CourtListener 10046852•In Re: Brigade Energy Services, LLC v. the State of Texas
In Re: Brigade Energy Services, LLC v. the State of Texas
CourtListener 10046852Txctapp516 ago 2024
Testo completo
Denied and Opinion Filed August 16, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00963-CV
IN RE BRIGADE ENERGY SERVICES, LLC, Relator
Original Proceeding from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-11480
MEMORANDUM OPINION
Before Justices Pedersen, III, Smith, and Garcia
Opinion by Justice Smith
Before the Court are relator’s August 15, 2024 petition for writ of mandamus
and emergency motion for stay. Relator challenges the portion of the trial court’s
August 12, 2024 Order Granting Plaintiff’s Motion to Compel Discovery and
Privilege Log Against Defendant Brigade Energy Services, LLC whereby the trial
court ordered relator to produce a PowerPoint presentation. Relator contends in this
original proceeding that the PowerPoint presentation is protected by the attorney–
client and work-product privileges.
Entitlement to mandamus relief requires relator to show that the trial court
clearly abused its discretion and that relator lacks an adequate appellate remedy. In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). Relator bears the burden of providing the Court with a record that is
sufficient to show it is entitled to relief. Walker v. Packer, 827 S.W.2d 833, 837
(Tex. 1992) (orig. proceeding).
As the party asserting privilege, relator had the burden to present any evidence
necessary to support the privilege asserted in the trial court. TEX. R. CIV. P. 193.4(a).
The evidence may be testimony presented at the hearing or affidavits served at least
seven days before the hearing or at such other reasonable time as the court permits.
Id.
The record reflects that relator did not file any response to real party in
interest’s motion to compel or any affidavits to support its privilege assertion prior
to the August 2, 2024 hearing on real party’s motion to compel. The trial court’s
order granting real party’s motion to compel recites that the trial court had
considered “the Motion [to Compel], Supplemental Motion, evidence, [and]
arguments of counsel.” Relator, however, did not provide a transcript of the August
2, 2024 hearing or a statement that “no testimony was adduced in connection with
the matter complained.” TEX. R. APP. P. 52.7(a)(2). Without a transcript of the
August 2, 2024 hearing or a rule 52.7(a)(2) statement, we are unable to determine
whether relator made the required evidentiary showing and must presume the
evidentiary record at the hearing supports the trial court’s ruling. See In re Verp Inv.,
LLC, No. 05-14-01403-CV, 2014 WL 7476501, at *1 (Tex. App.—Dallas Dec. 31,
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2014, orig. proceeding) (mem. op.) (denying mandamus relief wherein relator
challenged order on motion to compel when relator failed to comply with rule
52.7(a)(2)).
Relator contends that at the August 2, 2024 hearing, the trial court requested
additional evidence regarding the PowerPoint presentation at issue. But relator has
not provided the transcript of the hearing to support this statement. TEX. R. APP. P.
52.3(g) (requiring every statement of fact to be supported by citation to competent
evidence included in the appendix or record). Although relator filed a response with
attached declarations several days after the August 2, 2024 hearing, the trial court’s
order does not refer to those materials.
Finally, even if the August 2, 2024 hearing was not evidentiary, and even if
the trial court considered the response and attached exhibits that relator filed on
August 7, 2024, we nevertheless conclude, after reviewing the petition and record
before us, that relator failed to demonstrate its entitlement to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus. We also deny
as moot relator’s emergency motion.
/Craig Smith/
CRAIG SMITH
JUSTICE
240963F.P05
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