Petition for Writ of Mandamus Denied, =
and=20
Memorandum Opinion filed July 24, 2008.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-08-00457 =
-CV
____________
IN RE HEIDI =
ORTUNO,=20
INDIVIDUALLY AND
AS NEXT FRIEND OF J.O.,=20
Relator
ORIGINAL=20
PROCEEDING
WRIT OF=20
MANDAMUS
M E M O R=20
A N D U M O P I N I O N
This mandamus =
proceeding marks=20
the second occasion for relator Heidi Ortuno to request that we =
protect=20
her consulting expert=3Ds report from being =
disclosed=20
and used in the underlying litigation. We previously denied =
her=20
request to issue a writ of mandamus compelling the trial court to =
enter a=20
protective order, because the requested relief had not first been =
asked of=20
the trial court. =20
When that request was posed to the trial court, the respondent =
ruled=20
that Ortuno had waived the consulting-expert =
privilege. In=20
challenging the trial court=3Ds rulings on =
mandamus, Ortuno=20
twice has filed unsealed copies of the document she insists are=20
privileged. We conclude that in so doing, she has waived the =
privilege through voluntary and intentional disclosure. =
Accordingly,=20
we deny the petition.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =20
Background
The underlying facts =
are=20
well-known to the parties, and are recited in more detail in the=20
Court=3Ds memorandum opinion =
of May 6,=20
2008. =20
Briefly, the three-page report of Sue Caudle, Ph.D., whom Ortuno =
contends=20
is her consulting expert, was produced in discovery as a part of =
the=20
medical records of non-party Texas Children=3Ds Hospital. =20
Upon learning of the disclosure, Ortuno contended that Rule =
193.3(d)=20
required her opponent, Winkler Villa, to return the report. =
The=20
trial court concluded that Rule 193.3(d) does not apply to =
production by=20
non-parties, and we likewise denied mandamus relief.
Ortuno then asked the =
trial=20
court to enter a protective order to prevent Winkler Villa from =
disclosing=20
or using the already-produced report. The trial court denied =
Ortuno=3Ds request, ruling =
that she (1)=20
had not timely requested protection, (2) failed to request that =
the report=20
be sealed pursuant to Rules 192.6(b) and 76a, and (3) waived the=20
consulting-expert privilege. This mandamus proceeding =
ensued. =20
Ortuno asks that we issue a writ of mandamus to compel the trial =
court to=20
enter a protective order prohibiting the use and disclosure of Dr. =
Caudle=3Ds report.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =20
Standard of=20
Review
Mandamus relief will =
lie if the=20
relator establishes a clear abuse of discretion for which there is =
no=20
adequate appellate remedy. In re AutoNation, Inc., =
228 S.W.3d=20
663, 667 (Tex. 2007) (orig. proceeding). A trial court =
abuses its=20
discretion if it reaches a decision so arbitrary and unreasonable =
as to=20
constitute a clear and prejudicial error of law. Walker =
v.=20
Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. =
proceeding). That=20
is, a clear abuse of discretion occurs when a trial court issues a =
decision that lacks any basis or reference to guiding legal=20
principles. Johnson v. Fourth Court of Appeals, 700 =
S.W.2d=20
916, 918 (Tex. 1985) (orig. proceeding). With respect to the =
resolution of factual issues or matters committed to the trial=20
court=3Ds discretion, we may =
not=20
substitute our judgment for that of the trial court. =
Walker,=20
827 S.W.2d at 839. However, because a trial court has no =
discretion=20
in determining what the law is or applying the law to the facts, a =
clear=20
failure by the trial court to analyze or apply the law correctly=20
constitutes an abuse of discretion. Id. at 840. =
Because=20
a trial court cannot abuse its discretion if it reaches the =
correct result=20
for the wrong reasons, we will uphold the trial court=3Ds order on any ground =
supported=20
by the record. See Luxenberg v. Marshall, 835 S.W.2d =
136,=20
141B42 (Tex. =
App.CDallas 1992, orig. =
proceeding);=20
In re ExxonMobil Corp., 97 S.W.3d 353, 358 (Tex. =
App.CHouston [14th Dist.] =
2003,=20
orig. proceeding).
