IN RE: DOMINION RESOURCES, INC., LOUIS DREYFUS NATURAL GAS CORP. AND AMERICAN EXPLORATION COMPANY, RALPH E. FAIR, INC. AND FAIR OPERATING COMPANY--Appeal from 93rd District Court of Hidalgo County

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

_______________________________________________________

NUMBER 13-04-00536-CV

IN RE DOMINION RESOURCES, INC.,

LOUIS DREYFUS NATURAL GAS CORP., AND

AMERICAN EXPLORATION CO.

_____________________ __________________________________

NUMBER 13-04-00622-CV

IN RE VERNON E. FAULCONER, INC., FAULCONER ENERGY CORP.,

AND FAULCONER ENERGY JOINT VENTURE - 1988

_____________________ __________________________________

On Petition for Writ of Mandamus _______________________________________________________

MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Wittig //

Per Curiam Memorandum Opinion //

This is a toxic tort case involving alleged underground hydrocarbon contamination in McAllen, Texas. Through these original proceedings, relators, Dominion Resources, Inc., Louis Dreyfus Natural Gas Corp., American Exploration Co., Ralph E. Fair, Inc., Fair Operating Company, Vernon E. Faulconer, Inc., Faulconer Energy Corp., and Faulconer Energy Joint Venture - 1988 seek a writ of mandamus directing the trial court to vacate a stay order that prevents relators from conducting scientific tests that they allege are essential to their defense. After due consideration of the petitions for writ of mandamus, the supplemental petition, and the responses and replies thereto, we conditionally grant some of the relief requested as further specified herein. //

The facts of these original proceedings are known to the parties so we do not recite them here. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion and order pursuant to Texas Rules of Appellate Procedure 47.1 and 52.8(d). See Tex. R. App. P. 47.1, 52.8(c), (d).

Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and there is no adequate remedy on appeal. Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992); In re Kellogg Brown & Root, 7 S.W.3d 655, 657 (Tex. App. Houston [1st Dist.] 1999, orig. proceeding). An appellate remedy may be adequate even though it involves more delay or cost than mandamus. Walker, 827 S.W.2d at 842. An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments; when the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. In re Prudential Ins. Co., 148 S.W.3d 124, 136 (Tex. 2004) (op. on reh g).

The scope of discovery is largely within the trial court's discretion. Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). However, mandamus will issue to correct a discovery order if the order constitutes a clear abuse of discretion and there is no adequate remedy by appeal. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998).

A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or, stated differently, when it acts without reference to guiding rules and principles. See, e.g., Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). A party does not have an adequate remedy by appeal when: (1) an appellate court would not be able to cure the trial court's discovery error, such as when privileged information or trade secrets would be revealed or production of patently irrelevant or duplicative documents imposing a disproportionate burden on the producing party is ordered; (2) a party's ability to present a viable claim or defense is severely compromised or vitiated by the erroneous discovery ruling to the extent that it is effectively denied the ability to develop the merits of its case; or (3) a trial court's discovery order disallows discovery which cannot be made a part of the appellate record, thereby denying the reviewing court the ability to evaluate the effect of the trial court's error. Walker, 827 S.W.2d at 843.

In the instant case, the real parties in interest, plaintiffs below, allege that they have been harmed by contamination resulting from an underground plume of hydrocarbons. The source of the contamination is at issue; however, the real parties in interest contend that the underground contamination was created by leaking gasoline and fuel storage facilities and a natural gas pipeline. In February, March, and April of 2004, the parties engaged in extensive excavation and testing of the alleged area of contamination.

Relators are the current and former owners of the natural gas pipeline, parts of which have been excavated and removed. On June 2, 2004, one of the plaintiffs experts concluded that some of the pipeline s valves leaked creating cone-shaped areas of contamination in the soil. By motion filed in the trial court, relators sought to pressure-test the valves and test the soil adjacent to the pipeline to determine if the plaintiffs theory of contamination is correct. The special master entered an emergency order on August 6, 2004, forbidding the requested additional testing. The trial court denied relator s motion to dissolve the special master s order on August 25, 2004.

We conclude that the trial court s orders denying this testing constitutes an abuse of discretion because the orders deny the relators discovery that goes to the heart of the litigation. See In re Van Waters & Rogers, 62 S.W.3d 197, 201 (Tex. 2001). In short, these rulings compromise or vitiate the relators ability to present a viable defense to the merits of this case. Relators should be allowed to perform tests on their pipeline, valves, and the adjacent soil as necessary in response to the recent specific testimony adduced by plaintiffs experts regarding the location and cause of leaks in the pipeline.

Accordingly, we conditionally grant the writs of mandamus and direct the trial court to dissolve the stay prohibiting further testing. We direct the trial court to allow relators to perform such testing of the ground, valves, and pipe as is reasonably responsive to the June and July 2004 testimony of the plaintiffs experts. The testing must be performed expeditiously and may not delay a further trial setting in this matter. In the trial court s discretion, this testing may be limited to Hidalgo County and may be conducted pursuant to protocols established by the trial court or by agreement of the parties.

By a supplemental petition for writ of mandamus filed in this cause, relators further complain of the trial court s December 6, 2004, order denying relators request to measure and test abandoned sections of pipe unearthed during excavations near the pipeline. According to relators, the one- to two-foot sections of pipe were never part of the pipeline because they differ in size and appearance from the pipe utilized in the pipeline.

Dominion has asked to test the pieces to determine to a reasonable scientific probability whether the pieces were ever part of the Dominion pipeline. The destructive testing protocol would entail cutting, marking, cleaning, measuring, and testing the pipe for chemical and metallurgical content.

Given the apparent physical discrepancy of the abandoned parts of the pipeline, and given that relators have denied ownership of these parts, we believe that the trial court acted within its discretion to deny destructive testing of these abandoned pieces. Accordingly, the supplemental petition for writ of mandamus is denied.

We lift our stay of the trial court proceedings and conditionally grant the writ of mandamus as specified herein. We direct the trial court to vacate its orders banning further testing within five days from the date of this opinion. We further direct the trial court to permit relators to proceed with discovery without delay as specified herein and as allowed under the Texas Rules of Civil Procedure. The writ will issue only if the trial court fails to comply.

PER CURIAM

Memorandum Opinion delivered and filed this 10th day of February, 2005.