in Re Sunset Nursing Home, Inc.

Opinion

ACCEPTED 01-15-00530-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/26/2015 5:01:06 PM CHRISTOPHER PRINE CLERK

NO. 01-15-00530-CV FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS FOR THE 6/26/2015 5:01:06 PM FIRST DISTRICT OF TEXAS AT HOUSTONCHRISTOPHER A. PRINE Clerk

In re Sunset Nursing Home, Inc.,

Relator

Original Proceeding on Petition for Writ of Mandamus from Cause No. 72817 in the 239th Judicial District Court of Brazoria County, Texas (Hon. Patrick Sebesta, Presiding)

GRETHER, PAUL HEINIG, PLANTATION HEALTH CARE, INC., SARA RICHARDS, AMY STEWART, COUNTRY VILLAGE CARE, INC., AND GRETHER HEALTH CARE FACILITIES, L.L.C.’S RESPONSE TO RELATOR’S PETITION FOR WRIT OF MANDAMUS

Breck Harrison State Bar No. 24007325 bharrison@jw.com Scott W. Weatherford State Bar No. 24079554 sweatherford@jw.com JACKSON WALKER L.L.P. 100 Congress Ave., Ste. 1100 Austin, Texas 78701 (512) 236-2000 (512) 236-2002 – Fax

ATTORNEYS FOR REAL PARTIES IN INTEREST IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties before the trial court and the names and addresses of all trial counsel and appellate counsel:

1. Plaintiff in the trial court (Relator in this Court) and counsel: Sunset Nursing Home, Inc. Represented by:

Felicia Harris State Bar No. 24002438 fharris@burlesonllp.com Burleson L.L.P. 700 Milam, Suite 1100 Houston, Texas 77002 Telephone: (713) 358-1700 Facsimile: (713) 358-1717

Brandy R. Manning State Bar No. 24029703 brmanning@burlesonllp.com Burleson L.L.P. 223 W. Wall St., Suite 400 Midland, Texas 79701 Telephone: (432) 253-8600 Facsimile: (432) 253-8601

i 2. Defendants1 in the trial court (Real Parties in Interest in this Court) and counsel: Rebecca Ann, Inc. Donald Grether Paul Heinig Plantation Health Care, Inc.

Represented by:

Breck Harrison State Bar No. 24007325 bharrison@jw.com Scott W. Weatherford State Bar No. 24079554 sweatherford@jw.com JACKSON WALKER L.L.P. 100 Congress Avenue, Suite 1100 Austin, Texas 78701 Telephone: (512) 236-2000 Facsimile: (512) 236-2002

Justin R. Gilbert State Bar No. 24043691 justingilbert@gilbertfurey.com GILBERT & FUREY 222 N. Velasco, Suite A Angleton, Texas 77515 Telephone: (979) 849-5741 Facsimile: (979) 849-7729

1 Although these parties initiated the underlying lawsuit as plaintiffs, the trial court recently granted Relator’s Motion to Realign the Parties and re-classified Real Parties in Interest as Defendants. ii 3. Former2 Third-Party Defendants in the trial court (Real Parties in Interest in this Court) and counsel: Sara Richards Amy Stewart Grether Health Care Facilities L.L.C. Country Village Care, Inc.

Breck Harrison State Bar No. 24007325 bharrison@jw.com Scott W. Weatherford State Bar No. 24079554 sweatherford@jw.com JACKSON WALKER L.L.P. 100 Congress Avenue, Suite 1100 Austin, Texas 78701 Telephone: (512) 236-2000 Facsimile: (512) 236-2002

Justin R. Gilbert State Bar No. 24043691 justingilbert@gilbertfurey.com GILBERT & FUREY 222 N. Velasco, Suite A Angleton, Texas 77515 Telephone: (979) 849-5741 Facsimile: (979) 849-7729

Stephen Coleman

Zandra Foley State Bar No. 24038085 zfoley@thompsoncoe.com 2 These parties were dismissed pursuant to the trial court’s May 5, 2015 consolidated order granting Real Parties’ Motion to Strike (the “Motion”). (R. 2). iii Andrew Johnson State Bar No. 24060025 ajohnson@thompsoncoe.com

THOMPSON, COE, COUSINS & IRONS, L.L.P. One Riverway, Suite 1400 Houston, Texas 77056 Telephone: (713) 403-8210 Facsimile: (713) 403-8299

iv TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL .............................................................i TABLE OF CONTENTS...........................................................................................v TABLE OF AUTHORITIES .................................................................................. vii STATEMENT OF THE CASE.............................................................................. xiii STATEMENT REGARDING ORAL ARGUMENT ............................................xiv REQUEST FOR EXPEDITED CONSIDERATION ..............................................xv BRIEF REFERENCES ...........................................................................................xvi REPLY TO ISSUES PRESENTED ..................................................................... xvii STATEMENT OF FACTS ........................................................................................1 A. Relator sought to expand the underlying lawsuit from a commercial lease dispute to an overarching conspiracy theory...........................................................................................4 B. Relator engaged in virtually unimpeded discovery throughout the litigation..............................................................5 C. The trial court correctly granted Real Parties’ Motion to Strike. ..........................................................................................6

SUMMARY OF THE ARGUMENT ........................................................................8 STANDARDS OF REVIEW AND APPLICABLE LAW......................................10 ARGUMENT ...........................................................................................................13 I. Relator’s Petition and Accompanying Record Are Procedurally Deficient. .............................................................................................13 II. Respondent Did Not Abuse His Discretion in Granting Real Parties’ Motion to Strike Relator’s Amended Pleadings. ...................17

A. Respondent correctly dismissed Relator’s Amended Pleadings. ..................................................................................17 1. The Amended Pleadings violate Rule 63. ......................17 2. The continuance of the trial date had no effect on the deadline to amend pleadings...........................................23 3. The Amended Pleading violates Rule 38. ......................26

v 4. Rule 91a did not afford Relator an “absolute right” to file the Amended Pleadings............................................27 B. Relator has not met its heavy burden of establishing the trial court clearly abused its discretion by striking the Amended Pleadings. ..................................................................................28 1. Considering the facts and circumstances of the suit, the trial court did not clearly abuse its discretion..........28 2. Relator has not met its heavy burden of establishing no adequate remedy by appeal........................................31 III. The Trial Court Has Not Abused Its Discretion in Setting Proper Limits on Relator’s Abusive and Harassing Discovery Efforts..........33 A. Several issues raised by Relator are moot. ...............................33 B. Relator fails to identify specific orders from which it requests relief. ...........................................................................35 C. The Court set proper limits on Relator’s request for immaterial and irrelevant policies and procedures. .................36 D. Relator has not demonstrated that it lacks an adequate remedy by appeal. .....................................................................38

CONCLUSION AND PRAYER .............................................................................39 RULE 52.3(J) CERTIFICATION............................................................................40 RULE 9.4 CERTIFICATE OF COMPLIANCE .....................................................41 CERTIFICATE OF SERVICE ................................................................................42 APPENDIX ..............................................................................................................43

vi TABLE OF AUTHORITIES

Page(s) CASES Am. Title Co. of Houston v. Bomac Mortgage Holdings, L.P., 196 S.W.3d 903 (Tex. App.—Dallas 2006, pet. granted, judgm’t vacated w.r.m.) .................................................................................................................18 Axelson v. McIlhany, 798 S.W.2d 550 (Tex. 1990, orig. proceeding) ..................................................33

Bates v. Sunshare RV, Ltd., 2010 WL 3582487 (Tex. App.—San Antonio Sept. 15, 2010, no pet.).............23

Beaumont Bank N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991) ..............................................................................10

Boring & Tunneling Co. v. Salazar, 782 S.W.2d 284 (Tex. App.—Houston [1st Dist.] 1989, orig. proceeding) ......34

Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ...............4, 13

Clanton v. Clark, 639 S.W.2d 929 (Tex. 1982) ........................................................................11, 26

Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex. 1962) ..............................................................................36

Daniels v. Yancey, 175 S.W.3d 889 (Tex. App.—Texarkana 2005, no pet.)....................................24

Dow Chem. Co. v. Garcia, 909 S.W.2d 503 (Tex. 1995) ..............................................................................34

Ex parte King, 819 S.W.2d 944 (Tex. App.—Houston [14th Dist.] 1991) ................................16 Felker v. Petrolon, Inc., 929 S.W.2d 460 (Tex. App.—Houston [1st Dist.] 1996, writ denied)...............24

vii First State Bank of Mesquite v. Bellinger & Dewolf, L.L.P., 342 S.W.3d 142 (Tex. App.—El Paso 2011, no pet.) ........................................19

Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76 (Tex. App.—Houston [1st Dist.] 2003, no pet.)........................21

G.R.A.V.I.T.Y. Enterprises, Inc. v. Reece Supply Co., 177 S.W.3d 537 (Tex. App.—Dallas 2005, no pet.) ..........................................26 Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990) ..............................................................................18

Gunn v. Fuqua, 397 S.W.3d 358 (Tex. App.—Dallas 2013, pet. denied)..............................12, 19

Hakemy Bros., Ltd. v. State Bank & Trust Co., 189 S.W.3d 920 (Tex. App.—Dallas 2006, pet. denied)..................12, 18, 19, 23

Hardin v. Hardin, 597 S.W.2d 347 (Tex. 1980) ........................................................................11, 18

In re Arthur Andersen, L.L.P., 121 S.W.3d 471 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) ...................................................................................................29, 31

In re Bristol–Myers Squibb Co., 975 S.W.2d 601 (Tex. 1998) ..............................................................................15 In re Butler, 270 S.W.3d 757 (Tex. App.—Dallas 2008, orig. proceeding).....................14, 15 In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) (per curiam) .........................................................11

In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246 (Tex. 2010) (per curiam) .........................................................11

In re Conner, 458 S.W.3d 532 (Tex. 2015) ..............................................................................31

In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) ..............................................................................32

viii In re D. Wilson Constr. Co., 196 S.W.3d 774 (Tex. 2006) ..............................................................................10

In re Dillard Dep’t Stores, Inc., 198 S.W.3d (Tex. 2006) (per curiam).................................................................10

In re Estate of Henry, 250 S.W.3d 518 (Tex. App.—Dallas 2008, no pet.) ..........................................11 In re Huag, No. 14-04-01077-CV, 2005 Tex. App. LEXIS 587, 2005 WL 171456 (Tex. App.—Houston [14th Dist.] Jan. 27, 2005, orig. proceeding) (mem. op. per curiam) ................................................................................................3, 13

