in Re George Green and Garlan Green

Opinion

ACCEPTED 03-14-00725-CV 4956355 THIRD COURT OF APPEALS AUSTIN, TEXAS April 20, 2015 4/20/2015 3:17:27 PM JEFFREY D. KYLE CLERK No. 03-14-00725-CV

IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

IN RE GEORGE GREEN AND GARLAND GREEN RELATOR

PETITION FOR MANDAMUS FROM CAUSE NO. 18314 RD HON. ALLAN GARRETT, PRESIDING

BRIEF OF PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ, RICHARD PAT MCELROY, REAL PARTIES IN INTEREST

Brantley Ross Pringle, Jr. State Bar No. 16330001 rpringle@2w-g.com Heidi A. Coughlin State Bar 24059615 hcoughlin@w-g.com Mike Thompson, Jr. State Bar No. 19898200 mthompson@w-g.com Wright & Greenhill, P.C. 221 W. 6th Street, Suite 1800 Austin, Texas 78701 512/476-4600 512/476-5382 (Fax) Attorneys for Real Parties In Interest IDENTITY OF PARTIES AND COUNSEL

To comply with the Texas Rules of Appellate Procedure, the following is a

complete list of all parties to the trial court’s order at issue, as well as the names

and addresses of all trial and appellate counsel.

Relator: Counsel for Relator:

George Green David Junkin Garlan Green, deceased P.O. Box 2910 Wimberley, Texas 78676 david@junkinlawoffice.com

Real Parties In Interest: Counsel for Defendants/Real Parties In Interest:

Port of Call Homeowners Association Brantley Ross Pringle, Jr. Randolph Harig rpringle@w-g.com Phillip Jacobs Heidi A. Coughlin John Ross Buchholtz hcoughlin@w-g.com Richard Pat McElroy Mike Thompson, Jr. mthompson@w-g.com Wright & Greenhill, P.C. 221 W. 6th Street, Suite 1800 Austin, Texas 78701

Respondent: Executed the orders of which Relators complain Honorable Allan Garrett Judge 33rd Judicial District Court Of Llano County, Texas

-ii- Other Parties:

Nancy Carothers L. Hayes Fuller, III Naman Howell Smith & Lee, P.L.L.C. 400 Austin Avenue, Suite 800 P. O. Box 1470 Waco, TX 75703-1470 hfuller@namanhowell.com

-iii- TABLE OF CONTENTS

Index of Authorities .......................................................................................... v - vi

Statement of the Case ....................................................................................... 2

Counter-Issues Presented .................................................................................. 3

Counter-Issue One: The Court of Appeals does not have jurisdiction to consider the discovery matters at issue in this case and the mandamus should be dismissed because Relator has an adequate legal remedy.

Reply Point One: Assuming arguendo, that this court has jurisdiction of this matter, Mandamus still fails, because Green has the right to inspect documents provided under the order and the trial court did not abuse its discretion in maintaining its docket and court procedures. [Responsive to all Relator’s issues]

Background ....................................................................................................... 4 - 5

Summary of the Argument ............................................................................... 6

Argument and Authorities ................................................................................ 7 - 18

Conclusion and Prayer ...................................................................................... 19

Certificate of Service ........................................................................................ 22

Appendix .......................................................................................................... 23-24

-iv- INDEX OF AUTHORITIES

Case Law Page(s) Burton v. Cravey, 759 S.W.2d 160 (Tex.App.—Houston [1st Dist] 1988, no writ) ............ 18,23 Cleveland v. Williams, 29 Tex. 204, 213 (1867) ......................................................................... 11,23 Cole v. McWillie, S.W.3d , 2015 WL 535562 (Tex.App.—Eastland 2015, no pet ... 11,23 Crawford v. Morris, 228 S.W.2d 364, 366 (Tex.Civ.App.—Eastland 1950, writ ref’d n.r.e.) ..................................................................................... 11,23 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) cert. denied, 476 U.S. 1159 (1986) ......... 9,23 Ezeoke v. Tracy, 349 S.W.3d 679 (Tex. App.—Houston [14th Dist.] 2011, no pet.)......... 16,23 Gaughn v. National Cutting Horse Association, 351 S.W. 3d 408 (Tex.App.—Ft. Worth 2011, pet. for review denied .. 16,23 Gilmer v. Veatch, 121 S.W. 545 (1909) .............................................................................. 11,23 Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) .................................................................. 16,23 In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W. 2d 371, 381-82 (Tex. 1998) ................................................... 15,23 In re Campbell, 106 S.W.3d 788 (Tex.App.—Texarkana 2003) ..................................... 7,23 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) .................................................................. 9,23 Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) ............................................................ 8,10,23 Nehring v. McMurrain, 45 S.W. 1032 (Tex. Civ. App. 1898) ..................................................... 11,23 Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594 (Tex. 1996) .................................................................. 10,24 Velez v. DeLara, 905 S.W.2d 43 (Tex.App.—San Antonio 1995, no writ ........................ 8,24 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) .................................................................. 8,24 Watson v. The Homeowners Association of Heritage Ranch, Inc., 346 S.W.3d 258 (Tex.App.—Dallas 2011, no writ)............................... 12,24

-v- Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (Tex.App.—Dallas, 1997, no pet) ............................... 7,24

Rules

Tex. Bus. Org Code §252.010 (Vernon 2012).................................................. 18,24 Tex. Bus. Org. Code §22.351 (Vernon 2012)................................................... 13,14,18,24 Tex. Bus. Org. Code §1396-2.23A(Vernon 2009) ........................................... 15,24 Tex. Prop. Code §82.114 (Vernon 2014) ......................................................... 13,14,17,24 Tex. R. App. Pro. 42.3 (Vernon 2003) ............................................................. 7,24 Tex. R. Civ. Pro. 190.5 (Vernon Supp. 2014) .................................................. 15,24 Tex. R. Civ. Pro. 191.1 (Vernon 2004) ........................................................... 15,24 Tex. R. Civ. Pro. 191.3(c) (Vernon 2004) ........................................................ 16,24 Tex. R. Civ. Pro. 191.3(e) (Vernon 2004) ........................................................ 16,24 Tex. R. Civ. Pro. 192.4 (Vernon 2004) ............................................................ 15,24 Tex. R. Civ. Pro. 192.6 (Vernon 2004) ............................................................ 15,24 Tex. R. Civ. Pro. 192.6(a) (Vernon 2004) ...................................................... 16,24 Tex. R. Civ. Pro. 192.6(b)(4) (Vernon 2004) ................................................... 16,24 Tex. R. Civ. Pro. 215.3 (Vernon 2004) ............................................................ 15,24 Tex. R. Civ. Pro. 301 (Vernon 2008) ............................................................... 10,24 Tex. R. Civ. Pro. 329b (Vernon 2008) ............................................................. 10,24

Other www.Washingtonpost.com “John Roberts, Umpire” 6/28/2012, Chris Cillizza (visited 2/27) ....................................... 10,24

-vi- No. 03-14-00725-CV

IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

IN RE GEORGE GREEN AND GARLAND GREEN RELATOR

PETITION FOR MANDAMUS FROM CAUSE NO. 18314 RD HON. ALLAN GARRETT, PRESIDING

BRIEF OF PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG, PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ, RICHARD PAT MCELROY, REAL PARTIES IN INTEREST

TO THE HONORABLE THIRD COURT OF APPEALS:

COME NOW Real Parties In Interest Port of Call Homeowners Association,

Randolph Harig, Phillip Jacobs, John Ross Buchholtz, and Richard Pat McElroy

(hereinafter “POC”) and file this their Brief and would show the following:

-1- STATEMENT OF THE CASE

POC generally agrees with George Green and Garlan Green’s (hereinafter

“Green”) statements of the case as reported in the original brief and subsequent

Court of Appeals pleadings in general. The primary disagreement between the

parties now centers on whether or not the Court of Appeals has jurisdiction to

consider the discovery order at issue and whether or not the trial court abused its

discretion with its discovery rulings.

-2- COUNTER-ISSUES PRESENTED

Counter-Issue One: The Court of Appeals does not have jurisdiction to consider the discovery matters at issue in this case and the mandamus should be dismissed because Relator has an adequate legal remedy.

Reply Point One: Assuming arguendo, that this court has jurisdiction of this matter, Mandamus still fails, because Green has the right to inspect documents provided under the order and the trial court did not abuse its discretion in maintaining its docket and court procedures. [Responsive to all Relator’s issues]

-3- BACKGROUND

In his Original Petition, Green complains that POC breached fiduciary duties

and breached contracts. (CR p. 8-14)1 During the pendency of the litigation, POC

filed a motion seeking protection from Green’s discovery actions on August 8,

2014. (CR p. 114-130) One basis of the Motion was that Green was making

duplicative requests for information to harass POC. (RR Vol. II, p. 5-15) A

hearing was held on August 14, 2014, and after that, an order for protection was

granted. (CR p. 131-132) George Green was at that hearing and discussed

discovery issues with Respondent. (RR Vol. II, p. 28)

Subsequently, Green continued conduct POC believed violated the order of

protection. (CR p. 153-156) In response, POC filed a Motion to Enforce the Order

of August 14, 2014. (CR p. 153-156) A hearing was held on that motion on

October 14, 2014. (CR p. 175; RR Vol. III, p. 3) The Judge granted the Motion to

Enforce the Protective Order and entered an order on October 21, 2014. (CR p. 175)

The record of the hearing on that Motion again details what Respondent expected

of the parties. (RR Vol. II, p. 12-19) That is the order that was the subject of the

original appeal. That order has been vacated. (Supp. CR p. 4)

1 For this brief, the Clerk’s Record is referenced as CR p. ___ or Supp. CR p. ___ for the Supplemental Clerk’s Record. The Reporter’s Record is referenced as RR Vol. ___ p. ___; or Supp. RR p. for references to the Supplemental Reporter’s Record for the hearing January 30, 2015.

-4- On January 30, 2015, a hearing was held in the District Court and as noted,

the Respondent vacated the order of October 21, 2014. (Supp. CR p. 4; Supp. RR p.

4-30) On that date, the trial court again discussed the discovery issues at length

with the parties, working with them to try to fashion a further compromise in order

to meet the concerns of both parties. (Supp. RR Vol. I, p. 4-31) As the record

from that hearing makes clear, neither Respondent nor Real Parties In Interest were

seeking to prevent Green from attending meetings of the Homeowners Association

(“HOA”), voting in HOA elections or speaking at those meetings. (Supp. RR Vol.

I, p. 6, 11, 15, 23) Indeed, Green had attended meetings of the Homeowners

Association after the October 21, 2014 order. (Supp. RR Vol. I, p. 6) Rather,

Respondent wanted to provide Relator the information allowable under the Bylaws

and Codes, while preventing what he had found to be the harassing conduct of

constant demands for information and documents directly to POC. (Id)

-5- SUMMARY OF THE ARGUMENT

In the present action, the Court of Appeals is without jurisdiction to grant

mandamus for two reasons. First, the trial court vacated the earlier order Green

sought to appeal. Second, the January 30, 2015 order concerns a discovery matter,

there is no final judgment and there is an adequate remedy at law.

Moreover, assuming arguendo that this Court has jurisdiction, the Trial

Court did not abuse its discretion in any action of which the Relator has

complained, or seeks to complain. Respondent has authority to manage his docket

and the discovery process for cases the parties have conferred jurisdiction upon it

by filing a lawsuit. Moreover, the codes providing for information and document

requests require such requests be pursued reasonably and for a proper purpose.

The Respondent very clearly followed those principles in fashioning these orders.

-6- I. ARGUMENT AND AUTHORITIES

A. The Court of Appeals does not have jurisdiction to consider the discovery matters at issue in this case and the mandamus should be dismissed because Relator has an adequate legal remedy.

1. The Court Should Reconsider its April 3, 2015 Order and Find the Issue Moot Because the Order Complained of was Vacated.

Originally, Relator claimed to be seeking interlocutory review of an

injunction. However, properly understood, the order for which Green seeks relief

is a discovery sanction. Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (Tex.

App—Dallas, 1997, no pet). On January 30, 2015, a hearing was held in the

District Court and the District Court vacated the order of October 21, 2014, the

order that was the subject of the pending interlocutory appeal. (Supp. CR p. 4)

POC has argued and here re-urges its argument that this court has the

authority to dismiss this appeal because the discovery order complained of has

been vacated. In re Campbell, 106 S.W.3d 788 (Tex. App.—Texarkana 2003)(trial

court order vacating earlier contempt order moots appeal because order no longer

exists). For this reason, POC re-urges its argument that the Court of Appeals is

without jurisdiction and the case should be dismissed. Tex. R. App. Pro. 42.3

(Vernon 2003).

2. The mandamus should be denied because this is a discovery matter, there is no final appealable judgment and Relators have an adequate remedy at law for the review of the Order.

-7- This case involves questions about the discovery process undertaken by the

parties and the court umpiring those actions in this civil case. There is no final

judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). Rather,

Green sought to proceed under the extraordinary remedy that is an interlocutory

appeal. (CR p. 182-183) Subsequently, this Court allowed Green’s appeal to

proceed as a mandamus action.

Consistent with the idea of judicial economy allowing review of trial court

rulings under the discretionary standard of review, Green has a remedy at law for

the review of these discovery orders and that is available after judgment. Walker v.

Packer, 827 S.W2d 833, 842 (Tex. 1992). The discussion between the parties and

Respondent, about the Respondent’s interest for discovery in this case, weighing

costs to the court and parties clearly illustrates why discovery matters are not

ordinarily appealable during the pendency of the case. (Supp. RR Vol. I, p. 10-24)

Discovery sanctions are rarely the proper subject for mandamus review. Velez v.

Delara, 905 S.W.2d 43 (Tex.App.—San Antonio 1995, no writ). Even if the Court

of Appeals had jurisdiction, the Respondent did not abuse his discretion with his

ruling in this case. And, if he did, the ruling is subject to review after judgment.

-8- B. Reply Point One: Assuming arguendo, that this court has jurisdiction of this matter, Mandamus still fails, because Green has the right to inspect documents provided under the order and the trial court did not abuse its discretion in maintaining its docket and court procedures. [Responsive to all Relator’s issues]

1. Standard of Review

As Relator rightly concedes, a trial court has a broad range of discretion in

maintaining its docket and controlling discovery procedures with parties before the

court. The proper standard of review for this matter is whether or not the trial

judge abused his discretion. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916,

917 (Tex. 1985). In order to establish that the trial judge abused his discretion, the

reviewing court must consider he acted without reference to any guiding rules and

principles, such that the act was arbitrary and unreasonable. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) cert. denied, 476 U.S.

1159 (1986).

-9- 2. The court did not violate its discretionary authority to umpire discovery matters before the court.

When standing for confirmation to the Supreme Court, Justice John Roberts

aptly described the proper role of the judge as the umpire of the judicial system,

not playing the game, but seeking to insure the parties operate fairly and in bounds.

www.Washingtonpost.com 6/28/2012, Chris Cillizza (visited 2/27). As the parties

here agree, that understanding is at the heart of the standard of review in this case.

The standard guides the Court of Appeals’ review. Applying that standard, it is

clear the district judge did not abuse his discretion here.

Regardless of how the order at issue may be styled, it is not a final order as it

did not dispose of all parties and/or claims. Lehmann v. Har-Con, 39 S.W.3d 191,

200 (Tex. 2001). Therefore, it is not a final judgment. Tex. R. Civ. Pro. 301. A

trial court retains jurisdiction over its docket, including the power to modify,

amend, or change interlocutory rulings and orders until it loses its plenary power.

Tex. R. Civ. Pro. 329b, Scott & White Memorial Hosp., v. Schexnider, 940 S.W.2d

594, 596 (Tex. 1996). Accordingly, the trial court had authority to change this

interlocutory order in the way it did regardless of what it is called.

-10- 3. Green is not entitled to mandamus relief from Judge Garrett’s January 30, 2015 discovery order because the Judge’s decision was not arbitrary, it was reasonable, and does not violate Green’s rights as a property owner derived from statute, bylaws or other legal authority.

a. George Green is not a property owner and therefore has no rights to inspect records under the statute, bylaws or other legal authority.

George Green brought this lawsuit by and through a Power of Attorney he

had from his father, Garlan Green, a property owner at Port of Call. (CR p. 8)

Relator argued earlier that outside of the discovery context of the Texas Rules of

Civil Procedure, he is entitled to information under the Property Code, the Texas

Business Organizations Code and the Bylaws of the Association as a property

owner. (RR Vol. II, p 51 - 53) On or about January 17, 2015, Garlan Green

passed away. Green’s counsel has since filed a Suggestion of Death notifying the

Court of this development. The powers of the agent cease on the death of his

principal. Cole v. McWillie, S.W.3d , 2015 WL 535562 (Tex.App.—

Eastland 2015, no pet.) (“…the law is clear, that an agent’s authority to bind his

principal terminates upon the principal’s death.” citing Cleveland v. Williams, 29

Tex. 204, 213 (1867), Crawford v. Morris, 228 S.W.2d 364, 366 (Tex.Civ.App.—

Eastland 1950, writ ref’d n.r.e.)). Upon his passing, the Power of Attorney from

Garlan Green to his son George Green was revoked. Gilmer v. Veatch, 121 S.W.

545 Tex. Civ. App. 1909, no writ), Nehring v. McMurrain, 45 S.W. 1032 (Tex. Civ.

-11- App. 1898, no writ). Green’s counsel has acknowledged that Garland Green’s

death complicates standing. (Supp. RR p. 12-13)

George Green is not a property owner. (Supp. RR p. 12-13) Nor is there any

evidence that he is acting as a proper agent for a property owner because the

property owner Garlan Green has passed away. Therefore, George Green has no

rights to review or inspect documents under the Homeowner Association Bylaws,

the Texas Property Code or the Texas Business Organizations Code. Absent such

standing, he has no right to request or inspect documents in any event.

b. Respondent balanced Green’s right to inspect documents, as a property owner, with Green’s previous unreasonable, harassing document requests. The January 30, 2015 Order provides Green with all the documents he is entitled to inspect under statutes and bylaws and protects the POC from constant harassing requests.

