NO. 01-15-00530-CV

IN THE COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

In re Sunset Nursing Home, Inc.,

Relator

Original Proceeding on Petition for Writ of Mandamus

from Cause No. 72817 in the 239th Judicial District

Court of Brazoria County, Texas

(Hon. Patrick Sebesta, Presiding)

GRETHER, PAUL HEINIG, PLANTATION HEALTH CARE, INC., SARA 

RICHARDS, AMY STEWART, COUNTRY VILLAGE CARE, INC., AND 

GRETHER HEALTH CARE FACILITIES, L.L.C.’S RESPONSE TO 

RELATOR’S PETITION FOR WRIT OF MANDAMUS

Breck Harrison 

State Bar No. 24007325

bharrison@jw.com

Scott W. Weatherford

State Bar No. 24079554

sweatherford@jw.com

JACKSON WALKER L.L.P.

100 Congress Ave., Ste. 1100

Austin, Texas 78701

(512) 236-2000

(512) 236-2002 – Fax

ATTORNEYS FOR REAL PARTIES IN 

INTEREST 

ACCEPTED

01-15-00530-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

6/26/2015 5:01:06 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/26/2015 5:01:06 PM CHRISTOPHER A. PRINE Clerk
i

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties before the trial court and the 

names and addresses of all trial counsel and appellate counsel:

1. Plaintiff in the trial court (Relator in this Court) and counsel:

Sunset Nursing Home, Inc.

Represented by:

Felicia Harris

State Bar No. 24002438

fharris@burlesonllp.com

Burleson L.L.P. 

700 Milam, Suite 1100

Houston, Texas 77002

Telephone: (713) 358-1700

Facsimile: (713) 358-1717

Brandy R. Manning

State Bar No. 24029703

brmanning@burlesonllp.com

Burleson L.L.P.

223 W. Wall St., Suite 400

Midland, Texas 79701

Telephone: (432) 253-8600

Facsimile: (432) 253-8601
ii

2. Defendants1in the trial court (Real Parties in Interest in this Court) and 

counsel:

Rebecca Ann, Inc. 

Donald Grether

Paul Heinig

Plantation Health Care, Inc.

Represented by:

Breck Harrison 

State Bar No. 24007325

bharrison@jw.com 

Scott W. Weatherford

State Bar No. 24079554

sweatherford@jw.com

JACKSON WALKER L.L.P.

100 Congress Avenue, 

Suite 1100

Austin, Texas 78701

Telephone: (512) 236-2000

Facsimile: (512) 236-2002

Justin R. Gilbert

State Bar No. 24043691

justingilbert@gilbertfurey.com

GILBERT & FUREY

222 N. Velasco, Suite A

Angleton, Texas 77515

Telephone: (979) 849-5741

Facsimile: (979) 849-7729

 

1 Although these parties initiated the underlying lawsuit as plaintiffs, the trial court recently

granted Relator’s Motion to Realign the Parties and re-classified Real Parties in Interest as 

Defendants. 
iii

3. Former2Third-Party Defendants in the trial court (Real Parties in Interest in 

this Court) and counsel:

Sara Richards

Amy Stewart

Grether Health Care Facilities L.L.C.

Country Village Care, Inc. 

Represented by:

Breck Harrison 

State Bar No. 24007325

bharrison@jw.com 

Scott W. Weatherford

State Bar No. 24079554

sweatherford@jw.com

JACKSON WALKER L.L.P.

100 Congress Avenue, Suite 1100

Austin, Texas 78701

Telephone: (512) 236-2000

Facsimile: (512) 236-2002

Justin R. Gilbert

State Bar No. 24043691

justingilbert@gilbertfurey.com

GILBERT & FUREY

222 N. Velasco, Suite A

Angleton, Texas 77515

Telephone: (979) 849-5741

Facsimile: (979) 849-7729

Stephen Coleman 

Represented by: 

Zandra Foley

State Bar No. 24038085

zfoley@thompsoncoe.com

 

2

These parties were dismissed pursuant to the trial court’s May 5, 2015 consolidated order 

granting Real Parties’ Motion to Strike (the “Motion”). (R. 2). 
iv

Andrew Johnson

State Bar No. 24060025

ajohnson@thompsoncoe.com

THOMPSON, COE, COUSINS & IRONS, L.L.P.

One Riverway, Suite 1400

Houston, Texas 77056

Telephone: (713) 403-8210

Facsimile: (713) 403-8299
v

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL .............................................................i

TABLE OF CONTENTS...........................................................................................v

TABLE OF AUTHORITIES .................................................................................. vii

STATEMENT OF THE CASE.............................................................................. xiii

STATEMENT REGARDING ORAL ARGUMENT ............................................xiv

REQUEST FOR EXPEDITED CONSIDERATION ..............................................xv

BRIEF REFERENCES ...........................................................................................xvi

REPLY TO ISSUES PRESENTED ..................................................................... xvii

STATEMENT OF FACTS ........................................................................................1

A. Relator sought to expand the underlying lawsuit from a 

commercial lease dispute to an overarching conspiracy

theory...........................................................................................4

B. Relator engaged in virtually unimpeded discovery

throughout the litigation..............................................................5

C. The trial court correctly granted Real Parties’ Motion to

Strike. ..........................................................................................6

SUMMARY OF THE ARGUMENT ........................................................................8

STANDARDS OF REVIEW AND APPLICABLE LAW......................................10

ARGUMENT...........................................................................................................13

I. Relator’s Petition and Accompanying Record Are Procedurally 

Deficient. .............................................................................................13

II. Respondent Did Not Abuse His Discretion in Granting Real

Parties’ Motion to Strike Relator’s Amended Pleadings. ...................17

A. Respondent correctly dismissed Relator’s Amended

Pleadings. ..................................................................................17

1. The Amended Pleadings violate Rule 63. ......................17

2. The continuance of the trial date had no effect on the 

deadline to amend pleadings...........................................23

3. The Amended Pleading violates Rule 38. ......................26
vi

4. Rule 91a did not afford Relator an “absolute right” to

file the Amended Pleadings............................................27

B. Relator has not met its heavy burden of establishing the trial 

court clearly abused its discretion by striking the Amended 

Pleadings. ..................................................................................28

1. Considering the facts and circumstances of the suit,

the trial court did not clearly abuse its discretion..........28

2. Relator has not met its heavy burden of establishing

no adequate remedy by appeal........................................31

III. The Trial Court Has Not Abused Its Discretion in Setting Proper 

Limits on Relator’s Abusive and Harassing Discovery Efforts..........33

A. Several issues raised by Relator are moot. ...............................33

B. Relator fails to identify specific orders from which it

requests relief. ...........................................................................35

C. The Court set proper limits on Relator’s request for

immaterial and irrelevant policies and procedures. .................36

D. Relator has not demonstrated that it lacks an adequate

remedy by appeal. .....................................................................38

CONCLUSION AND PRAYER .............................................................................39

RULE 52.3(J) CERTIFICATION............................................................................40

RULE 9.4 CERTIFICATE OF COMPLIANCE .....................................................41

CERTIFICATE OF SERVICE ................................................................................42

APPENDIX..............................................................................................................43
vii

TABLE OF AUTHORITIES

Page(s)

CASES

Am. Title Co. of Houston v. Bomac Mortgage Holdings, L.P.,

196 S.W.3d 903 (Tex. App.—Dallas 2006, pet. granted, judgm’t vacated 

w.r.m.).................................................................................................................18

Axelson v. McIlhany,

798 S.W.2d 550 (Tex. 1990, orig. proceeding)..................................................33

Bates v. Sunshare RV, Ltd.,

2010 WL 3582487 (Tex. App.—San Antonio Sept. 15, 2010, no pet.).............23

Beaumont Bank N.A. v. Buller,

806 S.W.2d 223 (Tex. 1991) ..............................................................................10

Boring & Tunneling Co. v. Salazar,

782 S.W.2d 284 (Tex. App.—Houston [1st Dist.] 1989, orig. proceeding) ......34

Canton-Carter v. Baylor Coll. of Med.,

271 S.W.3d 928 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ...............4, 13

Clanton v. Clark,

639 S.W.2d 929 (Tex. 1982) ........................................................................11, 26

Crofts v. Court of Civil Appeals,

362 S.W.2d 101 (Tex. 1962) ..............................................................................36

Daniels v. Yancey,

175 S.W.3d 889 (Tex. App.—Texarkana 2005, no pet.)....................................24

Dow Chem. Co. v. Garcia,

909 S.W.2d 503 (Tex. 1995) ..............................................................................34

Ex parte King,

819 S.W.2d 944 (Tex. App.—Houston [14th Dist.] 1991) ................................16

Felker v. Petrolon, Inc.,

929 S.W.2d 460 (Tex. App.—Houston [1st Dist.] 1996, writ denied)...............24
viii

First State Bank of Mesquite v. Bellinger & Dewolf, L.L.P.,

342 S.W.3d 142 (Tex. App.—El Paso 2011, no pet.) ........................................19

Francis v. Coastal Oil & Gas Corp.,

130 S.W.3d 76 (Tex. App.—Houston [1st Dist.] 2003, no pet.)........................21

G.R.A.V.I.T.Y. Enterprises, Inc. v. Reece Supply Co.,

177 S.W.3d 537 (Tex. App.—Dallas 2005, no pet.) ..........................................26

Greenhalgh v. Serv. Lloyds Ins. Co.,

787 S.W.2d 938 (Tex. 1990) ..............................................................................18

Gunn v. Fuqua,

397 S.W.3d 358 (Tex. App.—Dallas 2013, pet. denied)..............................12, 19

Hakemy Bros., Ltd. v. State Bank & Trust Co.,

189 S.W.3d 920 (Tex. App.—Dallas 2006, pet. denied)..................12, 18, 19, 23

Hardin v. Hardin,

597 S.W.2d 347 (Tex. 1980) ........................................................................11, 18

In re Arthur Andersen, L.L.P.,

121 S.W.3d 471 (Tex. App.—Houston [14th Dist.] 2003, orig. 

proceeding) ...................................................................................................29, 31

In re Bristol–Myers Squibb Co.,

975 S.W.2d 601 (Tex. 1998) ..............................................................................15

In re Butler,

270 S.W.3d 757 (Tex. App.—Dallas 2008, orig. proceeding).....................14, 15

In re Cerberus Capital Mgmt., L.P.,

164 S.W.3d 379 (Tex. 2005) (per curiam) .........................................................11

In re Columbia Med. Ctr. of Las Colinas,

306 S.W.3d 246 (Tex. 2010) (per curiam) .........................................................11

In re Conner,

458 S.W.3d 532 (Tex. 2015) ..............................................................................31

In re CSX Corp.,

124 S.W.3d 149 (Tex. 2003) ..............................................................................32
ix

In re D. Wilson Constr. Co.,

196 S.W.3d 774 (Tex. 2006) ..............................................................................10

In re Dillard Dep’t Stores, Inc.,

198 S.W.3d (Tex. 2006) (per curiam).................................................................10

In re Estate of Henry,

250 S.W.3d 518 (Tex. App.—Dallas 2008, no pet.) ..........................................11

In re Huag,

No. 14-04-01077-CV, 2005 Tex. App. LEXIS 587, 2005 WL 171456 

(Tex. App.—Houston [14th Dist.] Jan. 27, 2005, orig. proceeding) (mem. 