In re Kim, No. 05-14-01344-CV, 2014 Tex. App. LEXIS 11734 (Tex. App.— Dallas, Oct. 23, 2014, orig. proceeding).............................................................14 In re Laibe Corp., 307 S.W.3d 314 (Tex. 2010) (per curiam) .........................................................10 In re Lewis, No. 14-15-00122, 2015 Tex. App LEXIS 1620 (Tex. App.—Houston [1st Dist.] Feb. 19, 2015, orig. proceeding)...............................................................35

In re McDonald, 424 S.W.3d 774 (Tex. App.—Beaumont 2014, orig. proceeding).....................15 In re Michelle, 335 S.W.3d 808 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) .............................................................................................13, 14, 16

In re Noble Drilling (Jim Thompson), L.L.C., 449 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) 28, 32

In re Progressive Cty. Mut. Ins. Co., No. 05-15-00622-CV, 2015 Tex. App. LEXIS 5009 (Tex. App.—Dallas May 15, 2015, orig. proceeding) ........................................................................36

In re Stern, 321 S.W.3d 828 (Tex. App.—Houston [1st Dist.] 2010, no pet.)......................32

ix In re Tasby, 40 S.W.3d 190 (Tex. App.— Texarkana 2001, orig. proceeding) .....................36

In re Taylor, 113 S.W.3d 385 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) ......15

Johnson v. Ingram Readymix, Inc., No. 03-09-00568, 2010 Tex. App.—LEXIS 10268 (Tex. App.—Austin Dec. 23, 2010, no pet.)........................................................................................20

Jones v. Cortes, No. 02-10-00304-CV, 2011 WL 4008021 (Tex. App.—Fort Worth Sept. 8, 2011, no pet.) ............................................................................................31, 32

Killam Ranch Properties, Ltd. v. Webb Co., 2008 WL 4958452 (Tex. App.—San Antonio Nov. 19, 2008, no pet.) .............24

Oistad v. Baker & Hostetler, L.L.P., No. 01-05-00493-CV, 2006 Tex. App. LEXIS 1639, 2006 WL 488594 (Tex. App.—Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op) ..................27 Polaris Investment Management Corp. v. Abascal, 892 S.W.2d 860 (Tex. 1995) (per curiam) ...................................................13, 38

Rodriguez v. Cuellar, 143 S.W.3d 251 (Tex. App.—San Antonio 2004, pet. dism’d w.o.j.) .........18, 21 Roskey v. Cont’l Cas. Co., 190 S.W.3d 875 (Tex. App.—Dallas 2006, pet. denied)....................................12 Ryland Group, Inc. v. White, 723 S.W.2d 160 (Tex. App.—Houston [1st Dist.] 1986, no writ) .....................29

Singleton v. Nw. Tex. Healthcare Sys., No. 07-03-0552-CV, 2006 Tex. App. LEXIS 1594 (Tex. App.—Amarillo Feb. 28, 2006, no pet.) ........................................................................................19 Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743 (Tex. App.—Dallas 1996, writ denied) ...................................11

State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994) ........................................................................18, 19

x Torres v. GSC Enterp., Inc., 242 S.W.3d 553 (Tex. App.—El Paso 2007, no pet.) ........................................23

Tucker v. Gayle, 709 S.W.2d 247 (Tex. App.—Houston [14th Dist.] 1986, no writ)...................12

Varme v. Gordon, 881 S.W.2d 877 (Tex. App.—Houston [14th Dist.] 1994, writ denied) ............29 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ......................................... 10, 12, 13, 14, 28, 38, 39

STATUTES TEX. R. APP. P. 52 ..............................................................................................14, 16

TEX. R. APP. P. 52.3 .........................................................................................3, 4, 13 TEX. R. APP. P. 52.3(d)........................................................................................... xiii

TEX. R. APP. P. 52.3(g)...............................................................................................1 TEX. R. APP. P. 52.3(j)....................................................................................3, 14, 40

TEX. R. APP. P. 52.3(k).............................................................................................14 TEX. R. APP. P. 52.3(k)(1)(A) ..................................................................................35

TEX. R. APP. P. 52.4(b)...............................................................................................1

TEX. R. APP. P. 52.7(a)(1) ........................................................................................15 TEX. R. APP. P. 52.7(a)(2) ....................................................................................3, 16

TEX. R. APP. P. 52.11(c).............................................................................................1 TEX. R. CIV. P. 38.....................................................................................................26

TEX. R. CIV. P. 38(a) ..........................................................................................26, 27

TEX. R. CIV. P. 40.....................................................................................................28

TEX. R. CIV. P. 40(b) ................................................................................................29

TEX. R. CIV. P. 63................................................................ 11, 17, 18, 19, 20, 21, 24 xi TEX. R. CIV. P. 91a .........................................................................................7, 27, 28

TEX. R. CIV. P. 91a.5(b) ...........................................................................................27

TEX. R. CIV. P. 166...................................................................................................11

TEX. R. CIV. P. 190.4................................................................................................19

OTHER AUTHORITIES Practice, Procedure and Review, 33 REV. LITIG. 469, 475 (2014) .........................28

xii STATEMENT OF THE CASE

Real Parties provide the following Statement of the Case because Relator,

Sunset Nursing Home, Inc., presented a Statement of the Case that fails to comply

with TEX. R. APP. P. 52.3(d) in that it contains argument and certain disputed facts.

Nature of the Breach of lease and guaranty agreements. The Underlying Suit: underlying suit is styled Sunset Nursing Home, Inc. v. Rebecca Ann, Inc., Donald Grether, and Paul Heinig; Cause No. 72817.

Parties: Relator Sunset Nursing Home, Inc. is the Plaintiff in the underlying suit; Real Parties in Interest Rebecca Ann, Inc., Donald Grether, and Paul Heinig are Defendants, Plantation Health Care, Inc. is a Third- Party Defendant, while Sara Richards, Amy Stewart, Stephen Coleman, Country Village Care, Inc., and Grether Health Care Facilities, Inc. were Third-Party Defendants when the action from which relief is requested took place.

Respondent: The Honorable Patrick Sebesta, Presiding Judge of the 239th Judicial District Court, Brazoria County, Texas.

Actions from which Respondent’s May 5, 2015 order granting Real Relief Requested: Parties’ Motion to Strike (R. 2); Respondent’s September 30, 2014 order limiting production of policies and procedures (R. 37); and Respondent’s April 6, 2015 order regarding third-party subpoena to MDS Research Company (R. 58).

Emergency Relief Relators filed an Emergency Motion to Stay Trial Requested: Court Proceedings simultaneously with its Petition for Writ of Mandamus, which this Court denied.

xiii STATEMENT REGARDING ORAL ARGUMENT Because the issues are clear, Real Parties believe oral argument will not

materially aid the Court’s resolution of Relator’s petition for writ of mandamus. If

the Court concludes otherwise, however, Real Parties ask that they be allowed to

present oral argument in response to Relator’s argument.

xiv REQUEST FOR EXPEDITED CONSIDERATION This case is currently specially set for trial on August 10, 2015.

Accordingly, Real Parties respectfully request expedited consideration of the

Petition in light of the imminent trial setting.

xv BRIEF REFERENCES

This brief references the parties as follows: Relator Sunset Nursing Home, Inc. “Relator” Real Parties in Interest: “Real Parties”

Rebecca Ann, Inc. “RAI” Paul Heinig “Heinig” Donald Grether “Grether” Plantation Health Care, Inc. “Plantation”

Amy Stewart “Stewart” Sara Richards “Richards” Country Village Care, Inc. “CVC” Grether Health Care Facilities, L.L.C. “GHCF”

This brief references the mandamus record as: Relator’s Mandamus Record and “R. [Tab]” Supplemental Mandamus Record3 Real Parties’ Supplemental Mandamus Record “Supp. R. [Tab]”

This brief references Relator’s Petition for Writ of Mandamus and Supplemental Petition for Writ of Mandamus as the “Petition”

3 By citing to Relator’s Mandamus Record, Real Parties do not intend to waive any argument that Relator’s Mandamus Record is procedurally and substantively deficient. xvi REPLY TO ISSUES PRESENTED (1) Respondent correctly struck Relator’s Amended Pleadings that (i)

sought to add five new parties to the underlying lawsuit less than three months

before trial, (ii) was filed over seven months after the deadline for filing an

amended petition, and (iii) operated to surprise and unfairly prejudice Real Parties.

(2) Although it is unclear from what discovery order Relator seeks

relief—and whether or not that request for relief is now moot—the trial court

properly exercised its discretion in placing appropriate limits on Relator’s efforts to

burden Real Parties with harassing discovery requests seeking irrelevant and

proprietary information outside the scope of the issues presented in this breach of

lease dispute.

xvii STATEMENT OF FACTS Real Parties take issue with the Relator’s statement of facts, which is neither

concise (i.e., 25 pages) nor without argument (e.g., “Just as the Grethers blatantly

ignored their contractual obligations in an effort to destroy Relator’s business, they

have consistently ignored their discovery obligations in an effort to hide the

truth.”), nor material to this mandamus proceeding.4 Nor are the facts within, for

the most part, supported by citation to competent evidence included in the

Appendix or record.5 In some instances the facts asserted are either grossly

misleading or omit an obviously important material fact.6 The following are just a

few examples of Relator’s deficient factual assertions:

 “Critically, the Grethers promised to transfer all licenses and subsidy contracts to Sunset….” Petition, p. 14. Real Parties did not promise to transfer all licenses and subsidy contracts. Instead, Real Parties agreed to effectuate a “change” of licenses and subsidy contracts, of which there are multiple ways to accomplish apart from a direct transfer. (R. 69, p. 8) (“Lessee shall cooperate with Lessor in having a change of al licenses and subsidy contracts”). This obligation is further limited to requiring only action that is “reasonably requested by Lessor.” Id.

 “[T]he Grethers and their attorney Steve Coleman began actively sabotaging the Sunset facilities, ultimately causing at least hundreds of thousands of dollars in damages.” Petition, p. 17. In addition to being completely immaterial to the issues before the Court, this argument is unsupported by citation to competent evidence and is a gross misstatement of “fact.”

4 TEX. R. APP. P. 52.4(b). 5 TEX. R. APP. P. 52.3(g). 6 TEX. R. APP. P. 52.11(c).

1  “[T]he Grethers refused to transfer the names. . . removed all of the computers from both facilities along with hard copies of patient records, all policy and procedures documentation, equipment, beds, supplies, and other personal property.” Petition, p. 18. Aside from being highly disputed, Relator misrepresents the true nature of its allegations. Relator does not claim that Real Parties removed all equipment, all beds, and all supplies; rather, Relator alleges Real Parties removed “certain records of the nursing facilities and medical equipment,” an allegation that is, again, disputed. (R. 48).

