Petition for Writ of Mandamus Denied and Memorandum Opinion filed August 2, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-11-00495-CV
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IN RE SOUTHERN CRUSHED CONCRETE, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 967,712
M E M O R A N D U M O P I N I O N
On June 7, 2011, relator filed a petition for writ of mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52. Relator complains that respondent, the Honorable R. Jack Cagle, sitting judge of the County Civil Court at Law No. 4, improperly granted a motion to compel depositions.[1]
Background
Relator Southern Crushed Concrete (SCC) leased property owned by FEF Family Limited Partnership (FEF) the real party in interest. As part of the lease agreement, SCC had the right to purchase the property in the event it was condemned by a governmental authority.
In early 2009, the Metropolitan Transit Authority of Harris County, Texas (Metro) announced its intent to condemn the property. SCC contends that, on July 2, 2009, it elected to buy the property pursuant to the lease agreement. Section 5.1 of the lease agreement permits SCC to purchase the property for its fair market value in the event the property is condemned by a public authority for public use. Article 17 of the lease prescribes an appraisal process in which each party is to choose a qualified appraiser if the parties cannot agree on the fair market value of the property. Under the lease, SCC is obligated to pay the purchase price as determined through the “Article 17” process. SCC appointed Scott Rando as its qualified appraiser under the lease. FEF attempted to appoint appraisers, but SCC objected to all of them. Because FEF was unable to appoint a qualified appraiser within the period of time designated by Article 17, Rando appointed Tom Stark as the second qualified appraiser. Rando and Stark determined that the fair market value of the property was $720,700, approximately $2.50 per square foot.
FEF rejected SCC’s offer of $720,700 for the property. SCC filed suit in the 133rd District Court seeking (1) declaratory judgment of its rights under the lease, (2) damages for breach of contract, and (3) constructive trust on the condemnation proceeds. In the meantime, three special commissioners were appointed in the condemnation case. The special commissioners determined that the value of the property is $2,761,850 for a 6.3403 acre tract of land, approximately $10.00 per square foot. In the underlying suit in County Court at Law No. 4, FEF is challenging the special commissioners’ award and SCC’s right to the condemnation proceeds. FEF claims that SCC has not properly invoked the purchase election in the lease and that SCC is not entitled to the condemnation proceeds.
In the County Court suit FEF noticed the depositions of Rando and Stark. SCC resisted the depositions, asserting that Rando and Stark are consulting experts only and that their opinions are not subject to discovery.[2] Judge Cagle granted FEF’s motion to compel Rando’s and Stark’s depositions. FEF filed a motion to reconsider with Judge Lloyd who denied the motion. SCC seeks a writ of mandamus ordering Judge Cagle to vacate his order granting the motion to compel.
Mandamus Standard
To obtain a writ of mandamus, the relator must demonstrate that the trial court abused its discretion and that the relator has no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).
Consulting Expert Privilege
A consulting expert is an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert. Tex. R. Civ. P. 192.7(d). The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. Tex. R. Civ. P. 192.3(e).
The trial court heard evidence that Rando and Stark were appointed to appraise the property pursuant to Article 17 of the lease. By the terms of the lease, the parties were contractually obligated to appoint “Qualified Appraisers” who were “not employed by or affiliated with either party[.]” The factual knowledge and opinions acquired by an individual who is an expert and an active participant in the events material to the lawsuit are discoverable. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 552 (Tex. 1990). This information is not shielded from discovery merely by changing the designation of a person with knowledge of relevant facts to a consulting-only expert. Id. The trial court did not abuse its discretion by impliedly determining that Rando and Stark are not consulting experts.
SCC has not established entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny SCC’s petition for writ of mandamus. The stay issued by this court June 7, 2011, is lifted.
PER CURIAM
Panel consists of Justices Frost, Seymore, and Jamison.
[1] Sitting for Judge Roberta Lloyd, Judge Cagle granted the real party’s motion to compel depositions. Relator filed a motion for reconsideration, which Judge Lloyd denied. Relator named only Judge Cagle as a respondent in its petition. Therefore, we will review Judge Cagle’s decision to grant the motion to compel.
[2] SCC concedes in their reply to FEF’s response that Rando and Stark are testifying experts in the District Court case and their depositions can be taken in connection with that case.