In the filings they have made with the court, the Relator has also

mischaracterized the court’s order of January 30, 2015. The fact is, the order

entered by the court on January 30, 2015 expressly allows for the production of

records from POC to Green through counsel.2 (Supp. CR p. 5) This is a proper

ruling. See Watson v The Homeowners Association of Heritage Ranch, Inc., 346

S.W.3d 258 (Tex.App.—Dallas 2011, no petition) (protective order regarding

information request under statute not abuse of discretion). Indeed, POC is

obligated to provide documents every 60 days without any further request. (Supp.

2 So did the earlier orders of August 14, 2014 and October 21, 2014.

-12- CR p. 5) This is a procedure that is more liberal than the provisions of the

Property Code, or the Business Organization Code themselves. See: Tex. Prop.

Code §82.114 and Tex. Bus. Org. Code §22.351. (and/or their predecessors)

Further, no one has argued that POC has not followed and met its obligations under

these orders made by Respondent. The January 30, 2015 order provides a

reasonable procedure for POC to provide all statutorily required documents and

other discovery.

The apparent question before the court in this Mandamus proceeding is

whether the Relator abused his discretion to control extra-judicial discovery

requests incident to a lawsuit. See Court of Appeals Order of April 3, 2015 p. 2.

The Court has asked POC to address the power of the court to control document

and information requests existing beyond the ordinary discovery vehicles described

in the Texas Rules of Civil Procedure. Initially, the Court of Appeals should

recognize that the Respondent did not abuse his discretion in finding Green had not

exercised his rights for a proper purpose, but rather had been using them to harass

the Association.

At the commencement of this lawsuit, Green sent POC significant discovery,

including extensive requests for production of documents. (RR Vol. II, p. 51)

These requests included information a property owner is entitled to inspect by

statute, as well as additional information. (Id.) The Texas Property Code, Texas

-13- Business Organization Code, and the Port of Call Homeowners Association

Bylaws themselves only require that documents requested be produced for

inspection, and possibly copying. Tex. Prop. Code §82.114; Tex. Bus. Org. Code

§22.351. However, Relator also requested the documents in his Requests for

Production and his attorney has taken the position that inspection is not sufficient

but rather the documents needed to be “produced.” (RR Vol. II, p. 51) POC

counsel has produced to Green all non-privileged documents in their actual and

constructive possession relating to the Home Owners Association, these documents

dated back to 1998 and totaled over 16,000 pages. (RR Vol. II, p. 19)

Ultimately POC sought relief from Green’s constant demands in the form of

a protective order. (CR p. 114) The Respondent determined that the constant

demand to the POC for more documents, additional documents and to re-review

documents previously produced, was harassing. (RR Vol. II, p. 29, 53; RR Vol. II,

p. 13-19; Supp. RR p. 8-30) Subsequently, POC filed a Motion to Enforce the

order believing Green had violated the earlier ruling. (CR p. 153) After a series of

hearings, the Order of January 30, 2015 was entered. (Supp. CR Vol. I, p. 5) It

requires “Defendants [POC] supplement document responsive to Plaintiff’s [Green]

previous discovery requests made by Plaintiff every sixty (60) days ... Such

supplementation shall occur without prompting or request by Plaintiff, and shall

include any Port of Call Homeowners Association-related documents that

-14- members may lawfully request due to their status as HOA members.” (Supp. CR

Vol. I, p. 5) (Emphasis added)

Clearly, the court can sanction parties under the discovery rules of the Texas

Rules of Civil Procedure, when parties are abusing discovery. See generally: Tex.

R. Civ. Pro. 190.5 (Vernon Supp. 2014), Tex. R. Civ. Pro. 191.1 (Vernon 2004),

Tex. R. Civ. Pro. 192.4 (Vernon 2004), Tex. R. Civ. Pro. 192.6 (Vernon 2004), and

Tex. R. Civ. Pro. 215.3 (Vernon 2004). Indeed, the court can undertake such action

sua sponte. See Tex. R. Civ. Pro. 191.3(e) (Vernon 2004). Further, the court can

modify a discovery period developed under the Texas Rules of Civil Procedure at

anytime, and it must do so when justice requires it. Tex. R. Civ. Pro. 190.5.

(Emphasis added) Those rules further describe that discovery may be limited by

the court, and should be limited by the court if it determines, on motion or its own

initiative, that discovery requests are duplicative or otherwise harmful. Tex. R. Civ.

Pro. 192.4.

Properly understood, this power of the court to umpire the parties’ discovery

efforts must extend to extra judicial discovery processes in other statutory

frameworks, like the Texas Property Code and the Texas Business Organizations

Code. Courts have recognized this. See e.g., In re Bay Area Citizens Against

Lawsuit Abuse, 982 S.W.2d 371, 381-82 (Tex. 1998) (names of financial

contributors not subject to blanket disclosures under Tex. Bus. Org. Code §1396-

-15- 2.23A), Huie v. DeShazo, 922 S.W.2d 920, 923-23 (Tex. 1996) (information

requests under statute do not override attorney-client privilege). Indeed, even the

structure of the Texas Rules of Civil Procedure themselves support this

understanding, because the power of the court to sanction, limit or otherwise

modify discovery requests found in Tex. R. Civ. Pro. 192.6(a) and 192.6(b)(4) is

not limited to “these rules” (i.e., the discovery processes of the Rules of Civil

Procedure). The drafters of those rules could have limited that provision to the

discovery in the Rules of Civil Procedure had they wanted to. They did not. Thus,

that power is not circumscribed. See: Gaughn v. National Cutting Horse

Association, 351 S.W. 3d 408 (Tex.App.—Ft. Worth 2011, pet. for review denied).

In addition, Tex. R. Civ. Pro. 191.3(c) provides that the signature of a party

to a “discovery request” implies that the request, among other things, is not

harassing. If a court determines otherwise it may impose a sanction on the person

who made the certification by signature. Tex. R. Civ. Pro. 191.3(e). Again, that

judicial power is not limited to “these rules” and the discovery vehicles described

in the Rules of Civil Procedure. Therefore, the judicial discretion built into the

system via the Texas Rules of Civil Procedure can be applied to discovery matters

beyond those rules. See: Gaughn v. National Cutting Horse Association, 351

S.W.3d 408 (Tex.App.—Ft. Worth 2011, pet. for review denied). In addition, a

court has inherent authority in some situations to impose sanctions. See: Ezeoke v.

-16- Tracy, 349 S.W.3d 679, 685 (Tex. App.—Houston [14th Dist.] 2011, no pet.). That

power extends to sanctions if a party violates a court order, like here. Respondent

earlier determined that Green had violated his discovery order of August 14, 2014

and continued harassing POC. (CR p. 175; Supp. RR Vol. I, p. 8; RR Vol. II,

p. 12-19)

It is not crystal clear all of the statutory schemes the Relator believes provide

him the right of immediate inspection of records from his father’s Homeowners

Association. In the hearing of August 14, 2014, Relator’s counsel urged Texas

Business and Organizations Code §252.010 and §22.351. (RR Vol. II, p. 40 - 45)

Furthermore, the Texas Property Code §82.114 is referenced in the Bylaws and

thus also of likely application. (RR Vol. II, p. 40) Moreover, §81.209 of the Texas

Property Code may too apply. Each of these is discussed below.

The Texas Property Code §82.114(b) requires an association keep “all

financial and other records of the association…reasonably available…for

examination by a unit owner and the owner’s agents.” Tex. Prop. Code §82.114

(Vernon’s 2014). (Emphasis added) The same reasonableness provision is

incorporated into the Port of Call Homeowner’s Association Bylaws by reference.

(RR Vol. II, p. 40) Section 81.2093 of the Property Code has been interpreted to

mean a homeowner may inspect records unless the request is for an improper

3 §81.209 applies to those regimes created before January 1, 1994. POC was created in 1980, it is possible it has application to this case.

-17- purpose. Burton v. Cravey, 759 S.W.2d 160 (Tex.App.—Houston [1st Dist] 1988,

no writ).

The Texas Business Organizations Code states that a member of a

corporation is entitled to review specific documents at any “reasonable time and

for a proper purpose.” Tex. Bus. Org. Code §22.351 (Vernon’s 2012) (Emphasis

added) Moreover, §252.010 requires that an unincorporated non-profit association

“. . . shall make the books and records available on request to members of the

association for inspection and copying.” Tex. Bus. Org. Code §252.010 (Vernon

2012).4 The statutes do not require production “on demand.” (RR Vol. II, p. 27)

Considering all of these sections together, it is certainly not an abuse of

discretion for a court to determine that the documents the statues require to be

inspected or produced shall be produced in a form that is regularly used in the

course of business every 60 days. That is what the Respondent did in this case.

That should not be taken as disregarding all standards or rules, but is rather a

prudent use of his discretionary authority.

Since the Respondent ruled that POC had to produce all documents Green

would be entitled to inspect as a homeowner, POC is actually required to exceed

their obligations to Green under the referenced statutes or bylaws. In an effort to

curb what Respondent identified as Green’s previous harassing behavior, the Court

4 While POC was created in 1980, it was not incorporated until later. (RR Vol. I, p. 41-42) Thus both sections might apply.

-18- also ruled that Green’s request for documents covered by the order or previously

produced will be viewed as a discovery abuse and subject to sanctions. (Supp. CR

p. 5) The Judge explicitly excluded requests for documents from Green’s attorney.

(Id)

The January 30, 2015 Order does not deprive Green of any right to access of

records, in fact, it gives him greater access to records than he is entitled to under

statutes and bylaws. Further the January 30, 2015 Order is an attempt to protect

POC from Green’s harassing and abusive requests. Accordingly, there is no abuse

of discretion in making the order Respondent made and the Petition for Mandamus

should be denied.

-19- CONCLUSION AND PRAYER

POC prays that the Court dismiss the Petition for Mandamus because it is

without jurisdiction to consider it. In the alternative, POC prays that the Court

deny the Relator’s issues because there is no error in the rendition of the order

below. Pleading as a further alternative, POC prays that the Court sustain their

counterpoint as an alternative ground for affirming the order of the trial court.

POC prays for such other relief both at law or equity to which it may be justly

entitled.

Respectfully submitted,

WRIGHT & GREENHILL, P.C. 221 West 6th Street, Suite 1800 Austin, Texas 78701 512/476-4600 512/476-5382 rpringle@w-g.com hcoughlin@w-g.com mthompson@w-g.com

/s/ Brantley Ross Pringle, Jr. By:_____________________________ Brantley Ross Pringle, Jr. State Bar No. 16330001 Heidi A. Coughlin State Bar No. 24059615 Mike Thompson, Jr. State Bar No. 19898200

ATTORNEYS FOR REAL PARTIES IN INTEREST

-20- CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. Pro. 9.4, the undersigned certifies this brief complies with the type-volume limitations of Tex. R. App. Pro. 9.4(i)(2)(3).

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Mike Thompson Mike Thompson, Jr. NOTICE OF ELECTRONIC FILING

The undersigned counsel certifies that on the 20th day of April, 2015, he has electronically filed the foregoing document with the 3rd Court of Appeals using the court’s electronic filing system.

CERTIFICATE OF SERVICE

I hereby certify that on the 20th day of April, 2015, a true and correct copy of the foregoing Brief has been mailed, by certified mail, return receipt requested, to the following:

David Junkin LAW OFFICE OF DAVID JUNKIN P. O. Box 2910 Wimberley, Texas 78676

L. Hayes Fuller, III NAMAN HOWELL SMITH & LEE, P.L.L.C 400 Austin Avenue, Suite 800 P. O. Box 1470 Waco, Texas 75703-1470

/s/ Mike Thompson, Jr. Mike Thompson, Jr.

-22- No. 03-14-00725-CV

IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

IN RE GEORGE GREEN AND GARLAND GREEN RELATORS

PETITION FOR MANDAMUS FROM CAUSE NO. 18314 RD HON. ALLAN GARRETT, PRESIDING

APPENDIX OF CASES AND RULES

Exhibit # Document

1. Burton v. Cravey, 759 S.W.2d 160 (Tex.App.—Houston [1st Dist] 1988, no writ) 2. Cleveland v. Williams, 29 Tex. 204, 213 (1867) 3. Cole v. McWillie, S.W.3d , 2015 WL 535562 (Tex.App.—Eastland 2015, no pet.) 4. Crawford v. Morris, 228 S.W.2d 364, 366 (Tex.Civ.App.—Eastland 1950, writ ref’d n.r.e.) 5. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) cert. denied, 476 U.S. 1159 (1986) 6. Ezeoke v. Tracy, 349 S.W.3d 679, 685 (Tex. App.—Houston [14th Dist.] 2011, no pet.) 7. Gaughn v. National Cutting Horse Association, 351 S.W. 3d 408 (Tex.App.—Ft. Worth 2011, pet. for review denied 8. Gilmer v. Veatch, 121 S.W. 545 (1909) 9. Huie v. DeShazo, 922 S.W.2d 920, 923-23 (Tex. 1996) 10. In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W. 2d 371, 381-82 (Tex. 1998) 11. In re Campbell, 106 S.W.3d 788 (Tex.App.—Texarkana 2003) 12. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) 13. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) 14. Nehring v. McMurrain, 45 S.W. 1032 (Tex. Civ. App. 1898)

-23- 15. Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594 (Tex. 1996) 16. Velez v. DeLara, 905 S.W.2d 43 (Tex.App.—San Antonio 1995, no writ 17. Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) 18. Watson v. The Homeowners Association of Heritage Ranch, Inc., 346 S.W.3d 258 (Tex.App.—Dallas 2011, no writ) 19. Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (Tex.App.—Dallas, 1997, no pet) 20. Tex. Bus. Org Code §252.010 (Vernon 2012) 21. Tex. Bus. Org. Code §22.351 (Vernon 2012) 22. Tex. Bus. Org. Code §1396-2.23A (Vernon 2009) 23. Tex. Prop. Code §82.114 (Vernon 2014) 24. Tex. R. App. Pro. 42.3 (Vernon 2003) 25. Tex. R. Civ. Pro. 190.5 (Vernon Supp. 2014) 26. Tex. R. Civ. Pro. 191.1 (Vernon 2004) 27. Tex. R. Civ. Pro. 191.3(c) (Vernon 2004) 28. Tex. R. Civ. Pro. 191.3(e) (Vernon 2004) 29. Tex. R. Civ. Pro. 192.4 (Vernon 2004) 30. Tex. R. Civ. Pro. 192.6 (Vernon 2004) 31. Tex. R. Civ. Pro. 192.6(a) (Vernon 2004) 32. Tex. R. Civ. Pro. 192.6(b)(4) (Vernon 2004) 33. Tex. R. Civ. Pro. 215.3 (Vernon 2004) 34. Tex. R. Civ. Pro. 301 (Vernon 2008) 35. Tex. R. Civ. Pro. 329b (Vernon 2008)

Other 36. www.Washingtonpost.com “John Roberts, Umpire” 6/28/2012, Chris Cillizza (visited 2/27)

-24- Burton v. Cravey, 759 S.W.2d 160 (1988)

purpose, condominium owners were entitled to inspect “all books and records” of condominium 759 S.W.2d 160 including records and files of attorney for Court of Appeals of Texas, association. Vernon's Ann.Texas Civ.St. art. Houston (1st Dist.). 1396–2.23. Lou W. BURTON and Galleria 3 Cases that cite this headnote Diplomat Association, Inc., Appellants, v. Jeffrey M. CRAVEY, et al., Appellees. [3] Common Interest Communities Association records No. 01–88–00270–CV. | Aug. 18, In the event that condominium association's 1988. | Rehearing Denied Sept. 8, 1988. attorney's records, sought by condominium owners, were subject to attorney-client privilege, Condominium association appealed an order of the 269th court would weigh association's interest District Court of Harris County, David West, J., which in nondisclosure of communications against granted condominium owners a writ of mandamus to inspect inspection rights of condominium owners. the association's books and records. The Court of Appeals, V.T.C.A., Property Code § 81.209; Vernon's Duggan, J., held that: (1) writ of mandamus was proper Ann.Texas Civ.St. art. 1396–2.23. method by which to enforce owners' statutory inspection rights, and (2) absent proof by association of improper 3 Cases that cite this headnote purpose for inspecting records, owners were entitled to inspect all pertinent records including those of association's attorney. Attorneys and Law Firms Affirmed. *160 Wade B. Reese, Houston, for appellants.

Lou W. Burton, Houston, pro se. West Headnotes (3) John K. Grubb, Houston, for appellees.

[1] Mandamus Before SAM BASS, DUGGAN and LEVY, JJ. Custody of and access to corporate records and books Writ of mandamus was proper method to OPINION enforce condominium owners' statutory rights to view condominium's records; owners were DUGGAN, Justice. not required to establish a cause of action This appeal involves the right to inspect records and books of against the condominium or a probable right a condominium association. Appellees, a group of dissident and probable injury. V.T.C.A., Property Code § owners, filed a petition for writs of mandamus and injunction 81.209; Vernon's Ann.Texas Civ.St. art. 1396– because of the appellant Galleria Diplomat Association's 2.23. board of directors' refusal to allow the inspection of 2 Cases that cite this headnote records. In a corrected order dated March 2, 1988, the trial court granted the writ of *161 mandamus, ordering the Association to maintain its books and records at its offices [2] Common Interest Communities and make these records available for inspection and copying. Association records The trial court also enjoined appellants from interfering with Absent proof by condominium association appellees' right to inspect these books and records. The that inspection of records was for improper

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Burton v. Cravey, 759 S.W.2d 160 (1988)

court further ordered the delay of the annual election by the audited at least once each year by an auditor who is not Association's members. associated with the condominium regime.

