vacatur of the trial court’s erroneous order is moot.
10 In its response to the Petition, Real Party states that it “attempted to serve [Relator] with a subpoena,” but was not able to serve him. 16 D. No Adequate Appellate Remedy
Relator lacks an adequate remedy by appeal. Relator is not a party to the
Second Suit, and he thus lacks the right to a direct appeal from the trial court’s order
compelling his deposition. See In re Prince, 2006 WL 3589484, at *2 (holding there
was no adequate remedy because relator “is not a party to the lawsuit” and “he has
no right to appeal”); City of Houston v. Chambers, 899 S.W.2d 306, 308 (Tex.
App.—Houston [14th Dist.] 1995, orig. proceeding) (because city was not party to
lawsuit, it “has no adequate remedy by appeal, [and] mandamus may lie”).
Conclusion
We conditionally grant mandamus relief and direct the trial court to vacate its
March 2, 2024 order compelling the deposition of Relator. A writ will issue only if
the trial court fails to comply. We lift the stay issued on March 2, 2024, and dismiss
any pending motions as moot.
PER CURIAM
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.