 “[T]he Grethers have resisted producing even documents that they were contractually obligated to deliver under the Leases.” Petition, p. 25. Real Parties have been compliant with the trial court’s orders and Relator’s requests for discovery, only resisting and objecting when reasonable and necessary. For example, Real Parties made available for Relator’s inspection and copying over twenty bankers boxes of patient medical records. (Supp. R. 2). In addition, the “policies and procedures” continually referenced by Relator, despite being highly proprietary documents, were submitted for the trial court’s in camera review. (Supp. R. 3).

 “[T]he Grethers insisted on deposing Mr. and Mrs. Smith in a courtroom . . . .” Petition, p. 26. Another misleading assertion, as the trial court—in response to Relator’s demand that the depositions of Relator’s representatives be taken in a conference room in the courthouse as opposed to their counsel’s office or other suitable location—directed that the depositions of parties occur in a courtroom because the court’s conference room was too small. (Supp. R. 4).

 “[T]he court’s order compelled the production of ‘all responsive documents,’ but counsel’s letter indicates that he simply turned over whatever he obtained from MDS, so . . . [Relator] has no way of knowing exactly what documents . . . may have been withheld by the Grethers.” Petition, p. 30. Seemingly implying that the Grethers withheld certain documents produced by MDS in response to the subpoena, Relator omits that Real Parties’ counsel’s letter states that “all documents produced by MDS” were enclosed for in camera review. (R. 57).

2  “At the August 29, 2014 hearing, the court . . . stated that all deadlines were lifted and that new dates should be set from a new trial date.” There is no citation to competent evidence to support this assertion, which is disputed. Relator does not include in the mandamus record a transcript of this hearing, nor does Relator state that no such hearing or record occurred.7

 “[T]he trial court struck the amended pleadings, essentially freeing all but the original Grether parties (2 defunct companies and the uncle and dad of Sara and Amy) from the consequences of the group’s concerted wrongful conduct.” Petition, p. 28. Because—at its core— this lawsuit is a commercial lease dispute, Relator initially sued the lessee (Plantation), the sublessee (RAI), and the two personal guarantors (Grether and Heinig). (R. 82). These parties remain defendants in the underlying suit, and Relator will have the opportunity to try its case against them for alleged breach of the lease and guaranty agreements. To imply the trial court has somehow deprived Relator of any potential recourse is as misleading as it is desperate.

Perhaps the best example of Relator’s misrepresentations and misstatements

in its Statement of Facts is the fact that Relator’s Petition fails to comply with TEX.

R. APP. P. 52.3. Rule 52.3(j) requires that the “person filing the petition must

certify that he or she has reviewed the petition and concluded that every factual

statement in the petition is supported by competent evidence included in the

appendix or record.” Relator wholly failed to include this certification. Relator’s

failure to comply with the applicable procedural rules is, by itself, a sufficient

reason to deny its petition.8

7 See TEX. R. APP. P. 52.7(a)(2). 8 See In re Huag, No. 14-04-01077-CV, 2005 Tex. App. LEXIS 587, 2005 WL 171456, *1 (Tex. App.—Houston [14th Dist.] Jan. 27, 2005, orig. proceeding) (mem. op. per curiam) (denying

3 Including, and in addition to the foregoing, Relator makes numerous

unfounded factual assertions that are strongly contested and unsupported by the

mandamus record. Accordingly, Real Parties put those facts at issue and provide

the following Statement of Facts to aid the Court’s resolution.

A. Relator sought to expand the underlying lawsuit from a commercial lease dispute to an overarching conspiracy theory. RAI is a family-owned business that has been in the nursing home industry

for over twenty years. Together with Plantation, RAI leased from Relator the two

nursing facilities then known as Village on the Creek, located in Clute, Texas, and

Plantation Health Care Center, located in Lake Jackson, Texas (collectively

referred to as the “Nursing Facilities”). (R. 69). After operating and maintaining

these Nursing Facilities for over twenty years, RAI could no longer afford the

escalating rent charged by Relator and necessary improvements to the Nursing

Facilities, and thus returned operation of the Nursing Facilities to Relator at the

normal expiration of the leases at midnight on April 30, 2011.

In February 2013, almost two years after the transition, and with no prior

complaint or demand, Relator suddenly made demand on RAI and the two lease

guarantors, Paul Heinig and Donald Grether, alleging various breaches of the lease

agreements. (Supp. R. 5). On May 23, 2013, RAI, Grether, and Heinig

petition for the sole reason that it did not comply with Rule 52.3); see also Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (same).

4 (collectively referred to as the “Original Plaintiffs”) instituted this suit as a

declaratory judgment action seeking to determine the parties’ rights and

obligations under certain lease agreements. (R. 80). On June 4, 2013, Relator filed

an answer and counterclaim asserting claims for breach of contract and fraud by

misrepresentation. (R. 81). Several months passed, and in October 2013—two

years and five months after the expiration of the lease agreements—Relator filed

its First Amended Answer, Counterclaim and Third-Party Petition, asserting for the

first time claims against Third-Party Defendant Plantation, along with the

following additional causes of action against the Original Plaintiffs: (1)

conversion; (2) estoppel; (3) misappropriation of confidential information; (4)

promissory estoppel; (5) fraud in a real estate transaction; (6) conspiracy, (7)

ratification; (8) tortious interference with contractual relations; and (9) joint

enterprise. (R. 82).

B. Relator engaged in virtually unimpeded discovery throughout the litigation. The trial court entered a Docket Control Order on April 2, 2014 (the

“DCO”), establishing a trial date in October 2014 and the completion of discovery

by August 30, 2014. (R. 60). When the first trial setting was pushed back to April

2015, the parties agreed to continue limited necessary discovery (i.e., depositions)

into March. (Supp. R. 6).

5 Throughout the course of the lawsuit, Relator has taken over 15 depositions

and served over 260 requests for production and 60 interrogatories, in addition to

sending third-party subpoenas to 6 different entities or individuals. Id. Moreover,

Relator has filed over a dozen motions to compel.

Undeterred in its abusive and harassing pursuit of discovery in the

underlying case, Relator continued to serve discovery requests (91 requests for

production and seven interrogatories) even after the discovery deadline passed. Id.

The Original Parties objected to these requests as untimely, unduly burdensome,

and harassing and filed a motion for protection to prevent Relator from conducting

any additional discovery. Id.

Notably, the trial court has not denied any of Relator’s motions to compel.9

To date, the only limitation Respondent has placed on Relator’s discovery efforts

involves the in camera submission of certain documents subject to several of

Relator’s motions to compel, which Relator now protests and contends is an abuse

of the trial court’s discretion. See Petition, pp. 61–74.

C. The trial court correctly granted Real Parties’ Motion to Strike. The DCO entered in April 2014 established June 12, 2014 as the deadline

for all parties to amend their pleadings and, by necessary implication, add any new

parties. (R. 60). On January 27, 2015, over seven months after the established

9 Presumably, this is why Relator fails to identify a single discovery order from which it asks this Court to grant relief.

6 deadline to amend pleadings had passed and less than three months prior to the

preferential trial setting, Relator filed its Second Amended Answer, Fifth Amended

Counterclaim and Fourth Amended Third-Party Petition10 (R. 48) and Supplement

(Supp. R. 7) that not only alleged claims against the Original Parties that had

already been dismissed via summary judgment (e.g., conversion, misappropriation

of confidential information, and tortious interference with contractual relations) (R.

37), but also asserted frivolous numerous claims against five new parties: Country

Village Care, Inc., Grether Health Care Facilities, L.L.C., Sara Grether Richards,

Amy Grether Stewart, and Steve Coleman (collectively referred to as the “New

Parties”), all without seeking leave to do so. (R. 48).

Accordingly, Real Parties filed a Motion to Strike the Amended Pleadings.

In a clear effort to use Rule 91a to skirt the established rules of amended pleadings,

Relator then filed its Second Amended Answer, Fifth Amended Counterclaim and

Fourth Amended Third-Party Petition.11 (R. 49). Real Parties filed a Supplemental

Motion to Strike to encompass both untimely and prejudicial pleadings12 (R. 50),

which the trial court appropriately granted. (R. 2).

10 Relator erroneously titled this pleading. It should have been named the “Fourth Amended Counterclaim and Third Amended Third-Party Petition.” 11 Because Relator erroneously titled the pleading filed on January 27, Relator did not change the name of this pleading filed on April 21, 2015. 12 Relator’s Second Amended Answer, Fourth Amended Counterclaim and Third Amended Third-Party Petition and Supplement (erroneously named “Fifth Amended Counterclaim and Fourth Amended Third-Party Petition”) filed on January 26, 2015 (R. 48) and Relator’s Second

7 SUMMARY OF THE ARGUMENT This mandamus proceeding demonstrates the extraordinary lengths to which

a party will go in a tactical attempt to prolong and expand the course and burden of

litigation. At its core, this has been and remains a commercial lease dispute arising

from a transition in the operation of two nursing homes upon the expiration of

long-term lease agreements for two nursing facilities located in Brazoria County.

Yet Relator has attempted—at all costs—to inflate its claims with fanciful theories

of fraud, conspiracy, and monopolization. When the trial court properly rejected

Relator’s efforts to grossly distort the true nature of the case, Relator filed this

Petition.

First, Relator attempted to entirely transform the character of this

commercial lease dispute by seeking to add five new parties and thirty-eight new

causes of action less than three months before trial. The trial court properly

rejected this untimely, unfair, and unnecessary pleading and Relator has wholly

failed to demonstrate an abuse of discretion in that regard.

Similarly, Relator engaged in abundant discovery with little, if any,

limitation by the trial court. Although it is unclear from what discovery order

Relator seeks relief—and whether or not that request for relief is now moot—the

trial court properly exercised its discretion to place appropriate limits on Relator’s

Amended Answer, Fifth Amended Counterclaim and Fourth Amended Third-Party Petition filed on April 21, 2015 (R. 49) will be collectively referred to as the “Amended Pleadings.”

8 efforts to burden Real Parties with harassing discovery requests seeking irrelevant

and proprietary information belonging to one or more of the Real Parties.

Ultimately, this Petition is a model example of Relator’s conduct throughout

this litigation that seeks to divert this Court’s attention and resources to a

procedurally deficient and ultimately meritless request for mandamus relief that

should be denied.