All of the points of error attack the ordered production of (Emphasis added.) records in the possession of appellant Burton, the attorney for the appellant Association. The trial court entered a finding of The Texas Non–Profit Corporation Act, fact that the Association's Board of Directors hired Burton “to Tex.Rev.Civ.Stat.Ann. art. 1396–2.23 (Vernon 1980), handle numerous matters for the Association and that records additionally provides: of Lou W. Burton relating to Association matters are part of A. Each corporation shall keep correct and complete the books and records of the Galleria Diplomat Townhomes books and records of account and shall keep minutes of Homeowner's Association, Inc. a/k/a the Galleria Diplomat the proceedings of its members, board of directors, and Association, Inc.” This finding of fact is not challenged by committees having any authority of the board of directors point of error and is therefore binding on appeal. Wade v. and shall keep at its registered office or principal office Anderson, 602 S.W.2d 347, 349 (Tex.Civ.App.—Beaumont in this State a record of the names and addresses of its 1980, writ ref'd n.r.e.). The court ordered the production of members entitled to vote. “all of Lou W. Burton's records and files in any way related to his representation” of the Association. B. All books and records of a corporation may be inspected by any member, or his agent or attorney, for any proper In their first of three points of error, appellants contend that purpose at any reasonable time. the trial court erred in ordering the production of Burton's records because the application and proof fail to establish a (Emphasis added.) cause of action or a probable right and a probable injury. In their application for writ of mandamus, appellees were [1] Appellants mischaracterize the nature of the trial court attempting to enforce their statutory rights as condominium proceedings. For example, they argue that appellees have apartment owners to inspect the “accounts and supporting other adequate remedies under Tex.R.Civ.P. 167, 168 and vouchers of a condominium regime” under Property Code 737 to pursue inspection. This assertion ignores the fact § 81.209, and as corporation members to inspect “all books that a writ of mandamus is the proper remedy to enforce and records” of a non-profit corporation under article 1396– the right of inspection. See 20 R. Hamilton, Texas Business 2.23. The trial court did not err in ordering the production of Organizations § 801 (1973). Appellees did not have to Burton's records. establish an independent cause of action; they merely had to establish their statutory right to inspect. Appellants' first point of error is overruled.

Tex.Prop.Code Ann. § 81.209 (Vernon 1984) provides the *162 Appellants contend in their second point of error that following for condominium records: the trial court erred in ordering production of the records and files of the attorney for the condominium association because (a) The administrator or board of administration of a the order is overly broad, unduly burdensome, and requires condominium regime or a person appointed by the bylaws the production of irrelevant information. of the regime shall keep a detailed written account of the receipts and expenditures related to the building and its Appellees sought the production of records that they were administration that specifies the expenses incurred by the statutorily entitled to inspect. Appellants' complaints about regime. the order appear to be an attempt to engraft discovery notions upon the appellees' statutory right of inspection, (b) The accounts and supporting vouchers of a which is independent of any right of discovery in litigation. condominium regime shall be made available to the See San Antonio Models, Inc. v. Peeples, 686 S.W.2d 666 apartment owners for examination on working days at (Tex.App.—San Antonio 1985, orig. proceeding). The right convenient, established, and publicly announced hours. to inspect under article 1396–2.23 encompasses “all books (c) The books and records of a condominium regime must and records.” The trial court found that Burton's files and comply with good accounting procedures and must be records relating to the Association were the “books and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Burton v. Cravey, 759 S.W.2d 160 (1988)

records” of the Association. This finding is not challenged Again, we note that appellants are attempting to engraft on appeal. This right of condominium owners to inspect notions borrowed from Texas discovery practice onto a the books and records, like the comparable right to inspect statutory right to inspect. Article 1396–2.23 contains no granted shareholders in corporations, is limited by the limitations on the member's right to inspect as long as the requirement that the inspection be for any “proper purpose.” books and records are those of the non-profit corporation See R. Hamilton, Texas Business Organizations § 804 (1973); and the inspection is for “any proper purpose.” The trial see also Annotation, What Corporate Documents Are Subject court found that Burton's records and files relating to to Shareholder's Right to Inspection 88 A.L.R.3d 663 (1978). the Association were part of the Association's books and records, and appellants have not contended that the intended [2] Once the trial court found that Burton's files and inspection is for an improper purpose. The only limitation records relating to the Association were part of the books under article 1396–2.23 is “proper purpose.” Appellants and records of the Association, appellees were entitled to have failed to prove that the purpose of the inspection was inspect them for any “proper purpose.” Appellants, however, improper. do not contend that the intended inspection is for an improper purpose. There was testimony by appellees that they were [3] Moreover, if the attorney-client privilege did apply, concerned about the “substantial” and “inordinate” fees paid we would hold that the trial court did not abuse its to Burton by the Association. Although the parties have discretion in ordering the inspection of Burton's records. The presented no cases squarely on point, it would appear that it attorney-client privilege is not absolute; appellants' interest was the appellant Association's burden of proof to establish in the nondisclosure of communications protected by the the absence of proper purpose. Uvalde Rock Asphalt Co. privilege would have to be balanced against the inspection v. Loughridge, 425 S.W.2d 818 (Tex.1968); Moore v. Rock rights of the members of the non-profit corporation. See Creek Oil Corp., 59 S.W.2d 815 (Tex.Comm'n App.1933, In re LTV Securities Litigation, 89 F.R.D. 595, 609–611 holding approved); see also, 5A Fletcher, Cyclopedia of the (N.D.Tex.1981). Under the facts of this case, the trial court Law of Private Corporations § 2253.1 (1987). The trial did not abuse its discretion in ordering the inspection of court, however, sustained appellees' objections to appellants' Burton's records. attempted inquiries about ulterior or vindictive motives for the inspection of records. Appellants do not complain about Appellants' third point of error is overruled. the exclusion of this testimony.

The judgment is affirmed. Appellants' second point of error is overruled.

Appellants contend in their third point of error that the trial court erred in granting the production order because it requires the inspection of privileged documents.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Cleveland v. Williams, 29 Tex. 204 (1867) 94 Am.Dec. 274

Until this be done, it is merely a sale without a subject-matter in esse, which cannot take effect in presenti. 29 Tex. 204 Supreme Court of Texas. Where the vendor sold the corn in his crib before his death, LARKIN G. CLEVELAND and appointed an agent to measure and deliver it, which v. the agent did after the death of the principal, but before it JOHN H. WILLIAMS, ADM'R. was known to the parties, the title did not pass, and the administrator of the deceased had the right to recover the corn. January, 1867. The only exception is the case where the power or authority *204 The court below charged the jury as follows: “If you is coupled with an interest in the thing actually vested in the find from the evidence that the corn in question, that is, the agent. The reason of this exception is entirely compatible with hundred bushels of corn, was in a bulk with other corn, and the general ground on which the rule is founded: it is, that had not been measured out and separated from the bulk, so the agent, having the legal title to the property in himself, is that the same could be identified previous to the death of capable of transferring it in his own name, notwithstanding Hall, then the sale was incomplete, and you will find for the the death of his principal; and the death of his principal, plaintiff the value of the corn as proved.” This was error. therefore, has no operation upon his acts.

By the common law, if a seller make a proposition, and the This was not so by the civil law, but, by the common law, buyer accept, and the goods are in the possession of the seller, the death of the principal is an instantaneous and absolute and nothing remains to be done to identify them, or in any revocation of the authority of the agent, unless the power be way prepare them for delivery, the sale is complete, and the coupled with an interest. property in the goods passes at once. The buyer acquires not a mere jus ad rem, but an absolute jus in re, and he may demand APPEAL from Polk. The case was tried before Hon. delivery at once on tender of the price, and sue for the goods SAMUEL A. WILSON, one of the district judges. as his own, if delivery be refused. The petitioner, who sues as the administrator of the estate The 17th section of the statute of frauds and perjuries (Charles of Thomas B. Hall, deceased, alleges that said Hall died II), which requires that delivery by the vendor and acceptance in September, 1860; that on the day of his death he was by the vendee of part of the goods sold, or something given in possessed, as of his own property, of one hundred bushels earnest or part payment to bind the bargain, or that some note of corn, worth $1.50 per bushel; that after the death of said or memorandum of the bargain, in writing, to be signed by the Hall the defendant took the said corn, without authority, parties, etc., in order to give validity to the contract, *205 and converted the same to his own use, and, therefore, lays has never been re-enacted in Texas, and it has not become a damages at $500. part of our common law. Pas. Dig. art. 978, note 418. The defendant plead, 1st, general demurrer; 2d, general No sale is complete, so as to vest in the vendee an immediate denial; and, 3d, specially, that in the life-time of the said Hall right of property, so long as anything remains to be done the respondent loaned to him $200, for which Hall gave to between the buyer and seller in relation to the goods. The him his promissory note; that afterwards said Hall sold to goods sold must be separated and identified by marks and him one hundred bushels of corn, at $1 per *206 bushel, numbers, so as to be completely distinguished from all other in part payment of said note, which respondent duly credited goods, or from the bulk or mass with which they happen to thereon; that said corn, so bought and paid for before the death be mixed. of said Hall, is the same for which he is sued; that the balance of said note he now holds as a valid and subsisting claim The goods sold must be ascertained, designated, and against said estate, unpaid, etc. separated from the stock or quantity with which they are mixed, before the property can pass. The evidence is in substance as follows: John S. Cleveland states that in the fall of 1860 Thomas B. Hall told him that he had sold to Larkin G. Cleveland one hundred bushels of corn

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Cleveland v. Williams, 29 Tex. 204 (1867) 94 Am.Dec. 274

in payment of a debt he owed to said Larkin G. Cleveland, and that said Hall told him (witness) to retain that amount of corn 8 Cases that cite this headnote out of a large bulk of corn then in his (Hall's) crib, and that C. B. Hall would measure it. A few weeks after this Thomas B. [3] Sales Hall died, away from home, on his way to Galveston. After Part of Specific Stock or Mass the death of Thomas B. Hall (which was then unknown), C. B. Where a certain number of bushels of corn are Hall measured and delivered the corn to Larkin G. Cleveland, sold from a quantity in bulk in the vendor's crib, measuring it from a large bulk of corn then in Hall's crib. the sale is not completed until the amount sold is separated and measured. C. B. Hall, brother of deceased, testified to the same facts. By agreement of counsel, it was admitted, as if proved, that 30 Cases that cite this headnote Larkin G. Cleveland held a note on Thomas B. Hall for $200, and that it was credited with one hundred bushels of corn, at $1 per bushel, amount received as measured by C. B. Hall. Attorneys and Law Firms The charge complained of is as follows: “3d. If you find from the evidence that the corn in question, that is, the one hundred C. L. Cleveland, for appellant. The measuring of the corn was bushels, was in a bulk with other corn, and had not been merely a formal act, which could be well executed *207 after measured out and separated from the bulk, so that the same the death of Hall, by the party nominated for that purpose. could be identified previous to the death of Hall, then the sale It is admitted, as a general proposition, that the death of the was incomplete, and you will find for the plaintiff the value principal operates a revocation of an agency. But where an of the corn as proved.” authority is coupled with an interest, or where it is given for a valuable consideration, or as security, it is otherwise. There were a verdict and judgment for plaintiff, from which Story, Agency, § 477. The reason of the exception is entirely the defendant appealed, and assigned for error the mistake in compatible with the general ground on which the rule is the charge. founded. It is, that the agent, having the legal title to the property vested in himself, is capable of transferring it in his own name, notwithstanding the death of the principal, and the death of the principal has no operation on his act. The West Headnotes (3) power given by the principal, under such circumstances, is rather an assent or agreement that the agent may transfer the [1] Frauds, Statute of property vested in him, free from any equities of the principal, Statutory Provisions than strictly a power to transfer. Story, Agency, § 489. Nice The seventeenth section of the statute of frauds distinctions are drawn in the law books as to what is necessary and perjuries (29 Car.II, c. 3) has never been re- “to complete” a sale, especially so where the question of lien enacted in this state, and has not become a part for price is involved, or the right of a subsequent purchaser, or of our common law. of fraud as against creditors. But in this case no such questions arise. 1 Cases that cite this headnote As between the parties, the right of property passed. 1 Par. Con. § 5, bot. page 465; and Noy, Max. 88. The corn was [2] Principal and Agent bought and paid for; it only remained to be measured. This Acts Done in Ignorance of Principal's Death was to be done, not by the vendor, nor the vendee, but by a An agent appointed to complete a sale of third party, acting for both, in his own name. What remained property of his principal, in which the agent to be done was to be performed by John S. Cleveland and himself has no interest, cannot act after the C. B. Hall. The former was “to retain” the corn; the latter principal's death, whether or not he has received to measure it; trusts cognate with the sale, springing out of notice thereof. the contract of sale, reposed in them, upon consideration paid attaching at once to the property and in them, to be executed

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Cleveland v. Williams, 29 Tex. 204 (1867) 94 Am.Dec. 274

for the benefit of L. G. Cleveland, which they could and did other corn and measured, so as to be identified, and capable execute in their own names; and that is the true test of the of specific delivery to and possession by the vendee; and, lawfulness of the act. Had the same power been given to the second, that if not so completed in the lifetime of Hall, purchaser by the vendor “to retain” and measure, under like the act of his agent, C. B. Hall, in separating, measuring, *208 circumstances, the death of the vendor clearly would and delivering the corn after the death of his principal, was not revoke that power, because it would be coupled with an unauthorized and void, and conferred no right upon Cleveland interest. Does the rule change when the power is conferred to the corn delivered. We are of opinion that the charge on on a third party to do the same thing? If so, its flexibility is both propositions is correct. marvelous. Hunt v. Rousmanier's Adm'r, 8 Wheat. 201; and Knapp v. Alford, 10 Page, 205. Further, the measuring and By the common law, if the seller make a proposition and the delivery were before the death of T. B. Hall was known. The buyer accept, and the goods are in the possession of the seller, act was in good faith, and might well rest on that ground, if and nothing remains to be done to identify them, or in any it were simply the execution of a naked power. Cassidy v. way prepare them for delivery, the sale is complete, and the McKenzie, 4 Watts & S. 282. But what shall be said of the property in the goods passes at once. The buyer acquires not a equities of the case? Cleveland's debt, to the amount of the mere jus ad rem, but an absolute jus in re, and he may demand credit given thereon, is extinguished. Shall the estate of Hall delivery at once on tender of the price, and sue for the goods get the benefit of the judgment besides, or shall Cleveland as his own if delivery be refused. 2 Kent, Com. 492; 2 Par. be driven to some sort of doubtful remedy to get back the Con. 320; 1 Par. Con. 441; Story, Sales, § 300. price paid? Such circuity is not necessary to adjust the equities arising, and is abhorrent to a sound interpretation of the An innovation upon the principles of the common law on principles pervading the authorities. this subject was made in England by the 17th section of the statute of frauds and perjuries of Charles II, which has The attention and inquiry of the jury were limited alone to the been substantially re-enacted in nearly all the states of the fact, that the measuring of the corn occurred after the death Union except Texas. This section requires delivery by the of T. B. Hall. The assumption that the contract of sale was vendor, and acceptance by the vendee of part of the goods incomplete, or that, if incomplete, it could not be completed sold, or something given in earnest or part payment to bind after Hall's death, by measuring and delivery, is not well the bargain, or that some note or memorandum in writing founded, and for that error the cause should be reversed. of the bargain be signed, etc., etc., in order to give validity to the contract, so that an action for its enforcement may No brief for the appellee has been furnished to the reporter. *210 be maintained. This section of the statute of Charles has never been enacted or of force in this state, and the Opinion common law, unaffected by its provisions, furnishes the rule by which the validity of contracts of sale of chattels must be COKE, J. tried here. Delivery as between the parties is not essential to The only questions presented by the assignments of error, the completeness of a sale of a chattel, unless made so by necessary to be considered, arise on the third clause in the the terms of the bargain. Story, Sales, § 300; 2 Kent, Com. charge of the court to the jury, which reads as follows: 39, 492; 1 Par. Con. 441. But it is essential that nothing shall remain to be done (by the vendor) to the thing sold “If you find, from the evidence, that the corn in question, that to put it into a condition for sale, or to identify it, or to is, the hundred bushels of corn, was in a bulkwith other corn, discriminate it from other things. If anything remains to be and had not been measured out and sepated *209 from the done by the vendor which is material or important before the bulk, so that the same could be identified, previous to the vendee can identify or possess the thing sold, or before it death of Hall, then the sale was incomplete, and you will find becomes deliverable, the sale is executory and incomplete, for the plaintiff the value of the corn as proved.” and the property in it does not pass absolutely to the vendee. Judge Story, in his work on Sales, says: “No sale is complete, Considering this instruction with reference to the facts of so as to vest in the vendee an immediate right of property, this case, it involves two propositions: first, that in order to so long as anything remains to be done between the buyer complete the sale of the corn, and pass the title to Cleveland, and the seller in relation to the goods. The goods sold must it was necessary that it should have been separated from be separated and identified by marks and numbers, so as to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Cleveland v. Williams, 29 Tex. 204 (1867) 94 Am.Dec. 274

