in Re: Titus County, Texas

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-13-00050-CV

IN RE: TITUS COUNTY, TEXAS

Original Mandamus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
 OPINION

I. Background

Titus County, Texas (the County), initiated proceedings in eminent domain to acquire

property owned by PMCI Properties II, L.P. (PMCI), and William D. Priefert, individually and

as trustee of the Virginia M. Priefert Management Trust (collectively Priefert), for the purpose of

constructing a public highway. The County served Priefert with notice of intent to take the oral

deposition of William Priefert, alleged to be one of the landowners in this case. Priefert moved

to quash the notice on the grounds that Priefert’s counsel was not available on the date for which

notice was given and that Priefert “has no unique knowledge about this case and has no

knowledge or opinions concerning the market value of Defendants’ properties or the

compensation due to Defendants for the taking involved in this matter.” Priefert claimed that

any attempt to take William Priefert’s deposition was “a mere fishing expedition, in violation of

the Texas Rules of Civil Procedure, a waste of time, harassing and abusive.”

In response to this motion, the County claimed entitlement to depose Priefert because he

is the partial owner of one of the properties that is the subject of the eminent domain

proceeding. 1 In addition to this ownership interest, Priefert identified William Priefert in its

written discovery responses as a person with knowledge of relevant facts. 2

1
The County initiated two separate condemnation actions to acquire adjacent properties (Parcels 41 and 18) under
different ownerships. The Parcel 41 action was against PMCI. William Priefert asserts that he does not own any
interest in Parcel 41. This assertion, however, is not supported in the record. It is alleged that this parcel is leased to
Priefert Manufacturing Co., Inc., and Priefert Logistics, LP. William Priefert is the Chief Executive Officer of
Priefert Manufacturing, but not Priefert Logistics. Priefert alleges that Parcel 18 is a 318.896-acre tract adjacent to
Parcel 41, which is owned by the Virginia M. Priefert Management Trust. Priefert alleges that Parcel 18 is used for
homes, as a training facility, to hold corporate meetings, and to provide water for Priefert Manufacturing. It is
2
 Priefert filed an amended motion to quash the notice of deposition, appending a

supporting affidavit signed by William Priefert. William Priefert’s affidavit states, in pertinent

part:

“4. I do not have any personal or unique knowledge of the fair market value of
the properties that are the subject of these suits. I do not have any personal or
unique knowledge of the damages resulting from the takings the subject of these
suits. I have no personal or unique knowledge of relevant facts pertaining to these
properties or these suits. David Smith is the person most aware of the history of
these properties and their uses, leases and characteristics. David Smith knows the
details about all purchases of land by me or any Priefert entities, and he maintains
the paperwork on them and could better recall the details than me. I have no
knowledge about them that David Smith does not know.

5. David Smith is the CFO of all entities in which I am involved, and he has
personal and the most knowledge of the workings of the entities, the properties
that are the subject of this suit and of the issues created by the takings involved in
these suits. I have no personal or unique knowledge pertaining to the issues
created by the takings involved in these suits or any other matters relating to the
value of the properties the subject of these suits. I have no personal or unique
knowledge of the leases pertaining to the properties the subject of this suit and
David Smith is the person who has the most knowledge about the leases. Any
information potentially pertinent to these suits is best known by David Smith or
other employees, not me, and Mr. Smith handles the business affairs of these
entities and of the properties that are the subject of this suit. There are no matters
potentially pertinent to these suits or the value of the properties involved before or
after the takings of which I am aware that David Smith is not more aware of to
my knowledge.”

