in Re Ernie R West
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.
RELATOR’S MOTION FOR REHEARING 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.
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