be completely distinguished from all other goods, or from the in order to separate the goods from a larger mass, of which bulk or mass with which they happen to be mixed.” Story, they form a part; but when the entire mass is sold and must Sales, § 296. be measured, simply with a view to the ascertainment of its price, *212 for the purpose of a settlement, the better Chancellor Kent, in his Commentaries, vol. 2, p. 496, says: opinion, on principle and authority, is, that the title passes. By “If anything remains to be done, as between the seller and keeping the distinction between a specific and an indefinite buyer, before the goods are to be delivered, a present right commodity in view, it is believed that most of the cases of property does not attach in the buyer. This is a well- upon this subject can be explained, and their apparent conflict established principle in the doctrine of sales. But where reconciled. Macomber v. Parker, 13 Pick. 182; Cunningham everything is done by the seller, as to a parcel of the quantity v. Ashbrook, 20 Mo. 560; Scott v. Wills, 6 Watts & S. 368; sold, to put the goods in a deliverable state, the property, and Riddle v. Varnum, 20 Pick. 283, 284; Crofoot v. Bennett, 2 consequently the risk, passes to the buyer; and, as to so much Comst. 260. as requires further acts to be done on the part of the seller, the property and the risk remain with the seller. The goods sold This distinction is forcibly put by Mr. Justice Strong, must be ascertained, designated, and separated from the stock delivering the opinion of a majority of the supreme court of or quantity with which they are mixed, before the property New York, in Crofoot v. Bennett, in which he says: “But if can pass.” the goods sold are clearly identified, then, although it may be necessary to number, weigh, or measure them, in order *211 The same doctrine is asserted with equal emphasis by to ascertain what would be the price of the whole at a rate Mr. Parsons in his work on Contracts, vol. 1, p. 441, and agreed upon between the parties, the title will pass. If a flock in Brown on Sales, p. 44. While these general principles are of sheep be sold at so much the head, and it is agreed that they recognized and affirmed by an almost unbroken concurrence shall be counted after the sale, in order to determine the entire of the authorities, there is much apparent conflict in their price of the whole, the sale is valid and complete. But if a practical application in the adjudicated cases. We understand given number out of the whole are sold, no title is acquired by the reason underlying these principles to be the fundamental the purchaser until they are separated, and their identity thus one, that until the property, which is the subject of the sale, ascertained and determined. The distinction in all these cases is designated and defined, it is, as it were, a sale without a does not depend so much upon what is to be done, as upon the subject-matter in esse, which cannot take effect in presenti, object which is to be effected by it. If that be specification, the for the want of that necessary ingredient in a sale to act on, property is not changed; if it be merely to ascertain the total and is, therefore, necessarily executory and incomplete. The value at designated rates, the change of title is effected.” purchaser, in such a sale, cannot maintain an action to recover specific property, if delivery be refused, because he has no The same doctrine is distinctly maintained by the supreme right in any specific part of the bulk, an undefined portion court of Massachusetts, in Macomber v. Parker and in of which he has contracted for. In such an action he must Riddle v. Varnum, and by the supreme court of Missouri, in describe and identify, with reasonable certainty, according to Cunningham v. Ashbrook, and is believed to be well sustained its character, the property he sues for, and this he cannot do, by a great majority of all the adjudicated cases. An application because his rights are indefinite, and cannot be attached to or of these principles to this branch of the charge of the court located in any designated part of the mass. He has not that jus fully vindicates its correctness with reference to the facts of in re which alone entitles him to recover, and without which this case. his purchase is incomplete. 6 East, 614. This reason does not exist where the subject-matter of the sale is designated *213 Passing to the consideration of the remaining and defined, as where the whole bulk is sold. It is true, it proposition involved in the charge of the court under may have to be weighed, counted, or measured; but if this discussion, we are of opinion that the setting apart and is to be done to enable the parties to make a settlement, and designation by measurement of the corn from the bulk of not for the purpose of completing the sale, the right passes which it was a part, by C. B. Hall, the agent, after the death to and vests in the purchaser. It is certainly correct, as laid of his principal, cannot aid the rights of the appellant, for the down in the books, that when anything remains to be done by reason that the death of the principal operated a revocation, the seller, such as counting, weighing, or measuring, the title or, it might more properly be said, a destruction of the power does not pass, when either of these operations is necessary of the agent.

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liberality and equity of that which obtains in the civil law. This is an ancient and well-settled doctrine of the common Story, Agency, §§ 495 to 498. law, and it seems that the fact of the agent having acted in good faith, in ignorance of the death of his principal, is not The rule of our law, as to the time when the revocation of an sufficient to take a case out of the operation of this general authority by the act of the principal takes effect, is equally rule, where the power is a naked one, not coupled with an clear, comprehensive, and just. As to the agent himself, it interest. takes effect from the time when the revocation is made known to him; and as to third persons when it is made known to “The only admitted exception,” says Judge Story, in his work them, and not before. And this the principal may do by making on Agency, “that properly constitutes an exception to this the revocation as notorious as the fact of agency was. Until general rule, is the case where the power or authority is it is thus made known, the principal is bound by the acts of coupled with an interest in the thing, actually vested in the his agent, done within the scope of his authority, upon the agent. The reason of this exception is entirely compatible with familiar principle, that where one of two innocent persons the general ground on which the rule is founded. It is, that must suffer, he shall suffer who, by his confidence, or silence, the agent, having the legal title to the property in himself, is or conduct, has misled the other. 1 Par. Con. 60; 11 N. H. capable of transferring it in his own name, notwithstanding 397; Story, Agency, § 470. This is in striking contrast with the the death of his principal, and the death of his principal other principle, which holds, where the revocation is implied therefore has no operation upon his act.” Story, Agency, § from the death of the principal, that every act of the agent, 489. though done in good faith, in pursuance of his authority, without notice of his principal's *215 death, is unauthorized It is said by Chancellor Kent, vol. 2 of his Commentaries, p. and invalid. Harsh and unjust as must be the operation of this 646, that “By the civil law, and the law of those countries principle in many cases, it is too well settled by the authorities, which have adopted the civil law, the acts of an agent, done, English and American, to be departed from. bona fide, after the death of his principal and before notice of his death, are valid and binding on his representatives. But The leading argument upon which it is sustained in the books this equitable principle does not prevail in the English law, is, that the agent can do only what his principal may do, and and the death of the principal is an instantaneous and absolute must act in his principal's name, and that as a dead man can revocation of the authority of the agent, unless the power be do no act, so a valid act cannot be done in a dead man's coupled with an interest.” name. Hunt v. Rousmanier's Administrator, 8 Wheat. 174; Story, Agency, § 488. Accordingly, in apparent consonance There are some authorities which go far toward maintaining with that course of reasoning, some respectable authorities *214 that the common and civil law on this subject may seem strongly inclined to maintain the doctrine that, when be harmonized. So it is understood to have been held in the agency can be, and ordinarily is, properly executed in the Pennsylvania, in Cassidy v. McKenzie, 4 Watts & S. 282. In name of the agent, without reference to the principal, the acts this case a payment made to an agent, after the death of the of the former, done after the death of the latter, without notice principal, was held binding on the representatives of the latter. of the death, are valid and binding; though it must be admitted, Judge Story, in his work on Agency, inclines to the opinion, that the cases relied on as illustrating this doctrine are usually that the difference between the civil and the common law is either in fact powers coupled with an interest, or are governed more apparent than real, and that where the act must be done by like analogies. Story, Agency, §§ 33, 34, 496, 497; Davis in the name of the principal, the same objection would obtain v. Lane, 10 N. H. 413; 1 Par. Con. 62; Dick v. Page, 17 Mo. to it after the death of the principal in the foreign law as it 234; Russ. Fac. and Brok. 360; Chit. Com. & Mer. 223. does in our law, and that the difference between our law and the former seems to rest, not so much upon a difference of In Robertson v. Paul, 16 Tex. 472, it was held by this court, principle, as upon the difference in the modes of executing that a power to sell, contained in a mortgage or deed of the authority. trust, although not revoked, on general principles, by the death of the grantor, being a power coupled with an interest, He nevertheless admits the force and binding authority of is inconsistent with our statute respecting the settlement the common law principle, while he confesses the greater of estates of deceased persons, and, therefore, cannot be executed after the death of the grantor. In this case, we have

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revoked by the death of his principal, the representatives of not deemed it necessary to consider the provisions of our the latter are not bound by his unauthorized act. The jury were statute in connection with the question, or to determine what properly instructed, and their verdict is fully supported by the influence, if any, it might have had if the power had been testimony. such a one as survived the death of the grantor, it being clear, on general principles, that the authority of the agent was of There is no error in the judgment, and it is a character that was, ipso *216 facto, extinguished by the death of his principal. C. B. Hall, the agent, had no title or Affirmed. interest, legal or equitable, in the subject-matter of his agency. It is not pretended that he had possession of the corn that was in the crib and on the plantation of his principal, and the only authority he is shown to have had over it was, to set apart and Parallel Citations measure the number of bushels contracted to the appellant. His was a naked power. Having executed it after it had been 1867 WL 4513 (Tex.), 94 Am.Dec. 274

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2015 WL 535562 West Headnotes (18) Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN [1] Contracts RELEASED FOR PUBLICATION IN THE Effect of invalidity PERMANENT LAW REPORTS. UNTIL RELEASED, Because a voidable contract continues in effect IT IS SUBJECT TO REVISION OR WITHDRAWAL. until active steps are taken to disaffirm the contract and because a void contract is wholly OPINION ineffective from the outset, the distinction is Court of Appeals of Texas, significant. Eastland. Cases that cite this headnote Stephen C. Cole and Robert Strack, Appellants v. Michael McWillie, Wanda Juanita [2] Contracts Phillips, and Delvonne Burke, Appellees Physical or mental condition of party The right to disaffirm a contract survives the No. 11–12–00265–CV | death of the incompetent person and descends to Opinion filed January 15, 2015 her heirs or her personal representative.

Synopsis Cases that cite this headnote 35 Background: Holder of proceeds from a /640 nonparticipating royalty interest in a tract of land filed [3] Limitation of Actions interpleader action to determine the owners of the interest. Rescission or cancellation Grantees of the interest, pursuant to a deed executed by The right to disaffirm a contract is subject to a the original property owner's attorney-in-fact, filed cross- four-year statute of limitations. Tex. Civ. Prac. claim for a declaration that the deed was valid, and original & Rem. Code Ann. § 16.051. property owner's heirs and their assignees counterclaimed for a declaration that the deed was void due to the owner's Cases that cite this headnote incapacity when the deed was executed. The 238th Judicial District Court, Midland County, awarded partial summary [4] Contracts judgment to heirs and assignees, finding the deed to be Physical or mental condition of party void, and then entered judgment after a bench trial resolving additional matters. Grantees appealed. A contract executed by a person who lacks mental capacity is voidable, not void.

Cases that cite this headnote [Holding:] On denial of rehearing, the Court of Appeals, Jim R. Wright, C.J., held that deed was voidable, rather than void, [5] Deeds and thus any action to disavow the deed was subject to four- Effect of invalidity year statute of limitations. Limitation of Actions Rescission or cancellation Reversed and remanded. Deed executed by property owner's attorney-in- fact after owner became mentally incompetent was voidable, rather than void, and thus any action to disavow the deed was subject to four- year statute of limitations, even though the power of attorney, which was executed before

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owner became incompetent, was not a durable he himself had personally acted; to this extent, power of attorney; statute authorizing durable both the principal and the agent are only one powers of attorney did not make all other powers person, and thus, a deed executed by an agent for terminate upon the principal's incapacity, and and with that authority from his principal is as if declaring such a deed to be void would deprive executed by the principal himself. a principal or her heirs of the ability to affirm an advantageous contract, and would allow a Cases that cite this headnote claimant to seek to invalidate a deed many years after its execution. Tex. Prob. Code Ann. § [10] Deeds 36A(1980); Tex. Civ. Prac. & Rem. Code Ann. Effect of invalidity § 16.051. Principal and Agent Cases that cite this headnote Construction of letters or powers of attorney Principal and Agent [6] Principal and Agent Deeds Nature of the relation in general An attorney-in-fact who was appointed in a Agency is a consensual relationship between two power of attorney that did not contain the parties where one, the agent, acts on behalf of language making it a durable power of attorney the other, the principal, subject to the principal's and who executes a deed on behalf of an control. incompetent principal, even when the principal Cases that cite this headnote was competent at the time he appointed the attorney-in-fact to act on his behalf, creates an effective and valid deed that is voidable at the [7] Principal and Agent election of the principal or the principal's estate. Nature of the relation in general Tex. Prob. Code Ann. § 36A(1980). Principal and Agent Appointment of Agent Cases that cite this headnote

For an agency relationship to exist, there must be both a meeting of the minds between the parties [11] Principal and Agent and some act constituting the appointment of an Death of Principal agent. An agent's authority to bind his principal terminates upon the principal's death. Cases that cite this headnote Cases that cite this headnote [8] Principal and Agent Letters or Powers of Attorney Under Seal [12] Contracts The appointment of an attorney-in-fact creates an Physical or mental condition of party agency relationship. Contracts Effect of invalidity Cases that cite this headnote Infants Capacity to contract in general [9] Principal and Agent Infants Nature of the relation in general Avoidance and disaffirmance Principal and Agent When a contract is executed on behalf of an Deeds incapacitated person, whether by infancy or An important principle of agency law is that one by mental incompetence, the party in danger who authorizes another to act for him acts as if of unfair disadvantage in the transaction is

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the “incapacitated party,” while the party who than voidable. Tex. Civ. Prac. & Rem. Code Ann. transacts with the incapacitated party suffers no §§ 16.051, 16.069; Tex. R. Civ. P. 94. potential detriment in the bargaining process; the protections offered by the law should therefore Cases that cite this headnote benefit the incapacitated party by allowing him to disavow the contract upon his return to [16] Limitation of Actions sufficient capacity. Necessity

Cases that cite this headnote Limitation of Actions Replication or reply and subsequent pleadings [13] Contracts A party seeking to avail itself of a rule in Estoppel and Ratification avoidance of a statute of limitations must Contracts affirmatively plead its theory of avoidance in its Effect of invalidity original petition or a supplemental petition. Tex. The benefit of being able to disavow a contract R. Civ. P. 94. made on behalf of an incapacitated principal extends to the heirs of a deceased principal Cases that cite this headnote or the guardian of a permanently incapacitated principal; in such a case, the benefited party [17] Judgment can secure the advantage of a good bargain by Motion or Other Application ratifying the contract or he can relieve himself A party seeking summary judgment must include of a bad bargain by electing to disavow the in its motion the specific grounds on which relief agreement. is requested. Tex. R. Civ. P. 166a(c). Cases that cite this headnote Cases that cite this headnote

[14] Contracts [18] Appeal and Error Physical or mental condition of party Grounds for Sustaining Decision Not To hold an agreement made on behalf of an Considered incapacitated principal void as a matter of law An appellate court may not affirm a summary would deprive the disadvantaged party of the judgment on grounds not expressly set out in the benefit of an advantageous contract. motion for summary judgment. Tex. R. Civ. P. Cases that cite this headnote 166a(c).

Cases that cite this headnote [15] Limitation of Actions Rescission or cancellation Property owner's heirs and their assignee waived, for purposes of appeal, their argument On Appeal from the 238th Judicial District Court, that statute allowing assertion of a time- Midland County, Texas, Trial Court Cause No. CV47686 barred counterclaim or cross-claim precluded application of the four-year statute of limitations Attorneys and Law Firms for actions to disavow a voidable contract to M. McDonnold Jr., Steven C. Kiser, for Stephen C. Cole and their counterclaim seeking to disavow a deed Robert Strack. executed by owner's attorney-in-fact after owner had become mentally incompetent, where heirs H. Clay Moore, Jill C. Pennington, for Michael McWillie, and assignee did not raise the statute in the trial Wanda Juanita Phillips, and Delvonne Burke. court, arguing only that the deed was void, rather

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Van Huss died on June 11, 1986, leaving a Last Will and Panel consists of: Wright, C.J., Willson, J., and Bailey, J. Testament. The will was admitted to probate as a Muniment of Title. In the will, Van Huss provided that her estate was to be distributed one-half to Phillips, one-fourth to Delvonne OPINION Burke (Van Huss's granddaughter), and one-fourth to Sherry Jackson a/k/a Schiara Reindollar (Van Huss's granddaughter). JIM R. WRIGHT, CHIEF JUSTICE Therefore, Phillips, Burke, and Reindollar acquired all of Van *1 This court's former opinion and judgment dated August Huss's interest in the NPRI upon her death. They subsequently 29, 2014, are withdrawn. This court's opinion and judgment executed a number of assignments of the interest to Phillips's dated January 15, 2015, are substituted therefor. The motion son, Michael McWillie. for rehearing filed by Stephen C. Cole and Robert Strack is denied, and the motion for rehearing filed by Michael Henry Resources, L.L.C. held certain proceeds related to the McWillie, Wanda Juanita Phillips, and Delvonne Burke is NPRI. Because it was uncertain as to the ownership of the also denied. proceeds, Henry Resources filed an interpleader action in 2010. In an agreed partial order, the trial court ordered that The dispositive issue in this case is whether a deed is void the proceeds held by Henry Resources were to be deposited or voidable when it is executed by an attorney-in-fact who is into the registry of the court. Henry Resources complied with acting on behalf of one who was competent at the time of the the order, and the trial court dismissed it from the lawsuit. execution of the power of attorney, but who was incompetent at the time of the execution of the deed. The trial court Phillips, Burke, and McWillie (Appellees) later filed a determined that such a conveyance was void as a matter of motion for partial summary judgment in which they sought law. We reverse and remand. a declaration from the trial court that the deed executed by Phillips in her capacity as Van Huss's attorney-in-fact This case concerns the ownership of an undivided 35/640 was void as a matter of law. Cole and Strack responded nonparticipating royalty interest (the NPRI) in a tract of that the deed was voidable, not void, and that the statute of land located in Andrews and Martin Counties. The summary limitations had expired on any suit to avoid the deed. After a judgment evidence shows that Rosa Van Huss was the owner hearing, the trial court granted the motion for partial summary and common source of title to the NPRI. The NPRI is subject judgment and concluded that the deed was void; the trial court to and covered by an oil and gas lease in which the lessor determined that, because Van Huss was incompetent when reserved a one-fifth (1/5) royalty. Phillips executed the deed, Phillips lacked the authority to transact business on behalf of Van Huss at that time. Van Huss executed a power of attorney in favor of her daughter, Wanda Juanita Phillips, on April 1, 1980. The *2 At a bench trial, the parties entered into stipulations of parties agree that Van Huss was competent at the time she fact relating to the chain of title and other matters. After executed the power of attorney. The power of attorney was not the trial, the trial court entered its final judgment. In that durable as provided for in Section 36A of the Texas Probate judgment, the trial court incorporated the previous order Code. Section 36A was in effect at the time of the execution granting partial summary judgment, rendered judgment that the deed was void and that title was held by Appellees, of the power of attorney. Although Van Huss was never awarded the proceeds of production to Appellees, denied the adjudicated to be incompetent, the parties do not dispute that requests for attorneys' fees, and denied all relief requested by she became mentally incompetent in June 1982 and remained Cole and Strack. This appeal followed. so until her death in 1986.

