IN RE CADLE COMPANY, Relator

Writ of Mandamus Granted, Opinion issued August 29, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00654-CV
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IN RE CADLE COMPANY, Relator
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Original Proceeding from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 02-10786-K
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MEMORANDUM OPINION
Before Justices Wright, O'Neill and Lang
Opinion by Justice O'Neill
 
        In this original proceeding, relator, the Cadle Company, seeks a writ of mandamus ordering respondent, the Honorable Craig Smith, presiding judge of the 192nd Judicial District Court of Dallas County, Texas, to set aside his May 4, 2007 “Order Denying Motion to Compel and Motion for Ruling on Objections to Written Discovery” and to order the production of requested discovery. The facts of this original proceeding are known to the parties so we do not recite them here in detail. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion and order pursuant to rules 47.4 and 52.8(d) of the Texas Rules of Appellate Procedure. See Tex. R. App. P.47.4; 52.8(d). Based on the record before us, we conclude the trial judge abused his discretion in denying the motion to compel and that relator has no adequate appellate remedy. We conditionally grant mandamus to the extent we direct the trial judge to vacate his order denying the motion to compel and enter an order in compliance with this opinion.
        This original proceeding arises out of a post-judgment discovery dispute. Cadle is the judgment creditor of a judgment signed May 24, 2004 against Doyle V. Toliver in an amount of over $3.6 million. The original debt was incurred by obligations signed by Toliver in 1987, and was previously the subject of a default judgment entered against Toliver in 1995. Cadle acquired the default judgment in 1999. In 2002, Toliver filed a bill of review as to the 1999 default judgment, which concluded with the vacating of the prior judgment and the entry of the present May 2004 judgment. Cadle now seeks post-judgment discovery to locate assets to satisfy its judgment against Toliver.
        During a 2006 post-judgment deposition of Toliver, Cadle discovered that Toliver had created a trust for the benefit of his wife (the T-Tex Irrevocable Trust) and that his wife had created a trust for his benefit (the P-Tex Irrevocable Trust). Leroy Brorson is the trustee of both trusts. Based on Toliver's responses during the deposition, Cadle believes that Brorson has information that will lead to the discovery of assets subject to the execution of judgment and sought post-judgment discovery from Brorson. In response, Brorson filed his objections to notice of request for production of documents and motion to quash subpoena. Cadle filed a motion to compel and motion for ruling on objections to written discovery and Brorson filed a response. After a hearing, the trial judge denied the motion to compel.
        Generally, trial court orders granting or denying particular post-judgment requests are not appealable in themselves. See Arndt v. Farris, 633 S.W.2d 497, 500 n. 5 (Tex. 1982). A party may seek review of post-judgment discovery orders by a petition for mandamus to determine whether the trial court abused its discretion. See In re Amaya, 34 S.W.3d 354, 355-56 (Tex. App.-Waco 2001, orig. proceeding); Collier Serv. Corp v. Salinas, 812 S.W.2d 372, 375(Tex. App.-Corpus Christi 1991, orig. proceeding). Additionally, mandamus is available when an erroneous discovery ruling has severely compromised or vitiated a party's ability to present a viable claim and has effectively denied the party's ability to develop the merits of its case. See Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992.) A clear failure by the trial judge to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id. at 840.
        A judgment creditor may seek post-judgment discovery to obtain information to aid in the enforcement of its judgment. See Tex. R. Civ. P. 621a. Rules governing and related to pre-trial discovery shall apply to discovery proceedings after judgment. Id. For the purposes of enforcing its judgment, Cadle may initiate and maintain any discovery proceeding authorized by the civil procedure rules of pre-trial matters. Tex. R. Civ. P. 621a. Based on Toliver's deposition revealing the intertwined nature of his business and financial affairs and that of the trusts, Cadle seeks information that would enable it to determine if Toliver has fraudulently transferred assets into the trusts that may satisfy its judgment. Cadle argues the discovery is necessary for it to determine if it is entitled to relief under the Texas Uniform Fraudulent Transfer Act (TUFTA).
        Before the trial judge, Brorson objected to the production of documents regarding the Toliver trusts on the grounds that certain documents were of a proprietary and confidential nature or irrelevant to the pending action, and that some of the requests were overly broad, burdensome or vague, and that Cadle failed to specify a reasonable time period for the requested discovery. To his response, Brorson attached a copy of the two Toliver trusts, both of which had previously been provided in response to the original request for production. Otherwise, Brorson provided no other evidence, affidavits or testimony in support of his objections to the request for production. The record of the hearing before the trial court indicates that Brorson only provided legal argument to the trial court regarding his objections.         
        A party who seeks to limit discovery has the burden to plead the particular privilege, immunity or exclusion applicable to the discovery in question and produce evidence supporting such claim. Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986, orig. proceeding)(per curiam); In re Rogers, 200 S.W.3d 318, 321-22 (Tex. App.-Dallas 2006, orig. proceeding); see also Tex. R. Civ. P.193.4(a) (at hearing on discovery objections or claim of privilege, party making objection or asserting privilege must present any evidence necessary to support objection or privilege). A party seeking discovery limits should provide evidence to the trial court in the form of affidavits or testimony, although in the circumstances involving claims of privilege, the documents themselves may, standing alone, constitute sufficient proof. Weisel 718 S.W.2d at 58. Accordingly, we conclude that by presenting no evidence, Brorson has waived all objections to discovery except his objection based on time limits imposed by the TUFTA, which we discuss separately below.
        During the hearing, Brorson argued that Cadle should not be allowed to seek discovery regarding assets in satisfaction of its judgment which may have been fraudulently transferred by Toliver because the trusts in question were created in 1994, and, therefore, Cadle's claims for recovery of such assets are extinguished by the TUFTA. Cadle seeks discovery of any fraudulent transfers made by Toliver to his trusts including transfers made in 1994. The relevant provision of the TUFTA regarding the extinguishment of Cadle's cause of action provides that “ a cause of action with respect to a fraudulent transfer or obligation under this chapter is extinguished unless action is brought . . . within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant. . . .” Tex. Bus. & Com. Code Ann. § 24.010(a)(1) (Vernon 2002).         Under §24.010(a)(1), a transaction within the last four years is subject to challenge as a possible fraudulent transfer. Cadle has the right to discovery of any such transfers. To the extent that Cadle seeks discovery of transfers prior to four years of the action brought, Cadle has failed to show that the trial judge clearly abused his discretion in applying §24.010(a)(1) to the facts before him. However, to the extent the trial judge has denied all discovery based on the language of §24.010(a)(1), we conclude the trial judge abused his discretion in not allowing discovery of transfers made during the four year period prior to an action brought by Cadle.
        In denying the motion to compel, the trial judge did not specify which objection or objections he was sustaining. His order stated that “one or more of the objections” of Brorson were sustained. To the extent the trial judge denied the motion to compel based on objections that were not supported by evidence, the trial judge abused his discretion in barring discovery. Additionally, the trial judge abused his discretion in barring discovery of transfers which may have occurred within the four year period allowed by §24.010(a)(1) of the TUFTA. Relator Cadle has no adequate remedy by appeal. Accordingly, we conditionally grant its petition for writ of mandamus to the extent we order the trial judge to vacate his order of May 4, 2007 “Order Denying Motion to Compel and Motion for Ruling on Objections to Written Discovery” denying all discovery and enter an order in compliance with this opinion. A writ will issue only in the event the trial judge fails to so act.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
070654F.P05