op. per curiam)................................................................................................3, 13

In re Kim,

No. 05-14-01344-CV, 2014 Tex. App. LEXIS 11734 (Tex. App.—

Dallas, Oct. 23, 2014, orig. proceeding).............................................................14

In re Laibe Corp.,

307 S.W.3d 314 (Tex. 2010) (per curiam) .........................................................10

In re Lewis,

No. 14-15-00122, 2015 Tex. App LEXIS 1620 (Tex. App.—Houston [1st 

Dist.] Feb. 19, 2015, orig. proceeding)...............................................................35

In re McDonald,

424 S.W.3d 774 (Tex. App.—Beaumont 2014, orig. proceeding).....................15

In re Michelle,

335 S.W.3d 808 (Tex. App.—Houston [14th Dist.] 2011, orig. 

proceeding) .............................................................................................13, 14, 16

In re Noble Drilling (Jim Thompson), L.L.C.,

449 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) 28, 32

In re Progressive Cty. Mut. Ins. Co.,

No. 05-15-00622-CV, 2015 Tex. App. LEXIS 5009 (Tex. App.—Dallas 

May 15, 2015, orig. proceeding) ........................................................................36

In re Stern,

321 S.W.3d 828 (Tex. App.—Houston [1st Dist.] 2010, no pet.)......................32
x

In re Tasby,

40 S.W.3d 190 (Tex. App.— Texarkana 2001, orig. proceeding).....................36

In re Taylor,

113 S.W.3d 385 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) ......15

Johnson v. Ingram Readymix, Inc.,

No. 03-09-00568, 2010 Tex. App.—LEXIS 10268 (Tex. App.—Austin 

Dec. 23, 2010, no pet.)........................................................................................20

Jones v. Cortes,

No. 02-10-00304-CV, 2011 WL 4008021 (Tex. App.—Fort Worth Sept. 

8, 2011, no pet.) ............................................................................................31, 32

Killam Ranch Properties, Ltd. v. Webb Co.,

2008 WL 4958452 (Tex. App.—San Antonio Nov. 19, 2008, no pet.).............24

Oistad v. Baker & Hostetler, L.L.P.,

No. 01-05-00493-CV, 2006 Tex. App. LEXIS 1639, 2006 WL 488594 

(Tex. App.—Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op) ..................27

Polaris Investment Management Corp. v. Abascal,

892 S.W.2d 860 (Tex. 1995) (per curiam) ...................................................13, 38

Rodriguez v. Cuellar,

143 S.W.3d 251 (Tex. App.—San Antonio 2004, pet. dism’d w.o.j.).........18, 21

Roskey v. Cont’l Cas. Co.,

190 S.W.3d 875 (Tex. App.—Dallas 2006, pet. denied)....................................12

Ryland Group, Inc. v. White,

723 S.W.2d 160 (Tex. App.—Houston [1st Dist.] 1986, no writ) .....................29

Singleton v. Nw. Tex. Healthcare Sys.,

No. 07-03-0552-CV, 2006 Tex. App. LEXIS 1594 (Tex. App.—Amarillo 

Feb. 28, 2006, no pet.) ........................................................................................19

Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc.,

938 S.W.2d 743 (Tex. App.—Dallas 1996, writ denied)...................................11

State Bar of Tex. v. Kilpatrick,

874 S.W.2d 656 (Tex. 1994) ........................................................................18, 19
xi

Torres v. GSC Enterp., Inc.,

242 S.W.3d 553 (Tex. App.—El Paso 2007, no pet.) ........................................23

Tucker v. Gayle,

709 S.W.2d 247 (Tex. App.—Houston [14th Dist.] 1986, no writ)...................12

Varme v. Gordon,

881 S.W.2d 877 (Tex. App.—Houston [14th Dist.] 1994, writ denied)............29

Walker v. Packer,

827 S.W.2d 833 (Tex. 1992) ......................................... 10, 12, 13, 14, 28, 38, 39

STATUTES

TEX. R. APP. P. 52 ..............................................................................................14, 16

TEX. R. APP. P. 52.3 .........................................................................................3, 4, 13

TEX. R. APP. P. 52.3(d)........................................................................................... xiii

TEX. R. APP. P. 52.3(g)...............................................................................................1

TEX. R. APP. P. 52.3(j)....................................................................................3, 14, 40

TEX. R. APP. P. 52.3(k).............................................................................................14

TEX. R. APP. P. 52.3(k)(1)(A) ..................................................................................35

TEX. R. APP. P. 52.4(b)...............................................................................................1

TEX. R. APP. P. 52.7(a)(1)........................................................................................15

TEX. R. APP. P. 52.7(a)(2)....................................................................................3, 16

TEX. R. APP. P. 52.11(c).............................................................................................1

TEX. R. CIV. P. 38.....................................................................................................26

TEX. R. CIV. P. 38(a) ..........................................................................................26, 27

TEX. R. CIV. P. 40.....................................................................................................28

TEX. R. CIV. P. 40(b)................................................................................................29

TEX. R. CIV. P. 63................................................................ 11, 17, 18, 19, 20, 21, 24
xii

TEX. R. CIV. P. 91a .........................................................................................7, 27, 28

TEX. R. CIV. P. 91a.5(b) ...........................................................................................27

TEX. R. CIV. P. 166...................................................................................................11

TEX. R. CIV. P. 190.4................................................................................................19

OTHER AUTHORITIES

Practice, Procedure and Review, 33 REV. LITIG. 469, 475 (2014) .........................28
xiii

STATEMENT OF THE CASE

Real Parties provide the following Statement of the Case because Relator, 

Sunset Nursing Home, Inc., presented a Statement of the Case that fails to comply

with TEX. R. APP. P. 52.3(d) in that it contains argument and certain disputed facts.

Nature of the 

Underlying Suit:

Breach of lease and guaranty agreements. The 

underlying suit is styled Sunset Nursing Home, Inc. 

v. Rebecca Ann, Inc., Donald Grether, and Paul 

Heinig; Cause No. 72817.

Parties: Relator Sunset Nursing Home, Inc. is the Plaintiff in 

the underlying suit; Real Parties in Interest Rebecca 

Ann, Inc., Donald Grether, and Paul Heinig are 

Defendants, Plantation Health Care, Inc. is a ThirdParty Defendant, while Sara Richards, Amy 

Stewart, Stephen Coleman, Country Village Care, 

Inc., and Grether Health Care Facilities, Inc. were 

Third-Party Defendants when the action from which 

relief is requested took place.

Respondent: The Honorable Patrick Sebesta, Presiding Judge of 

the 239th Judicial District Court, Brazoria County, 

Texas.

Actions from which 

Relief Requested:

Respondent’s May 5, 2015 order granting Real 

Parties’ Motion to Strike (R. 2); Respondent’s 

September 30, 2014 order limiting production of 

policies and procedures (R. 37); and Respondent’s 

April 6, 2015 order regarding third-party subpoena 

to MDS Research Company (R. 58).

Emergency Relief 

Requested:

Relators filed an Emergency Motion to Stay Trial 

Court Proceedings simultaneously with its Petition 

for Writ of Mandamus, which this Court denied.
xiv

STATEMENT REGARDING ORAL ARGUMENT

Because the issues are clear, Real Parties believe oral argument will not 

materially aid the Court’s resolution of Relator’s petition for writ of mandamus. If 

the Court concludes otherwise, however, Real Parties ask that they be allowed to 

present oral argument in response to Relator’s argument.
xv

REQUEST FOR EXPEDITED CONSIDERATION

This case is currently specially set for trial on August 10, 2015. 

Accordingly, Real Parties respectfully request expedited consideration of the 

Petition in light of the imminent trial setting.
xvi

BRIEF REFERENCES

This brief references the parties as follows:

Relator Sunset Nursing Home, Inc. “Relator”

Real Parties in Interest:

Rebecca Ann, Inc. 

Paul Heinig

Donald Grether

Plantation Health Care, Inc. 

Amy Stewart

Sara Richards

Country Village Care, Inc. 

Grether Health Care Facilities, L.L.C. 

“Real Parties”

“RAI”

“Heinig”

“Grether”

“Plantation”

“Stewart”

“Richards”

“CVC”

“GHCF”

This brief references the mandamus record as:

Relator’s Mandamus Record and 

Supplemental Mandamus Record3

“R. [Tab]”

Real Parties’ Supplemental Mandamus Record “Supp. R. [Tab]”

This brief references Relator’s Petition for Writ of Mandamus and 

Supplemental Petition for Writ of Mandamus as the “Petition”

 

3 By citing to Relator’s Mandamus Record, Real Parties do not intend to waive any argument 

that Relator’s Mandamus Record is procedurally and substantively deficient. 
xvii

REPLY TO ISSUES PRESENTED

(1) Respondent correctly struck Relator’s Amended Pleadings that (i) 

sought to add five new parties to the underlying lawsuit less than three months 

before trial, (ii) was filed over seven months after the deadline for filing an 

amended petition, and (iii) operated to surprise and unfairly prejudice Real Parties.

(2) Although it is unclear from what discovery order Relator seeks 

relief—and whether or not that request for relief is now moot—the trial court 

properly exercised its discretion in placing appropriate limits on Relator’s efforts to 

burden Real Parties with harassing discovery requests seeking irrelevant and 

proprietary information outside the scope of the issues presented in this breach of 

lease dispute.
1

STATEMENT OF FACTS

Real Parties take issue with the Relator’s statement of facts, which is neither 

concise (i.e., 25 pages) nor without argument (e.g., “Just as the Grethers blatantly 

ignored their contractual obligations in an effort to destroy Relator’s business, they 

have consistently ignored their discovery obligations in an effort to hide the 

truth.”), nor material to this mandamus proceeding.4 Nor are the facts within, for 

the most part, supported by citation to competent evidence included in the 

Appendix or record.5 In some instances the facts asserted are either grossly 

misleading or omit an obviously important material fact.6 The following are just a 

few examples of Relator’s deficient factual assertions: 

 “Critically, the Grethers promised to transfer all licenses and subsidy 

contracts to Sunset....” Petition, p. 14. Real Parties did not promise 

to transfer all licenses and subsidy contracts. Instead, Real Parties 

agreed to effectuate a “change” of licenses and subsidy contracts, of 

which there are multiple ways to accomplish apart from a direct 

transfer. (R. 69, p. 8) (“Lessee shall cooperate with Lessor in having a 

change of al licenses and subsidy contracts”). This obligation is 

further limited to requiring only action that is “reasonably requested 

by Lessor.” Id. 

 

 “[T]he Grethers and their attorney Steve Coleman began actively 

sabotaging the Sunset facilities, ultimately causing at least hundreds 

of thousands of dollars in damages.” Petition, p. 17. In addition to 

being completely immaterial to the issues before the Court, this 

argument is unsupported by citation to competent evidence and is a 

gross misstatement of “fact.”

 

4

TEX. R. APP. P. 52.4(b). 

5

TEX. R. APP. P. 52.3(g). 