We review de novo an order granting summary judgment. In 1985, Phillips executed a quitclaim deed with respect to the Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 NPRI. She executed the conveyance in her capacity as Van (Tex.2010). When reviewing a summary judgment, we take Huss's attorney-in-fact. In that conveyance, Phillips conveyed as true all evidence favorable to the nonmovant, and we all of Van Huss's interest in the NPRI to Stephen C. Cole and indulge every reasonable inference and resolve any doubts in Robert Strack. the nonmovant's favor. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). The party moving

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for summary judgment has the burden of showing that there by the incompetent landowner's attorney-in-fact pursuant to is no genuine issue of material fact and that it is entitled to that power of attorney, was not void but, rather, was voidable. judgment as a matter of law. TEX. R. CIV. P. 166a(c); Haase Id. The court reasoned, “We can see no difference in principle v. Glazner, 62 S.W.3d 795, 797 (Tex.2001). between the act of making a deed which passes the title and making an instrument which authorizes another person to do [1] [2] [3] The parties agree that the ultimate issue in the same thing.” Id. this case is whether the deed was void as a matter of law, or simply voidable. Because a voidable contract continues in *3 [5] Cole and Strack, in turn, rely on Williams to effect until active steps are taken to disaffirm the contract and argue that, when a principal becomes incompetent after because a void contract is wholly ineffective from the outset, having executed a valid power of attorney, any subsequent the distinction is significant. Mo. Pac. Ry. Co. v. Brazil, action of the attorney-in-fact on the principal's behalf is 72 Tex. 233, 10 S.W. 403, 406 (1888); Country Cupboard, voidable as well. Cole and Strack suggest that the subsequent Inc. v. Texstar Corp., 570 S.W.2d 70, 74 (Tex.Civ.App.– action amounts to action taken by the incompetent principal. Dallas 1978, writ ref'd n.r.e.). The right to disaffirm a contract Therefore, they argue that Williams is controlling in this case survives the death of the incompetent person and descends and that the deed executed by Phillips as attorney-in-fact for to her heirs or her personal representative. SeeBennett v. Van Huss is not void but, instead, is voidable. Romos, 151 Tex. 511, 252 S.W.2d 442, 448–49 (1952); Fuller v. Middleton, 453 S.W.2d 372, 375 (Tex.Civ.App.– Appellees frame their response under principles of agency Fort Worth 1970, writ ref'd n.r.e.). Additionally, the right to law. They argue that the actions of a purported agent who disaffirm is subject to a four-year statute of limitations. TEX. lacks authority to bind the principal are void as to the CIV. PRAC. & REM.s Code Ann. § 16.051 (WEST 2008); principal. According to Appellees, an agent has no authority SEE ALSO FORD V. EXXON MOBIL CHEM. CO., 235 to bind his principal upon the principal's incapacity unless he S.W.3D 615, 618 (TEX.2007); SLAUGHTER V. QUALLS, has been authorized to do so pursuant to former Section 36A 139 TEX. 340, 162 S.W.2D 671, 674 (1942). IN THIS CASE, of the Probate Code or its progeny. 1 Thus, their argument COLE AND STRACK CLAIM THAT, IF THIS COURT goes, when a principal becomes incompetent and his power HOLDS THAT THE DEED WAS VOIDABLE, RATHER of attorney lacks the specific language from Section 36A THAN VOID, THE STATUTE OF LIMITATIONS ON that is required to establish a durable power of attorney, any APPELLEES' RIGHT TO DISAFFIRM THE DEED HAS subsequent action by the agent on the principal's behalf is void EXPIRED. as a matter of law.

[4] It is settled law in Texas that a contract executed by [6] [7] Agency is a consensual relationship between two a person who lacks mental capacity is voidable, not void. parties where one, the agent, acts on behalf of the other, Williams v. Sapieha, 94 Tex. 430, 61 S.W. 115, 116 (1901); the principal, subject to the principal's control. Bhalli v. Neill v. Pure Oil Co., 101 S.W.2d 402, 404 (Tex.Civ.App.– Methodist Hosp., 896 S.W.2d 207, 210 (Tex.App.–Houston Dallas 1937, writ ref'd); see alsoIn re Morgan Stanley & Co., [1st Dist.] 1995, writ denied); Lone Star Partners v. 293 S.W.3d 182, 193 (Tex.2009) (Hecht, J., dissenting) (“The NationsBank Corp., 893 S.W.2d 593 (Tex.App.–Texarkana rule in Texas and most other jurisdictions is that the contract 1994, writ denied); Herschbach v. City of Corpus Christi, 883 [of a party who lacked mental capacity] exists and can be S.W.2d 720 (Tex.App.–Corpus Christi 1994, writ denied). ratified or avoided.”). In Williams, a landowner executed a For an agency relationship to exist, there must be both a power of attorney by which he authorized his attorney-in- meeting of the minds between the parties and some act fact to sell land and to execute a deed on the landowner's constituting the appointment of an agent. Lone Star Partners, behalf. The landowner lacked the mental capacity to manage 893 S.W.2d at 600. his affairs at the time that he executed the power of attorney. Id. Thereafter, the attorney-in-fact executed a deed to the [8] The appointment of an attorney-in-fact creates an agency property on the incompetent landowner's behalf. The validity relationship. Dernick Res., Inc. v. Wilstein, 312 S.W.3d 864, of that deed became the subject of a subsequent lawsuit. Id. 877 (Tex.App.–Houston [1st Dist.] 2009, no pet.); Smith v. The Williams court likened the deed of an insane person to Lanier, 998 S.W.2d 324, 334 (Tex.App.–Austin 1999, pet. that of an infant. It held that the power of attorney executed denied). Under the common law, the agency authority created by the incompetent landowner, as well as the deed executed in a power of attorney existed only when the principal was

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capable of acting on his or her own behalf and terminated executed by an attorney-in-fact on behalf of an incompetent upon the death or incapacity of the principal. Comerica Bank– principal is void as a matter of law. SeeComerica Bank– Texas v. Tex. Commerce Bank Nat'l Ass'n, 2 S.W.3d 723, 725 Texas, 2 S.W.3d at 725–26 (addressing validity of power (Tex.App.–Texarkana 1999, pet. denied) (citing Harrington of attorney that contained Section 36A language); Jensen v. Bailey, 351 S.W.2d 946, 948 (Tex.Civ.App.–Waco 1961, v. Kisro, 547 S.W.2d 65, 66–67 (Tex.Civ.App.–Houston no writ)). [1st Dist.] 1977, no writ) (addressing effect of temporary incapacity on agency relationship); Harrington v. Bailey, In 1971, the legislature enacted Section 36A of the Probate 351 S.W.2d 946, 948 (Tex.Civ.App.–Waco 1961, no writ) Code, establishing durable powers of attorney. At the time (addressing effect of gift by agent following legal declaration Van Huss executed the power of attorney, Section 36A of principal's incapacitation); Scroggins v. Meredith, 131 provided in relevant part: S.W.2d 195, 195 (Tex.Civ.App.–Beaumont 1939, no writ) (deed—executed by attorney-in-fact after power of attorney When a principal designates another his attorney in fact had been revoked by marriage—considered void); Wall v. or agent by power of attorney in writing and the writing Lubbock, 52 Tex.Civ.App. 405, 118 S.W. 886, 888 (Austin contains the words “this power of attorney shall not 1908, writ ref'd) (deed—executed by agent after principal's terminate on disability of the principal” or similar words death—considered void). showing the intent of the principal that the power shall not terminate on his disability, then the powers of the attorney We believe that Williams is controlling in this case. As we in fact or agent shall be exercisable by him on behalf of the stated above, Williams provides the settled rule that a deed principal notwithstanding later disability or incompetence executed by a person who lacks the capacity to do so is of the principal. voidable as a matter of law, not void. SeeWilliams, 61 S.W. at 116. *4 This was the first codification of a law that gave a principal the ability to provide specifically that a power [9] [10] An important principle of agency law is that one of attorney would not terminate upon the disability of the who authorizes another to act for him acts as if he himself principal. SeeComerica Bank–Texas, 2 S.W.3d at 726. had personally acted. “To this extent, both the principal and the agent are only one person; thus, a [deed] executed by an However, we disagree with Appellees' assertion that a power agent for and with that authority from his principal is as if of attorney automatically terminates upon the disability of executed by the principal himself.” Lucas v. Whiteley, 550 the principal in the absence of a durable power of attorney S.W.2d 767, 769 (Tex.Civ.App.–Amarillo 1977, writ ref'd executed in accordance with Section 36A. To the contrary, n.r.e.) (citing Julian Petroleum Corp. v. Egger, 15 S.W.2d 36, we interpret Section 36A to merely provide a method for 39 (Tex.Civ.App.–Fort Worth 1928, writ ref'd)). Given this a principal to enable his attorney-in-fact to continue to relationship between an agent and principal, we believe that act on the principal's behalf subsequent to the incapacity the proper approach in this case is to import the principal's of the principal, regardless of whether that incapacity is lack of capacity to the agent who acts on the principal's temporary or permanent. We do not interpret Section 36A behalf. Thus, an attorney-in-fact who was appointed in a to establish that, in the absence of the durable-power-of- power of attorney that did not contain the language of Section attorney language, any deed executed by an attorney-in-fact 36A and who executes a deed on behalf of an incompetent subsequent to the principal's incapacitation is rendered void principal, even when the principal was competent at the time as a matter of law. SeeCampbell v. U.S., 657 F.2d 1174, 1177– he appointed the attorney-in-fact to act on his behalf, creates 78 (Ct.Cl.1981) (interpreting former TEX. PROB.CODE § an effective and valid deed that is voidable at the election of 36A as providing a method for a principal to enable a the principal or the principal's estate. durable power of attorney rather than providing that, without such language, the power immediately terminates upon the *5 [11] [12] [13] [14] Appellees' argument likens a incapacity of the principal). principal's incapacity to a principal's death; the law is clear that an agent's authority to bind his principal terminates In the cases relied upon by Appellees, the courts address upon the principal's death. SeeCleveland v. Williams, 29 an agent's authority to act on behalf of an incapacitated Tex. 204, 213 (1867); Crawford v. Morris, 228 S.W.2d 364, principal, but those courts did not address the specific 366 (Tex.Civ.App.–Eastland 1950, writ ref'd n.r.e.). But this issue in this case and stopped short of holding that a deed

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approach is contrary to the approach in Williams, where the Section 16.069(a) provides: “If a counterclaim or cross claim Texas Supreme Court analogized the incapacity of a principal arises out of the same transaction or occurrence that is to the incapacity of a minor. SeeWilliams, 61 S.W. at 116– the basis of an action, a party to the action may file the 17. When a contract is executed on behalf of an incapacitated counterclaim or cross claim even though as a separate action person—whether by infancy or by mental incompetence— it would be barred by limitation on the date the party's answer the party in danger of unfair disadvantage in the transaction is required.” In such a case, “[t]he counterclaim or cross claim is, in fact, the incapacitated party. The party who transacts must be filed not later than the 30th day after the date on which with the incapacitated party suffers no potential detriment in the party's answer is required.” Id. § 16.069(b). the bargaining process. The protections offered by our laws should benefit the incapacitated party by allowing him to [16] [17] [18] However, a party seeking to avail itself of a disavow the contract upon his return to sufficient capacity. rule in avoidance of a statute of limitations must affirmatively This benefit extends to the heirs of a deceased principal or the plead its theory of avoidance in its original petition or a guardian of a permanently incapacitated principal. In such a supplemental petition. TEX.R. CIV. P. 94; Woods v. William case, the benefitted party can secure the advantage of a good M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988); see bargain by ratifying the contract or he can relieve himself alsoProctor v. White, 172 S.W.3d 649, 652 (Tex.App.– of a bad bargain by electing to disavow the agreement. To Eastland 2005, no pet.). Moreover, a party seeking summary hold such an agreement void as a matter of law would deprive judgment must include in its motion the specific grounds the disadvantaged party of the benefit of an advantageous on which relief is requested. SeeTEX.R. CIV. P. 166a(c). contract. An appellate court may not affirm a summary judgment on grounds not expressly set out in the motion for summary Furthermore, our conclusion best comports with the need judgment. State Farm Lloyds v. Page, 315 S.W.3d 525, 532 to facilitate the resolution of title disputes in a reasonable (Tex.2010); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, amount of time. If deeds executed by attorneys-in-fact on 26 (Tex.1993). behalf of incompetent principals were considered void as a matter of law, a claimant could seek to invalidate a deed *6 After the interpleader was filed in this case, Cole and many years after its execution. Such is the case here, where Strack filed their original cross-claim against Appellees on Appellees have sought to invalidate the deed approximately January 6, 2011. In that cross-claim, they sought a declaration twenty-five years after its execution. To the contrary, a from the trial court regarding title to the NPRI based on the claim against a voidable deed is subject to a statute of legal determination of the viability of the deed. They also limitations. SeeCIV. PRAC. & REM. § 16.051; see alsoFord, asserted the affirmative defense of the four-year statute of 235 S.W.3d at 618. Given these considerations, in addition to limitations. Appellees timely filed a counterclaim in which the precedent set forth in Williams, we hold that the deed at they requested that the trial court declare the deed void issue in this case was voidable at the option of the incompetent and confirm their title to the NPRI. We have found no principal, rather than void as a matter of law. instance in the trial court in which Appellees asserted Section 16.069 as grounds for avoiding Cole and Strack's affirmative [15] Appellees argue that, even if we hold that the deed at defense of statute of limitations. All of Appellees' claims issue was voidable, the statute of limitations does not operate rested on the trial court's determination that the deed was to bar the counterclaims made by Appellees. To support this void. Accordingly, Appellees did not preserve for appeal their contention, Appellees rely on Section 16.069 of the Texas argument that Section 16.069 precludes the application of the Civil Practice and Remedies Code. CIV. PRAC. & REM. § statute of limitations. 16.069 (West 2008). Cole and Strack respond that Section 16.069 cannot be used to revive Appellees' claim to disaffirm Having determined that the deed was voidable, rather than the deed. Cole and Strack also claim that Appellees have void, and that the period of limitations to disaffirm the deed waived this argument on appeal because Appellees did not has elapsed, we hold that the trial court erred when it entered specifically plead Section 16.069 as grounds for avoiding summary judgment in favor of Appellees. Cole and Strack's the affirmative defense of statute of limitations and because first issue on appeal is sustained. Appellees did not assert Section 16.069 as an alternative ground in their motion for summary judgment. In their second issue, Cole and Strack essentially ask us to hold, as a matter of law, that Appellees' claims are barred

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by limitations. However, the trial court held that the deed We reverse the judgment of the trial court, and we remand was void and did not reach the statute of limitations issue; to the trial court for proceedings consistent with this opinion, therefore, we are not able to address it in this appeal. In including a determination of the effect, if any, of the statute addition to the reasons previously stated in this opinion, of limitations upon Appellees' claims. we overrule Cole and Strack's second issue on appeal for the reason that the trial court did not rule on the statute of limitations issue and nothing in relation to its application is presented for our review.

Footnotes 1 See Act of May 5, 1971, 62nd Leg., R.S., ch. 173, § 3, 1971 Tex. Gen. Laws 967, 971, amended by Act of May 29, 1989, 71st Leg., R.S., ch. 404, § 1, 1989 Tex. Gen. Laws 1550, repealed by Act of April 15, 1993, 73rd Leg., R.S., ch. 49, § 2, 1993 Tex. Gen. Laws 102, 112 (current version at TEX. EST. CODE ANN.. §§ 751.002, 751.051 (West 2014)). Although Section 36A has been amended and repealed, it remains in effect for powers of attorney executed prior to its amendment and repeal.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Crawford v. Morris, 228 S.W.2d 364 (1950)

[3] Estoppel 228 S.W.2d 364 Weight and Sufficiency of Evidence Court of Civil Appeals of Texas, Eastland. In action in trespass to try title, evidence was CRAWFORD et al. insufficient to sustain finding that some devisees v. of testator did not knowingly receive their part of purchase price of land belonging to estate which MORRIS et al. was sold by executrix of estate, so as to estop No. 2775. | Feb. 3, 1950. | On them from asserting incapacity of executrix to Motions for Rehearing March 17, 1950. convey their interests in the land under power of | Rehearing Denied April 7, 1950. attorney executed by them which was terminated by death of a principal to power of attorney. W. E. Morris, and another, sued Catie Daniels Crawford, and others, in trespass to try title to an interest in land, and for 1 Cases that cite this headnote other relief. The District Court, Eastland County, George L. Davenport, J., rendered judgment awarding title to the interest to plaintiffs and denying plaintiffs all other requested relief, and defendants appealed and plaintiff cross-assigned error. Attorneys and Law Firms The Court of Civil Appeals, Grissom, C. J., held that power *364 T. M. Collie, Eastland, for appellants. of attorney authorizing executrix of estate of a testator to sell land belonging to estate was terminated by death of a principal Jack W. Frost, Eastland, for appellees. to power. Opinion Judgment affirmed as reformed. GRISSOM, Chief Justice.

