In Re: Pilgrim`s Pride Corporation--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-06-00036-CV

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IN RE: PILGRIM'S PRIDE CORPORATION

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Pilgrim's Pride Corporation has petitioned this Court for a writ of mandamus. Pilgrim's seeks an order directing the trial court, the Fifth Judicial District Court in Bowie County, to compel production of documents to Pilgrim's.

In 2005 PPR & M, Inc., filed a suit on a sworn account against Pilgrim's. The suit alleged that Pilgrim's had failed to pay invoices for services rendered by PPR & M. Pilgrim's filed a counterclaim alleging fraud, payment, offset, and other claims and defenses. Pilgrim's alleges that it is entitled to mandamus relief because the trial court was required to order PPR & M to disclose certain documents concerning communications or transactions between PPR & M and certain third parties. The trial court has previously ordered PPR & M to produce certain of those requests. // The answers in part were that PPR & M did not have possession of or access to some of the documents.

The Texas Supreme Court recognizes certain principles for appellate courts to consider when deciding whether mandamus should issue. With respect to matters involving the factual findings which are discretionary by the trial court, the appellate courts should defer and should not substitute their own judgment for that of the trial court. The movant must establish that the trial court could have come to only one decision. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). On the other hand, review of a trial court's determination of the legal principles controlling its ruling is much less deferential. A trial court has no discretion in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ. Id. A primary limitation of the issuance of a writ of mandamus is that the movant must prove there is no adequate remedy on appeal. Id. That may be shown by proving (1) an appellate court cannot cure the error, (2) a party's ability to present a claim or defense will be vitiated or severely compromised, or (3) the trial court disallowed discovery and the discovery cannot be made a part of the appellate record. Id. at 843 44.

Pilgrim's argues that the trial court abused its discretion in sustaining any of PPR & M's discovery objections, and such refusal severely impairs Pilgrim's ability to present viable defenses and its counterclaims.

From the record before us, it appears that the parties engaged in discovery in preparation for trial. Indeed, the case was set for trial at least once and was stayed by this Court in a previous request for mandamus relief. In February 2006, after being denied all the relief it sought in a motion to compel production, Pilgrim's obtained an emergency stay from this Court. We denied mandamus relief because the record was inadequate to support the requested relief. In re Pilgrim's Pride Corp., 187 S.W.3d 197 (Tex. App. Texarkana 2006, orig. proceeding).

On February 28, 2006, the trial court granted Pilgrim's motion to compel discovery, ordering PPR & M to produce many of the items sought by Pilgrim's (see footnote 1). After that, Pilgrim's issued more discovery requests, and now claims PPR & M has failed to supply these documents. This claimed failure on the part of PPR & M led to Pilgrim's requesting a second continuance, which the trial court denied. Pilgrim's has filed this request for mandamus relief. Pilgrim's prayer for relief asks us to order the trial court to compel production of documents and information withheld by PPR & M.

In asserting that it is entitled to mandamus relief, Pilgrim's relies on Gen. Motors Corp. v. Tanner, 892 S.W.2d 862 (Tex. 1995). There, the plaintiff failed to produce an alleged defective recliner mechanism for testing by General Motors. No explanation was given for such refusal. In that case, the item was clearly in the possession of the nonproducing party, and he offered no reason as to why it should not be produced.

Pilgrim's further relied on Able Supply v. Moye, 898 S.W.2d 766 (Tex. 1995). In that case, the plaintiffs refused to answer interrogatories requesting the names of the doctors who determined the injuries resulted from exposure to the defendant's product. Once again, that information was readily available to the plaintiffs and was simply purposely withheld.

First, we note that there is a dispute about what, if any, of the information Pilgrim's seeks is actually in the possession of PPR & M. PPR & M argues that it does not have such information since the City of New Boston took possession of its facility and it no longer had possession of the contents of the building, including computers. Also some of the persons with access to some information or documents are no longer employed by PPR & M. The trial court conducted at least two hearings on these issues. No record has been presented to us concerning the facts presented at the hearings. After the last hearing, the trial court denied further discovery requests. In absence of the record of the hearing, we cannot conclude that the trial court abused its discretion in refusing to order additional discovery. The record shows that the trial court previously ordered these records to be produced by PPR & M; PPR & M answered that it did not have possession of such records. Pilgrim's now argues that PPR & M had possession or custody of the records because it had a right to physical possession of the records that is equal to or superior to the person who has physical possession of the items. See Tex. R. Civ. P. 192.7(b). However, without a record, we cannot determine that the trial court was required to agree with that proposition. In this posture, we cannot conclude that the trial court could have only come to one decision.

Further, we are not convinced that Pilgrim's will be deprived of its ability to present its defenses and counterclaims. Apparently, other parties in the surrounding area may have physical possession of these items. Pilgrim's acknowledges that it has served discovery requests on "PPR & M's bank, accountants, its former employee in charge of accounts payable, and the City of New Boston." The certificate of service on the request for production of documents sent to Hibernia Bank indicates it was sent March 24, 2006. The request for production of documents to the City of New Boston was sent March 23, 2006.

Information derived from this additional discovery should allow Pilgrim's to present its defenses and counterclaims. If PPR & M does not have physical or constructive possession of the needed documents, we are confident that the trial court will authorize the discovery from third parties that is necessary to allow both parties to present their claims and counterclaims.

Mandamus is denied. The stay of these proceedings, previously entered, is withdrawn.

Jack Carter

Justice

Date Submitted: May 17, 2006

Date Decided: May 18, 2006