6

TEX. R. APP. P. 52.11(c). 
2

 “[T]he Grethers refused to transfer the names. . . removed all of the 

computers from both facilities along with hard copies of patient 

records, all policy and procedures documentation, equipment, beds, 

supplies, and other personal property.” Petition, p. 18. Aside from

being highly disputed, Relator misrepresents the true nature of its 

allegations. Relator does not claim that Real Parties removed all

equipment, all beds, and all supplies; rather, Relator alleges Real 

Parties removed “certain records of the nursing facilities and medical 

equipment,” an allegation that is, again, disputed. (R. 48). 

 “[T]he Grethers have resisted producing even documents that they 

were contractually obligated to deliver under the Leases.” Petition, 

p. 25. Real Parties have been compliant with the trial court’s orders 

and Relator’s requests for discovery, only resisting and objecting 

when reasonable and necessary. For example, Real Parties made 

available for Relator’s inspection and copying over twenty bankers 

boxes of patient medical records. (Supp. R. 2). In addition, the 

“policies and procedures” continually referenced by Relator, despite 

being highly proprietary documents, were submitted for the trial 

court’s in camera review. (Supp. R. 3). 

 “[T]he Grethers insisted on deposing Mr. and Mrs. Smith in a 

courtroom . . . .” Petition, p. 26. Another misleading assertion, as the

trial court—in response to Relator’s demand that the depositions of 

Relator’s representatives be taken in a conference room in the 

courthouse as opposed to their counsel’s office or other suitable 

location—directed that the depositions of parties occur in a courtroom 

because the court’s conference room was too small. (Supp. R. 4). 

 “[T]he court’s order compelled the production of ‘all responsive 

documents,’ but counsel’s letter indicates that he simply turned over 

whatever he obtained from MDS, so . . . [Relator] has no way of 

knowing exactly what documents . . . may have been withheld by the 

Grethers.” Petition, p. 30. Seemingly implying that the Grethers 

withheld certain documents produced by MDS in response to the 

subpoena, Relator omits that Real Parties’ counsel’s letter states that 

“all documents produced by MDS” were enclosed for in camera

review. (R. 57).
3

 “At the August 29, 2014 hearing, the court . . . stated that all 

deadlines were lifted and that new dates should be set from a new 

trial date.” There is no citation to competent evidence to support this 

assertion, which is disputed. Relator does not include in the 

mandamus record a transcript of this hearing, nor does Relator state 

that no such hearing or record occurred.7 

 “[T]he trial court struck the amended pleadings, essentially freeing 

all but the original Grether parties (2 defunct companies and the 

uncle and dad of Sara and Amy) from the consequences of the group’s 

concerted wrongful conduct.” Petition, p. 28. Because—at its core—

this lawsuit is a commercial lease dispute, Relator initially sued the 

lessee (Plantation), the sublessee (RAI), and the two personal 

guarantors (Grether and Heinig). (R. 82). These parties remain 

defendants in the underlying suit, and Relator will have the 

opportunity to try its case against them for alleged breach of the lease 

and guaranty agreements. To imply the trial court has somehow 

deprived Relator of any potential recourse is as misleading as it is 

desperate. 

Perhaps the best example of Relator’s misrepresentations and misstatements 

in its Statement of Facts is the fact that Relator’s Petition fails to comply with TEX.

R. APP. P. 52.3. Rule 52.3(j) requires that the “person filing the petition must 

certify that he or she has reviewed the petition and concluded that every factual 

statement in the petition is supported by competent evidence included in the 

appendix or record.” Relator wholly failed to include this certification. Relator’s 

failure to comply with the applicable procedural rules is, by itself, a sufficient 

reason to deny its petition.8

 

7

See TEX. R. APP. P. 52.7(a)(2). 

8

See In re Huag, No. 14-04-01077-CV, 2005 Tex. App. LEXIS 587, 2005 WL 171456, *1 (Tex. 

App.—Houston [14th Dist.] Jan. 27, 2005, orig. proceeding) (mem. op. per curiam) (denying 
4

Including, and in addition to the foregoing, Relator makes numerous 

unfounded factual assertions that are strongly contested and unsupported by the 

mandamus record. Accordingly, Real Parties put those facts at issue and provide 

the following Statement of Facts to aid the Court’s resolution.

A. Relator sought to expand the underlying lawsuit from a commercial 

lease dispute to an overarching conspiracy theory. 

RAI is a family-owned business that has been in the nursing home industry 

for over twenty years. Together with Plantation, RAI leased from Relator the two 

nursing facilities then known as Village on the Creek, located in Clute, Texas, and 

Plantation Health Care Center, located in Lake Jackson, Texas (collectively

referred to as the “Nursing Facilities”). (R. 69). After operating and maintaining 

these Nursing Facilities for over twenty years, RAI could no longer afford the 

escalating rent charged by Relator and necessary improvements to the Nursing 

Facilities, and thus returned operation of the Nursing Facilities to Relator at the 

normal expiration of the leases at midnight on April 30, 2011.

In February 2013, almost two years after the transition, and with no prior 

complaint or demand, Relator suddenly made demand on RAI and the two lease 

guarantors, Paul Heinig and Donald Grether, alleging various breaches of the lease 

agreements. (Supp. R. 5). On May 23, 2013, RAI, Grether, and Heinig 

 

petition for the sole reason that it did not comply with Rule 52.3); see also Canton-Carter v. 

Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.) 

(same).
5

(collectively referred to as the “Original Plaintiffs”) instituted this suit as a 

declaratory judgment action seeking to determine the parties’ rights and 

obligations under certain lease agreements. (R. 80). On June 4, 2013, Relator filed 

an answer and counterclaim asserting claims for breach of contract and fraud by 

misrepresentation. (R. 81). Several months passed, and in October 2013—two 

years and five months after the expiration of the lease agreements—Relator filed 

its First Amended Answer, Counterclaim and Third-Party Petition, asserting for the 

first time claims against Third-Party Defendant Plantation, along with the 

following additional causes of action against the Original Plaintiffs: (1) 

conversion; (2) estoppel; (3) misappropriation of confidential information; (4) 

promissory estoppel; (5) fraud in a real estate transaction; (6) conspiracy, (7) 

ratification; (8) tortious interference with contractual relations; and (9) joint 

enterprise. (R. 82). 

B. Relator engaged in virtually unimpeded discovery throughout the 

litigation. 

The trial court entered a Docket Control Order on April 2, 2014 (the 

“DCO”), establishing a trial date in October 2014 and the completion of discovery 

by August 30, 2014. (R. 60). When the first trial setting was pushed back to April 

2015, the parties agreed to continue limited necessary discovery (i.e., depositions) 

into March. (Supp. R. 6). 
6

Throughout the course of the lawsuit, Relator has taken over 15 depositions 

and served over 260 requests for production and 60 interrogatories, in addition to 

sending third-party subpoenas to 6 different entities or individuals. Id. Moreover, 

Relator has filed over a dozen motions to compel. 

Undeterred in its abusive and harassing pursuit of discovery in the 

underlying case, Relator continued to serve discovery requests (91 requests for 

production and seven interrogatories) even after the discovery deadline passed. Id. 

The Original Parties objected to these requests as untimely, unduly burdensome, 

and harassing and filed a motion for protection to prevent Relator from conducting 

any additional discovery. Id. 

Notably, the trial court has not denied any of Relator’s motions to compel.9 

To date, the only limitation Respondent has placed on Relator’s discovery efforts 

involves the in camera submission of certain documents subject to several of 

Relator’s motions to compel, which Relator now protests and contends is an abuse 

of the trial court’s discretion. See Petition, pp. 61–74. 

C. The trial court correctly granted Real Parties’ Motion to Strike. 

The DCO entered in April 2014 established June 12, 2014 as the deadline 

for all parties to amend their pleadings and, by necessary implication, add any new 

parties. (R. 60). On January 27, 2015, over seven months after the established 

 

9

Presumably, this is why Relator fails to identify a single discovery order from which it asks this 

Court to grant relief. 
7

deadline to amend pleadings had passed and less than three months prior to the 

preferential trial setting, Relator filed its Second Amended Answer, Fifth Amended 

Counterclaim and Fourth Amended Third-Party Petition10 (R. 48) and Supplement 

(Supp. R. 7) that not only alleged claims against the Original Parties that had 

already been dismissed via summary judgment (e.g., conversion, misappropriation 

of confidential information, and tortious interference with contractual relations) (R. 

37), but also asserted frivolous numerous claims against five new parties: Country 

Village Care, Inc., Grether Health Care Facilities, L.L.C., Sara Grether Richards, 

Amy Grether Stewart, and Steve Coleman (collectively referred to as the “New 

Parties”), all without seeking leave to do so. (R. 48). 

Accordingly, Real Parties filed a Motion to Strike the Amended Pleadings. 

In a clear effort to use Rule 91a to skirt the established rules of amended pleadings, 

Relator then filed its Second Amended Answer, Fifth Amended Counterclaim and 

Fourth Amended Third-Party Petition.11 (R. 49). Real Parties filed a Supplemental 

Motion to Strike to encompass both untimely and prejudicial pleadings12 (R. 50), 

which the trial court appropriately granted. (R. 2). 

 

10 Relator erroneously titled this pleading. It should have been named the “Fourth Amended 

Counterclaim and Third Amended Third-Party Petition.”

11 Because Relator erroneously titled the pleading filed on January 27, Relator did not change the 

name of this pleading filed on April 21, 2015. 

12 Relator’s Second Amended Answer, Fourth Amended Counterclaim and Third Amended 

Third-Party Petition and Supplement (erroneously named “Fifth Amended Counterclaim and 

Fourth Amended Third-Party Petition”) filed on January 26, 2015 (R. 48) and Relator’s Second 
8

SUMMARY OF THE ARGUMENT

This mandamus proceeding demonstrates the extraordinary lengths to which 

a party will go in a tactical attempt to prolong and expand the course and burden of 

litigation. At its core, this has been and remains a commercial lease dispute arising 

from a transition in the operation of two nursing homes upon the expiration of 

long-term lease agreements for two nursing facilities located in Brazoria County. 

Yet Relator has attempted—at all costs—to inflate its claims with fanciful theories 

of fraud, conspiracy, and monopolization. When the trial court properly rejected 

Relator’s efforts to grossly distort the true nature of the case, Relator filed this 

Petition. 

First, Relator attempted to entirely transform the character of this 

commercial lease dispute by seeking to add five new parties and thirty-eight new 

causes of action less than three months before trial. The trial court properly 

rejected this untimely, unfair, and unnecessary pleading and Relator has wholly 

failed to demonstrate an abuse of discretion in that regard. 

Similarly, Relator engaged in abundant discovery with little, if any, 

limitation by the trial court. Although it is unclear from what discovery order 

Relator seeks relief—and whether or not that request for relief is now moot—the 

trial court properly exercised its discretion to place appropriate limits on Relator’s 

 

Amended Answer, Fifth Amended Counterclaim and Fourth Amended Third-Party Petition filed 

on April 21, 2015 (R. 49) will be collectively referred to as the “Amended Pleadings.” 
9

efforts to burden Real Parties with harassing discovery requests seeking irrelevant 

and proprietary information belonging to one or more of the Real Parties.