On May 8, 1942, C. J. Daniels, who owned the 8.6 acres West Headnotes (3) of land in controversy, died intestate and his father, G. W. Daniels, inherited one-half of said land and the other half was inherited by his brother and sisters. There was no [1] Trespass to Try Title administration on the estate of C. J. Daniels. In August, 1944, Weight and Sufficiency G. W. Daniels died. He left a will in which he devised his In action in trespass to try title to land, evidence interest in said land to his surviving children, Catie Daniels established that executrix who conveyed land to Crawford, Mabel U. Daniels, Grace Daniels Shelton, Irvin plaintiff by general warranty deed conveyed all Van Daniels and Vanita Daniels Tunnell, the brother and interest in the land that executrix had power to sisters of C. J. Daniels, deceased. Mabel U. Daniels was convey. appointed independent executrix of G. W. Daniel's estate and qualified as such. Thereafter, in December, 1944, Mabel U. Cases that cite this headnote Daniels executed a general warranty deed to said 8.6 acres to W. E. Morris. Morris paid the market value for said tract, [2] Principal and Agent which was $80.00. The deed was signed ‘Mabel U. Daniels Death of Principal For myself and as administratrix of the estate of C. J. Daniels, Where power of attorney to sell land belonging deceased.’ Morris executed a deed purporting to convey one- to estate of testator was executed to executrix half of the minerals in said tract to L. H. McCrea. of estate jointly and not severally, death of a On July 29, 1948, Grace Daniels Shelton and Vanita Daniels principal to power terminated the power. Tunnell, joined by *365 their husbands, and Catherine 2 Cases that cite this headnote Daniels Crawford and Irvin Van Daniels, executed an oil and gas lease to Alsabrook and Kemp for which they were paid

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a cash bonus of $5,160.00. W. E. Morris and L. H. McCrea U. Daniels individually and of the estate of G. W. Daniels, joined said parties in the execution of said lease. deceased; that the deed should be reformed to speak the truth and convey the interests intended. Plaintiffs alleged that In August, 1948, Morris and McCrea filed this suit against Morris paid the full agreed consideration to Mabel U. Daniels, Catie Daniels Crawford, Mabel U. Daniels (Keefer) and individually and as independent executrix of the estate of G. husband, Vanita Daniels Tunnell and husband, Grace Daniels W. Daniels, and that said estate had received and appropriated Shelton and husband and Irvin Van Daniels in trespass to try its part of the purchase price. title to a 4/5ths interest in said 8.6 acre tract. It was apparently admitted that Mabel U. Daniels' 1/5th interest therein had Plaintiffs further alleged that when Mabel U. Daniels been conveyed to the plaintiffs by her deed heretofore referred executed the deed to Morris, in December, 1944, she was to. the attorney in fact for the other defendants, her brother and sisters, by virtue of a power of attorney exceuted in Plaintiffs also alleged that defendants executed said oil and 1942, whereby said brother and sisters and her father, G. W. gas lease and wrongfully received $5,160.00 as a bonus for Daniels, authorized her to sell the land in controversy, which their execution of said lease; that said bonus was the property they inherited from C. J. Daniels. Plaintiffs allege that it was of plaintiffs but was received and appropriated by defendants the purpose of Mabel U. Daniels in executing the deed to and, therefore, plaintiffs were entitled to judgment against convey all of said land and all of the interests therein owned defendants for said amount. As an alternative plea to that by defendants, and that she executed the same individually in trespass to try title, plaintiffs alleged that in the event as independent executrix of the estate of G. W. Daniels, they were denied relief in their action to try title they were deceased, and as attorney in fact for the other defendants and entitled to judgment against Mabel U. Daniels Keefer because that said deed should be so reformed. of her execution of the warranty deed to plaintiffs. Plaintiffs alleged that Mabel U. Daniels was never administratrix of Trial was to the court. The court rendered judgment awarding the estate of C. J. Daniels but that she conveyed to Morris title to plaintiffs but denying them all other relief. Defendants the fee simple title to said tract. Plaintiffs alleged they were have appealed. Plaintiffs have cross assigned error to the entitled to recover damages for loss of said title in the sum refusal of the *366 court to render judgment for the bonus of $5,240.00, for which they ask judgment against Mabel U. collected by defendants. Daniels Keefer. Defendants excepted to said petition, among [1] The evidence was sufficient to show that Mabel U. other things, because of a failure to allege facts showing that Daniels intended to and did convey the interest owned by her defendants were not entitled to receive the bonus for said oil individually, and the interests she had the power to convey and gas lease. Defendants answered by pleas of not guilty and as independent executrix of the estate of G. W. Daniels. She general denial. had qualified in that capacity. The estate owed debts that had not been paid. She executed a general warranty deed that On January 19, 1949, plaintiffs filed an amended petition purported to convey all interests in the land and she collected which contained the same allegations with reference to the market value of same. The face of the instrument showed trespass to try title and the allegations that the defendants, she intended to convey in some additional capacity than as except Mabel U. Daniels Keefer and husband, wrongfully an individual. These and other circumstances shown were received $5,160.00 as a bonus for said lease. They also sufficient to support a conclusion that she intended to and alleged, as they had in their original petition, the execution did convey all the interest in the land that she had power of the deed to Morris by Mabel U. Daniels (now Keefer) and to convey. See Hill v. Conrad, 91 Tex. 341, 43 S.W. 789; that she thereby conveyed to Morris title to said tract; that Morgan et al. v. White et al., Tex.Civ.App., 20 S.W.2d 366; she was never administratrix of the estate of C. J. Daniels; Arnold v. Southern Pine Lumber Co., 58 Tex.Civ.App. 186, that she was independent executrix of the estate of G. W. 123 S.W. 1162; McGraw v. Merchants' & Planters' Nat. Bank, Daniels; that she was qualified and acting in such capacity Tex.Civ.App., 34 S.W.2d 633, 634; Texas Pac. Coal & Oil when she executed the deed to Morris. Plaintiffs alleged that Co. et al. v. Norton, Tex.Civ.App., 238 S.W. 273, 275, 91 the execution of said deed by Mabel U. Daniels to Morris in A.L.R. 434, 462. the manner heretofore shown, was the result of a mistake on her part, or the person who drafted the deed for her signature, [2] Appellants' contention that the power of attorney or others unknown to plaintiffs, but that it was intended by executed to Mabel U. Daniels by her father and the surviving the execution of said deed to convey the interest of Mabel brother and sisters of C. J. Daniels was terminated by the

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interest. See 31 C.J.S., Estoppel, s 70, page 264; Williams v. death of one of the principals, to-wit: G. W. Daniels, must Texas Employers Ins. Ass'n, Tex.Civ.App., 135 S.W.2d 262, be sustained. Where the power is created by two or more 264, writ ref., and 17 tex.Jur. 138. The evidence ref., and 17 principals jointly and not severally, as here, and one dies the Tex.Jur. 138. The evidence knowingly received same. power is thereby terminated. 2 Am. Jur. 53; 2 C.J.S., Agency, s 86, page 1178; Vol. 1, Restatement of the Law of Agency, Sec. 123, page 315. See also 23 Words and Phrases, Perm. The judgment is reversed and the cause remanded. Ed., page 86 and 39 Words and Phrases, Perm. Ed., page 64.

[3] It follows that the portion of the judgment which On Motions for Rehearing. rests upon a finding of a conveyance under said power of On February 3, 1950, judgment of the trial court was reversed attorney cannot be sustained. A finding of a conveyance by and the cause remanded. Both appellees and appellants have Mabel U. Daniels of any greater interest than that owned filed motions for rehearing. All parties have also filed an by her individually and that which she had power to sell agreement that the facts were fully developed on all issues as independent executrix of the estate of G. W. Daniels, on the former trial and request rendition of a final judgment deceased, cannot be sustained. Therefore, a judgment on the record now before this court. In accord with said awarding plaintiffs any greater interest in the land cannot be agreement and motions that final judgment be rendered, said upheld, unless defendants (appellants here) are estopped to motions for rehearing are to that extent granted and in all other assert the incapacity of Mabel U. Daniels to convey under said respects overruled. power of attorney the interests inherited by her brother and sisters from C. J. Daniels, deceased. Apparently, the estoppel The judgment of the trial court is reformed so as to award asserted is based upon the theory that her brother and sisters to appellants a 4/10ths undivided interest in the land in knowingly received their part of the purchase price of such controversy. In all other respects the judgment is affirmed.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (1985)

is presumed that court is familiar with entire record of case up to and including motion to be 701 S.W.2d 238 considered. Supreme Court of Texas. 8 Cases that cite this headnote Ida E. DOWNER, Petitioner, v. AQUAMARINE OPERATORS, INC., Respondent. [3] Pretrial Procedure Striking pleadings No. C–4141. | Dec. 4, 1985. Pretrial Procedure | Rehearing Denied Jan. 15, 1986. Dismissal or default judgment

Wife of deceased seaman brought action for damages In refusing to grant new trial and reinstate against shipowner. Trial court struck shipowner's answer as party's answer which had been struck at prior discovery abuse sanction and signed interlocutory default hearing on Motion for Sanctions as discovery judgment as to liability. Jury trial on issue of damages was had sanction, trial court could consider evidence in the 334th District Court, Harris County, Ken Harrison, J. introduced subsequent to original sanctions Shipowner appealed. The Court of Appeals, 689 S.W.2d 472, hearing. Vernon's Ann.Texas Rules Civ.Proc., reversed judgment of trial court. Wife appealed. The Supreme Rule 215a(c) (Repealed). Court, Wallace, J., held that: (1) trial court had authority under 33 Cases that cite this headnote rule regarding failure of party to appear at oral deposition to strike answer of shipowner; (2) trial court correctly imposed discovery sanction of striking shipowner's answer; and (3) [4] Appeal and Error trial court correctly refused to admit evidence of contributory Abuse of discretion negligence. Test for whether trial court abused its discretion is whether court acted without reference to any Judgment of Court of Appeals reversed and judgment of trial guiding rules and principles, i.e., whether the court affirmed. act was arbitrary or unreasonable, and mere fact that trial judge may decide matter within his discretionary authority in different manner than appellate judge in similar circumstance does West Headnotes (8) not demonstrate that an abuse of discretion has occurred. [1] Pretrial Procedure Corporate officers, agents, and employees 3406 Cases that cite this headnote

President of company which was party to action was a “party” within meaning of Rule 215a(c) [5] Pretrial Procedure regarding failure of party to appear at oral Striking pleadings deposition, where president testified he was Pretrial Procedure in complete charge of all operations of the Dismissal or default judgment company. Vernon's Ann.Texas Rules Civ.Proc., Trial court correctly imposed discovery sanction Rule 215a(c) (Repealed). of striking defendant's answer and signing interlocutory default judgment as to liability 27 Cases that cite this headnote under Rule 215a(c)(Repealed) regarding failure of party to appear at oral deposition, where [2] Pretrial Procedure shipowner voluntarily sent crew to sea rather Amendment or modification than producing them for depositions as agreed Trial court's plenary jurisdiction gives it not only on two occasions, attorney for wife of deceased authority but responsibility to review any pretrial seaman stated shipowner's attorney waited until order upon proper motion, and in doing so, it one hour past deposition time to advise wife's

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attorney that wife's attorney would have to fly to another city to take depositions on following Opinion day, and shipowner failed to produce president WALLACE, Justice. of shipowner and immediate supervisor of captain for deposition and did not explain this This is an appeal from a judgment for damages in a suit failure. Vernon's Ann.Texas Rules Civ.Proc., brought under the Jones Act and under admiralty law. The Rule 215a(c) (Repealed). trial dealt only with damages because the trial court struck the defendant's answer as a discovery abuse sanction and signed 17 Cases that cite this headnote an interlocutory default judgment as to liability. The court of appeals reversed the trial court judgment, holding that the [6] Appeal and Error action of *240 that court was an error of law and an abuse of Sustaining challenge or excusing juror discretion. 689 S.W.2d 472. We reverse the judgment of the Alleged error of trial court in refusing to strike court of appeals and affirm the judgment of the trial court. a juror for cause did not result in harm, where challenged juror was a spare. The issues before us are whether TEX.R.CIV.P. 215a(c), as it existed prior to the amendment effective August 1, 1984, 1 Cases that cite this headnote authorized the trial court to strike defendant's answer, and, if so, whether the exercise of that authority constituted an abuse of discretion. [7] Damages Scope of issues and questions considered Edward P. Downer was a seaman aboard the vessel Four Point Trial court correctly refused to admit evidence IV. He drowned while attempting to free a line that had fouled of contributory negligence in trial to determine the vessel's propeller. Ida E. Downer, his widow, brought damages, where defendant's answer had been this action against Aquamarine Operators, Inc., the owner and struck and default judgment rendered as to operator of the vessel. The case was filed in the 151st District liability and defendant had no pleading to Court of Harris County. Both Downer and Aquamarine are support contributory negligence. residents of Harris County, Texas. 14 Cases that cite this headnote Downer filed Notice of Intent to Take the Depositions of All Members of The Crew on June 1. The notice identified [8] Appeal and Error each crew member, including the captain, Chester P. Dalfrey, Amount of recovery or extent of relief by name only. Downer also requested depositions of the Alleged error of trial court in awarding immediate supervisor of Chester Dalfrey and the custodian prejudgment interest was not presented to trial of Edward Downer's personnel file. On June 1, Aquamarine court and was thus waived on appeal. notified Downer that the crew was at sea and would not appear. Aquamarine at that time agreed to produce the 4 Cases that cite this headnote requested persons on June 22. On June 21, Aquamarine again notified Downer that the crew was at sea and would not appear. It agreed to produce them on July 5.

Attorneys and Law Firms Downer filed written Notice of Intent to Take Depositions of the same individuals for July 5. On that date, the requested *239 John O'Quinn, Frank M. Staggs, Jr., O'Quinn & deponents did not appear, whereupon Downer filed a Motion Hagans, Houston, for petitioner. for Sanctions. A hearing on the Motion for Sanctions was set for August 22. Aquamarine made no appearance at the Terry P. Ayre and Thomas A. Brown, Brown, Sims, Wise & hearing; the trial court granted the Motion for Sanctions and White, Houston, for respondent. signed an Order Striking Aquamarine's Answer.

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Downer filed a Motion for Interlocutory Default Judgment interlocutory default judgment as to liability. Aquamarine to which Aquamarine responded. The response contained filed a Motion to Set Aside the Default Judgment. The Aquamarine's reasons for not producing the requested motion contained practically the same information as the individuals for depositions and its failure to appear at the Motion to Reconsider Sanctions set out above. The trial court sanctions hearing. considered this motion and overruled it. On April 16, 1984, the case was preferentially set for trial for June 4, and the The reason offered for the first two occasions was that work trial court refused to consider Aquamarine's Second Motion for the FOUR POINT IV was scarce and, when work was to Set Aside the Interlocutory Default Judgment and Reinstate available, it was necessary to send the vessel and crew to Defendant's Pleadings. sea rather than produce them for depositions. On the third occasion, the vessel was in port at New Iberia, Louisiana, A jury trial was had in a different court, the 334th District, but Coast Guard regulations required a skeleton crew to be on the issue of damages. At the trial, Chester Dalfrey testified kept aboard at all times. Aquamarine's attorney stated that that he was captain of the FOUR POINT IV and as such he he notified Downer's attorney on July 1 of the necessity to was in complete charge of the vessel with authority over all of take the depositions in New Iberia. Downer's attorney stated its operations. Mr. Clark Ivans testified that he was president that he first learned that the individuals would not appear as of Aquamarine at all times pertinent to this case, and that as noticed when Aquamarine's attorney called him an hour after such, he was the immediate supervisor of Chester Dalfrey. the depositions were scheduled to commence. Both agreed that Aquamarine requested that the depositions be taken in [1] We now address the issue of whether the trial court had New Iberia on July 6. However, Downer's attorney stated that authority under Rule 215a(c) to strike Aquamarine's answer. he could not do so because he was preferentially set for trial That rule stated in pertinent part: in Houston starting at 9:00 a.m. on July 6. If a party or an officer or managing The reason given by Aquamarine for not appearing at the agent of a party, except for good sanctions hearing was that Hurricane Alicia had struck La cause shown, fails to appear before Porte, the residence of Mr. Ayres, Aquamarine's lead counsel, the officer who is to take his oral four days previously. Mr. Ayres was involved in cleaning up deposition ... the court in which the after the hurricane and mitigating the damages to his home. action is pending on motion and notice Also, he had a hearing set in federal court in Beaumont on the may strike out all or any part of following day and was directing all of his available attention the pleading of that party or dismiss to that matter. the action or proceeding or any part thereof.... To his Motion to Reconsider the Sanctions, Mr. Ayres As noted above, Ivans testified that as president of attached an affidavit from his secretary, which stated that she Aquamarine he was in complete charge of all operations of had called the clerk of the court on July 7, and had advised the company. Thus he was a party as contemplated by Rule her that Mr. Ayres had to make a docket call in Angleton on 215a(c). August 22. She understood the clerk to say that the sanctions hearing would be reset for September 6. In response to this [2] [3] The next question is whether the trial court, in motion, Downer's attorney advised the court by letter of his refusing to grant a new trial and reinstate Aquamarine's version of the circumstances leading up to the non-appearance answer, could consider the evidence introduced subsequent on July 5, and the time when he was first advised *241 to the original sanctions hearing. Aquamarine contends that that the named individuals would not appear. Attached to this the trial court, in imposing sanctions, could consider only letter to the court was a copy of a letter dated July 28, written the evidence before it at the time of the sanctions hearing, by Mr. Bales, an associate of Mr. Ayres, which confirmed that and not any evidence subsequently produced. A trial court's the sanctions hearing was set for August 22. plenary jurisdiction gives it not only the authority but the responsibility to review any pre-trial order upon proper With the above information before it, the trial court overruled motion. In doing so, it is presumed that the court is familiar Aquamarine's Motion to Reconsider the Sanctions and to with the entire record of the case up to and including the reinstate its answer. The court signed an order granting an motion to be considered. The plenary jurisdiction of the

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trial court in this case continued through the final judgment continuing pattern both to broaden the discovery process and and overruling of Aquamarine's motion for new trial. When to encourage sanctions for failure to comply. considering the motion for new trial, the court had before it the reasons advanced by Aquamarine for not appearing for The United States Supreme Court in National Hockey League depositions or the sanctions hearing; Downer's response to v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. Aquamarine's motions; and the evidence produced at the trial 2778, 49 L.Ed.2d 747 (1976) approved the use of sanctions on damages. Thus, the court of appeals erred in holding that not only to assure compliance with the discovery process but the trial court did not have authority under Rule 215a(c) to also to deter those who might be tempted to abuse discovery strike Aquamarine's answer. in the absence of a deterrent.