Priefert further alleged, in its amended motion to quash, that the deposition of William

Priefert “would cause unnecessary expense, be unduly burdensome and would not lead to the

alleged that the Parcel 18 action was against William D. Priefert, individually and as trustee of the Virginia M.
Priefert Management Trust. Priefert alleges that William Priefert (in his individual capacity) owns a remainder
interest in Parcel 18 and has a home site on it. After being separately filed, the two suits were consolidated into one
action for trial.
2
After the listing of “William D. Priefert,” in response to an interrogatory asking for persons having knowledge of
relevant facts, “Mr. Priefert” is identified as the “Defendant/Condemnee herein.”
3
discovery of admissible evidence. Furthermore, information that might be obtained from

William D. Priefert, if any, can be obtained from a less intrusive, less burdensome means.”

Priefert, thus, requested the issuance of a protective order pursuant to Rule 192.6 of the Texas

Rules of Civil Procedure. See TEX. R. CIV. P. 192.6. 3 The County responded, opposing the

motion to quash, and filed a motion to compel.

The controversy concerning the effort to compel Priefert to appear at his deposition was

heard before the judge of the 276th Judicial District Court of Titus County. After that hearing,

3
Rule 192.6 provides,

(a) Motion. A person from whom discovery is sought, and any other person
affected by the discovery request, may move within the time permitted for response to the
discovery request for an order protecting that person from the discovery sought. A person should
not move for protection when an objection to written discovery or an assertion of privilege is
appropriate, but a motion does not waive the objection or assertion of privilege. If a person seeks
protection regarding the time or place of discovery, the person must state a reasonable time and
place for discovery with which the person will comply. A person must comply with a request to
the extent protection is not sought unless it is unreasonable under the circumstances to do so
before obtaining a ruling on the motion.

(b) Order. To protect the movant from undue burden, unnecessary expense,
harassment, annoyance, or invasion of personal, constitutional, or property rights, the court may
make any order in the interest of justice and may—among other things—order that:

(1) the requested discovery not be sought in whole or in part;

(2) the extent or subject matter of discovery be limited;

(3) the discovery not be undertaken at the time or place specified;

(4) the discovery be undertaken only by such method or upon such terms
and conditions or at the time and place directed by the court;

(5) the results of discovery be sealed or otherwise protected, subject to the
provisions of Rule 76a.

TEX. R. CIV. P. 192.6.

4
the trial court entered an order granting Priefert’s motion to quash William Priefert’s notice and

denying the County’s motion to compel him to submit for a deposition. The County claims the

trial court abused its discretion in preventing it from deposing one of the landowners in this

consolidated condemnation case. It thus seeks a writ of mandamus, asking this Court to direct

the trial court to set aside the order granting the motion to quash.

II. Analysis

A. Prerequisites to Mandamus

We may issue a writ of mandamus in a discovery matter to correct a clear abuse of

discretion when there is no adequate appellate remedy. In re Living Ctrs. of Tex., Inc., 175

S.W.3d 253, 255–56 (Tex. 2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40

(Tex. 1992) (orig. proceeding). A “[w]rit of mandamus is proper when the trial court has clearly

abused its discretion in denying discovery of properly discoverable information.” Smith, Wright

& Weed, P.C. v. Stone, 818 S.W.2d 926, 928 (Tex. App.—Houston [14th Dist.] 1991, no writ)

(orig. proceeding) (citing Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987 (orig. proceeding)).

“[A] failure by the trial court to analyze or apply the law correctly, as when a discovery order

conflicts with the Texas Rules of Civil Procedure, constitutes an abuse of discretion.” In re

West, 346 S.W.3d 612, 615 (Tex. App.—El Paso 2009, orig. proceeding). A writ of mandamus

is the proper vehicle to attack an order denying discovery. In re El Paso Healthcare Sys., 969

S.W.2d 68, 72 (Tex. App.—El Paso 1998, orig. proceeding). While the trial court has great

latitude in controlling discovery, it can abuse its discretion if it acts unreasonably and arbitrarily.