Ultimately, this Petition is a model example of Relator’s conduct throughout 

this litigation that seeks to divert this Court’s attention and resources to a 

procedurally deficient and ultimately meritless request for mandamus relief that 

should be denied. 
10

STANDARDS OF REVIEW AND APPLICABLE LAW

To be entitled to the extraordinary relief of a writ of mandamus, the relator 

must show that the trial court abused its discretion, and that there is no adequate 

remedy by appeal.13 With respect to the resolution of factual issues committed to 

the trial court’s discretion, the reviewing court may not substitute its judgment for 

that of the trial court.14 Nor may the reviewing court issue mandamus merely 

because it disagrees with the trial court’s decision if the decision was within the 

trial court’s discretionary authority.15 Instead, the reviewing court must defer to 

the trial court’s resolution of factual issues and may not set aside unless the relator 

establishes that the trial court could have reasonably reached only one decision.16

Even if the reviewing court would have decided the issue differently, it may not 

disturb the trial court’s decision unless that decision is shown to be arbitrary and 

unreasonable.17

On the other hand, a trial court has no discretion in determining what the law 

is or applying the law to the facts.18 A trial court only abuses its discretion if it 

 

13 In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig. proceeding) (per curiam).

14 Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

15 Beaumont Bank N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

16 In re Dillard Dep’t Stores, Inc., 198 S.W.3d, 778, 780 (Tex. 2006) (orig. proceeding) (per 

curiam); Walker, 827 S.W.2d at 839–40.

17 Walker, 827 S.W.2d at 840.

18 In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (orig. proceeding).
11

reaches a decision so arbitrary and unreasonable as to constitute a clear and 

prejudicial error of law, or if it clearly fails to correctly analyze or apply the law.19

The decision to accept or reject an amended pleading is an inherently 

discretionary function of the trial court.20 A party generally has a right to amend 

its pleadings freely.21 As the rules of civil procedure reflect, however, this general 

freedom to amend pleadings must be balanced against the right of the trial court to 

control its docket in a manner that permits the efficient administration of justice.22 

Similarly, a trial court has a duty to schedule cases in a manner that will result in 

the expeditious resolution of disputes.23 An appellate court must not interfere with 

the trial court’s discretion to manage its docket without a clear showing of abuse.24 

A trial court’s decision on a motion for leave to amend pleadings must be 

evaluated in the context of the record of the entire case, and the potential for delay 

in the ultimate disposition of a case caused by a proposed amendment may be 

considered in determining whether the trial court has abused its discretion.25 Thus, 

 

19 In re Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246, 248 (Tex. 2010) (orig. proceeding) 

(per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. 

proceeding) (per curiam).

20Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980).

21Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 

747 (Tex. App.—Dallas 1996, writ denied).

22See TEX. R. CIV. P. 63 (pleadings, responses of pleas offered for filing after such time as may

be ordered under rule 166 shall be filed only after obtaining leave of the judge).

23Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982) (noting trial court’s dismissal of case was 

justified because trial court was experiencing great difficulty in obtaining compliance of 

appellant’s attorney with the trial court’s schedule).

24In re Estate of Henry, 250 S.W.3d 518, 526 (Tex. App.—Dallas 2008, no pet.).

25Smith Detective Agency, 938 S.W.2d at 749.
12

an appellate court will review a trial court’s decision whether to grant leave to file 

an amended pleading for abuse of discretion.26

In addition, the “trial court has great latitude to order or deny discovery, and 

its action cannot be set aside unless there is a clear showing of abuse of 

discretion.”27 The denial of discovery will entitle the relator to mandamus relief 

only if (1) the relator can establish that the relator’s ability to present a viable claim 

or defense is “vitiated or severely compromised” by the trial court’s discovery 

order, or (2) the denial of discovery will render it impossible for an appellate court 

to evaluate the effect of the trial court’s error because the undiscovered 

information cannot be made a part of the record.28 To determine whether 

mandamus is appropriate, the reviewing court must carefully consider all relevant 

circumstances, such as the claims and defenses asserted, the type of discovery 

sought, what the discovery is intended to prove, and the presence or lack of other 

discovery.29 Delay, inconvenience, or expense of an appeal are insufficient to 

satisfy this requirement. Rather, the relator must demonstrate “the effective denial 

of a reasonable opportunity to develop the merits of his or her case, so that the trial 

 

26See Roskey v. Cont’l Cas. Co., 190 S.W.3d 875, 879 (Tex. App.—Dallas 2006, pet. denied). 

The trial court’s enforcement of its scheduling order is also reviewed for abuse of discretion. Id.; 

Gunn v. Fuqua, 397 S.W.3d 358, 377 (Tex. App.—Dallas 2013, pet. denied) (citing Hakemy 

Bros., Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. App.—Dallas 2006, pet. 

denied)).

27 See Tucker v. Gayle, 709 S.W.2d 247, 249 (Tex. App.—Houston [14th Dist.] 1986, no writ).

28 Walker v. Packer, 827 S.W.2d 833, 843–44 (Tex. 1992).

29 Id. at 844.
13

would be a waste of judicial resources.”30 Moreover, mandamus will not issue 

unless the undiscovered information “goes to the heart of a party’s case.”31

ARGUMENT

I. Relator’s Petition and Accompanying Record Are Procedurally 

Deficient. 

“Those seeking the extraordinary remedy of mandamus must follow the 

applicable procedural rules.”32 Here, Relator’s Petition is procedurally deficient in 

the following ways, each of which independently supports dismissal. 

First, Relator wholly failed to make the requisite certification to this Court 

that the factual statements in the petition are all supported by competent evidence 

included in the Appendix or record.33 The reason for this is apparent. Relator’s 

petition is woven together with half-truths and material omissions that paint a 

distorted picture that is unsupported by the facts. Relator’s failure to comply with 

this requirement alone is a sufficient reason to deny its petition.34

 

30 Id. at 843.

31 Id.; see also Polaris Investment Management Corp. v. Abascal, 892 S.W.2d 860, 861–62 

(Tex. 1995) (per curiam) (mandamus did not issue because discovery did not go “to the heart” of 

relator’s case).

32In re Michelle, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig. 

proceeding).

33 TEX. R. APP. P. 52.3. 

34 See In re Huag, No. 14-04-01077-CV, 2005 Tex. App. LEXIS 587, 2005 WL 171456, *1 

(Tex. App.—Houston [14th Dist.] Jan. 27, 2005, orig. proceeding) (mem. op. per curiam) 

(denying petition for the sole reason that it did not comply with Rule 52.3); see also CantonCarter v. Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no 

pet.) (same).
14

Relator also fails to provide a sworn copy of the mandamus record. With its 

Petition, Relator filed its proposed Record on Mandamus consisting of 105 

separate documents totaling 2,865 pages, and an additional 10 documents in its 

Supplemental Mandamus Record. In an attempt to authenticate this proposed 

record, Relator filed an Affidavit of Felicia Harris dated June 12, 2015, and an 

Amended Affidavit of Felicia Harris dated June 26, 2015. (R. 1, 1a). However, 

these affidavits aver only that the “documents numbered 2–115 and included in 

this Record on Mandamus are true and correct copies.” Id. However, the 

affidavits do not swear that the identified documents are “true and correct copies of 

the pleadings on file in the trial court and the reporter’s transcript of the hearings 

conducted in this matter.”35 Instead, the affidavits merely state the documents are 

“true and correct copies.” (R. 1, 1a). Chief among Relator’s burden in a 

mandamus proceeding is the critical obligation to provide the reviewing court with 

a complete and adequate record.”36 Because the record in a mandamus proceeding 

is assembled by the parties,37 this Court must strictly enforce the requirements of

Rule 52 of the Texas Rules of Appellate Procedure to ensure the integrity of the 

 

35 See In re Kim, No. 05-14-01344-CV, 2014 Tex. App. LEXIS 11734, *2 n.1 (Tex. App.—

Dallas, Oct. 23, 2014, orig. proceeding) (noting that authentication requirements in mandamus 

proceeding must be strictly enforced); see also In re Butler, 270 S.W.3d 757, 759 (Tex. App.—

Dallas 2008, orig. proceeding) (finding affidavit insufficient to authenticate record because it did 

not state affiant had “personal knowledge the copy of the order in the appendix is a correct copy 

of the original.”).

36 In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) 

(citing Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding)).

37 See TEX. R. APP. P. 52.3(j), 52.3(k).
15

mandamus record.38 Here, Relator has wholly failed to provide a properly

authenticated record for the Court to review and consider, and the Petition should 

be denied on that basis alone.39

 Even if Relator properly authenticated its mandamus record, the documents 

included within that record violate the Texas Rules of Appellate Procedure. Under 

Texas Rule of Appellate Procedure 52.7(a)(1), the Relator must file a “certified or 

sworn copy of every document that is material to the relator’s claim for relief and 

that was filed in any underlying proceeding.” In original proceedings, the court 

focuses on the record before it when the decision was made.40 Here, Relator 

erroneously relies on documents that were not part of the trial court record, are not 

material to the Relator’s claim for relief, and were not filed in any underlying 

proceeding. Specifically, out of the 105 documents Relator included in the record, 

only 40 meet those requirements and could be considered part of the mandamus 

record.41 For example, Relator includes a 230-page document described as “RAI’s 

2010 State Cost Reports for the Clute and Lake Jackson Facilities.” (R. 8). Aside 

 

38 See, e.g., In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding). 

39 See In re Butler, 270 S.W.3d at 759 (denying petition for writ of mandamus because “relators’ 

petition and record are not authenticated as required by the Texas Rules of Appellate 

Procedure”).

40 See In re Bristol–Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998) (orig. proceeding); In 

re Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) 

(appellate court will not consider exhibits that were not part of the trial court record at the time of 

the hearing on the motion that is subject to the mandamus proceeding); In re McDonald, 424 

S.W.3d 774, 781 (Tex. App.—Beaumont 2014, orig. proceeding) (considering exhibit offered 

into evidence).

41 An index of these documents is included in Tab A of the Appendix. 
16

from its questionable relevance, there is nothing to indicate this document was 

filed in any underlying proceeding, and certainly not the proceedings at issue in 

this Petition. Accordingly, to the extent the Court considers Relator’s mandamus 

record to be properly authenticated, only a limited subset of 40 of the 105 

documents within that record should be considered by this Court. 

Finally, a relator seeking extraordinary relief under Rule 52 of the Texas 

Rules of Appellate Procedure must accompany the petition with either an 

authenticated transcript of any relevant testimony from any underlying proceeding 

or a statement that no testimony was adduced in connection with the matter.42 In 

absence of such a transcript, the court considering the petition for extraordinary 

relief presumes that there existed evidence to support the trial court's decision.43 

Here, Relator challenges the trial court’s order granting Real Parties’ Motion to 

Strike. Yet, Relator fails to provide a statement that no testimony or evidence was 

presented to the trial court in connection with Real Parties’ motion. Consequently, 

Relator failed to comply with Rule 52.7(a)(2), and this Court must presume that the 

trial court had before it evidence to support its decision and deny Relator’s request 

for mandamus relief.44

 

42 TEX. R. APP. P. 52.7(a)(2).

43 Ex parte King, 819 S.W.2d 944, 946 (Tex. App.—Houston [14th Dist.] 1991) (original 

proceeding involving a petition for writ of habeas corpus).