9 STANDARDS OF REVIEW AND APPLICABLE LAW To be entitled to the extraordinary relief of a writ of mandamus, the relator

must show that the trial court abused its discretion, and that there is no adequate

remedy by appeal.13 With respect to the resolution of factual issues committed to

the trial court’s discretion, the reviewing court may not substitute its judgment for

that of the trial court.14 Nor may the reviewing court issue mandamus merely

because it disagrees with the trial court’s decision if the decision was within the

trial court’s discretionary authority.15 Instead, the reviewing court must defer to

the trial court’s resolution of factual issues and may not set aside unless the relator

establishes that the trial court could have reasonably reached only one decision.16

Even if the reviewing court would have decided the issue differently, it may not

disturb the trial court’s decision unless that decision is shown to be arbitrary and

unreasonable.17

On the other hand, a trial court has no discretion in determining what the law

is or applying the law to the facts.18 A trial court only abuses its discretion if it

13 In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig. proceeding) (per curiam). 14 Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). 15 Beaumont Bank N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). 16 In re Dillard Dep’t Stores, Inc., 198 S.W.3d, 778, 780 (Tex. 2006) (orig. proceeding) (per curiam); Walker, 827 S.W.2d at 839–40. 17 Walker, 827 S.W.2d at 840. 18 In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (orig. proceeding).

10 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.19

The decision to accept or reject an amended pleading is an inherently

discretionary function of the trial court.20 A party generally has a right to amend

its pleadings freely.21 As the rules of civil procedure reflect, however, this general

freedom to amend pleadings must be balanced against the right of the trial court to

control its docket in a manner that permits the efficient administration of justice.22

Similarly, a trial court has a duty to schedule cases in a manner that will result in

the expeditious resolution of disputes.23 An appellate court must not interfere with

the trial court’s discretion to manage its docket without a clear showing of abuse.24

A trial court’s decision on a motion for leave to amend pleadings must be

evaluated in the context of the record of the entire case, and the potential for delay

in the ultimate disposition of a case caused by a proposed amendment may be

considered in determining whether the trial court has abused its discretion.25 Thus,

19 In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246, 248 (Tex. 2010) (orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). 20 Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980). 21 Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 747 (Tex. App.—Dallas 1996, writ denied). 22 See TEX. R. CIV. P. 63 (pleadings, responses of pleas offered for filing after such time as may be ordered under rule 166 shall be filed only after obtaining leave of the judge). 23 Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982) (noting trial court’s dismissal of case was justified because trial court was experiencing great difficulty in obtaining compliance of appellant’s attorney with the trial court’s schedule). 24 In re Estate of Henry, 250 S.W.3d 518, 526 (Tex. App.—Dallas 2008, no pet.). 25 Smith Detective Agency, 938 S.W.2d at 749.

11 an appellate court will review a trial court’s decision whether to grant leave to file

an amended pleading for abuse of discretion.26

In addition, the “trial court has great latitude to order or deny discovery, and

its action cannot be set aside unless there is a clear showing of abuse of

discretion.”27 The denial of discovery will entitle the relator to mandamus relief

only if (1) the relator can establish that the relator’s ability to present a viable claim

or defense is “vitiated or severely compromised” by the trial court’s discovery

order, or (2) the denial of discovery will render it impossible for an appellate court

to evaluate the effect of the trial court’s error because the undiscovered

information cannot be made a part of the record.28 To determine whether

mandamus is appropriate, the reviewing court must carefully consider all relevant

circumstances, such as the claims and defenses asserted, the type of discovery

sought, what the discovery is intended to prove, and the presence or lack of other

discovery.29 Delay, inconvenience, or expense of an appeal are insufficient to

satisfy this requirement. Rather, the relator must demonstrate “the effective denial

of a reasonable opportunity to develop the merits of his or her case, so that the trial

26 See Roskey v. Cont’l Cas. Co., 190 S.W.3d 875, 879 (Tex. App.—Dallas 2006, pet. denied). The trial court’s enforcement of its scheduling order is also reviewed for abuse of discretion. Id.; Gunn v. Fuqua, 397 S.W.3d 358, 377 (Tex. App.—Dallas 2013, pet. denied) (citing Hakemy Bros., Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. App.—Dallas 2006, pet. denied)). 27 See Tucker v. Gayle, 709 S.W.2d 247, 249 (Tex. App.—Houston [14th Dist.] 1986, no writ). 28 Walker v. Packer, 827 S.W.2d 833, 843–44 (Tex. 1992). 29 Id. at 844.

12 would be a waste of judicial resources.”30 Moreover, mandamus will not issue

unless the undiscovered information “goes to the heart of a party’s case.”31

ARGUMENT

I. Relator’s Petition and Accompanying Record Are Procedurally Deficient. “Those seeking the extraordinary remedy of mandamus must follow the

applicable procedural rules.”32 Here, Relator’s Petition is procedurally deficient in

the following ways, each of which independently supports dismissal.

First, Relator wholly failed to make the requisite certification to this Court

that the factual statements in the petition are all supported by competent evidence

included in the Appendix or record.33 The reason for this is apparent. Relator’s

petition is woven together with half-truths and material omissions that paint a

distorted picture that is unsupported by the facts. Relator’s failure to comply with

this requirement alone is a sufficient reason to deny its petition.34

30 Id. at 843. 31 Id.; see also Polaris Investment Management Corp. v. Abascal, 892 S.W.2d 860, 861–62 (Tex. 1995) (per curiam) (mandamus did not issue because discovery did not go “to the heart” of relator’s case). 32 In re Michelle, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding). 33 TEX. R. APP. P. 52.3. 34 See In re Huag, No. 14-04-01077-CV, 2005 Tex. App. LEXIS 587, 2005 WL 171456, *1 (Tex. App.—Houston [14th Dist.] Jan. 27, 2005, orig. proceeding) (mem. op. per curiam) (denying petition for the sole reason that it did not comply with Rule 52.3); see also Canton- Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (same).

13 Relator also fails to provide a sworn copy of the mandamus record. With its

Petition, Relator filed its proposed Record on Mandamus consisting of 105

separate documents totaling 2,865 pages, and an additional 10 documents in its

Supplemental Mandamus Record. In an attempt to authenticate this proposed

record, Relator filed an Affidavit of Felicia Harris dated June 12, 2015, and an

Amended Affidavit of Felicia Harris dated June 26, 2015. (R. 1, 1a). However,

these affidavits aver only that the “documents numbered 2–115 and included in

this Record on Mandamus are true and correct copies.” Id. However, the

affidavits do not swear that the identified documents are “true and correct copies of

the pleadings on file in the trial court and the reporter’s transcript of the hearings

conducted in this matter.”35 Instead, the affidavits merely state the documents are

“true and correct copies.” (R. 1, 1a). Chief among Relator’s burden in a

mandamus proceeding is the critical obligation to provide the reviewing court with

a complete and adequate record.”36 Because the record in a mandamus proceeding

is assembled by the parties,37 this Court must strictly enforce the requirements of

Rule 52 of the Texas Rules of Appellate Procedure to ensure the integrity of the

35 See In re Kim, No. 05-14-01344-CV, 2014 Tex. App. LEXIS 11734, *2 n.1 (Tex. App.— Dallas, Oct. 23, 2014, orig. proceeding) (noting that authentication requirements in mandamus proceeding must be strictly enforced); see also In re Butler, 270 S.W.3d 757, 759 (Tex. App.— Dallas 2008, orig. proceeding) (finding affidavit insufficient to authenticate record because it did not state affiant had “personal knowledge the copy of the order in the appendix is a correct copy of the original.”). 36 In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding)). 37 See TEX. R. APP. P. 52.3(j), 52.3(k).

14 mandamus record.38 Here, Relator has wholly failed to provide a properly

authenticated record for the Court to review and consider, and the Petition should

be denied on that basis alone.39

Even if Relator properly authenticated its mandamus record, the documents

included within that record violate the Texas Rules of Appellate Procedure. Under

Texas Rule of Appellate Procedure 52.7(a)(1), the Relator must file a “certified or

sworn copy of every document that is material to the relator’s claim for relief and

that was filed in any underlying proceeding.” In original proceedings, the court

focuses on the record before it when the decision was made.40 Here, Relator

erroneously relies on documents that were not part of the trial court record, are not

material to the Relator’s claim for relief, and were not filed in any underlying

proceeding. Specifically, out of the 105 documents Relator included in the record,

only 40 meet those requirements and could be considered part of the mandamus

record.41 For example, Relator includes a 230-page document described as “RAI’s

2010 State Cost Reports for the Clute and Lake Jackson Facilities.” (R. 8). Aside

38 See, e.g., In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding). 39 See In re Butler, 270 S.W.3d at 759 (denying petition for writ of mandamus because “relators’ petition and record are not authenticated as required by the Texas Rules of Appellate Procedure”). 40 See In re Bristol–Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998) (orig. proceeding); In re Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (appellate court will not consider exhibits that were not part of the trial court record at the time of the hearing on the motion that is subject to the mandamus proceeding); In re McDonald, 424 S.W.3d 774, 781 (Tex. App.—Beaumont 2014, orig. proceeding) (considering exhibit offered into evidence). 41 An index of these documents is included in Tab A of the Appendix.

15 from its questionable relevance, there is nothing to indicate this document was

filed in any underlying proceeding, and certainly not the proceedings at issue in

this Petition. Accordingly, to the extent the Court considers Relator’s mandamus

record to be properly authenticated, only a limited subset of 40 of the 105

documents within that record should be considered by this Court.

Finally, a relator seeking extraordinary relief under Rule 52 of the Texas

Rules of Appellate Procedure must accompany the petition with either an

authenticated transcript of any relevant testimony from any underlying proceeding

or a statement that no testimony was adduced in connection with the matter.42 In

absence of such a transcript, the court considering the petition for extraordinary

relief presumes that there existed evidence to support the trial court's decision.43

Here, Relator challenges the trial court’s order granting Real Parties’ Motion to

Strike. Yet, Relator fails to provide a statement that no testimony or evidence was

presented to the trial court in connection with Real Parties’ motion. Consequently,

Relator failed to comply with Rule 52.7(a)(2), and this Court must presume that the

trial court had before it evidence to support its decision and deny Relator’s request

for mandamus relief.44

42 TEX. R. APP. P. 52.7(a)(2). 43 Ex parte King, 819 S.W.2d 944, 946 (Tex. App.—Houston [14th Dist.] 1991) (original proceeding involving a petition for writ of habeas corpus). 44 In re Michelle, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (“But, in the final analysis, this court cannot and will not find an abuse of discretion on an incomplete record.”).