In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding) (per curiam).
5
 B. Order Quashing Deposition Notice Was Improper

As Priefert did in this case, a party commanded to appear at a deposition may move for a

protective order under Rule 192.6 of the Texas Rules of Civil Procedure. Grass v. Golden, 153

S.W.3d 659, 662 (Tex. App.—Tyler 2004, orig. proceeding). The party seeking to avoid a

deposition is required to show particular, specific, and demonstrable injury by facts sufficient to

justify a protective order. Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987) (orig.

proceeding). A trial court abuses its discretion when it limits discovery in the absence of

evidence substantiating the exclusion pleaded. See Thompson v. Haberman, 739 S.W.2d 71, 73

(Tex. App.—San Antonio 1987, orig. proceeding). Thus, to prevail on its motion to quash,

Priefert was required to show that the deposition would cause William Priefert to suffer undue

burden, unnecessary expense, harassment, or an invasion of protected rights. See TEX. R. CIV. P.

192.6(b)(1).

Here, however, Priefert maintains that the rules applicable to an “apex” deposition4

apply. Under Crown Central, a party seeking to prevent the deposition of an apex-level witness

4
The first mention by the Texas Supreme Court of an “apex” deposition came in a dissent by Justice Raul Gonzalez
and joined by Justice Nathan Hecht, observing and complaining of what he perceived as a common tactic wherein,

Plaintiffs in “plain vanilla” personal injury and property damage cases continue to seek to depose
the highest ranking executives of large corporations as a tactic for pressuring settlement. I believe
that when these “apex” depositions are allowed before less intrusive means of discovery have been
exhausted, it creates a huge potential for abuse and harassment, and needlessly increases the cost
of litigation.

Monsanto Co. v. May, 889 S.W.2d 274, 274 (Tex. 1994) (orig. proceeding) (Gonzalez, J., dissenting). The next
year, a majority in that court set out rules for the identification of apex depositions and prescribed procedures to be
followed for protection from them in Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995)
(holding apex deposition guidelines apply “[w]hen a party seeks to depose a corporate president or other high level
corporate official”).
6
must move for protection and must file the corporate official’s affidavit denying any knowledge

of relevant facts. Crown Cent., 904 S.W.2d at 128; see also In re Alcatel USA, Inc., 11 S.W.3d

173, 175–76 (Tex. 2000) (orig. proceeding). The trial court must then evaluate the motion and

decide if the party seeking the deposition has “arguably shown that the official has any unique or

superior personal knowledge of discoverable information.” Crown Cent., 904 S.W.2d at 128.

“If the party seeking the deposition cannot show that the official has any unique or superior

personal knowledge of discoverable information, the trial court should” not allow the deposition

to go forward without a showing, after a good-faith effort to obtain the discovery through less

intrusive means, “(1) that there is a reasonable indication that the official’s deposition is

calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods

of discovery are unsatisfactory, insufficient or inadequate.” Id.; see also Alcatel, 11 S.W.3d at

176; In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 842 n.2 (Tex. 2008) (orig. proceeding).

Indeed, this describes the procedure followed in the trial court here. William Priefert

moved for protection and filed his affidavit purporting to deny (although not completely)

knowledge of relevant facts. The trial court, in granting the motion to quash William Priefert’s

deposition, stated,

Okay, let me tell you what I’m going to do. I’m going to at this time grant the
motion to quash; however -- and I’m assuming, Mr. McFarland, you’re going to
take the deposition of whoever the CFO is, look at all the documents, and if you
think there’s something that’s missing, then you come back to court. . . . You
reurge your motion. . . .

7
The trial court went on to state,

What I believe I’m hearing y’all are going to do, you’re going to be looking at
documents that the landowner is going to furnish to you. You’re going to be
taking the deposition of this person that they’ve identified in their affidavit. And
if you think there are some loose ends, you bring this issue back up again.

....