44 In re Michelle, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig. 

proceeding) (“But, in the final analysis, this court cannot and will not find an abuse of discretion 

on an incomplete record.”).
17

II. Respondent Did Not Abuse His Discretion in Granting Real Parties’ 

Motion to Strike Relator’s Amended Pleadings.

On the very next day following an unsuccessful mediation, Relator filed the 

first of its Amended Pleadings, seeking to add five new parties to the underlying 

lawsuit less than three months before trial and over seven months after the deadline 

for filing amended pleadings. Not only did the trial court correctly strike the 

Amended Pleadings and the baseless claims that Relator sought to add at the 

eleventh hour, but Relator has failed to meet its heavy burden of establishing the 

trial court clearly abused its discretion in doing so. Accordingly, this Petition must 

be denied. 

A. Respondent correctly dismissed Relator’s Amended Pleadings. 

The trial court could have granted Real Parties’ Motion to Strike and 

dismissed the Amended Pleadings under any one of a number of different grounds, 

all of which are supported by the record. 

1. The Amended Pleadings violate Rule 63. 

Under Rule 63 of the Texas Rules of Civil Procedure, “Parties may amend 

their pleadings . . . at such time as not to operate as a surprise to operate as a 

surprise to the opposite party.” Rule 63 contains an important limitation on the 

amendment of pleadings—the amended pleading may not unfairly prejudice or 
18

operate as a surprise to the opposing party.45 Under Rule 63, a trial court may 

refuse an amendment if (1) the opposing party presents evidence of surprise or 

prejudice, or (2) the amendment asserts a new cause of action or defense, and thus 

is prejudicial on its face, and the opposing party objects to the amendment.46

Relator contends in its Petition that a discussion of “prejudice” has “no place 

in a Rule 63 analysis.” Although Rule 63 does not expressly mention “prejudice,” 

any assessment of “surprise” must necessarily include an evaluation of 

“prejudice.”47 As the Dallas Court of Appeals noted: 

Under rules 63 and 66, a trial judge has no discretion to 

refuse an amendment unless the opposing party presents 

evidence of surprise or prejudice or the amendment 

asserts a new cause of action or defense, and thus is 

prejudicial on its face, and the opposing party objects to 

the amendment.48

Even if the “surprise or prejudice” standard did not apply in a typical Rule 

63 analysis, it certainly applies when the challenged pleading is filed after the date 

 

45 See TEX. R. CIV. P. 63; Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939–41 (Tex. 

1990); Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980) (trial court may conclude that 

amendment on its face is calculated to surprise). 

46 State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 657 (Tex. 1994); Greenhalgh, 787 S.W.2d at 

939.

47 See Hakemy Bros. Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. App.—Dallas 

2006, no pet.) (holding that “the opposing party’s objection is sufficient to show surprise” when 

the trial court concludes the amendment is on its face calculated to surprise or that the 

amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily 

delaying the trial.”) (emphasis added). 

48 See Am. Title Co. of Houston v. Bomac Mortgage Holdings, L.P., 196 S.W.3d 903, 909 (Tex. 

App.—Dallas 2006, pet. granted, judgm’t vacated w.r.m.) (emphasis added); see also Rodriguez 

v. Cuellar, 143 S.W.3d 251, 258 (Tex. App.—San Antonio 2004, pet. dism’d w.o.j.). 
19

set in a scheduling order.49 A party may amend its pleadings up to seven days 

before trial, or within the time required under a pretrial order.50 After the time for 

filing amended pleadings has passed, the trial court abuses its discretion in denying 

leave to file an amended pleading unless (1) the party opposing the amendment 

presents evidence of surprise or prejudice, or (2) the amendment asserts a new 

cause of action or defense, and thus is prejudicial on its face, and the opposing 

party objects to the amendment.51 Here, the trial court has entered only one DCO, 

which necessarily established June 12, 2014 as the deadline to add new parties.52 

(R. 60). The June 12, 2014 deadline passed without Relator adding any new 

parties or new claims. (R. 60). Although Relator contends the trial court lifted the 

deadlines within the DCO, Relator cannot point to a single citation in the record to 

 

49 See Gunn v. Fuqua, 397 S.W.3d 358, 377–79 (Tex. App.—Dallas 2013, pet. denied) (amended 

pleading filed after date set in pretrial order was properly denied when amendment was 

prejudicial because it asserted new causes of action).

50 TEX. R. CIV. P. 63; Hakemy Bros., Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. 

App.—Dallas 2006, pet. denied).

51 First State Bank of Mesquite v. Bellinger & Dewolf, L.L.P., 342 S.W.3d 142, (Tex. App.—El 

Paso 2011, no pet.) (citing State Bar v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994) (per 

curiam)); see also Hakemy Bros. Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. 

App.—Dallas 2006, no pet.) (holding that “the opposing party’s objection is sufficient to show 

surprise” when the trial court concludes the amendment is on its face calculated to surprise or 

that the amendment would reshape the cause of action, prejudicing the opposing party and 

unnecessarily delaying the trial.”). 

52 Relator asserts that because the DCO did not contain a date for the deadline to add new parties, 

there was no such deadline. Courts have rejected that argument. See, e.g., Singleton v. Nw. Tex. 

Healthcare Sys., No. 07-03-0552-CV, 2006 Tex. App. LEXIS 1594, *14 n.6 (Tex. App.—

Amarillo Feb. 28, 2006, no pet.) (“We do not agree with appellant’s contention that the 

scheduling order did not set a deadline for joinder of parties. While the better practice might be 

to set out separately each of the deadlines mandated by Rule 190.4, the language in the agreed 

order here setting deadlines by which each party “shall file amended pleadings” necessarily 

included amended pleadings adding parties.”).
20

support that contention other than the self-serving and post-hoc affidavit of Felicia 

Harris. Therefore, whether operating under a typical Rule 63 analysis or a lateamended pleading analysis, the trial court was correct to apply the “surprise or 

prejudice” standard. 

 Against that backdrop, the record before the trial court reveals the 

Amended Pleadings operated to surprise the Real Parties. The thirty-eight new 

causes of action asserted in the Amended Pleadings could not have been 

anticipated by the Real Parties. (R. 73, 48). For example, the Amended Pleadings 

asserted, for the first time, “Violations of the Texas Free Enterprise and Antitrust 

Act” and “Fraudulent Concealment.” (R. 48). These claims—and the factual and 

legal theories behind these claims—were not disclosed to the Original Parties in 

Relators’ response to the Original Parties’ Request for Disclosure. (R. 73). 

Moreover, the Amended Pleadings added five additional parties to the case. (R. 

48). Again, these parties were not disclosed to the Original Parties in Relators’ 

disclosures. (R. 73). Nor did Relator identify any of those parties as a potential 

responsible third party. Id. That fact, alone, is enough to support a finding of 

surprise.53 

 

53 See Johnson v. Ingram Readymix, Inc., No. 03-09-00568, 2010 Tex. App.—LEXIS 10268, 

*17–18 (Tex. App.—Austin Dec. 23, 2010, no pet.) (holding that amended pleading constituted 

unfair surprise and prejudice when amending party made no effort to make opposing party aware 

of new claims through relevant discovery responses). 
21

In addition, the parties participated in a full-day mediation on January 26, 

2015 (the day before the Amended Pleadings were filed), yet prior to such time 

Relator made no mention of these additional claims and parties at all and issued no 

formal demands or other correspondence pertaining to these allegations. (R. 73). 

Instead, Relator laid behind the log and filed the first of its Amended Pleadings the 

very next day following the unsuccessful mediation. (R. 73). These examples 

alone demonstrate the surprise reflected in the record sufficient to allow the trial 

court to strike Relator’s Amended Pleadings pursuant to Rule 63. 

Just as the record adequately demonstrates surprise, there is ample evidence 

of the prejudice caused by the Amended Pleadings. As an initial matter, the 

Amended Pleadings are prejudicial on their face.54 It is obvious that the Amended 

Pleadings would have detrimentally affected the Real Parties’ presentation of the 

case, as they would have been required to adjust their discovery and trial 

preparations to include these new claims and new parties in a case that was already 

on its third trial setting. (R. 73). In Rodriguez v. Cuellar, the San Antonio Court 

of Appeals upheld a trial court’s decision to strike an amended pleading where the 

“nature of the case would have been reshaped . . . [thereby] requiring a lengthy 

trial in which the numerous specific allegations contained in the amended petition 

 

54 Cuellar, 143 S.W.3d at 258 (noting that, in the absence of a showing of surprise or prejudice, a 

court can strike a pleading that “asserts a new basis for the contest and is thus prejudicial on its 

face.”) (citing Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 91 (Tex. App.—Houston [1st 

Dist.] 2003, no pet.)).
22

would require testimony from potentially hundreds of individuals on several factintensive issues.”55

 The same situation arose here. Relator attempted to 

completely transform the true nature of the underlying lawsuit—a commercial 

lease dispute—into a whirlwind conspiracy theory involving thirty-eight new 

causes of action against five new parties. Further, the matters asserted in the 

Amended Pleadings are entirely unrelated to the factual disputes and legal issues 

that were litigated for almost two years prior to the amendment. For example, 

allegations that the Real Parties “entered into a contract, combination and 

conspiracy to restrain trade and/or commerce” and “made plans to monopolize the 

skilled nursing facility market in Brazoria County” are entirely unrelated to the 

central issue in this lawsuit: whether the Original Parties cooperated with Relator 

to effectuate a change of control of the two nursing facilities under the operative 

lease agreements, and could not have been reasonably anticipated. (R. 48). 

Perhaps the clearest reflection of the prejudice the Amended Pleadings 

would have caused is the fact that the discovery deadline and expert disclosure 

deadlines expired prior to the filing of the Amended Pleadings, with a preferential 

trial setting just two and a half months away. (R. 60). As such, Real Parties would 

have had no opportunity to develop a defense to the new allegations of conspiracy, 

attempted monopoly and disruption of free enterprise, fraudulent concealment, and 

 

55 Id. at 259.
23

other outlandish claims.56 Accordingly, the Amended Pleadings, which introduced 

thirty-eight new causes of action and five new parties, are prejudicial—on their 

face and otherwise—and objectionable based on the unfair surprise and prejudice 

they caused, and the trial court was correct to strike them from consideration. 

2. The continuance of the trial date had no effect on the 

deadline to amend pleadings.

Relator erroneously contends that a continuance of a trial date “vitiates the 

deadlines in a scheduling order.” See Petition, p. 52. However, Relator construes 

this rule too broadly. It is true that, absent language to the contrary, a continuance 

nullifies the previous discovery deadlines (such as the deadline to supplement 

responses to discovery requests) or other deadlines directly tied to the trial date 

(e.g. 30 days before trial).57 However, a continuance of a trial setting has no effect 

on deadlines that are not directly tied to the trial date. Every case relied on by 

Relator involves deadlines entirely connected to and dependent upon the trial 

date.58 Relator does not identify any authority holding that the continuance of a 

 

56 See Hakemy Bros. Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. App.—Dallas 

2006, no pet.) (concluding trial court did not abuse its discretion in striking amended petition 

filed one month before trial because “appellees had no opportunity, without a continuance, to 

designate an expert . . . or conduct additional discovery.”). 