16 II. Respondent Did Not Abuse His Discretion in Granting Real Parties’ Motion to Strike Relator’s Amended Pleadings. On the very next day following an unsuccessful mediation, Relator filed the

first of its Amended Pleadings, seeking to add five new parties to the underlying

lawsuit less than three months before trial and over seven months after the deadline

for filing amended pleadings. Not only did the trial court correctly strike the

Amended Pleadings and the baseless claims that Relator sought to add at the

eleventh hour, but Relator has failed to meet its heavy burden of establishing the

trial court clearly abused its discretion in doing so. Accordingly, this Petition must

be denied.

A. Respondent correctly dismissed Relator’s Amended Pleadings. The trial court could have granted Real Parties’ Motion to Strike and

dismissed the Amended Pleadings under any one of a number of different grounds,

all of which are supported by the record.

1. The Amended Pleadings violate Rule 63. Under Rule 63 of the Texas Rules of Civil Procedure, “Parties may amend

their pleadings . . . at such time as not to operate as a surprise to operate as a

surprise to the opposite party.” Rule 63 contains an important limitation on the

amendment of pleadings—the amended pleading may not unfairly prejudice or

17 operate as a surprise to the opposing party.45 Under Rule 63, a trial court may

refuse an amendment if (1) the opposing party presents evidence of surprise or

prejudice, or (2) the amendment asserts a new cause of action or defense, and thus

is prejudicial on its face, and the opposing party objects to the amendment.46

Relator contends in its Petition that a discussion of “prejudice” has “no place

in a Rule 63 analysis.” Although Rule 63 does not expressly mention “prejudice,”

any assessment of “surprise” must necessarily include an evaluation of

“prejudice.”47 As the Dallas Court of Appeals noted:

Under rules 63 and 66, a trial judge has no discretion to refuse an amendment unless the opposing party presents evidence of surprise or prejudice or the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment.48 Even if the “surprise or prejudice” standard did not apply in a typical Rule

63 analysis, it certainly applies when the challenged pleading is filed after the date

45 See TEX. R. CIV. P. 63; Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939–41 (Tex. 1990); Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980) (trial court may conclude that amendment on its face is calculated to surprise). 46 State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 657 (Tex. 1994); Greenhalgh, 787 S.W.2d at 939. 47 See Hakemy Bros. Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. App.—Dallas 2006, no pet.) (holding that “the opposing party’s objection is sufficient to show surprise” when the trial court concludes the amendment is on its face calculated to surprise or that the amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily delaying the trial.”) (emphasis added). 48 See Am. Title Co. of Houston v. Bomac Mortgage Holdings, L.P., 196 S.W.3d 903, 909 (Tex. App.—Dallas 2006, pet. granted, judgm’t vacated w.r.m.) (emphasis added); see also Rodriguez v. Cuellar, 143 S.W.3d 251, 258 (Tex. App.—San Antonio 2004, pet. dism’d w.o.j.).

18 set in a scheduling order.49 A party may amend its pleadings up to seven days

before trial, or within the time required under a pretrial order.50 After the time for

filing amended pleadings has passed, the trial court abuses its discretion in denying

leave to file an amended pleading unless (1) the party opposing the amendment

presents evidence of surprise or prejudice, or (2) the amendment asserts a new

cause of action or defense, and thus is prejudicial on its face, and the opposing

party objects to the amendment.51 Here, the trial court has entered only one DCO,

which necessarily established June 12, 2014 as the deadline to add new parties.52

(R. 60). The June 12, 2014 deadline passed without Relator adding any new

parties or new claims. (R. 60). Although Relator contends the trial court lifted the

deadlines within the DCO, Relator cannot point to a single citation in the record to

49 See Gunn v. Fuqua, 397 S.W.3d 358, 377–79 (Tex. App.—Dallas 2013, pet. denied) (amended pleading filed after date set in pretrial order was properly denied when amendment was prejudicial because it asserted new causes of action). 50 TEX. R. CIV. P. 63; Hakemy Bros., Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. App.—Dallas 2006, pet. denied). 51 First State Bank of Mesquite v. Bellinger & Dewolf, L.L.P., 342 S.W.3d 142, (Tex. App.—El Paso 2011, no pet.) (citing State Bar v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994) (per curiam)); see also Hakemy Bros. Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. App.—Dallas 2006, no pet.) (holding that “the opposing party’s objection is sufficient to show surprise” when the trial court concludes the amendment is on its face calculated to surprise or that the amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily delaying the trial.”). 52 Relator asserts that because the DCO did not contain a date for the deadline to add new parties, there was no such deadline. Courts have rejected that argument. See, e.g., Singleton v. Nw. Tex. Healthcare Sys., No. 07-03-0552-CV, 2006 Tex. App. LEXIS 1594, *14 n.6 (Tex. App.— Amarillo Feb. 28, 2006, no pet.) (“We do not agree with appellant’s contention that the scheduling order did not set a deadline for joinder of parties. While the better practice might be to set out separately each of the deadlines mandated by Rule 190.4, the language in the agreed order here setting deadlines by which each party “shall file amended pleadings” necessarily included amended pleadings adding parties.”).

19 support that contention other than the self-serving and post-hoc affidavit of Felicia

Harris. Therefore, whether operating under a typical Rule 63 analysis or a late-

amended pleading analysis, the trial court was correct to apply the “surprise or

prejudice” standard.

Against that backdrop, the record before the trial court reveals the

Amended Pleadings operated to surprise the Real Parties. The thirty-eight new

causes of action asserted in the Amended Pleadings could not have been

anticipated by the Real Parties. (R. 73, 48). For example, the Amended Pleadings

asserted, for the first time, “Violations of the Texas Free Enterprise and Antitrust

Act” and “Fraudulent Concealment.” (R. 48). These claims—and the factual and

legal theories behind these claims—were not disclosed to the Original Parties in

Relators’ response to the Original Parties’ Request for Disclosure. (R. 73).

Moreover, the Amended Pleadings added five additional parties to the case. (R.

48). Again, these parties were not disclosed to the Original Parties in Relators’

disclosures. (R. 73). Nor did Relator identify any of those parties as a potential

responsible third party. Id. That fact, alone, is enough to support a finding of

surprise.53

53 See Johnson v. Ingram Readymix, Inc., No. 03-09-00568, 2010 Tex. App.—LEXIS 10268, *17–18 (Tex. App.—Austin Dec. 23, 2010, no pet.) (holding that amended pleading constituted unfair surprise and prejudice when amending party made no effort to make opposing party aware of new claims through relevant discovery responses).

20 In addition, the parties participated in a full-day mediation on January 26,

2015 (the day before the Amended Pleadings were filed), yet prior to such time

Relator made no mention of these additional claims and parties at all and issued no

formal demands or other correspondence pertaining to these allegations. (R. 73).

Instead, Relator laid behind the log and filed the first of its Amended Pleadings the

very next day following the unsuccessful mediation. (R. 73). These examples

alone demonstrate the surprise reflected in the record sufficient to allow the trial

court to strike Relator’s Amended Pleadings pursuant to Rule 63.

Just as the record adequately demonstrates surprise, there is ample evidence

of the prejudice caused by the Amended Pleadings. As an initial matter, the

Amended Pleadings are prejudicial on their face.54 It is obvious that the Amended

Pleadings would have detrimentally affected the Real Parties’ presentation of the

case, as they would have been required to adjust their discovery and trial

preparations to include these new claims and new parties in a case that was already

on its third trial setting. (R. 73). In Rodriguez v. Cuellar, the San Antonio Court

of Appeals upheld a trial court’s decision to strike an amended pleading where the

“nature of the case would have been reshaped . . . [thereby] requiring a lengthy

trial in which the numerous specific allegations contained in the amended petition

54 Cuellar, 143 S.W.3d at 258 (noting that, in the absence of a showing of surprise or prejudice, a court can strike a pleading that “asserts a new basis for the contest and is thus prejudicial on its face.”) (citing Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 91 (Tex. App.—Houston [1st Dist.] 2003, no pet.)).

21 would require testimony from potentially hundreds of individuals on several fact-

intensive issues.”55 The same situation arose here. Relator attempted to

completely transform the true nature of the underlying lawsuit—a commercial

lease dispute—into a whirlwind conspiracy theory involving thirty-eight new

causes of action against five new parties. Further, the matters asserted in the

Amended Pleadings are entirely unrelated to the factual disputes and legal issues

that were litigated for almost two years prior to the amendment. For example,

allegations that the Real Parties “entered into a contract, combination and

conspiracy to restrain trade and/or commerce” and “made plans to monopolize the

skilled nursing facility market in Brazoria County” are entirely unrelated to the

central issue in this lawsuit: whether the Original Parties cooperated with Relator

to effectuate a change of control of the two nursing facilities under the operative

lease agreements, and could not have been reasonably anticipated. (R. 48).

Perhaps the clearest reflection of the prejudice the Amended Pleadings

would have caused is the fact that the discovery deadline and expert disclosure

deadlines expired prior to the filing of the Amended Pleadings, with a preferential

trial setting just two and a half months away. (R. 60). As such, Real Parties would

have had no opportunity to develop a defense to the new allegations of conspiracy,

attempted monopoly and disruption of free enterprise, fraudulent concealment, and

55 Id. at 259.

22 other outlandish claims.56 Accordingly, the Amended Pleadings, which introduced

thirty-eight new causes of action and five new parties, are prejudicial—on their

face and otherwise—and objectionable based on the unfair surprise and prejudice

they caused, and the trial court was correct to strike them from consideration.

2. The continuance of the trial date had no effect on the deadline to amend pleadings. Relator erroneously contends that a continuance of a trial date “vitiates the

deadlines in a scheduling order.” See Petition, p. 52. However, Relator construes

this rule too broadly. It is true that, absent language to the contrary, a continuance

nullifies the previous discovery deadlines (such as the deadline to supplement

responses to discovery requests) or other deadlines directly tied to the trial date

(e.g. 30 days before trial).57 However, a continuance of a trial setting has no effect

on deadlines that are not directly tied to the trial date. Every case relied on by

Relator involves deadlines entirely connected to and dependent upon the trial

date.58 Relator does not identify any authority holding that the continuance of a

56 See Hakemy Bros. Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. App.—Dallas 2006, no pet.) (concluding trial court did not abuse its discretion in striking amended petition filed one month before trial because “appellees had no opportunity, without a continuance, to designate an expert . . . or conduct additional discovery.”). 57 At least one court of appeals has distinguished “fixed dates established in the scheduling order” from “deadlines [that] are stated in terms of so many days ‘before trial,’” and eventually held that “by stating the deadline as 45 days before trial, we believe the parties intended for the dates to be flexible and to operate from the date of the trial, whether it was held on September 30 or some other date.” See Torres v. GSC Enterp., Inc., 242 S.W.3d 553, 558 (Tex. App.—El Paso 2007, no pet.). 58 See Bates v. Sunshare RV, Ltd., 2010 WL 3582487, *1 (Tex. App.—San Antonio Sept. 15, 2010, no pet.) (continuance of trial setting lifted deadline to submit proposed jury instructions

23 trial date nullifies dates that have already passed and are not discovery-related or

expressly tied to the trial date.