We now turn to the court of appeals holding that the trial This court and various courts of appeals have also followed court abused its discretion in striking Aquamarine's answer. this progression. See, e.g., Dyson v. Olin Corp., 692 S.W.2d The court of appeals concluded its review of the abuse of 456 (Tex.1985), (Kilgarlin, J., concurring) (unnamed witness discretion issue by stating: “The facts of the case simply do not permitted to testify); Jarrett v. Warhola, 695 S.W.2d 8 not, in our opinion, show this to be an appropriate case to (Tex.App.—Houston [14th Dist.] 1985, writ ref'd), (plaintiff's impose the ultimate sanctions of striking the pleadings and cause of action dismissed); City of Houston v. Arney, entering default judgment.” We interpret that statement to 680 S.W.2d 867 (Tex.App.—Houston [1st Dist.] 1984, mean that the court of appeals disagreed with the decision of no writ) (defendant's answer struck for failure to answer the two trial judges who reviewed the matter. interrogatories); Southern Pacific Transportation v. Evans, 590 S.W.2d 515 (Tex.Civ.App.—Houston [1st Dist.] 1979, [4] The test for abuse of discretion is not whether, in writ ref'd n.r.e.) (defendant's answer struck and interlocutory the opinion of the reviewing court, the facts present an default judgment rendered as to liability), cert. denied, 449 appropriate case for the trial court's action. Rather, it is U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980). a question of whether the court acted without reference to any guiding rules and *242 principles. Craddock v. In various speeches and law review articles, different Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 members of this court have encouraged trial judges to use (Tex.Comm.App.—1939, opinion adopted). Another way sanctions to the degree necessary to assure compliance with of stating the test is whether the act was arbitrary or discovery procedures and deter abuse of the process. Barrow unreasonable. Smithson v. Cessna Aircraft Co., 665 S.W.2d and Henderson, 1984 Amendments to the Texas Rules of Civil 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., Procedure Affecting Discovery, 15 ST. MARY'S L.J. 713 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial (1984) (presented to the Texas College of the Judiciary Nov. judge may decide a matter within his discretionary authority 29, 1984); Kilgarlin and Jackson, Sanctions for Discovery in a different manner than an appellate judge in a similar Abuse Under New Rule 215, 15 ST. MARY'S L.J. 767 (1984); circumstance does not demonstrate that an abuse of discretion Pope and McConnico, Practicing Law With the 1981 Texas has occurred. Southwestern Bell Telephone Co. v. Johnson, Rules, 32 BAYLOR L.REV. 457 (1981); Spears, The Rules 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 of Civil Procedure: 1981 Changes In Pretrial Discovery, 12 Tex. 421, 321 S.W.2d 290, 295 (Tex.1959). ST. MARY'S L.J. 633 (1981).

To determine the trial judge's guiding rules and principles The trial court in this case was free to examine the factors in imposing sanctions for discovery abuse, we must look before it to determine whether to levy sanctions. Among these to the Texas Rules of Civil Procedure as promulgated were the following: (1) whether voluntarily sending the crew and amended by this Court as well as the decisions of to sea rather than producing them for depositions as agreed on appellate courts of this State and of the United States. The two occasions was in conscious disregard of this court's rules; Texas Rules of Civil Procedure pertaining to discovery and (2) whether the contradictory statements of both attorneys sanctions for noncompliance have been amended several indicated that Aquamarine's attorney did in fact wait until one times, culminating in Rule 215a as it existed at the time of this hour past the scheduled time for depositions on July 5, to case, and now embodied in Rule 215. The use of sanctions advise Downer's attorney that he would have to fly to New by trial courts to prevent discovery abuse has developed Iberia and take depositions on the following day; (3) whether steadily over the past several years. These changes reflect the Aquamarine's attorney consciously disregarded the sanctions

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (1985)

[6] The second point was that the trial court improperly hearing in preference to his personal needs and the federal refused to strike a juror for cause. After the court had ruled on court case set the following day; (4) whether the information challenges for cause, there were 26 names left on the jury list. contained in the secretary's affidavit as to the date of the Each party was given six jury strikes, so, after making those sanctions hearing conflicted with the letter from an attorney strikes, 14 names remained on the list. The challenged juror *243 in that law firm confirming that the hearing was set on was Number 14 and was thus a spare. There was no harm in August 22; and (5) the unexplained failure of Aquamarine to refusing to dismiss him for cause. produce for depositions on any of the occasions in question Clark Ivans, the immediate supervisor of Chester Dalfrey and [7] The third point was that the trial court improperly refused the president of Aquamarine. to admit evidence of Downer's contributory negligence. Contributory negligence is an affirmative defense which must [5] The record contains no indication that the trial court be pleaded. Aquamarine's answer had been struck and default was capricious, arbitrary, or unreasonable. Thus, the court judgment rendered as to liability. Thus, defendant had no of appeals erred in holding that the trial court abused its pleading to support contributory negligence, so the court did discretion. not err in refusing to admit the requested evidence. In determining whether to reverse and render this cause or [8] Aquamarine's remaining point before the court of to remand it to the court of appeals, we must look to the appeals was that the trial court erred in awarding prejudgment four points of error raised by Aquamarine before the court of interest in a Jones Act case tried to a jury. This point was not appeals but not addressed by that court. If those points raise presented to the trial court and was thus waived. questions of law, as opposed to questions of fact, they can be addressed by this court. Aquamarine's points of error presented to the court of appeals but not considered by that court concerned questions of law The first point was that Downer's First Amended Original over which we have jurisdiction. There is no merit to these Petition was insufficient to support the judgment. The points so it is not necessary for this cause to be remanded to contention is that the facts supporting the cause of action the court of appeals. were not pleaded. TEX.R.CIV.P. 47 requires that a petition contain a short statement of the cause of action sufficient to The judgment of the court of appeals is reversed and the give fair notice of the claim involved. Our rules do not require judgment of the trial court is affirmed. pleadings to contain evidence or factual detail. That point is overruled.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Ezeoke v. Tracy, 349 S.W.3d 679 (2011)

3 Cases that cite this headnote 349 S.W.3d 679 Court of Appeals of Texas, Houston (14th Dist.). [2] Appeal and Error Costs and Allowances Alphonsus O. EZEOKE, Appellant, The exercise of the trial court's inherent power v. to award sanctions is reviewed for abuse of Cynthia TRACY, Appellee. discretion.

No. 14–10–00153–CV. | Aug. 4, 2011. 3 Cases that cite this headnote

Synopsis Background: Husband's attorney sought sanctions in form [3] Costs of attorney's fees and expenses against wife's attorney, Nature and Grounds of Right alleging that wife's attorney failed to serve copy of motion The scope of a trial court's discretion to impose as represented in certificate of service and filed motion for sanctions under its inherent power is limited by continuance for improper purposes. The 245th District Court, the recognition that this power exists to the extent Harris County, Annette Kuntz, J., awarded sanctions. Wife's necessary to deter, alleviate, and counteract bad attorney appealed. faith abuse of the judicial process, such as any significant interference with the traditional core functions of state courts.

Holdings: The Court of Appeals, William J. Boyce, J., held 2 Cases that cite this headnote that:

[1] evidence was insufficient to support imposition of [4] Costs sanctions absent findings that conduct significantly interfered Nature and Grounds of Right with court's legitimate exercise of core functions; For a trial court's inherent power to award sanctions to apply, there must be some evidence [2] no nexus existed between amount of attorney's fees and and factual findings that the conduct complained expenses awarded and targeted conduct, as would be required of significantly interfered with the court's to support sanctions order; and legitimate exercise of one of these powers.

2 Cases that cite this headnote [3] attorney did not have reasonable opportunity to respond to allegations. [5] Appeal and Error Costs and Allowances Reversed and remanded. Imposition of sanctions under Chapter 10 of the Civil Practices and Remedies Code, for submission of pleading of improper purposes, West Headnotes (11) is reviewed on appeal for abuse of discretion. V.T.C.A., Civil Practice & Remedies Code §§ 10.001-10.006. [1] Costs Nature and Grounds of Right Cases that cite this headnote Trial courts have inherent power to impose sanctions for bad faith abuse of the judicial [6] Appeal and Error process even when the targeted conduct is not Costs and Allowances expressly covered by a rule or statute.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Ezeoke v. Tracy, 349 S.W.3d 679 (2011)

To determine if sanctions were appropriate or during sanctions hearing were attributed to this just, the appellate court must ensure there is conduct. Vernon's Ann.Texas Rules Civ.Proc., a direct nexus between the improper conduct Rules 21b, 215.2(b). and the sanction imposed; the nexus requirement ensures that the sanction is directed against Cases that cite this headnote the abuse and toward remedying the prejudice caused to the innocent party. [10] Attorney and Client Liability for costs; sanctions Cases that cite this headnote Even if attorney had notice of motion for sanctions against him and notice of sanctions [7] Costs hearing, attorney did not have reasonable Nature and Grounds of Right opportunity to respond to allegations, as would The two-prong inquiry into whether a nexus support award of sanctions, where attorney exists and whether the sanction is excessive had given prior notice of his absence from applies to sanctions imposed under rule the country during time period when sanctions providing for penalties for failure to serve hearing was held, attorney was in fact out pleadings. Vernon's Ann.Texas Rules Civ.Proc., of country, attorney returned to country as Rules 21b, 215.2(b). scheduled shortly after hearing was held, and there was no indication attorney purposefully Cases that cite this headnote evaded hearing. V.T.C.A., Civil Practice & Remedies Code § 10.003. [8] Attorney and Client 1 Cases that cite this headnote Liability for costs; sanctions Evidence was insufficient to support trial court's imposition of sanctions on attorney, pursuant to [11] Attorney and Client court's inherent power, for failing to comply with Liability for costs; sanctions local rules requiring attendance at mediation A reasonable opportunity for an attorney to before trial, failure to appear at mediation, and respond to a sanctions request contemplates oral misrepresentations to court about having something more than the chance to ask one trial a vacation letter on file, where order imposing court judge to reverse sanctions that already have sanctions made no findings that attorney's been imposed by another trial court judge. conduct significantly interfered with court's legitimate exercise of core functions such as Cases that cite this headnote hearing evidence, deciding issues of fact raised by the pleadings, deciding questions of law, entering final judgment, or enforcing a judgment. Attorneys and Law Firms 3 Cases that cite this headnote *680 Alphonsus O. Ezeoke, Stafford, pro se.

[9] Attorney and Client *681 Cynthia Brown Tracy, Houston, pro se. Liability for costs; sanctions No nexus existed between amount of attorney's Panel consists of Justices BROWN, BOYCE, and JAMISON. fees and expenses awarded and targeted conduct, as would be required to support sanctions order arising out of attorney's conduct in divorce OPINION proceedings in which attorney allegedly failed to WILLIAM J. BOYCE, Justice. serve copy of motion on other attorney; none of the fees or expenses detailed by other attorney

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Ezeoke v. Tracy, 349 S.W.3d 679 (2011)

Alphonsus O. Ezeoke appeals from an order awarding December 19, 2009 and traveling to Nigeria to fulfill certain attorney's fees and expenses as sanctions against him and in obligations in his home town. Ezeoke's affidavit stated that he favor of Cynthia Tracy. We reverse and remand. would return to the United States on January 15, 2010, and that he had retained an attorney to appear on his behalf in connection with the hearing on the motion for continuance.

BACKGROUND Tracy filed a First Amended Motion for Sanctions Including This appeal arises from litigation in which attorney Ezeoke For Failure to Serve and Response to Motion for Continuance represented Jossie Herrera and attorney Tracy represented on January 4, 2010, in which she invoked the trial court's Natanael Herrera. authority to impose sanctions based on (1) the trial court's inherent power; (2) Chapter 10 of the Civil Practice and Jossie and Natanael Herrera were divorced on April 2, 2008. Remedies Code relating to signing of pleadings and motions; Acting on Natanael Herrera's behalf, Tracy filed a Motion and (3) Texas Rule of Civil Procedure 21b relating to to Modify the Parent–Child Relationship and a Motion to sanctions for failure to serve copies of pleadings, which Confirm Child Support Arrears on April 8, 2009. Acting on incorporates by reference the *682 sanctions available under Jossie Herrera's behalf, Ezeoke filed an Amended Motion Rule 215.2(b). 1 Tracy did not invoke Rule 13 in her January to Deny Relief in Suit Affecting Parent–Child Relationship 4, 2010 sanctions motion, and on appeal she disclaims any on May 14, 2009. Tracy contends that Ezeoke did not serve reliance upon Rule 13. The motion includes a certificate of this pleading on her or her client on the day reflected in the service in which Tracy certified that “a true copy of the above certificate of service. was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on January 4, 2010.” The attorneys exchanged numerous communications between The motion also includes a notice of hearing on the first May and December 2009. An unsuccessful mediation was amended motion for sanctions at 10:00 a.m. on January 11, held on May 27, 2009. The trial court issued a scheduling 2010. order on June 23, 2009, which included notice of a January 11, 2010 trial setting. The scheduling order also included a notice The trial court conducted a hearing on Ezeoke's motion for requiring mediation to be completed before the final trial on continuance on January 6, 2010. An attorney hired by Ezeoke the merits scheduled for January 11, 2010. Tracy contends appeared at this hearing; Ezeoke did not. The trial court that she attempted without success on multiple occasions in denied the continuance on that date, and also signed an order November and December 2009 to communicate with Ezeoke directing the parties to attend mediation on January 7, 2010. to schedule mediation. On December 7, 2009, Tracy filed an The attorney hired by Ezeoke signed the mediation order Opposed Motion to Compel Mediation and set the motion for “approved as to form only” on behalf of Ezeoke. Neither hearing on January 6, 2010. Ezeoke nor his client Jossie Herrera appeared at the mediation on January 7, 2010. Ezeoke filed a motion on December 18, 2009 seeking a continuance of (1) the hearing on Tracy's motion to compel Tracy's January 4, 2010 sanctions motion asserted that mediation set for January 6, 2010; and (2) the January 11, Ezeoke (1) failed to serve a copy of the Amended Motion to 2010 trial setting. Ezeoke filed a supporting affidavit in which Deny Relief in Suit to Modify the Parent–Child Relationship he stated, “This case is scheduled for mediation and trial when it was filed on May 14, 2009, as represented in the because of the attitude of Cynthia Tracy and her office and the certificate of service; and (2) filed a Motion for Continuance continued unprofessional and megalomaniacal [sic] attitude on December 18, 2009, which contained personal attacks on of Ms. Tracy towards me. This case should not even be at Tracy, for improper purposes including harassment, delay, this stage but for the attitude of Ms. Tracy.” He further stated, and increasing the cost of litigation. Among other things, “[T]he only way to stop the nonsense and the egos involved Tracy asked the trial court to award “reasonable attorney's in this case is for the Court to intervene and settle this case fees in the amount of at least $1,500 ....” for the parties without the attorneys' egos as impediment.” The trial court conducted a hearing on the sanctions motion Ezeoke's affidavit in support of the motion for continuance on January 11, 2010. Tracy was present at the hearing, along also stated that he would be leaving the United States on

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Ezeoke v. Tracy, 349 S.W.3d 679 (2011)

with Jossie Herrera. Ezeoke was not present, and no attorney stated he was unavailable, causing an additional delay in appeared on his behalf. the proceedings when he had no vacation letter in Harris County on file for that time period;” At the January 11, 2010 hearing, Tracy summarized her contentions regarding the conduct prompting her request • failed to serve a copy of the Amended Motion to Deny for sanctions. Tracy asserted that this conduct involved “an Relief in Suit to Modify the Parent–Child Relationship ongoing pattern of misrepresentation and misciting the facts on May 14, 2009; and to the Court....” She summarized her contentions regarding • filed a motion for continuance on December 18, 2009 that the two matters raised in her January 4, 2010 motion— included “unfounded accusations, misrepresentations, namely, Ezeoke's conduct in connection with failing to serve and name-calling of opposing counsel,” and that was the Amended Motion to Deny Relief in Suit to Modify the “without merit since Alphonsus Ezeoke had failed to Parent–Child Relationship on May 14, 2009, and the filing of file a vacation letter with Harris County for that time the Motion for Continuance on December 18, 2009. period and had knowledge of the trial setting since July 7, 2009.” Tracy raised two additional complaints at the January 11, 2010 sanctions hearing regarding Ezeoke's conduct in (1) The trial court also made three specific findings in support failing to appear at mediation on January 7, 2010; and (2) of its sanctions award: (1) the motion for continuance was causing Tracy to wait in court for an hour in June 2009 “signed in violation of Texas Civil Practice & Remedies Code while Ezeoke attempted to demonstrate to the court that he Section 10.001 and contrary to the principles set for[th] in had a valid vacation letter on file. The trial court admitted the Texas Lawyer's Creed;” (2) the motion for continuance all exhibits proffered by Tracy and took judicial notice of was “brought for an improper purpose, including harassment, the entirety of the court's file during the hearing. *683 delay, and/or has increased the costs of this litigation;” and (3) Jossie Herrera testified that she had not been notified of the “[t]here is a direct relationship between the sanctions imposed mediation scheduled for January 7, 2010. and the offensive conduct.”

