in Re Ernie R West

• Court: Court of Criminal Appeals of Texas
• Decided: December 20, 2017
• Docket: 14-17-00886-CV
• Status: Published

Opinion

ACCEPTED 14-17-00886-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 12/20/2017 3:29 PM CHRISTOPHER PRINE CLERK

NO. 14-17-00886-CV

IN THE COURT OF APPEALS FILED IN FOR THE FOURTEENTH DISTRICT 14th COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 12/20/2017 3:29:01 PM ______________________________________________________ CHRISTOPHER A. PRINE Clerk In re ERNIE R. WEST,

Relator. ______________________________________________________

Original Proceeding from Cause No. 2016-85288 312th District Court, Harris County, Texas Honorable David Farr, Judge Presiding, Respondent

RELATOR’S MOTION FOR REHEARING

MILLARD A. JOHNSON State Bar No. 10772500 C. KEITH LEA State Bar No. 24048269 SARA J. SHERMAN State Bar No. 24068168

Johnson DeLuca Kurisky & Gould, A Professional Corporation 4 Houston Center 1221 Lamar, Suite 1000 Houston, Texas 77010 Tel.: (713) 652-2525 Fax: (713) 652-5130

ATTORNEYS FOR RELATOR

REHEARING POINT

Point One: West was denied due process for his Motion for Protection. Implicit in the Court’s denial of mandamus relief is the determination that the subsequent hearing, relating to other issues, served to cure the constitutional invalidity of the prior orders. The only remedy for a denial of due process is due process. Because the October 4, 2017 hearing was not a rehearing of West’s Motion for Protection and was not an evidentiary hearing that hearing could not cure the constitutional infirmities that resulted from the Court’s prior due process violations.

Pursuant to Texas Rule of Appellate Procedure 52.9, Relator West

respectfully requests that the Court take another look at West’s Amended Petition

for Writ of Mandamus. The record reflects that the trial court refused to apply the

law to West, carving out unwritten exceptions for certain non-parties, and denying

him a full and meaningful hearing on his requested relief. Implicit in this Court’s

ruling is that West’s denial of due process was cured by later hearings. A later

hearing, however, unless conducted with the same evidentiary burdens, cannot cure

prior constitutionally defective proceedings. Thus, without a writ of mandamus,

this Court will be endorsing the Texas family court’s practice of selectively

applying the law and violating non-parties’ due process rights afforded under

Texas law.

Because West is a non-party, he has no adequate remedy on appeal as a

matter of law. See e.g., City of Hous. v. Chambers, 899 S.W.2d 306, 308 (Tex.

App.—Houston [14th Dist.] 1995, no writ); Cent. Mut. Ins. Co. v. Dunker, 799

S.W.2d 334, 336 (Tex. App.—Houston [14th Dist.] 1990, writ denied); Gunn v.

Cavanaugh, 391 S.W.2d 723, 724 (Tex. 1965).1 The Court, therefore, must have

based its denial of mandamus relief on the first prong only—whether the trial court

1 While in certain circumstances non-parties may be joined in the lawsuit—in which they would be provided an adequate remedy on appeal—here, the record establishes that West would never be joined in this litigation.

committed a clear abuse of discretion. Accordingly, this Motion for Rehearing

will be limited to the trial court’s clear abuse of discretion.

The trial court abused its discretion when it refused to apply the law to West and carved out exceptions for certain non-parties—“[p]rocess which is a mere gesture is not due process.”

Texas Rule of Civil Procedure 176.6(e) provides that any person

commanded to appear at deposition and/or to produce documents, may move for a

protective order under Rule 192.6(b). West did that. The trial court had the

authority to protect West from the discovery only if West could establish that the

discovery was unduly burdensome, harassing, annoying, or an invasion of

personal, constitutional, or property rights. Tex. R. Civ. P. 192.6(b). Inherent in

the rule is the requirement that the resisting party produce evidence and establish

the right to relief. See, e.g., In Matter of Issuance of Subpoenas Depositions of

Bennett, 502 S.W.3d 373, 380–81 (Tex. App.—Houston [14th Dist.] 2016, no pet.)