Relator also argues that the conduct of both parties otherwise establishes that

the deadlines had been lifted. However, Relator misrepresents the true facts. Once

the original trial date was postponed to April 2015, the parties attempted to

establish—without instruction from the trial court—a subsequent agreed amended

docket control order.59 (R. 73). Relator sent a proposed amended docket control

order on December 1, 2014. Id. Specifically because Relator attempted to include

a blank date for the deadline to add new parties, Real Parties’ counsel removed the

blank date and sent the revised order back to Relator, stating, “Attached is a

revised version of the Amended DCO. We deleted deadlines that have already

passed or are inapplicable.” Id. Then, in an event typical of Relator’s conduct

throughout the underlying litigation, Relator filed a Motion for Entry of Amended

Docket Control Order that misrepresented to the trial court that Real Parties agreed

previously set for the “Monday preceding the week of the trial date”); Killam Ranch Properties, Ltd. v. Webb Co., 2008 WL 4958452, *4 (Tex. App.—San Antonio Nov. 19, 2008, no pet.) (continuance of trial setting lifted deadline to supplement discovery responses previously set for “more than thirty days before the October . . . trial date”); Felker v. Petrolon, Inc., 929 S.W.2d 460, 467 n.9 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (continuance of trial setting lifted deadline to disclose experts); Daniels v. Yancey, 175 S.W.3d 889, 893 (Tex. App.— Texarkana 2005, no pet.) (noting that the purpose of the “agreed motion for continuance was to allow discovery after the deadlines previously imposed by the agreed scheduling order.”). 59 Relator argues that, because Relator’s counsel and the Real Parties’ counsel discussed amending the DCO, and seemed in agreement on a January 30, 2015 deadline for pleading amendments, that the trial court clearly violated Rule 63 by granting the Motion to Strike. But Rule 63 concerns pleading amendments, not the joinder of new parties to a lawsuit. See TEX. R. CIV. P. 63. Hence, this argument fails. Moreover, the parties never actually filed a joint motion asking the trial court to set a January 30, 2015 pleadings deadline.

24 to the dates listed in the first proposed amended docket control order that was

rejected by Real Parties. (Supp. R. 8). Within this motion, Relator misrepresented

that the “parties agree to the dates,” and in the certificate of conference, certified

that Real Parties “are not opposed” to the entry of Relator’s proposed amended

docket control order. Id. Because Real Parties made clear that they never agreed

to that proposed order, Real Parties’ counsel emailed Relator’s counsel in an

attempt to make their position clear:

As for the line item for new parties we are fine leaving that in so long as we have an agreed understanding that the prior deadline for adding new parties has passed and the blank line in your proposed order does not suggest that is an “open” date. Id. If anything, Relator’s conduct throughout this episode reveals that it knew the

deadline to add new parties had passed and misled the trial court in an effort to re-

open that deadline.

Relator also contends that the Amended Pleadings should be allowed

because the Original Parties did not object when Relator amended its petition in

September 2014. See Petition, p. 33. Of course, this argument ignores the fact that

the September 2014 Petition was not made three months before the third trial

setting. Nor does the argument consider that the September 2014 Petition was

simply an amendment of existing allegations whereas the January 2015 Petition

added new parties (and new causes of action) to the suit.

25 Put simply, Real Parties never acted inconsistent with their position that the

deadline to add new parties had passed. Id. However, Relator’s allegations to the

contrary, even if true, do not show inconsistency by the trial court in enforcing the

scheduling order.60

The trial court has a duty to schedule its cases in such a manner as to

expeditiously dispose of them.61 For this reason the court is given wide discretion

in managing its docket, and an appellate should not interfere with the exercise of

that discretion absent a showing of clear abuse.62 Because Relator has failed to

show such clear abuse, the Petition must be denied.

3. The Amended Pleading violates Rule 38. The trial court could have granted the motion to strike based also on Rule 38

of the Texas Rules of Civil Procedure. Relator admits that the New Parties should

have been styled ‘additional counter-defendants,’ ‘cross-defendants,’ or something

similar,” but argues that the new claims asserted in the Amended Pleadings are not

third-party claims because “mislabeling them does not change their substantive

role in the litigation.” See Petition, p. 56. However, “[d]ismissal for failure to

comply with the procedural requirements of Rule 38(a) is not a dismissal on the

60 G.R.A.V.I.T.Y. Enterprises, Inc. v. Reece Supply Co., 177 S.W.3d 537, 543 (Tex. App.—Dallas 2005, no pet.) (appellant attempted to argue deadline should not be enforced by the trial court because the parties did not follow it; court held that appellant did “not explain and cites no authority showing how the trial court’s enforcement of an order disregarded by the parties constitutes an abuse of discretion by the trial court.”). 61 Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982). 62 Id.

26 merits, but rather an exercise of the trial court’s discretion in a procedural

matter.”63 Relator labeled the Amended Pleadings as “Third-Party Petition[s].”

(R. 48). Relator admits that it “used ‘third-party defendants’ to describe the new

parties.” See Petition, p. 56. The trial court, however, was not required to examine

the merits or the substance of the allegations; rather, the trial court properly

reviewed the procedural requirements of Rule 38(a) and correctly determined that

Relator failed to meet those requirements. (R. 73).

4. Rule 91a did not afford Relator an “absolute right” to file the Amended Pleadings. In support of its Petition, Relator makes the argument that, because Coleman

filed a Rule 91a Motion, Relator had the “absolute right” to amend its petition to

add claims and parties. See Petition at pp. 51–52. Relator bases this contention on

Rule 91a.5(b), which provides,

If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed to the amended cause of action.

TEX. R. CIV. P. 91a.5(b).

Relator’s argument fails because nothing in the language of Rule 91a limits

or negates a trial court’s broad discretion to determine joinder of parties and

amendments of petitions. An interpretation of Rule 91a that decreases a trial 63 See Oistad v. Baker & Hostetler, L.L.P., No. 01-05-00493-CV, 2006 Tex. App. LEXIS 1639, 2006 WL 488594, at *3 (Tex. App.—Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op).

27 court’s ability to avoid unnecessary delays would be contrary to the purpose of the

Rule, which is to help clear busy dockets congested with spurious claims, thereby

increasing fairness in the legal system.64 Moreover, Relator completely ignores the

fact the Coleman expressly made his Rule 91a motion subject to the Motion to

Strike. (R. 74). Accordingly, Relator failed to demonstrate that the trial court

erred by disallowing amendment pursuant to Rule 91a.

B. Relator has not met its heavy burden of establishing the trial court clearly abused its discretion by striking the Amended Pleadings. 1. Considering the facts and circumstances of the suit, the trial court did not clearly abuse its discretion. To be entitled to the extraordinary remedy of mandamus relief, a relator

must demonstrate that (1) the trial court clearly abused its discretion, and (2) the

relator has no adequate remedy by appeal.65 Moreover, Relator has the burden to

present the appellate court with a record sufficient to establish the right to

mandamus.66

Relator attempts to rely on Texas Rule of Civil Procedure 40 governing the

permissive joinder of parties as defendants to a lawsuit.67 However, Rule 40

64 See Timothy Patton, Motions to Dismiss Under Texas Rule 91a: Practice, Procedure and Review, 33 REV. LITIG. 469, 475 (2014) (“[A]n early dismissal procedure would, among other things, protect defendants from frivolous and costly lawsuits, strengthen the economy, and enhance the fairness of the court system.”). 65 In re Noble Drilling (Jim Thompson), L.L.C., 449 S.W.3d 625, 630 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding). 66 Walker v. Packer, 827 S.W.2d 833, 837–39 (Tex. 1992) (orig. proceeding). 67 TEX. R. CIV. P. 40.

28 further demonstrates the discretion allotted to the trial court on issues of joinder.

Stated succinctly, a trial court has great discretion to determine joinder of parties.68

This discretion includes the power to make a determination that a party’s joinder

will delay a trial whose date has already been set.69 A trial court’s decision on

joinder should be based on practical considerations with a view to what is fair and

orderly, including whether joinder will unreasonably delay the trial under the facts

and circumstances of the suit.70

Relator’s Amended Pleadings are nothing more than an obvious attempt to

delay trial and avoid an inevitable result. It was certainly foreseeable to Relator

that if it brought Coleman into the suit, he would be represented by his own

counsel, and it would be unmanageable for Coleman’s counsel to catch up on 20

months of litigation in the few months before trial. Although Coleman acted as

legal counsel to certain Real Parties, his interests in this lawsuit are not necessarily

aligned with their interests. It is unreasonable to expect Coleman to mount a

defense to far-fetched claims that he helped orchestrate or implement a conspiracy

to monopolize the market for Medicare-reimbursed services in Brazoria County in

the two and a half months remaining before trial. Coleman could reasonably be

68 See In re Arthur Andersen, L.L.P., 121 S.W.3d 471, 483 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding); Ryland Group, Inc. v. White, 723 S.W.2d 160, 161 (Tex. App.— Houston [1st Dist.] 1986, no writ). 69 See TEX. R. CIV. P. 40(b); Varme v. Gordon, 881 S.W.2d 877, 883 (Tex. App.—Houston [14th Dist.] 1994, writ denied). 70 In re Arthur Andersen L.L.P., 121 S.W.3d at 483.

29 expected to deem it necessary to retake the depositions of parties and witnesses

who have already been deposed, particularly given the significant change in the

character of the lawsuit and the specter of individual liability. Moreover, Coleman

and his counsel are entitled to sufficient time to review all of the existing discovery

responses and document production and Relator’s experts’ reports to determine

whether to serve additional discovery requests and retain his own experts. All of

these items will take considerable time and add significant expense to the lawsuit

for all parties.