Although waiver is =
ordinarily a=20
question of fact, and the trial court=3Ds resolution of =
factual matters=20
is conclusive, mandamus is a proper method for determining whether =
waiver=20
is intended or unintended. See In re Carbo Ceramics, =
Inc., 81=20
S.W.3d 369, 376 (Tex. App.CHouston [14th Dist.] =
2002,=20
orig. proceeding). In a charge of waiver of privileged =
information,=20
the person asserting the privilege bears the burden of showing =
that waiver=20
did not occur. See Giffin v. Smith, 688 S.W.2d 112, =
114 (Tex.=20
1985) (orig. proceeding).
&=
nbsp; &n=
bsp; &nb=
sp; =20
Waiver by Intentional =
Disclosure
When Ortuno filed her =
earlier=20
mandamus proceeding, she included an unsealed copy of Dr.=20
Caudle=3Ds report in the =
mandamus=20
record. At=20
a May 13 hearing on her motion for protection, Ortuno was informed =
that=20
the Caudle report had been inserted into both the trial =
court=3Ds and our records, =
and was=20
therefore a public record:
THE=20
=
COURT: =
Are those three documents in the court=3Ds record already?
MR.=20
HOOPER: =20
Yes.
THE=20
=
COURT: =
They are?
MR.=20
HOOPER: =20
That=3Ds the other thing, they=3Dre in this court=3Ds record =
and the=20
Court of Appeals=3D record.
THE=20
=
COURT: =
In-camera documents?
MR.=20
HOOPER: No, =
sir,=20
they=3Dre not in-camera. They are =
attached=20
toB
THE=20
=
COURT: =
So they are already public records?
MR.=20
HOOPER: =20
Yes.
THE=20
=
COURT: =
So ordering the protection is futile.
MR.=20
HOOPER: =
Well, you=20
would have to do a 76a hearing.
Accordingly, the =
trial court=20
disputed Ortuno=3Ds assertion that she =
had done=20
everything Ahumanly =
possible@ to prevent the =
disclosure of=20
Dr. Caudle=3Ds records: =
A[T]o say that you =
have done=20
everything that=3Ds humanly possible=20
isn=3Dt a fair =
characterization and=20
isn=3Dt reconcilable with =
other=20
things you have already admitted. If the records are indeed =
in this=20
court=3Ds records and the =
record of the=20
Court of Appeals, there is no 76a motion that has to this moment =
been=20
filed.@ =
Despite this =
admonition, Ortuno=20
once again filed the unsealed Caudle report with the mandamus =
record in=20
this proceeding. Accordingly, we find that Ortuno has waived =
the=20
consulting-expert privilege with respect to the Caudle =
report.
A party waives a =
privilege if=20
it voluntarily discloses the privileged information to an open=20
court. See Stroud Oil Props., Inc. v. Henderson, No.=20
02-03-00003-CV, 2003 WL 21404820, at *3 (Tex. App.CFort Worth June 19, =
2003, pet.=20
denied) (mem. op.). Likewise, the voluntary submission of =
unsealed=20
materials in an appellate record waives any asserted privileges as =
to=20
those materials:
Some of the evidence . . . was included =
in the=20
appellate record in this cause. These documents were made =
part of=20
the record on December 28, 2004. They were included in the =
appellate=20
record after [Appellee] asserted its claims of privilege. =
Nothing in=20
this court=3Ds file evidences any attempt by =
[Appellee] to=20
recall these documents as privileged. Therefore, for the =
present=20
litigation, we conclude that [Appellee=3Ds] prior assertion of privilege as to =
these=20
documents has been waived.