I’m granting this motion sort of qualified, and I’m not telling you you can’t re-
notice the deposition if there’s something that’s not -- you know, if you think
there’s some issue that needs to be addressed. . . . 5

Priefert contends that the trial court did exactly what is required by the Texas Supreme

Court when “a party seeks to depose a high level corporate official and the official files a motion

accompanied by an affidavit denying knowledge of relevant facts.” That is, because Priefert’s

affidavit denied knowledge of relevant facts, the County was obliged to show that William

Priefert’s deposition is reasonably calculated to lead to the discovery of admissible evidence and

that other, less intrusive means of discovery are “unsatisfactory, insufficient or inadequate.”

Crown Cent., 904 S.W.2d at 128. Once the corporate official files a motion for protection

accompanied by an “affidavit denying any knowledge of relevant facts,” the burden then shifts to

the party seeking the deposition to show that the official possesses some pertinent personal

knowledge of relevant facts. Id. Priefert maintains that based on the affidavit submitted,

William Priefert’s deposition cannot lead to the discovery of admissible evidence. Further,

Priefert claims the County failed to show that William Priefert possesses some pertinent personal

5
The trial court’s written order states that “The Court, having considered the motions, responses and argument of
Counsel, has determined that Defendants’ Motion should be GRANTED and Plaintiff’s Motion should be DENIED.
It is therefore,
ORDERED that Defendants’ Motion to Quash is GRANTED and Plaintiff’s Motion to Compel is
DENIED.”
8
knowledge of relevant facts. Moreover, Priefert maintains that because the County has yet to

complete less intrusive means of discovery (such as deposing Smith), it cannot show that less

intrusive means of discovery are in some way inadequate. Thus, Priefert contends, the trial court

correctly granted the motion to quash. Based on the trial court’s explanation of its ruling at the

hearing, Priefert further maintains that because the County may re-urge its request to depose

William Priefert if, after having pursued less intrusive means of discovery, it still believes that

something pertinent may be missing, there are “loose ends,” or if “there’s some issue that needs

to be addressed,” the mandamus request is premature. 6

The County contends that it is not attempting to depose William Priefert in his capacity

as a high-ranking officer of any type of corporate entity. Instead, it is “trying to depose

[William] Priefert who is the property owner in these cases.” The County contends that “it’s just

not possible” to fit this type of condemnation dispute, involving valuation and involving an

individual landowner who has bought and sold property in the immediate vicinity of the two

properties involved, into “the Apex deposition situation.” We agree.

The apex doctrine does not provide automatic protection to all high-ranking corporate

officers whose depositions have been noticed. See, e.g., Boales v. Brighton Builders, Inc., 29

S.W.3d 159, 168 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (apex doctrine not

applicable when person noticed for deposition has “first-hand knowledge of certain facts”).

Instead, the doctrine applies “only when the deponent has been noticed for deposition because of

6
Priefert maintains that the trial court merely delayed William Priefert’s deposition until the County could determine
any reason why that deposition was still needed after the deposition of Smith, the Chief Financial Officer of each of
the entities in which William Priefert is involved.

9
his corporate position.” Simon v. Bridewell, 950 S.W.2d 439, 442 (Tex. App.—Waco 1997, orig.

proceeding) (per curiam); In re Doe, No. 13–10–000590–CV, 2011 WL 1158765, at *2 (Tex.

App.—Corpus Christi Feb. 10, 2011, orig. proceeding) (mem. op.) (per curiam).

Moreover, the apex doctrine does not protect named parties from deposition. Simon, 950

S.W.2d at 443. William D. Priefert, in his capacity as trustee of the Virginia M. Priefert

Management Trust, is a named party in this lawsuit. The Virginia M. Priefert Management Trust

is the owner of Parcel 18, which comprises a large portion of the property subject to

condemnation proceedings. William Priefert, individually, is also the owner of a remainder

interest in Parcel 18, and title to his home site is located on Parcel 18. 7 Even if the apex doctrine

might provide a shield for William Priefert in his capacity as an officer of the corporation whose

property is the subject of the eminent domain proceedings under some circumstances, that does

not necessarily provide him a shield in other capacities not subject to that doctrine.