In its Mandamus Petition, Relator attempts to avoid these arguments by

asserting that all opposing parties, erroneously including Coleman, are represented

by the same counsel. See Petition, p. 50. But even among the Real Parties that are

represented by the same counsel, Relator overlooks the fact that two of those

parties were sued in their individual capacities (Sara Richards and Amy Stewart).

(R. 48). Those individual defendants will have separate, distinct, and potentially

adverse defensive strategies. Two other parties (GHCF and CVC) are wholly

separate and distinct companies. The potential for individual exposure of those

individuals and entities on new theories and claims that seek to transform the entire

character of the case, and the commensurate need to analyze, evaluate, and prepare

corresponding defenses, is unreasonable given the near trial setting.

30 Additionally, considering the circumstances and history of the lawsuit, the

trial court reasonably determined it would unfairly and unreasonably delay trial to

permit the joinder of the new parties at this late date.71 As explained above, this

lawsuit was filed in May 2013 and the potential for Coleman, Richards, Stewart,

GHCF, and CVC to be a party was known to Relator at the time. Nevertheless,

Relator did not attempt to add these persons or entities as parties for another 20

months, on the day after a failed mediation and with less than three months before

the second trial setting.

Based on these circumstances, the trial court acted properly—and surely did

not clearly abuse its discretion—by striking the Amended Pleadings, thereby

permitting the case to be tried to the jury at its August 10, 2015 trial setting as the

commercial lease dispute that it has been and remains, without additional

unnecessary delay and expense.72

2. Relator has not met its heavy burden of establishing no adequate remedy by appeal. Even assuming Relator could prove the trial court clearly abused its

discretion by striking the pleadings, Relator still is not entitled to mandamus relief

71 See In re Arthur Andersen L.L.P., 121 S.W.3d at 483 (explaining trial court’s decision whether to permit joinder must be based on circumstances and history of specific case at hand). 72 See In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (“Trial courts are generally granted considerable discretion when it comes to managing their dockets.”); Jones v. Cortes, 02-10- 00304-CV, 2011 WL 4008021, at *6 (Tex. App.—Fort Worth Sept. 8, 2011, no pet.) (“We conclude that the trial court’s concern about adding Carolina as a defendant within sixty days of the trial was reasonable because doing so could have delayed the trial date, which had already been rescheduled several times.”).

31 unless Relator has no adequate remedy by appeal.73 The heavy burden of

establishing an inadequate appellate remedy is on Relator.74

Out of 78 pages of argument, Relator gives only scant treatment to the “no

adequate remedy by appeal” requirement. See Petition, pp. 59–60. Relator’s sole

argument in this regard is that “the trial court dismissed parties that have been, for

all practical purposes, equal participants in the case to date.” Id., p. 60. According

to Relator, “if the case proceeds to trial against only a portion of the interrelated

parties, the potential for a subsequent proceeding to correct the court’s error is

tremendous.” Id. In other words, Relator is arguing that there is a tremendous

chance that, because of the trial court’s error in striking the pleadings, an appellate

court will reverse the trial court’s judgment and remand for a new trial. Hence,

Relator acknowledges it will have the opportunity to appeal the trial court’s ruling

on the motion to strike in a few short months after a final judgment is rendered

following the August trial.75 Clearly, Relator has not met its heavy burden of

establish no adequate remedy by appeal. Directly to the contrary, Relator’s

Petition recognizes the existence of an adequate remedy by appeal.

73 In re Noble Drilling (Jim Thompson), L.L.C., 449 S.W.3d at 630. 74 In re Stern, 321 S.W.3d 828, 837 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003)). 75 See, e.g., Jones v. Cortes, 02-10-00304-CV, 2011 WL 4008021, at *6 (Tex. App.—Fort Worth Sept. 8, 2011, no pet.) (determining on appeal from final judgment that trial court did not abuse discretion by striking petition that added new party).

32 III. The Trial Court Has Not Abused Its Discretion in Setting Proper Limits on Relator’s Abusive and Harassing Discovery Efforts. Relator claims that the trial court “erred in restricting Relator’s access to and

use of discovery facts and documents.” See Petition, p. 61. Although Relator fails

to clearly set forth the exact relief it is requesting, any mandamus relief issued by

this Court would be improper for several reasons. First, several issues raised by

Relator have been rendered moot by the trial court’s action. Next, on many issues

Relator fails to identify the written orders from which it seeks relief. To the extent

Relator does identify a written order, that order encompasses proper restrictions set

by the trial court on Relator’s discovery fishing crusade that should not be

disturbed by this Court.

A. Several issues raised by Relator are moot. First, Relator complains that it has been denied access to documents

produced by non-party MDS Research Company pursuant to a third-party

subpoena. Specifically, Relator states that “whatever MDS documents [that] were

produced remain in camera,”76 and Relator asserts that it “still awaits release of the

documents by the court.” See Petition, p. 69. Curiously, the Petition notes that

76 Relator implies several times that it was an abuse of discretion for the trial court to sua sponte order documents to be produced for in camera review. Not only do trial courts have the inherent authority to review documents in camera, but denying discovery of potentially relevant documents without reviewing them in camera is an abuse of discretion. See Axelson v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990, orig. proceeding) (holding that it was an abuse of discretion to deny discovery of potentially relevant documents without reviewing them in camera).

33 Relator’s counsel was contacted by the trial court “the day before” the Petition was

filed and told that the in camera documents were available for her inspection,

reflecting that Relator’s complaints are both premature and potentially unfounded.

See Petition, p. 70. Indeed, on June 17, 2015, six days after the filing of this

Petition, the court coordinator notified the parties that Relator’s counsel “came

down today and looked at the documents that were submitted for in camera

inspection” and “advised the court that she wants copies of all the documents.”

(Supp. R. 9). The next week, the trial court confirmed on the record that Relator

reviewed and copied the very same MDS Research Company documents at issue in

this Petition. (Supp. R. 1). Accordingly, the relief requested by Relator relating to

the MDS Research Company documents is moot, and the Petition should be denied

in that respect.77

Relator also asserts that the “trial court denied [Relator] the use of a

contemporaneous appraisal of the facilities” after Relator requested the documents

77 See Boring & Tunneling Co. v. Salazar, 782 S.W.2d 284, 285 (Tex. App.—Houston [1st Dist.] 1989, orig. proceeding) (denying relator’s petition as moot when trial court judge allowed production and disclosure of certain disputed documents that had been previously withheld from production); see also Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995) (“[W]e will not issue mandamus if for any reason it would be useless or unavailing). Notwithstanding the mootness of this issue, Relator’s request is deficient for several other reasons. First—and made apparent by the trial court’s subsequent ruling—Relator’s request for mandamus relief was premature. Relator admits that “[j]ust the day before this filing, the trial court indicated that [Relator’s] counsel could come view the in camera documents, and that he would decide whether [Relator] could have them after [Relator] told him which ones it wanted.” See Petition, p. 70. Even so, Relator’s asks this Court to “compel MDS’s full compliance with the subpoena.” This is a wholly inappropriate demand for relief, as this Court’s only jurisdiction on mandamus is to order the respondent—in this case, the trial court—to take certain action.

34 and the trial court ordered them produced in camera. See Petition, p. 73. Without

requesting any specific relief, Relator notes that the appraisals “remain in camera

while [Relator] their production [sic].” Id. p. 74. Like the MDS Research

Company records, the trial court confirmed that Relator reviewed and copied the

appraisals on June 17, 2015. For the same reasons, this issue is now moot.

B. Relator fails to identify specific orders from which it requests relief. When a relator files a petition for writ of mandamus, the relator must file a

copy of the order which the relator challenges with the petition.78 A relator is not

entitled to mandamus relief unless it the order it challenges is included within the

appendix.79 Here, Relator argues that (1) the “trial court clearly abused its

discretion in refusing to order production of the ‘Discharge books,” (2) “refused to

allow [Relator] to substantiate its claim that the Grethers hired and/or transferred

employees” by failing to order production of “communications between CVC

. . . and any employees of the two leased facilities,” and (3) refused to compel

Gayle Jacobs, a non-party to the underlying action, to “confirm the nature of her

employment.” See Petition, pp. 72–74. However, Relator does not include within

the appendix or anywhere else within the mandamus record any orders reflecting

this alleged denial of discovery. Instead, Relator notes that the “trial court still 78 TEX. R. APP. P. 52.3(k)(1)(A). 79 Id.; see In re Lewis, No. 14-15-00122, 2015 Tex. App LEXIS 1620, *1 (Tex. App.—Houston [1st Dist.] Feb. 19, 2015, orig. proceeding) (denying petition for writ of mandamus when relator failed to include a certified or sworn copy of the order he challenged).

35 refuses to rule on the motion” to compel the above documents and information.

Id., p. 73. Because the trial court has “not yet advised the parties of its ruling on

the motion . . . at this juncture, there is no ruling of the trial court that [this Court]

may evaluate for abuse of discretion and adequacy of appellate remedy.”80

It is unclear whether Relators asks this Court to order the trial court to make

a ruling, but even so, because the trial court has not ruled, then a request to rule is

necessarily inconsistent with Relator’s complaint that the trial court has abused its

discretion in failing to rule. While this Court may, by mandamus, direct the trial

court to make a decision, it “may not tell the trial court what that decision should

be.”81 Accordingly, Relator has failed to establish a right to the relief requested

related to the discharge books and employee communications.

C. The Court set proper limits on Relator’s request for immaterial and irrelevant policies and procedures. Finally, Relator complains that the trial court’s September 30, 2014 order

“only permitted Relator’s counsel’s review at the courthouse jury room” and

effectively denied “copies to use in depositions, attach as exhibits to motions,

analyze with Relator’s experts, or to read and review with its office staff, or use at

trial.” See Petition, p. 63.

80 See In re Progressive Cty. Mut. Ins. Co., No. 05-15-00622-CV, 2015 Tex. App. LEXIS 5009, *1 (Tex. App.—Dallas May 15, 2015, orig. proceeding). 81 Id. at *2 (citing Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962); In re Tasby, 40 S.W.3d 190, 191 (Tex. App.— Texarkana 2001, orig. proceeding).

36 Relator has made only one argument with respect to the discoverability of

the Real Parties’ policies and procedures: the Real Parties allegedly “contracted to

turn over these documents.” See Petition, p. 64 and (R. 36). Putting aside the fact

that Real Parties dispute that any one of them agreed to surrender highly

proprietary written policies and procedures that were created and customized for

use at the two nursing facilities over twenty years, the substance of the policies

and procedures is not relevant to a single issue in the underlying suit. (Supp. R.

