In re Pendragon
Transportation, LLC
Dallas Court of Appeals, No. 05-13-01749-CV (February 21, 2014)
Justices Moseley, Fillmore, and Brown (Opinion)
Dallas Court of Appeals, No. 05-13-01749-CV (February 21, 2014)
Justices Moseley, Fillmore, and Brown (Opinion)
When the parties to a lawsuit could not “play nice” in discovery, the district court ordered that all depositions be taken at the courthouse where the court would be available to rule on objections. When even that became impracticable because of counsel’s continued misbehavior, the court found the case to be “exceptional” under TEX. R. CIV. P. 171, appointed a special master to attend and oversee all depositions, and directed Pendragon to fund the special master’s fees in advance of each deposition, subject to those fees being reapportioned as costs after trial. After waiting two months, Pendragon objected, but the trial court overruled the objection at a hearing held yet another month later. Finally, three months after the hearing, six months after entry of the original order, and less than two weeks before trial (“a fact it omitted in its request for mandamus relief”), Pendragon filed its petition for writ of mandamus. But the request came too late. Observing that “delaying the filing of a petition for mandamus relief may waive the right to mandamus unless the relator can justify the delay,” the Court of Appeals held that Pendragon’s delay here barred its right to complain of the appointment of the master. But the Court went on to hold that the order that Pendragon pay the master’s fees in advance “was clearly in direct contravention of the rules of civil procedure,” which provide no authority for such an advance-payment directive, and that Pendragon’s delay “does not bar its right to relief on this issue.” It therefore conditionally granted mandamus relief to Pendragon on this point.