(citing Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex.1987)). Here, the trial court

refused to apply the law when it refused West the opportunity to have a full

hearing on his evidentiary burden.

The record is replete with the trial court’s own admissions that it was not

following the rules or the law:

THE COURT: … there is not a reason for me to not allow them to depose a non-party who they believe has relevant information. App. 714:4–5.

… … there is not a reason that he would not be somebody they would have a right to depose. App. 715:6–8. … So, Mr. Johnson, your client is going to be deposed. … The Court finds he is subject to being deposed. App. 723:12–13; 15–16. …

THE COURT: In our world in family court is not going to block that deposition. App. 731:13–14. …

Well, the appellate court is going to love this. I can't imagine why the deposition will be quashed. I can't imagine my doing that. As far as how it's limited and when it occurs, I can certainly see working on that. If that helps at all, let's see if we can move this along. App. 467:4–9.

These statements, all but one made prior to the presentation of any evidence and

the other made in middle of West’s presentation of evidence, unequivocally

broadcasts that non-parties will be treated differently in the family courts and that

Rule 192.6 will be ignored because of that status. The trial court has no discretion

to carve out an exception that abridges the rights to due process of non-parties

mandated by Texas law—stated in other words; the opportunity to move for

protection is meaningless without a fair opportunity to meet the evidentiary burden

placed on the movant. The trial court ignored the law, which was a clear abuse of

discretion.

Because the trial court openly disregarded the law and refused to allow West

a meaningful evidentiary hearing on his requested relief—full protection from the

discovery because of its improper purpose, among other issues—everything that

followed was hollow. “[P]rocess which is a mere gesture is not due process.”

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 315, 70 S. Ct. 652, 657,

94 L. Ed. 865 (1950). The United States Supreme Court has observed the follows:

The right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one.

Morgan v. United States, 304 U.S. 1, 18, 58 S. Ct. 773, 776, 82 L. Ed. 1129

(1938).

The United States Supreme Court has also recognized that “the right to

procedural due process is ‘absolute’ in the sense that it does not depend upon the

merits of a claimant’s substantive assertions.” Carey v. Piphus, 435 U.S. 247, 266,

98 S. Ct. 1042, 1054, 55 L. Ed. 2d 252 (1978) (citing Boddie v. Connecticut, 401

U.S. 371, 375, 91 S.Ct. 780, 784, 28 L.Ed.2d 113 (1971); Anti-Fascist Comm. v.

McGrath, 341 U.S., at 171–72, 71 S.Ct., at 648–49 (Frankfurter, J., concurring)

(analyzing this principle when determining whether nominal damages should be

afforded for due process violations). This same concept was additionally

examined by the Texas Supreme Court in Ex parte Davis, when the Court noted

that while “the receipt of additional evidence [among other factors] might not have

led to a different judgment, due process required that a reasonable opportunity for

exerting those influences on the court’s judgment be afforded.” Ex parte Davis,

161 Tex. 561, 566, 344 S.W.2d 153, 157 (1961).

Thus, the determination here is not, and cannot be, whether the outcome may

be different or that the trial court may have reached the right results. The law is

clear that no result can stand in the face of due process violations.

Once the trial court violated West’s due process rights on his motion for protection, the constitutional infirmities could only be cured by a second evidentiary hearing on his motion.

As the trial court’s admission that it was not applying the law constitutes an

abuse of discretion and denial of due process, this Court’s denial of mandamus

relief implies that this Court found that future hearings cured the constitutional

violations. They cannot because West was never given the opportunity to fully

present evidence and thus, meet his burden of proof on his motion for protection.

The evidentiary burden placed on West for establishing a right for protection

is real and not purely theoretical. The law requires West to meet his evidentiary

burden in order to obtain the relief he requested. During the April 25, 2017

hearing, after hearing only a brief amount of evidence, the Court advised West that

his request for complete protection was denied and he would only be allowed to

present evidence for the purpose of imposing certain limitations.2 Thus, he was

curtailed from the having the opportunity to meet his burden of proof. Then,

during the October 4, 2017 hearing, while some of the issues were discussed, it

was not a motion for protection hearing and there was no evidence presented.3

“A fundamental requirement of due process is the opportunity to be

heard.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed.