10). Relator does not allege that Real Parties failed to follow their policies and

procedures. It is undisputed that the Real Parties removed their own policies and

procedures from the two facilities upon termination of the lease, and that Relator

purchased its own policies and procedures for use upon the termination of the

leases. The dispute is whether or not Real Parties were entitled to remove their

documents at the expiration of the lease terms, and the necessity for Relator to

purchase their own policies and procedures, but there is no dispute relating to the

specific language or the substance of any of the proprietary documents.

Accordingly, the trial court acted appropriately—and certainly did not abuse

its discretion—when it ordered the policies and procedures produced for in camera

review. (R. 37). By allowing only Relator’s counsel to review them, the trial court

effectively designated the policies and procedures “Attorneys’ Eyes Only” and

prevented the disclosure of the proprietary material therein. Such action is clearly

37 permitted by the protective order entered in the underlying case. (R. 38).

Unsurprisingly, Relator points to no authority that the trial court’s action in this

regard is an abuse of discretion, and the Court should deny the Petition.

D. Relator has not demonstrated that it lacks an adequate remedy by appeal. To determine whether mandamus is appropriate in lieu of an appeal, the

reviewing court must carefully consider all relevant circumstances, such as the

claims and defenses asserted, the type of discovery sought, what the discovery is

intended to prove, and the presence or lack of other discovery.82 Delay,

inconvenience, or expense of an appeal are insufficient to satisfy this requirement.

Rather, the relator must demonstrate “the effective denial of a reasonable

opportunity to develop the merits of his or her case, so that the trial would be a

waste of judicial resources.”83 Moreover, mandamus will not issue unless the

undiscovered information “goes to the heart of a party’s case.”84

Here, Relator makes the conclusory assertion that the trial court’s “discovery

rulings (or lack thereof) here have denied [Relator] a reasonable opportunity to

develop the merits of its case.” See Petition, p. 62. Relator alleges nothing more

than inconvenience and delay, and certainly points to no citation or evidence in the

82 Walker v. Packer, 827 S.W.2d 833, 844 (Tex. 1992). 83 Id. at 843. 84 Id.; see also Polaris Investment Management Corp. v. Abascal, 892 S.W.2d 860, 861–62 (Tex. 1995) (per curiam) (mandamus did not issue because discovery did not go “to the heart” of relator’s case).

38 record to demonstrate further harm. The Texas Supreme Court has held that the

denial of discovery will entitle a relator to mandamus relief only if (1) the relator

can establish that the relator’s ability to present a viable claim or defense is

“vitiated or severely compromised” by the trial court’s discovery order, or (2) if

the denial of discovery will render it impossible for an appellate court to evaluate

the effect of the trial court’s error because the undiscovered information cannot be

made a part of the record.85 Relator has failed to meet that burden here, and the

Court must deny Relator’s request for mandamus relief.

CONCLUSION AND PRAYER For the foregoing reasons, Real Parties in Interest Rebecca Ann, Inc.,

Donald Grether, Paul Heinig, Plantation Health Care, Inc., Sara Richards, Amy

Stewart, Country Village Care, Inc., and Grether Health Care Facilities, Inc.

respectfully request that the Court deny Relator’s petition for writ of mandamus

and grant Real Parties in Interest such other relief, in law or equity, to which they

may be shown to be justly entitled.

85 Walker, 827 S.W.2d at 843–44.

39 JACKSON WALKER L.L.P.

Respectfully submitted,

/s/ Breck Harrison Breck Harrison State Bar No. 24007325 bharrison@jw.com Scott W. Weatherford State Bar No. 24079554 sweatherford@jw.com 100 Congress Ave., Ste. 1100 Austin, Texas 78701 (512) 236-2000 (512) 236-2002 – Fax

ATTORNEYS FOR REAL PARTIES IN INTEREST, REBECCA ANN, INC., DONALD GRETHER, PAUL HEINIG, PLANTATION HEALTH CARE, INC., SARA RICHARDS, AMY STEWART, GRETHER HEALTH CARE FACILITIES, L.L.C., AND COUNTRY VILLAGE CARE, INC.

RULE 52.3(J) CERTIFICATION I have reviewed this Response to Relator’s Petition for Writ of Mandamus

and conclude that every factual statement is supported by competent evidence the

mandamus record.

/s/ Breck Harrison Breck Harrison

40 RULE 9.4 CERTIFICATE OF COMPLIANCE This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14- point for text and 12-point for footnotes. This document also complies with the word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it contains 10,810 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).

41 CERTIFICATE OF SERVICE I hereby certify that the foregoing document was served on the following

counsel of record electronically through the electronic filing manager as well as by

electronic mail delivery on June 26, 2015:

Brandy R. Manning Zandra Foley Felicia Harris Andrew Johnson Burleson L.L.P. Thompson, Coe, Cousins & Irons, 700 Milam, Suite 1100 L.L.P. Houston, Texas 77002 One Riverway, Suite 1400 brmanning@burlesonllp.com Houston, Texas 77056 fharris@burlesonllp.com zfoley@thompsoncoe.com ajohnson@thompsoncoe.com Counsel for Relator Counsel for Stephen M. Coleman The Honorable Patrick Sebesta 239th Judicial District Court Brazoria County, Texas 111 E. Locus, Room 310A Angleton, Texas 77515 debbies@brazoria-county.com

Respondent

42 NO. 01-15-00530-CV

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

Original Proceeding on Petition for Writ of Mandamus from Cause No. 72817 in the 239th Judicial District Court of Brazoria County, Texas (Hon. Patrick Sebesta, Presiding)

APPENDIX

TAB DOCUMENT

A Revised Index of Record.

13652835v.2 43 TAB A TAB DOCUMENT 2 Consolidated Order from Judge Sebesta, signed May 5, 2015 Sunset Nursing Home Inc.’s Motion to Compel Plaintiff’s Production of 28 Documents, filed March 14, 2014 31 Order, signed April 2, 2014 Sunset Nursing Home Inc.’s (1) Motion for Sanctions, filed August 25, 2014; (2) Supplemental Motion for Sanctions, filed September 15, 2014; 35 and (3) Second Supplemental Motion for Sanctions, filed September 19, 2014 Sunset Nursing Home Inc.’s Motion to Compel Plaintiff and Counter- 36 Defendants’ Production of Documents, filed May 21, 2014 37 Order, signed September 30, 2014 re: RAI’s policies and procedures 38 Agreed Protective Order, signed November 25, 2013 39 Hearing transcript, March 24, 2015 Plaintiffs’ Motion to Quash Deposition of Steve Coleman, filed July 9, 42 2014 45 Motion to Quash Sara Richards Deposition, filed October 23, 2014 47 Plaintiffs’ Motion to Compel Mediation, filed on December 5, 2014 Sunset Nursing Home, Inc.’s Second Amended Answer, Fifth Amended 48 Counterclaim and Fourth Amended Third-Party Petition, filed on January 26, 2015 Sunset Nursing Home Inc.’s Second Amended Answer, Fifth Amended 49 Counterclaim and Fourth Amended Third-Party Petition, filed on April 21, 2015 Plaintiffs’ and Third-Party Defendants’ Supplemental Motion to Strike 50 and for Sanctions, dated April 22, 2015 Sunset’s Supplemental Combined Motion to Compel, served on January 54 23, 2014 Non-Party Country Village Care, Inc.’s Motion for Protection 55 (Subpoena: MDS Research), filed on February 16, 2015 Hearing transcript (re: subpoena served on MDS Research Company), 56 dated February 24, 2015 Correspondence, dated March 30, 2015, from Scott Weatherford to Judge 57 Sebesta re: MDS Research documents for in camera inspection Order, signed April 6, 2015, re: MDS Research documents for in camera 58 inspection Sunset Nursing Home, Inc.’s Motion for Entry of Proposed Docket 59 Control Order, filed March 11, 2014 60 Docket Control Order, signed April 2, 2014 61 Hearing transcript, June 23, 2014 Sunset Nursing Home, Inc.’s Motion to Compel, Supplemental Motion 62 for Amended Docket Control Order and Motion for Continuance, filed August 21, 2014 Sunset Nursing Home, Inc.’s (1) No Evidence and Traditional Motion for Partial Summary Judgment, filed February 13, 2015, and (2) Reply in 68 Support of No-Evidence and Traditional Motion for Partial Summary Judgment, filed on February 24, 2015 Sunset Nursing Home, Inc.’s Second Amended Answer, Fourth 69 Amended Counterclaim and Third Amended Third-Party Petition, filed September 18, 2014 Plaintiffs’ Motion to Quash Amy Stewart Deposition, filed on January 71 26, 2015 Plaintiff and Third-Party Defendants’ Motion to Strike and for Sanctions, 73 filed February 13, 2015 Third-Party Defendant Stephen M. Coleman’s Rule 91a Motion to 74 Dismiss, filed March 18, 2015 Sunset Nursing Home, Inc.’s Supplemental Opposition to Motion to 75 Strike, filed on April 27, 2015 Third-Party Defendant Stephen M. Coleman’s Notice of Withdrawing 76 Rule 91a Motion to Dismiss, filed on April 22, 2015 80 Plaintiffs’ (RAI, et al.) Original Petition, filed on May 23, 2013 Defendant’s (Sunset) Answer to Plaintiffs’ Original Petition and 81 Counterclaim, filed on June 4, 2013 Sunset Nursing Home, Inc.’s First Amended Answer, Counterclaim and 82 Third-Party Petition, filed on October 29, 2013 Original Answer of Country Village Care, Inc., Grether Health Facilities, 83 L.L.C., Sara Richards and Amy Stewart, filed on February 23, 2015 Sunset Nursing Home, Inc.’s Motion to Reconsider (Policies and 85 Procedures in camera ruling), filed September 17, 2014 Correspondence, dated October 31, 2014, from Felicia Harris to Judge 93 Sebesta re: depositions scheduling Correspondence, dated September 25, 2014, from Felicia Harris to Judge 94 Sebesta attaching Proposed Order on Motions to Compel Correspondence, dated December 10, 2014, from Felicia Harris to Judge 95 Sebesta re: Plaintiffs’ Motion to Compel Mediation Third-Party Defendant Stephen M. Coleman’s Original Answer and 101 Request for Disclosure, filed February 23, 2015 104 Correspondence, dated February 17, 2015, from Felicia Harris to Judge Sebesta re in camera review of 2010 appraisal documents Sunset Nursing Home, Inc.’s (1) Consolidated Motion to Compel from 105 the Grethers, filed March 17, 2015 and (2) Supplemental Motion to Compel, filed March 19, 2015