57 At least one court of appeals has distinguished “fixed dates established in the scheduling

order” from “deadlines [that] are stated in terms of so many days ‘before trial,’” and eventually 

held that “by stating the deadline as 45 days before trial, we believe the parties intended for the 

dates to be flexible and to operate from the date of the trial, whether it was held on September 30 

or some other date.” See Torres v. GSC Enterp., Inc., 242 S.W.3d 553, 558 (Tex. App.—El Paso 

2007, no pet.). 

58 See Bates v. Sunshare RV, Ltd., 2010 WL 3582487, *1 (Tex. App.—San Antonio Sept. 15, 

2010, no pet.) (continuance of trial setting lifted deadline to submit proposed jury instructions 
24

trial date nullifies dates that have already passed and are not discovery-related or 

expressly tied to the trial date. 

Relator also argues that the conduct of both parties otherwise establishes that 

the deadlines had been lifted. However, Relator misrepresents the true facts. Once 

the original trial date was postponed to April 2015, the parties attempted to 

establish—without instruction from the trial court—a subsequent agreed amended 

docket control order.59 (R. 73). Relator sent a proposed amended docket control 

order on December 1, 2014. Id. Specifically because Relator attempted to include 

a blank date for the deadline to add new parties, Real Parties’ counsel removed the 

blank date and sent the revised order back to Relator, stating, “Attached is a 

revised version of the Amended DCO. We deleted deadlines that have already

passed or are inapplicable.” Id. Then, in an event typical of Relator’s conduct 

throughout the underlying litigation, Relator filed a Motion for Entry of Amended 

Docket Control Order that misrepresented to the trial court that Real Parties agreed 

 

previously set for the “Monday preceding the week of the trial date”); Killam Ranch Properties, 

Ltd. v. Webb Co., 2008 WL 4958452, *4 (Tex. App.—San Antonio Nov. 19, 2008, no pet.) 

(continuance of trial setting lifted deadline to supplement discovery responses previously set for 

“more than thirty days before the October . . . trial date”); Felker v. Petrolon, Inc., 929 S.W.2d 

460, 467 n.9 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (continuance of trial setting 

lifted deadline to disclose experts); Daniels v. Yancey, 175 S.W.3d 889, 893 (Tex. App.—

Texarkana 2005, no pet.) (noting that the purpose of the “agreed motion for continuance was to 

allow discovery after the deadlines previously imposed by the agreed scheduling order.”). 

59 Relator argues that, because Relator’s counsel and the Real Parties’ counsel discussed 

amending the DCO, and seemed in agreement on a January 30, 2015 deadline for pleading 

amendments, that the trial court clearly violated Rule 63 by granting the Motion to Strike. But 

Rule 63 concerns pleading amendments, not the joinder of new parties to a lawsuit. See TEX. R.

CIV. P. 63. Hence, this argument fails. Moreover, the parties never actually filed a joint motion 

asking the trial court to set a January 30, 2015 pleadings deadline. 
25

to the dates listed in the first proposed amended docket control order that was 

rejected by Real Parties. (Supp. R. 8). Within this motion, Relator misrepresented 

that the “parties agree to the dates,” and in the certificate of conference, certified 

that Real Parties “are not opposed” to the entry of Relator’s proposed amended 

docket control order. Id. Because Real Parties made clear that they never agreed 

to that proposed order, Real Parties’ counsel emailed Relator’s counsel in an 

attempt to make their position clear: 

As for the line item for new parties we are fine leaving 

that in so long as we have an agreed understanding that 

the prior deadline for adding new parties has passed and 

the blank line in your proposed order does not suggest 

that is an “open” date.

Id. If anything, Relator’s conduct throughout this episode reveals that it knew the 

deadline to add new parties had passed and misled the trial court in an effort to reopen that deadline. 

Relator also contends that the Amended Pleadings should be allowed 

because the Original Parties did not object when Relator amended its petition in 

September 2014. See Petition, p. 33. Of course, this argument ignores the fact that 

the September 2014 Petition was not made three months before the third trial 

setting. Nor does the argument consider that the September 2014 Petition was 

simply an amendment of existing allegations whereas the January 2015 Petition 

added new parties (and new causes of action) to the suit. 
26

Put simply, Real Parties never acted inconsistent with their position that the 

deadline to add new parties had passed. Id. However, Relator’s allegations to the 

contrary, even if true, do not show inconsistency by the trial court in enforcing the 

scheduling order.60 

The trial court has a duty to schedule its cases in such a manner as to 

expeditiously dispose of them.

61

 For this reason the court is given wide discretion 

in managing its docket, and an appellate should not interfere with the exercise of 

that discretion absent a showing of clear abuse.62 Because Relator has failed to 

show such clear abuse, the Petition must be denied. 

3. The Amended Pleading violates Rule 38. 

The trial court could have granted the motion to strike based also on Rule 38 

of the Texas Rules of Civil Procedure. Relator admits that the New Parties should 

have been styled ‘additional counter-defendants,’ ‘cross-defendants,’ or something 

similar,” but argues that the new claims asserted in the Amended Pleadings are not 

third-party claims because “mislabeling them does not change their substantive 

role in the litigation.” See Petition, p. 56. However, “[d]ismissal for failure to 

comply with the procedural requirements of Rule 38(a) is not a dismissal on the 

 

60 G.R.A.V.I.T.Y. Enterprises, Inc. v. Reece Supply Co., 177 S.W.3d 537, 543 (Tex. App.—Dallas 

2005, no pet.) (appellant attempted to argue deadline should not be enforced by the trial court 

because the parties did not follow it; court held that appellant did “not explain and cites no 

authority showing how the trial court’s enforcement of an order disregarded by the parties 

constitutes an abuse of discretion by the trial court.”). 

61 Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982).

62 Id. 
27

merits, but rather an exercise of the trial court’s discretion in a procedural 

matter.”63 Relator labeled the Amended Pleadings as “Third-Party Petition[s].” 

(R. 48). Relator admits that it “used ‘third-party defendants’ to describe the new 

parties.” See Petition, p. 56. The trial court, however, was not required to examine 

the merits or the substance of the allegations; rather, the trial court properly 

reviewed the procedural requirements of Rule 38(a) and correctly determined that 

Relator failed to meet those requirements. (R. 73).

4. Rule 91a did not afford Relator an “absolute right” to file 

the Amended Pleadings. 

In support of its Petition, Relator makes the argument that, because Coleman 

filed a Rule 91a Motion, Relator had the “absolute right” to amend its petition to 

add claims and parties. See Petition at pp. 51–52. Relator bases this contention on 

Rule 91a.5(b), which provides,

If the respondent amends the challenged cause of action 

at least 3 days before the date of the hearing, the movant 

may, before the date of the hearing, file a withdrawal of 

the motion or an amended motion directed to the 

amended cause of action.

TEX. R. CIV. P. 91a.5(b). 

Relator’s argument fails because nothing in the language of Rule 91a limits 

or negates a trial court’s broad discretion to determine joinder of parties and 

amendments of petitions. An interpretation of Rule 91a that decreases a trial 

 

63 See Oistad v. Baker & Hostetler, L.L.P., No. 01-05-00493-CV, 2006 Tex. App. LEXIS 1639, 

2006 WL 488594, at *3 (Tex. App.—Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op).
28

court’s ability to avoid unnecessary delays would be contrary to the purpose of the 

Rule, which is to help clear busy dockets congested with spurious claims, thereby 

increasing fairness in the legal system.

64

 Moreover, Relator completely ignores the 

fact the Coleman expressly made his Rule 91a motion subject to the Motion to 

Strike. (R. 74). Accordingly, Relator failed to demonstrate that the trial court 

erred by disallowing amendment pursuant to Rule 91a. 

B. Relator has not met its heavy burden of establishing the trial 

court clearly abused its discretion by striking the Amended 

Pleadings. 

1. Considering the facts and circumstances of the suit, the trial 

court did not clearly abuse its discretion.

To be entitled to the extraordinary remedy of mandamus relief, a relator 

must demonstrate that (1) the trial court clearly abused its discretion, and (2) the 

relator has no adequate remedy by appeal.65 Moreover, Relator has the burden to 

present the appellate court with a record sufficient to establish the right to 

mandamus.66 

Relator attempts to rely on Texas Rule of Civil Procedure 40 governing the 

permissive joinder of parties as defendants to a lawsuit.67 However, Rule 40 

 

64 See Timothy Patton, Motions to Dismiss Under Texas Rule 91a: Practice, Procedure and 

Review, 33 REV. LITIG. 469, 475 (2014) (“[A]n early dismissal procedure would, among other 

things, protect defendants from frivolous and costly lawsuits, strengthen the economy, and 

enhance the fairness of the court system.”). 

65 In re Noble Drilling (Jim Thompson), L.L.C., 449 S.W.3d 625, 630 (Tex. App.—Houston [1st 

Dist.] 2014, orig. proceeding). 

66 Walker v. Packer, 827 S.W.2d 833, 837–39 (Tex. 1992) (orig. proceeding).

67 TEX. R. CIV. P. 40.
29

further demonstrates the discretion allotted to the trial court on issues of joinder. 

Stated succinctly, a trial court has great discretion to determine joinder of parties.68 

This discretion includes the power to make a determination that a party’s joinder 

will delay a trial whose date has already been set.69 A trial court’s decision on 

joinder should be based on practical considerations with a view to what is fair and 

orderly, including whether joinder will unreasonably delay the trial under the facts 

and circumstances of the suit.70 

Relator’s Amended Pleadings are nothing more than an obvious attempt to 

delay trial and avoid an inevitable result. It was certainly foreseeable to Relator 

that if it brought Coleman into the suit, he would be represented by his own 

counsel, and it would be unmanageable for Coleman’s counsel to catch up on 20 

months of litigation in the few months before trial. Although Coleman acted as 

legal counsel to certain Real Parties, his interests in this lawsuit are not necessarily

aligned with their interests. It is unreasonable to expect Coleman to mount a 

defense to far-fetched claims that he helped orchestrate or implement a conspiracy

to monopolize the market for Medicare-reimbursed services in Brazoria County in 

the two and a half months remaining before trial. Coleman could reasonably be 

 

68 See In re Arthur Andersen, L.L.P., 121 S.W.3d 471, 483 (Tex. App.—Houston [14th Dist.] 

2003, orig. proceeding); Ryland Group, Inc. v. White, 723 S.W.2d 160, 161 (Tex. App.—

Houston [1st Dist.] 1986, no writ). 

69 See TEX. R. CIV. P. 40(b); Varme v. Gordon, 881 S.W.2d 877, 883 (Tex. App.—Houston [14th 

Dist.] 1994, writ denied). 

70 In re Arthur Andersen L.L.P., 121 S.W.3d at 483.
30

expected to deem it necessary to retake the depositions of parties and witnesses 

who have already been deposed, particularly given the significant change in the 

character of the lawsuit and the specter of individual liability. Moreover, Coleman 

and his counsel are entitled to sufficient time to review all of the existing discovery 

responses and document production and Relator’s experts’ reports to determine 

whether to serve additional discovery requests and retain his own experts. All of 

these items will take considerable time and add significant expense to the lawsuit 

for all parties. 