This is a condemnation case involving a landowner. The noticed deposition was not

entirely an apex deposition. Under Rule 192.6, Priefert objected to the County’s discovery and,

thus, had the burden of showing why that discovery should not go forward. While the record

contains evidence showing that Smith may be more knowledgeable regarding the value of the

property to be condemned, that is not evidence that William Priefert would be unduly burdened,

would incur unnecessary expense or harassment, or would somehow suffer an invasion of his

protected rights simply by giving a deposition. See Thompson, 739 S.W.2d at 73 (trial court

abuses its discretion when it limits discovery in the absence of substantiating evidence); see also

7
Priefert alleges that William Priefert does not have an ownership interest in Parcel 41.
10
Garcia, 734 S.W.2d at 345 (party seeking to avoid deposition required to show particular,

specific, and demonstrable injury). Based on our review of the materials filed in this proceeding,

we conclude that Priefert’s allegations are unsupported by the record. The grant of a motion to

quash in the absence of substantiating evidence is an abuse of discretion. See Thompson, 739

S.W.2d at 73.

C. Adequacy of Appellate Remedy

Even though the County has established that the trial court abused its discretion, it still

must establish that it has no adequate remedy by appeal. See In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding). Appeal is inadequate for challenging a

discovery order when (1) the appellate court would not be able to cure the trial court’s discovery

error, (2) the party’s ability to present a viable claim or defense at trial is vitiated or severely

compromised by the trial court’s discovery error, or (3) the trial court disallows discovery and

the missing discovery cannot be made a part of the appellate record or the trial court, after proper

request, refuses to make it part of the record. Walker, 827 S.W.2d at 843. Mandamus relief is

also available where the trial court’s order conflicts with a rule of civil procedure. Wal–Mart

Stores, Inc. v. Street, 754 S.W.2d 153, 155 (Tex. 1988) (orig. proceeding) (per curiam); In re

Rogers, 43 S.W.3d 20, 29 (Tex. App.—Amarillo 2001, orig. proceeding) (per curiam).

The mere fact that a party to this lawsuit is also a high-ranking corporate official will not

prevent his deposition from being taken when it is otherwise proper. Here, because William

Priefert owns (both in his capacity as trustee and as a remainderman) an interest in at least one

parcel of condemned property and is a party to this lawsuit, his testimony is relevant or could
11
lead to the discovery of admissible evidence. 8 Absent mandamus relief, the missing testimony

cannot be made a part of the appellate record. We conclude that appeal is not an adequate

remedy from the denial of the County’s right to depose William Priefert. 9 See Walker, 827

S.W.2d at 843.

III. Conclusion

We, conditionally, grant the petition for writ of mandamus and instruct the trial court to

vacate its May 10, 2013, order granting the motion to quash the deposition notice of William

Priefert. The writ will issue only if the trial court fails to comply with this opinion within

fourteen days.

Bailey C. Moseley
Justice

Date Submitted: August 27, 2013
Date Decided: August 28, 2013

8
The County contends the information it received in discovery from Priefert indicates that William Priefert “bought
the airport property, signed the bid on the airport property, signed all the leases on which their appraiser relies, [and]
signed the settlement statement for their appraisers in proof of sale number one from Mid-American Holdings to
PMCI Properties.” Evidently, William Priefert’s name appears on “many, many instruments” upon which appraisers
have relied to determine market value before and after the taking. This includes a claim of $1.2 million and a denial
of access claim. While William Priefert may not have an opinion on valuation (as stated in the affidavit) he may
very well, and most probably does, have knowledge of relevant facts or facts which might lead to the discovery of
admissible evidence.
9
We reject the notion that the County may depose William Priefert only if less intrusive methods of discovery prove
to be unsatisfactory. While the trial court indicated that the County could re-urge its motion at a later time, this is
true of any motion for which relief is denied. The order granting Priefert’s motion to quash and denying the
County’s motion to compel the deposition does not merely delay the requested discovery, it denies it.
12