Yorkshire Ins.=20
Co., =
___=20
S.W.3d ___, 2007 WL 1771614, at *14 (citation omitted). =20
Because Yorkshire presented as a regular appeal, the =
responsibility=20
for preparing, certifying, and timely filing the record therein =
lay with=20
the trial court personnel. See Tex. R. App. P. =
35.3. By=20
contrast, in a mandamus proceeding, the relatorChere, =
OrtunoCprepares and files =
the mandamus=20
record. See Tex. R. App. P. 52.7(a). This =
obligation=20
does not relieve her of the duty to properly preserve an asserted=20
privilege, as through, for example, the submission of a sealed =
mandamus=20
record. See, e.g., In re Jeffcoat, No. =
01-04-00430-CV, 2005=20
WL 428213, at *1 (Tex. App.CHouston [1st Dist.] =
Feb. 24,=20
2005, orig. proceeding [mand. denied]) (mem. =
op.).
Ortuno has =
voluntarily filed=20
unsealed copies of the Caudle report on at least two =
occasions. We=20
conclude that she has not carried her burden of demonstrating that =
she did=20
not waive the consulting-expert privilege. See =
Giffin, 688=20
S.W.2d at 114; Stroud Oil Props., Inc., 2003 WL 21404820, =
at *3;=20
Yorkshire Ins. Co., ___ S.W.3d ___, 2007 WL 1771614, at =
*14. =20
We therefore do not find that the trial court abused its =
discretion in=20
denying Ortuno=3Ds motion for =
protection. =20
Because of our resolution here, we need not address the trial=20
court=3Ds other stated =
grounds for=20
denying Ortuno=3Ds requested =
relief.
Accordingly, we deny =
the=20
petition for writ of mandamus.
/s/ =20
Jeff Brown
Justice
Petition Denied, and =
Memorandum=20
Opinion filed, July 24, 2008.
Panel consists of =
Justices=20
Yates, Guzman, and Brown.
=20
&=
nbsp; =20
In re Ortuno, No. 14-08-00227-CV, 2008 WL 2339800, at *2 =
(Tex.=20
App.CHouston [14th Dist.] May 6, 2008, orig. =
proceeding=20
[mand. denied]).
=20
&=
nbsp; =20
The Honorable Levi Benton, judge of the 215th Judicial District =
Court of=20
Harris County
=20
&=
nbsp; =20
Ortuno, 2008 WL 2339800, at *1.
=20
&=
nbsp; =20
Texas Children=3Ds Hospital is Dr. Caudle=3Ds employer.
=20
&=
nbsp; =20
Waiver was not an issue in the earlier mandamus proceeding, which =
instead=20
related to whether the Asnap-back@ provisions of Rule 193.3(d) applyies to =
production of privileged materials by a non-party. See=20
Ortuno, 2008 WL 2339800, at *1.
=20
&=
nbsp; =20
Winkler Villa filed the Caudle report in the trial=20
court=3Ds record. We agree with Ortuno =
that an=20
opponent=3Ds disclosure of privileged materials =
would not=20
automatically waive a privilege that belongs to Ortuno. =
See In re=20
Ford Motor Co., 211 S.W.3d 295, 301 (Tex. 2006) (orig.=20
proceeding). We note, however, that Ortuno still has not =
asked that=20
the trial court=3Ds records containing the Caudle report =
be=20
sealed. See Yorkshire Ins. Co. v. Seger, ___ S.W.3d =
___, 2007=20
WL 1771614, at *14 (Tex. App.CAmarillo June 20, 2007, pet. filed); =
Envtl.=20
Procedures, Inc. v. Guidry, ___ S.W.3d ___, No. =
14-05-01090-CV, 2008=20
WL 1746087, at *18 (Tex. App.CHouston [14th Dist.] Apr. 17, 2008, no =
pet.)=20
(concluding that failure to request sealing waived such relief); =
In re=20
R.D., 955 S.W.2d 364, 366 (Tex. App.CSan Antonio 1997, pet. denied)=20
(same).
=20
&=
nbsp; =20
Although Yorkshire remains pending before the Texas Supreme =
Court,=20
none of the parties have challenged the appellate =
court=3Ds waiver holding in their briefs, which =
have been=20
made available=20
online. |