In its Mandamus Petition, Relator attempts to avoid these arguments by 

asserting that all opposing parties, erroneously including Coleman, are represented 

by the same counsel. See Petition, p. 50. But even among the Real Parties that are 

represented by the same counsel, Relator overlooks the fact that two of those 

parties were sued in their individual capacities (Sara Richards and Amy Stewart). 

(R. 48). Those individual defendants will have separate, distinct, and potentially 

adverse defensive strategies. Two other parties (GHCF and CVC) are wholly 

separate and distinct companies. The potential for individual exposure of those 

individuals and entities on new theories and claims that seek to transform the entire 

character of the case, and the commensurate need to analyze, evaluate, and prepare 

corresponding defenses, is unreasonable given the near trial setting. 
31

Additionally, considering the circumstances and history of the lawsuit, the 

trial court reasonably determined it would unfairly and unreasonably delay trial to 

permit the joinder of the new parties at this late date.71 As explained above, this 

lawsuit was filed in May 2013 and the potential for Coleman, Richards, Stewart, 

GHCF, and CVC to be a party was known to Relator at the time. Nevertheless, 

Relator did not attempt to add these persons or entities as parties for another 20 

months, on the day after a failed mediation and with less than three months before 

the second trial setting. 

Based on these circumstances, the trial court acted properly—and surely did 

not clearly abuse its discretion—by striking the Amended Pleadings, thereby

permitting the case to be tried to the jury at its August 10, 2015 trial setting as the 

commercial lease dispute that it has been and remains, without additional 

unnecessary delay and expense.72 

2. Relator has not met its heavy burden of establishing no 

adequate remedy by appeal.

Even assuming Relator could prove the trial court clearly abused its 

discretion by striking the pleadings, Relator still is not entitled to mandamus relief 

 

71 See In re Arthur Andersen L.L.P., 121 S.W.3d at 483 (explaining trial court’s decision whether 

to permit joinder must be based on circumstances and history of specific case at hand). 

72 See In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (“Trial courts are generally granted 

considerable discretion when it comes to managing their dockets.”); Jones v. Cortes, 02-10-

00304-CV, 2011 WL 4008021, at *6 (Tex. App.—Fort Worth Sept. 8, 2011, no pet.) (“We 

conclude that the trial court’s concern about adding Carolina as a defendant within sixty days of 

the trial was reasonable because doing so could have delayed the trial date, which had already 

been rescheduled several times.”). 
32

unless Relator has no adequate remedy by appeal.73 The heavy burden of 

establishing an inadequate appellate remedy is on Relator.74 

Out of 78 pages of argument, Relator gives only scant treatment to the “no 

adequate remedy by appeal” requirement. See Petition, pp. 59–60. Relator’s sole 

argument in this regard is that “the trial court dismissed parties that have been, for 

all practical purposes, equal participants in the case to date.” Id., p. 60. According 

to Relator, “if the case proceeds to trial against only a portion of the interrelated 

parties, the potential for a subsequent proceeding to correct the court’s error is 

tremendous.” Id. In other words, Relator is arguing that there is a tremendous 

chance that, because of the trial court’s error in striking the pleadings, an appellate 

court will reverse the trial court’s judgment and remand for a new trial. Hence, 

Relator acknowledges it will have the opportunity to appeal the trial court’s ruling 

on the motion to strike in a few short months after a final judgment is rendered 

following the August trial.75 Clearly, Relator has not met its heavy burden of 

establish no adequate remedy by appeal. Directly to the contrary, Relator’s 

Petition recognizes the existence of an adequate remedy by appeal. 

 

73 In re Noble Drilling (Jim Thompson), L.L.C., 449 S.W.3d at 630. 

74 In re Stern, 321 S.W.3d 828, 837 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing In re

CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003)). 

75 See, e.g., Jones v. Cortes, 02-10-00304-CV, 2011 WL 4008021, at *6 (Tex. App.—Fort Worth 

Sept. 8, 2011, no pet.) (determining on appeal from final judgment that trial court did not abuse 

discretion by striking petition that added new party). 
33

III. The Trial Court Has Not Abused Its Discretion in Setting Proper Limits 

on Relator’s Abusive and Harassing Discovery Efforts. 

Relator claims that the trial court “erred in restricting Relator’s access to and 

use of discovery facts and documents.” See Petition, p. 61. Although Relator fails 

to clearly set forth the exact relief it is requesting, any mandamus relief issued by 

this Court would be improper for several reasons. First, several issues raised by 

Relator have been rendered moot by the trial court’s action. Next, on many issues 

Relator fails to identify the written orders from which it seeks relief. To the extent 

Relator does identify a written order, that order encompasses proper restrictions set 

by the trial court on Relator’s discovery fishing crusade that should not be 

disturbed by this Court. 

A. Several issues raised by Relator are moot. 

First, Relator complains that it has been denied access to documents 

produced by non-party MDS Research Company pursuant to a third-party

subpoena. Specifically, Relator states that “whatever MDS documents [that] were 

produced remain in camera,”76 and Relator asserts that it “still awaits release of the 

documents by the court.” See Petition, p. 69. Curiously, the Petition notes that 

 

76 Relator implies several times that it was an abuse of discretion for the trial court to sua sponte

order documents to be produced for in camera review. Not only do trial courts have the inherent 

authority to review documents in camera, but denying discovery of potentially relevant 

documents without reviewing them in camera is an abuse of discretion. See Axelson v. 

McIlhany, 798 S.W.2d 550, 553 (Tex. 1990, orig. proceeding) (holding that it was an abuse of 

discretion to deny discovery of potentially relevant documents without reviewing them in 

camera). 
34

Relator’s counsel was contacted by the trial court “the day before” the Petition was 

filed and told that the in camera documents were available for her inspection, 

reflecting that Relator’s complaints are both premature and potentially unfounded. 

See Petition, p. 70. Indeed, on June 17, 2015, six days after the filing of this 

Petition, the court coordinator notified the parties that Relator’s counsel “came 

down today and looked at the documents that were submitted for in camera

inspection” and “advised the court that she wants copies of all the documents.” 

(Supp. R. 9). The next week, the trial court confirmed on the record that Relator 

reviewed and copied the very same MDS Research Company documents at issue in 

this Petition. (Supp. R. 1). Accordingly, the relief requested by Relator relating to 

the MDS Research Company documents is moot, and the Petition should be denied 

in that respect.77

Relator also asserts that the “trial court denied [Relator] the use of a 

contemporaneous appraisal of the facilities” after Relator requested the documents 

 

77See Boring & Tunneling Co. v. Salazar, 782 S.W.2d 284, 285 (Tex. App.—Houston [1st Dist.] 

1989, orig. proceeding) (denying relator’s petition as moot when trial court judge allowed 

production and disclosure of certain disputed documents that had been previously withheld from 

production); see also Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995) (“[W]e will 

not issue mandamus if for any reason it would be useless or unavailing). Notwithstanding the 

mootness of this issue, Relator’s request is deficient for several other reasons. First—and made 

apparent by the trial court’s subsequent ruling—Relator’s request for mandamus relief was 

premature. Relator admits that “[j]ust the day before this filing, the trial court indicated that 

[Relator’s] counsel could come view the in camera documents, and that he would decide 

whether [Relator] could have them after [Relator] told him which ones it wanted.” See Petition, 

p. 70. Even so, Relator’s asks this Court to “compel MDS’s full compliance with the subpoena.” 

This is a wholly inappropriate demand for relief, as this Court’s only jurisdiction on mandamus 

is to order the respondent—in this case, the trial court—to take certain action.
35

and the trial court ordered them produced in camera. See Petition, p. 73. Without 

requesting any specific relief, Relator notes that the appraisals “remain in camera

while [Relator] their production [sic].” Id. p. 74. Like the MDS Research 

Company records, the trial court confirmed that Relator reviewed and copied the 

appraisals on June 17, 2015. For the same reasons, this issue is now moot.

B. Relator fails to identify specific orders from which it requests 

relief. 

When a relator files a petition for writ of mandamus, the relator must file a 

copy of the order which the relator challenges with the petition.78 A relator is not 

entitled to mandamus relief unless it the order it challenges is included within the 

appendix.79 Here, Relator argues that (1) the “trial court clearly abused its 

discretion in refusing to order production of the ‘Discharge books,” (2) “refused to 

allow [Relator] to substantiate its claim that the Grethers hired and/or transferred 

employees” by failing to order production of “communications between CVC 

. . . and any employees of the two leased facilities,” and (3) refused to compel 

Gayle Jacobs, a non-party to the underlying action, to “confirm the nature of her 

employment.” See Petition, pp. 72–74. However, Relator does not include within 

the appendix or anywhere else within the mandamus record any orders reflecting 

this alleged denial of discovery. Instead, Relator notes that the “trial court still 

 

78 TEX. R. APP. P. 52.3(k)(1)(A). 

79 Id.; see In re Lewis, No. 14-15-00122, 2015 Tex. App LEXIS 1620, *1 (Tex. App.—Houston 

[1st Dist.] Feb. 19, 2015, orig. proceeding) (denying petition for writ of mandamus when relator 

failed to include a certified or sworn copy of the order he challenged).
36

refuses to rule on the motion” to compel the above documents and information. 

Id., p. 73. Because the trial court has “not yet advised the parties of its ruling on 

the motion . . . at this juncture, there is no ruling of the trial court that [this Court] 

may evaluate for abuse of discretion and adequacy of appellate remedy.”80

It is unclear whether Relators asks this Court to order the trial court to make 

a ruling, but even so, because the trial court has not ruled, then a request to rule is 

necessarily inconsistent with Relator’s complaint that the trial court has abused its 

discretion in failing to rule. While this Court may, by mandamus, direct the trial 

court to make a decision, it “may not tell the trial court what that decision should 

be.”81 Accordingly, Relator has failed to establish a right to the relief requested 

related to the discharge books and employee communications.

C. The Court set proper limits on Relator’s request for immaterial 

and irrelevant policies and procedures. 

Finally, Relator complains that the trial court’s September 30, 2014 order 

“only permitted Relator’s counsel’s review at the courthouse jury room” and 

effectively denied “copies to use in depositions, attach as exhibits to motions, 

analyze with Relator’s experts, or to read and review with its office staff, or use at 

trial.” See Petition, p. 63.

 

80 See In re Progressive Cty. Mut. Ins. Co., No. 05-15-00622-CV, 2015 Tex. App. LEXIS 5009, 

*1 (Tex. App.—Dallas May 15, 2015, orig. proceeding). 

81 Id. at *2 (citing Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962); In re 

Tasby, 40 S.W.3d 190, 191 (Tex. App.— Texarkana 2001, orig. proceeding).
37

Relator has made only one argument with respect to the discoverability of 

the Real Parties’ policies and procedures: the Real Parties allegedly “contracted to 

turn over these documents.” See Petition, p. 64 and (R. 36). Putting aside the fact 

that Real Parties dispute that any one of them agreed to surrender highly 

proprietary written policies and procedures that were created and customized for 

use at the two nursing facilities over twenty years, the substance of the policies 

and procedures is not relevant to a single issue in the underlying suit. (Supp. R.