2d 62 (1965) (quoting Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783)

(internal quotation marks omitted). “It is an opportunity which must be granted at

a meaningful time and in a meaningful manner.” Id. As the Texas Supreme Court

stated in University of Texas Medical School v. Than, “the remedy for a denial of

due process is due process.” Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d

926, 933 (Tex. 1995) (citing Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct.

2694, 2700–01, 33 L.Ed.2d 570 (1972) (upon proof of protected interest, professor

whose contract was not renewed is not entitled to reinstatement but to hearing

comporting with due process); McIntire v. State, 698 S.W.2d 652, 661–62 (Tex.

Crim. App. 1985) (remedy for failure to grant hearing on motion for new trial is a

hearing, not a new trial). In Than, the Supreme Court held that because of due

2 App. 467:4–9. 3 See generally Supp. App. 2–165.

process violations occurring in the medical student’s original expulsion

proceedings, he must be entitled to another expulsion hearing to cure the

constitutional defects. See id. at 933–34.

Here, the trial court could have only fully accorded West due process by

either allowing a full hearing prior to its ruling or by considering the issue anew

under the same evidentiary standards. Once his due process rights were violated,

only a second hearing on the same standards would have wiped the slate clean.

Only that would have restored West to the position he would have occupied had

due process of law been accorded to him in the first place. See Armstrong, 380

U.S. at 552.

Accordingly, West has not asked this Court to grant any relief on his motion

for protection. Instead, as Texas law provides, West respectfully requests that this

Court reconsider his request for mandamus and, after full briefing and oral

argument, direct the trial court to provide West a full and meaningful evidentiary

hearing on his motion that comports with due process.

PRAYER

For these reasons, Ernie R. West asks the Court to reconsider its denial of

West’s petition for writ of mandamus, that the Court order oral argument, and that

with or without oral argument, this Court grant West’s petition for writ of

mandamus, and order the relief sought therein. The relief is not onerous and is not

beyond what the law provides. West only asks this Court to order that the trial

court provide West his due process rights, which dictate a complete and

meaningful hearing on his Motion for Protection. West also prays for all other

relief to which he may be entitled.

Respectfully submitted,

JOHNSON, DELUCA, KURISKY & GOULD, a Professional Corporation

By: /s/ Millard A. Johnson Millard A. Johnson Texas Bar No. 10772500 mjohnson@jdkglaw.com C. Keith Lea Texas Bar No. 24048269 klea@jdkglaw.com Sara J. Sherman Texas Bar No. 24068168 ssherman@jdkglaw.com 4 Houston Center 1221 Lamar Street, Suite 1000 Houston, Texas 77010 (713) 652-2525 (Telephone) (713) 652-5130 (Facsimile)

ATTORNEYS FOR RELATOR ERNIE R. WEST

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading has been delivered via the court’s electronic filing system to all counsel of record on this, the 20th day of December, 2017, as follows:

Maisie A. Barringer Adam Dietrich Jenkins & Kamin LLP Two Greenway Plaza, Suite 600 Houston, Texas 77046 Phone: 713-600-5500 Fax: 713-600-5501 Attorneys for Real Party in Interest Jon Monroe

Ruby Bolton The Bolton Law Firm, PC 724 W. Main St. Tomball, TX 77375 Phone: 281-351-7897 Attorney for Real Party in Interest Shawna Monroe

/s/ Millard A. Johnson Millard A. Johnson

CERTIFICATIONS

The undersigned counsel for Relator hereby certifies that the computer

program used to prepare this Motion for Rehearing shows that the applicable word

count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1) is 1,765 words,

including footnotes. This document also complies with the typeface requirement

of Texas Rule of Appellate Procedure because it has been prepared in 14 point

Times New Roman font.