Wal-Mart Stores, Inc. v. Street

761 S.W.2d 587, 1988 Tex. App. LEXIS 3225, 1988 WL 138566
CourtCourt of Appeals of Texas
DecidedDecember 12, 1988
Docket2-88-244-CV
StatusPublished
Cited by7 cases

This text of 761 S.W.2d 587 (Wal-Mart Stores, Inc. v. Street) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wal-Mart Stores, Inc. v. Street, 761 S.W.2d 587, 1988 Tex. App. LEXIS 3225, 1988 WL 138566 (Tex. Ct. App. 1988).

Opinions

OPINION

HILL, Justice.

This is a discovery mandamus proceeding. Relators Wal-Mart Stores, Inc. and Jerry Rand seek writ of mandamus directing the Honorable John Street, Judge of the 352nd District Court, to rescind his order of November 18,1988, directing Wal-Mart to produce Sam Walton on November 28, 1988, in the courtroom of the 352nd District Court in Fort Worth, Texas for the purpose of taking his deposition in the cause of Andrew Carrizales v. Wal-Mart Stores, Inc. and Jerry Rand, Individually. Sam Walton is Chairman of the Board, a major shareholder, and past president of Wal-Mart. The Relators also seek writ of mandamus directing Judge Street to set aside his order imposing certain sanctions against Wal-Mart due to the failure of Walton to appear for his deposition as ordered by Judge Street.

We overrule relators’ amended petition for writ of mandamus, because we find that the record before us does not show a clear abuse of discretion on the part of Judge Street in ordering that Walton’s deposition be taken in Fort Worth, and because we find that Wal-Mart has an adequate remedy by appeal with respect to the issue of the imposition of sanctions.

We will first consider the Relator’s request that we direct Judge Street to set aside his order imposing certain sanctions against Wal-Mart for Walton’s failure to appear for his deposition as ordered by Judge Street.

On an earlier occasion when Judge Street had ordered Wal-Mart to produce Walton in Fort Worth for the taking of his deposition in the slip-and-fall case now pending in Judge Street’s court, Wal-Mart filed a motion for leave to file petition for a writ of [589]*589mandamus in this court asking for an order directing Judge Street to rescind or modify his order to produce Walton. It urged that the trial judge clearly abused his discretion in ordering Wal-Mart to produce Walton for the purpose of taking his deposition, and it urged that in any event Judge Street clearly abused his discretion in requiring that the deposition be taken in Fort Worth instead of in the county containing Benton-ville, Arkansas, the county of Walton’s residence. We denied leave to fjle petition for writ of mandamus. The Texas Supreme Court refused to issue writ directing Judge Street to rescind his order to Wal-Mart to produce Walton for the purpose of taking his deposition. See Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153 (Tex.1988). They found no clear abuse of discretion in Judge Street’s decision that Walton is an agent of Wal-Mart subject to its control and that Walton may possess knowledge reasonably calculated to lead to the discovery of admissible evidence. See id. at 154-55. The Supreme Court did conditionally grant Wal-Mart a writ of mandamus directing Judge Street to modify his order to provide that the deposition be taken in the county of Walton’s residence, that being the county in which Bentonville, Arkansas is located. Id, at 155.

Subsequently, Judge Street modified his order to provide that Walton’s deposition was to be taken at the headquarters of Wal-Mart in Bentonville, Arkansas, a place which was agreed to by all parties to the suit, although not necessarily by Walton individually. After that order was entered, but before the time for the taking of the deposition, Walton sought and obtained a protective order from a district court in Bentonville, Arkansas, directing instead that the deposition be taken at the same time as that ordered by Judge Street but at the courthouse in Bentonville rather than at the Wal-Mart headquarters. Presumably the change in place was to provide for the presence of a judge to rule on any matters with respect to the taking of the deposition concerning which Walton might seek a protective ruling. Wallace Craig, counsel for the real party in interest, appeared at the Wal-Mart headquarters for the purpose of taking Walton’s deposition as ordered by Judge Street. He declined to go to the courthouse to take Walton’s deposition, even though it was only approximately one mile from the Wal-Mart headquarters.

Subsequently, the real party in interest sought and obtained an order from Judge Street which, among other things, struck Wal-Mart's pleadings, granted a default judgment as to liability against Wal-Mart, ordered Wal-Mart to produce Walton for deposition in the courtroom of the 352nd District Court in Fort Worth, Texas, and imposed sanctions on Wal-Mart in the event that Walton failed to appear for the taking of his deposition. The sanctions were to increase each day that Walton failed to appear, with the sanctions eventually reaching the level of $1,280,000 for the eighth day Walton failed to appear and $1,000,000 per day for each day thereafter.

Judge Street’s order of sanctions was apparently issued under the authority of rule 215(3) of the Texas Rules of Civil Procedure, which provides for sanctions in the event of discovery abuse. The Texas Supreme Court has held, in a case in which a default judgment was threatened if a sanction of attorneys’ fees was not paid, that mandamus did not lie because the relator had an adequate remedy by appeal. See Street v. Second Court of Appeals, 715 S.W.2d 638 (Tex.1986). We find that in this case, with respect to the imposition of sanctions, that Wal-Mart has an adequate remedy by appeal. See id. Since Wal-Mart has an adequate remedy by appeal with respect to the sanctions, mandamus will not lie as to them. See id. at 639.

We. will next consider Wal-Mart’s request that we issue writ directing that Judge Street rescind his order requiring Wal-Mart to produce Walton for the taking of his deposition in the courtroom of the 352nd District Court in Fort Worth, Texas. The question before us is whether Judge Street clearly abused his discretion in finding that his courtroom was a reasonable and convenient place to take Walton’s deposition. Wal-Mart v. Street, 754 S.W.2d at 155.

[590]*590In making his determination that the deposition should be taken in his courtroom in Fort Worth, Judge Street considered the fact of Walton’s interference with location of the deposition after it had been selected by Judge Street, by agreement with the parties to the suit, and even though it was at Wal-Mart’s headquarters in Bentonville, Arkansas, a location which was surely a reasonable and convenient place; he considered the fact that the interference took place prior to any act of har-rassment or oppression in connection with the taking of the deposition; he considered the fact that Walton travels to Texas and other states in connection with the opening of Wal-Mart stores and Sam’s wholesale stores; and he considered the fact that Walton’s personal attorney offices in Dallas, Texas, a city more convenient to Fort Worth than to Bentonville. On this record we find no clear abuse of discretion in Judge Street’s decision that the deposition should be taken in his courtroom in Fort Worth, Texas. The Supreme Court’s previous holding that Judge Street had clearly abused his discretion in requiring the deposition to be conducted in Fort Worth was based on the fact that there was no evidence before Judge Street which would support a conclusion that Fort Worth was a reasonable and convenient place to take the deposition. Id. We find that the record is now at least sufficient to show that Judge Street did not clearly abuse his discretion. We may not substitute our discretion for that of the trial court. Johnson v.

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Wal-Mart Stores, Inc. v. Street
761 S.W.2d 587 (Court of Appeals of Texas, 1988)

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Bluebook (online)
761 S.W.2d 587, 1988 Tex. App. LEXIS 3225, 1988 WL 138566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wal-mart-stores-inc-v-street-texapp-1988.