10). Relator does not allege that Real Parties failed to follow their policies and 

procedures. It is undisputed that the Real Parties removed their own policies and 

procedures from the two facilities upon termination of the lease, and that Relator 

purchased its own policies and procedures for use upon the termination of the 

leases. The dispute is whether or not Real Parties were entitled to remove their 

documents at the expiration of the lease terms, and the necessity for Relator to 

purchase their own policies and procedures, but there is no dispute relating to the 

specific language or the substance of any of the proprietary documents.

Accordingly, the trial court acted appropriately—and certainly did not abuse 

its discretion—when it ordered the policies and procedures produced for in camera

review. (R. 37). By allowing only Relator’s counsel to review them, the trial court 

effectively designated the policies and procedures “Attorneys’ Eyes Only” and 

prevented the disclosure of the proprietary material therein. Such action is clearly 
38

permitted by the protective order entered in the underlying case. (R. 38). 

Unsurprisingly, Relator points to no authority that the trial court’s action in this 

regard is an abuse of discretion, and the Court should deny the Petition. 

D. Relator has not demonstrated that it lacks an adequate remedy by 

appeal. 

To determine whether mandamus is appropriate in lieu of an appeal, the 

reviewing court must carefully consider all relevant circumstances, such as the 

claims and defenses asserted, the type of discovery sought, what the discovery is 

intended to prove, and the presence or lack of other discovery.82 Delay, 

inconvenience, or expense of an appeal are insufficient to satisfy this requirement. 

Rather, the relator must demonstrate “the effective denial of a reasonable 

opportunity to develop the merits of his or her case, so that the trial would be a 

waste of judicial resources.”83 Moreover, mandamus will not issue unless the 

undiscovered information “goes to the heart of a party’s case.”84 

Here, Relator makes the conclusory assertion that the trial court’s “discovery 

rulings (or lack thereof) here have denied [Relator] a reasonable opportunity to 

develop the merits of its case.” See Petition, p. 62. Relator alleges nothing more 

than inconvenience and delay, and certainly points to no citation or evidence in the 

 

82 Walker v. Packer, 827 S.W.2d 833, 844 (Tex. 1992).

83 Id. at 843.

84 Id.; see also Polaris Investment Management Corp. v. Abascal, 892 S.W.2d 860, 861–62 (Tex. 

1995) (per curiam) (mandamus did not issue because discovery did not go “to the heart” of 

relator’s case).
39

record to demonstrate further harm. The Texas Supreme Court has held that the 

denial of discovery will entitle a relator to mandamus relief only if (1) the relator 

can establish that the relator’s ability to present a viable claim or defense is 

“vitiated or severely compromised” by the trial court’s discovery order, or (2) if 

the denial of discovery will render it impossible for an appellate court to evaluate 

the effect of the trial court’s error because the undiscovered information cannot be 

made a part of the record.85 Relator has failed to meet that burden here, and the 

Court must deny Relator’s request for mandamus relief. 

CONCLUSION AND PRAYER

For the foregoing reasons, Real Parties in Interest Rebecca Ann, Inc., 

Donald Grether, Paul Heinig, Plantation Health Care, Inc., Sara Richards, Amy 

Stewart, Country Village Care, Inc., and Grether Health Care Facilities, Inc. 

respectfully request that the Court deny Relator’s petition for writ of mandamus 

and grant Real Parties in Interest such other relief, in law or equity, to which they

may be shown to be justly entitled. 

 

85 Walker, 827 S.W.2d at 843–44.
40

JACKSON WALKER L.L.P.

Respectfully submitted,

/s/ Breck Harrison 

Breck Harrison 

State Bar No. 24007325

bharrison@jw.com 

Scott W. Weatherford

State Bar No. 24079554

sweatherford@jw.com

100 Congress Ave., Ste. 1100

Austin, Texas 78701

(512) 236-2000

(512) 236-2002 – Fax

ATTORNEYS FOR REAL PARTIES IN 

INTEREST, REBECCA ANN, INC., 

DONALD GRETHER, PAUL HEINIG, 

PLANTATION HEALTH CARE, INC., 

SARA RICHARDS, AMY STEWART, 

GRETHER HEALTH CARE 

FACILITIES, L.L.C., AND COUNTRY 

VILLAGE CARE, INC. 

RULE 52.3(J) CERTIFICATION

I have reviewed this Response to Relator’s Petition for Writ of Mandamus 

and conclude that every factual statement is supported by competent evidence the 

mandamus record.

/s/ Breck Harrison 

Breck Harrison 
41

RULE 9.4 CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Tex. R. App. P. 

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the 

word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it contains 

10,810 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).

/s/ Breck Harrison 

Breck Harrison
42

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document was served on the following 

counsel of record electronically through the electronic filing manager as well as by 

electronic mail delivery on June 26, 2015:

Brandy R. Manning

Felicia Harris

Burleson L.L.P. 

700 Milam, Suite 1100

Houston, Texas 77002

brmanning@burlesonllp.com

fharris@burlesonllp.com

Counsel for Relator

Zandra Foley

Andrew Johnson

Thompson, Coe, Cousins & Irons, 

L.L.P.

One Riverway, Suite 1400

Houston, Texas 77056

zfoley@thompsoncoe.com

ajohnson@thompsoncoe.com

Counsel for Stephen M. Coleman 

The Honorable Patrick Sebesta

239th Judicial District Court

Brazoria County, Texas

111 E. Locus, Room 310A

Angleton, Texas 77515

debbies@brazoria-county.com

Respondent 

/s/ Breck Harrison 

Breck Harrison
43

NO. 01-15-00530-CV

IN THE COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

In re Sunset Nursing Home, Inc.,

Relator

Original Proceeding on Petition for Writ of Mandamus

from Cause No. 72817 in the 239th Judicial District

Court of Brazoria County, Texas

(Hon. Patrick Sebesta, Presiding)

APPENDIX

TAB DOCUMENT

A Revised Index of Record.

13652835v.2
TAB A
TAB DOCUMENT

2 Consolidated Order from Judge Sebesta, signed May 5, 2015

28 Sunset Nursing Home Inc.’s Motion to Compel Plaintiff’s Production of 

Documents, filed March 14, 2014

31 Order, signed April 2, 2014

35

Sunset Nursing Home Inc.’s (1) Motion for Sanctions, filed August 25, 

2014; (2) Supplemental Motion for Sanctions, filed September 15, 2014; 

and (3) Second Supplemental Motion for Sanctions, filed September 19, 

2014

36 Sunset Nursing Home Inc.’s Motion to Compel Plaintiff and CounterDefendants’ Production of Documents, filed May 21, 2014

37 Order, signed September 30, 2014 re: RAI’s policies and procedures

38 Agreed Protective Order, signed November 25, 2013

39 Hearing transcript, March 24, 2015

42 Plaintiffs’ Motion to Quash Deposition of Steve Coleman, filed July 9, 

2014

45 Motion to Quash Sara Richards Deposition, filed October 23, 2014

47 Plaintiffs’ Motion to Compel Mediation, filed on December 5, 2014

48

Sunset Nursing Home, Inc.’s Second Amended Answer, Fifth Amended 

Counterclaim and Fourth Amended Third-Party Petition, filed on January 

26, 2015

49

Sunset Nursing Home Inc.’s Second Amended Answer, Fifth Amended 

Counterclaim and Fourth Amended Third-Party Petition, filed on April 

21, 2015

50 Plaintiffs’ and Third-Party Defendants’ Supplemental Motion to Strike 

and for Sanctions, dated April 22, 2015

54 Sunset’s Supplemental Combined Motion to Compel, served on January 

23, 2014

55 Non-Party Country Village Care, Inc.’s Motion for Protection 

(Subpoena: MDS Research), filed on February 16, 2015

56 Hearing transcript (re: subpoena served on MDS Research Company), 

dated February 24, 2015

57 Correspondence, dated March 30, 2015, from Scott Weatherford to Judge 

Sebesta re: MDS Research documents for in camera inspection

58 Order, signed April 6, 2015, re: MDS Research documents for in camera 

inspection 

59 Sunset Nursing Home, Inc.’s Motion for Entry of Proposed Docket 

Control Order, filed March 11, 2014

60 Docket Control Order, signed April 2, 2014
61 Hearing transcript, June 23, 2014

62

Sunset Nursing Home, Inc.’s Motion to Compel, Supplemental Motion 

for Amended Docket Control Order and Motion for Continuance, filed 

August 21, 2014

68

Sunset Nursing Home, Inc.’s (1) No Evidence and Traditional Motion for 

Partial Summary Judgment, filed February 13, 2015, and (2) Reply in 

Support of No-Evidence and Traditional Motion for Partial Summary 

Judgment, filed on February 24, 2015

69

Sunset Nursing Home, Inc.’s Second Amended Answer, Fourth 

Amended Counterclaim and Third Amended Third-Party Petition, filed 

September 18, 2014

71 Plaintiffs’ Motion to Quash Amy Stewart Deposition, filed on January 

26, 2015

73 Plaintiff and Third-Party Defendants’ Motion to Strike and for Sanctions, 

filed February 13, 2015

74 Third-Party Defendant Stephen M. Coleman’s Rule 91a Motion to 

Dismiss, filed March 18, 2015

75 Sunset Nursing Home, Inc.’s Supplemental Opposition to Motion to 

Strike, filed on April 27, 2015

76 Third-Party Defendant Stephen M. Coleman’s Notice of Withdrawing 

Rule 91a Motion to Dismiss, filed on April 22, 2015

80 Plaintiffs’ (RAI, et al.) Original Petition, filed on May 23, 2013

81 Defendant’s (Sunset) Answer to Plaintiffs’ Original Petition and 

Counterclaim, filed on June 4, 2013

82 Sunset Nursing Home, Inc.’s First Amended Answer, Counterclaim and 

Third-Party Petition, filed on October 29, 2013

83 Original Answer of Country Village Care, Inc., Grether Health Facilities, 

L.L.C., Sara Richards and Amy Stewart, filed on February 23, 2015

85 Sunset Nursing Home, Inc.’s Motion to Reconsider (Policies and 

Procedures in camera ruling), filed September 17, 2014

93 Correspondence, dated October 31, 2014, from Felicia Harris to Judge 

Sebesta re: depositions scheduling 

94 Correspondence, dated September 25, 2014, from Felicia Harris to Judge 

Sebesta attaching Proposed Order on Motions to Compel

95 Correspondence, dated December 10, 2014, from Felicia Harris to Judge 

Sebesta re: Plaintiffs’ Motion to Compel Mediation 

101 Third-Party Defendant Stephen M. Coleman’s Original Answer and 

Request for Disclosure, filed February 23, 2015

104 Correspondence, dated February 17, 2015, from Felicia Harris to Judge 
Sebesta re in camera review of 2010 appraisal documents 

105

Sunset Nursing Home, Inc.’s (1) Consolidated Motion to Compel from 

the Grethers, filed March 17, 2015 and (2) Supplemental Motion to 

Compel, filed March 19, 2015