Tracy requested an award of $3,081.58 in attorney's fees The trial court also signed an Agreed Order in Suit to Modify and expenses at the sanctions hearing, and submitted a Parent–Child Relationship on January 11, 2010. The agreed supporting spreadsheet as an exhibit. This amount consists order states that Jossie Herrera “appeared in person, and of (1) $2,074.34 attributed to correspondence, a motion, a released her attorney of record, Alphonsus O. Ezeoke, as proposed order, a hearing, and a no-show fee related to her attorney who did not appear for trial after being duly the mediation scheduled for January 7, 2010; (2) $757.24 notified.” attributed to preparation and presentation of the January 4, 2010 motion for sanctions, and preparation of the sanctions On January 28, 2010, Ezeoke filed a Motion for New Hearing order; and (3) $250 attributed to time lost due to Ezeoke's on Attorney Cynthia Tracy's Motion for Sanctions and a “misrepresentation on vacation letter” in June 2009. 2 notarized affidavit signed by Ezeoke. The motion contains a “verification” signed by Ezeoke, but the “verification” is The trial court signed an order on January 11, 2010 in which not notarized. *684 Among other things, Ezeoke's affidavit it assessed sanctions against Ezeoke individually and directed states that he bought tickets for travel from Houston to him to pay $3,081.58 in attorney's fees and expenses as Nigeria to attend to certain obligations in his home town. requested to “Cynthia B. Tracy, Attorney at Law, P.C.” The Ezeoke attached a copy of an itinerary from Emirates Airline trial court found good cause to sanction Ezeoke because he indicating that Ezeoke left Houston for Nigeria on December 21, 2009 and returned to Houston on January 17, 2010. • failed to “comply with the Local Rules of Harris County Ezeoke contended that sanctions were not warranted because requiring the parties to attend mediation prior to trial set for January 11, 2010,” which necessitated a motion to • Tracy failed to establish that the standards for awarding compel mediation, and failed to appear at mediation on sanctions were met; January 7, 2010; • “the Court and Ms. Tracy were aware that Mr. Ezeoke • made “misrepresentations on June 5, 2009 to the court was out of the country” when the January 4, 2010 motion about having a vacation letter on file for a time period he

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Ezeoke v. Tracy, 349 S.W.3d 679 (2011)

for sanctions was filed and when it was heard on January 11, 2010; Ezeoke challenges the January 11, 2010 sanctions order in four issues on appeal. Ezeoke contends that the trial • the motion for continuance was not brought for an court erred in sanctioning him because (1) sanctions are not improper purpose; warranted, the applicable standards have not been satisfied, insufficient notice was provided, and the amount of sanctions • Ezeoke's statements in the motion for continuance is excessive; (2) sanctions are not appropriate based on his criticizing Tracy “are factually correct” and “completely statements about opposing counsel because those statements true” because Tracy “has been a complete impediment are a truthful personal opinion; (3) the trial court erred in to the settlement of this case” and her “unprofessional finding that Ezeoke failed to serve the Amended Motion to attitude is unquestionable;” Deny Relief in Suit to Modify Parent–Child Relationship; and • Ezeoke did not make misrepresentations to the trial court (4) a failure to mediate does not justify sanctions because on June 5, 2009 about having a vacation letter on file for Tracy did not complain of that conduct in *685 her sanctions a time period during which he said he was unavailable; motion. 3

• Ezeoke served Tracy with the Amended Motion to Deny Relief in Suit to Modify Parent–Child Relationship by handing a copy of this pleading to a mediator on May ANALYSIS 27, 2009, who in turn handed it to Tracy; I. Sanctions Standards • the previous mediation on May 27, 2009 was The trial court's imposition of sanctions rests on its invocation unsuccessful; of (1) its inherent authority to impose sanctions; (2) Chapter 10 of the Civil Practice and Remedies Code, • Ezeoke and his client Jossie Herrera did not receive which authorizes sanctions against an attorney who signs sufficient notice of the January 7, 2010 mediation and a pleading and submits it for improper purposes such as did not have enough time to attend because the order harassment, unnecessary delay, or needless increase in the compelling mediation on January 7, 2010 was signed on cost of litigation; and (3) Rule 21b relating to failure January 6, 2010, while Ezeoke was out of the country; to serve pleadings, which incorporates by reference the penalties available under Rule 215.2(b). See Tex. Civ. Prac. & • the January 4, 2010 motion for sanctions did not include Rem.Code Ann. §§ 10.001–.006 (Vernon 2002); Tex.R. Civ. failure to mediate as one of the grounds for seeking P. 21b; 215.2(b). sanctions; [1] [2] [3] [4] Trial courts have inherent power to • the amount awarded for attorney's fees and expenses is impose sanctions for bad faith abuse of the judicial process excessive; even when the targeted conduct is not expressly covered by • “[t]he Sanction was filed after the Petitioner was sure that a rule or statute. See, e.g., Eichelberger v. Eichelberger, 582 the Respondent's attorney was out of the country and was S.W.2d 395, 398–99 (Tex.1979). The exercise of this inherent sure that the motion for sanctions would be granted by power is reviewed for abuse of discretion. McWhorter v. default;” and Sheller, 993 S.W.2d 781, 788–89 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). The scope of a trial court's • Ezeoke received insufficient notice of the hearing on the discretion in this context is limited by the recognition that motion for sanctions. this power “exists to the extent necessary to deter, alleviate, and counteract bad faith abuse of the judicial process, such A hearing on the motion for rehearing was held on February as any significant interference with the traditional core 4, 2010 before a judge other than the one who signed the functions of Texas courts.” Id. at 789 (citing Kutch v. Del January 11, 2010 sanctions order. Ezeoke and Tracy both Mar College, 831 S.W.2d 506, 509–10 (Tex.App.-Corpus were present; no transcript of that hearing has been included Christi 1992, no writ)). “Accordingly, for inherent power to in the record on appeal. An order denying the motion for apply, there must be some evidence and factual findings that reconsideration was signed on February 4, 2010. Ezeoke the conduct complained of significantly interfered with the timely appealed. court's legitimate exercise of one of these powers.” Id. The

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core functions of Texas courts subject to protection by the See McWhorter, 993 S.W.2d at 789 (reversing imposition of inherent power to sanction encompass “ ‘hearing evidence, sanctions pursuant to inherent power when “no such finding deciding issues of fact raised by the pleadings, [and] deciding was made” addressing core functions). Without such findings, questions of law....’ ” Trevino v. Ortega, 969 S.W.2d 950, the January 11, 2010 order cannot be affirmed based on 958 (Tex.1998) (Baker, J., concurring) (quoting Kutch, 831 the trial court's invocation of its inherent power to impose S.W.2d at 510); see also Kutch, 831 S.W.2d at 510 (additional sanctions. core functions of the judiciary include entering final judgment and enforcing judgment).

B. Rule 215.2(b) [5] [6] [7] Imposition of sanctions under Chapter 10 also is reviewed for abuse of discretion. Low v. Henry, 221 [9] The trial court relied on Rule 21b and Rule 215.2(b) in S.W.3d 609, 614 (Tex.2007). “To determine if the sanctions sanctioning Ezeoke for failing to serve a copy of the Amended were appropriate or just, the appellate court must ensure Motion to Deny Relief in Suit to Modify the Parent–Child there is a direct nexus between the improper conduct and the Relationship on May 14, 2009. However, there is no nexus sanction imposed.” Id. (citing Spohn Hosp. v. Mayer, 104 between this conduct and any amount encompassed by S.W.3d 878, 882 (Tex.2003), and TransAmerican Natural the trial court's award of $3,081.58 in attorney's fees and Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991)). expenses. None of the fees or expenses detailed in the The nexus requirement ensures that the sanction is “directed spreadsheet admitted into evidence as Exhibit 38 during against the abuse and toward remedying the prejudice caused the January 11, 2010 sanctions hearing are attributed to [to] the innocent party.” TransAmerican, 811 S.W.2d at 917. this conduct. The January 11, 2010 sanctions order awards Additionally, the sanction must not be excessive. Id. The two- only attorney's fees and expenses; it does not award any prong inquiry into whether a nexus *686 exists and whether amounts purely as a penalty. And unlike Chapter 10, no the sanction is excessive applies as well to sanctions imposed provision in Rule 21b or Rule 215.2(b) references an award of under Rule 215.2(b). Spohn Hosp., 104 S.W.3d at 882. expenses and attorney's fees incurred by the prevailing party in presenting a motion for sanctions. See Tex. Civ. Prac. & Rem.Code § 10.002(c). Because there is no nexus between II. Application of Standards the amount awarded and this targeted conduct, the failure to effect timely service of this pleading does not support the trial A. Inherent Power to Impose Sanctions court's January 11, 2010 sanctions order. See Spohn Hosp., 104 S.W.3d at 882. [8] The trial court imposed sanctions based in part on its findings that Ezeoke failed to comply with local rules requiring the parties to attend mediation before trial; failed to appear at mediation on January 7, 2010; and made oral C. Civil Practice and Remedies Code Chapter 10 misrepresentations to the court in June 2009 about having [10] The trial court invoked Chapter 10 in sanctioning a vacation letter on file for a time period he stated he was Ezeoke for filing a motion for continuance on unavailable. Chapter 10, Rule 21b, and Rule 215.2(b) do not December 18, 2009 that included “unfounded accusations, apply to this conduct because it does not pertain to signing or misrepresentations, and name-calling of opposing counsel,” filing pleadings; serving pleadings; or discovery. Therefore, and that was “without merit since Alphonsus Ezeoke had inherent power is the only permissible basis invoked by the failed to file a vacation letter with Harris County for that trial court for sanctioning Ezeoke for this conduct. time period and had knowledge of the trial setting since July 7, 2009.” The trial court specifically found that (1) The January 11, 2010 order does not meet the requirements the motion for continuance was “signed in violation of for imposing sanctions pursuant to the trial court's inherent Texas Civil Practice & Remedies Code Section 10.001 and power because the order makes no findings that Ezeoke's contrary to the principles set for[th] in the Texas Lawyer's conduct significantly interfered with the court's legitimate Creed;” (2) the motion for continuance was “brought for an exercise of core functions such as hearing evidence, deciding improper purpose, *687 including harassment, delay, and/ issues of fact raised by the pleadings, deciding questions or has increased the costs of this litigation;” and (3) “[t]here of law, entering final judgment, or enforcing a judgment.

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opportunity to respond to the allegations” was provided is a direct relationship between the sanctions imposed and the before sanctions were imposed. offensive conduct.”

[11] We express no opinion about the legitimacy of the Ezeoke contends, among other things, that he did not reasons Ezeoke gave to explain his absence and justify his receive the notice required under section 10.003 because the motion for sanctions was served and the sanctions departure for Nigeria without first having obtained a ruling on hearing was held while he was out of the country. See his motion for continuance. Depending on the circumstances, Tex. Civ. Prac. & Rem.Code Ann. § 10.003 (“The court a lawyer's purposeful absence despite a known court setting shall provide a party who is the subject of a motion for may or may not warrant sanctions. A lawyer who gambles sanctions under Section 10.002 notice of the allegations and by requesting a continuance and then leaving the country a reasonable opportunity to respond to the allegations.”). before the request has been ruled on reasonably can anticipate Tracy contends that Ezeoke has not rebutted the prima facie adverse consequences. But if sanctions are requested and evidence of service established by her certificate of service considered, and if the record discloses no reason why the on the sanctions motion because (1) the denial of notice in absent lawyer cannot be afforded a reasonable opportunity Ezeoke's unverified motion for rehearing is ineffective, and to respond and to participate in a sanctions hearing upon his (2) Ezeoke's affidavit in support of his motion for rehearing scheduled return, then the imposition of sanctions in absentia does not deny notice or receipt of service. is as much a cause for concern as the unexcused absence itself. Cf. Low, 221 S.W.3d at 618 (absent attorney was represented We need not choose between these positions because the by counsel at sanctions hearing). 4 January 11, 2010 sanctions order does not satisfy section 10.003 even if it is assumed that Ezeoke had notice of the Because Ezeoke was not afforded the “reasonable opportunity January 4, 2010 motion for sanctions and the January 11, 2010 to respond” required by section 10.003, the January 11, sanctions hearing. Section 10.003 requires not just notice, but 2010 sanctions order cannot be upheld based on the trial also a “reasonable opportunity to respond to the allegations.” court's invocation of Chapter 10. A remand for proceedings The uncontroverted record establishes that Ezeoke (1) had in conformity with section 10.003 is warranted. 5 given prior notice of his absence from the country during the time period when the sanctions hearing was held; (2) was in fact out of the country; and (3) returned to the *688 CONCLUSION United States as scheduled shortly after the hearing was held. There is no indication in the record that Ezeoke purposefully The trial court's January 11, 2010 sanctions order is reversed, evaded the sanctions hearing, which was noticed after his and the matter is remanded for further proceedings consistent announced departure for a date before his scheduled return. with this opinion. These circumstances do not demonstrate that a “reasonable

Footnotes 1 On May 11, 2009, Tracy filed an Answer to Motion to Deny Relief in Suit to Modify Parent–Child Relationship and Request for Sanctions. In that pleading, Tracy contended sanctions were warranted because Ezeoke falsely alleged that the suit to modify was filed within one year after the rendition of the order sought to be modified. Tracy filed a First Amended Answer to Motion to Deny Relief in Suit to Modify Parent–Child relationship and Request for Sanctions on June 3, 2009. In this pleading, Tracy contended sanctions were warranted because Ezeoke (1) falsely alleged that the motion to modify was filed within one year after rendition of the order sought to be modified; and (2) failed to serve a copy of an Amended Motion to Deny Relief in Suit to Modify Parent–Child relationship when it was filed on May 14, 2009. There is no indication in the appellate record that the trial court ruled on either of the two earlier sanctions requests. 2 As filed, the January 4, 2010 motion sought sanctions against both Ezeoke and his client, Jossie Herrera. During the hearing on January 11, 2010, Tracy clarified that she sought sanctions solely on behalf of her professional corporation, “Cynthia Tracy, Attorney–at– Law, P.C.,” and not on behalf of her client. Tracy also clarified that she was requesting sanctions solely against Ezeoke individually and not against his client, Jossie Herrera. 3 As a threshold matter, we reject Tracy's contention that Ezeoke waived all challenges to the imposition of sanctions because he did not object to the imposition of sanctions before or at the sanctions hearing. The motion for sanctions was filed on January 4, 2010,

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and the hearing was held on January 11, 2010. It is undisputed on this record that Ezeoke was out of the country until mid-January. Under these circumstances, Ezeoke's timely “Motion for a New Hearing on Attorney Cynthia Tracy's Motion for Sanctions” filed on January 28, 2010 sufficed to preserve his challenges to the imposition of sanctions. See Howell v. Tex. Workers' Comp. Comm'n, 143 S.W.3d 416, 450 (Tex.App.-Austin 2004, pet. denied); Kiefer v. Cont'l Airlines, Inc., 10 S.W.3d 34, 41 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). 4 This concern is not diminished by the fact that a hearing on Ezeoke's motion for rehearing was held on February 4, 2010 in front of a different judge. A “reasonable opportunity to respond” to a sanctions request contemplates something more than the chance to ask one trial court judge to reverse sanctions that already have been imposed by another trial court judge. 5 In light of this remand, we express no opinion regarding (1) the trial court's finding that Ezeoke included “unfounded accusations, misrepresentations, and name-calling of opposing counsel” in the motion for continuance; or (2) Ezeoke's contentions on appeal regarding this finding. This issue should be addressed in the first instance on remand in conformity with section 10.003.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

351 S.W.3d 408 Court of Appeals of Texas, West Headnotes (13) Fort Worth.

Paula GAUGHAN and Dean Sanders, Appellants, [1] Declaratory Judgment v. Appeal and Error NATIONAL CUTTING HORSE The Court of Appeals would not address three ASSOCIATION, Appellee. judicial declarations that plaintiff sought via summary judgment, where plaintiff did not assert No. 02–09–00450–CV. | July 28, on appeal that the trial court erred by denying her 2011. | Rehearing Overruled Oct. 6, 2011. motion for summary judgment on those grounds.

Synopsis Cases that cite this headnote Background: Member of nonprofit corporation filed action against corporation for declaratory judgment that books and [2] Corporations and Business Organizations records of the corporation that he sought to inspect were Inspection of corporate books and records not confidential and were therefore available to general public. On cross-motions for summary judgment, the 67th Former statutory provisions did not provide a District Court, Tarrant County, Donald J. Cosby, J., granted right of the public to inspect all books and summary judgment to corporation, awarded attorney fees to records of a nonprofit corporation; not all records corporation, and incorporated a previously-entered protective were financial records available to the public order against member into final judgment. Member appealed. generally, and the right of a member of nonprofit corporation to inspect a broader range of records than was allowed to the public did not provide a right to publish such information to the public. Holdings: The Court of Appeals, Anne Gardner, J., held that: Vernon's Ann.Texas Civ.St. arts. 1396–2.23(B), 1396–2.23A (Expired). [1] former statutory provisions did not provide a right of the public to inspect all books and records of a nonprofit 1 Cases that cite this headnote corporation;

[3] Statutes [2] former statute allowed nonprofit corporation to require a Similar or related statutes pledge or order of nondisclosure in order for a member to be able to inspect and copy its records; When the legislature passes two separate statutes on the same general subject matter, it is [3] trial court did not err by entering protective order presumed to have done so for a particular prohibiting member from disclosing documents designated as purpose, and meaning must be given to both confidential by corporation; statutes.

Cases that cite this headnote [4] records designated as confidential by corporation were entitled to confidential treatment without an in camera examination; and [4] Corporations and Business Organizations Inspection of corporate books and records [5] summary judgment affidavit by lead counsel for Although amounts received from or paid to corporation was sufficient to support attorney fee award of vendors, sponsors, or employees may have $75,000. constituted financial records of a nonprofit corporation that were available for public inspection under former statutory provision, Affirmed. the underlying contracts themselves, or the

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employees' addresses and social security numbers, were not “financial records” that Cases that cite this headnote the public was entitled to inspect. Vernon's Ann.Texas Civ.St. art. 1396–2.23A (Expired). [8] Corporations and Business Organizations Inspection of corporate books and records Cases that cite this headnote Even members of a nonprofit corporation do not have unfettered access to the nonprofit's [5] Corporations and Business Organizations corporate records. Vernon's Ann.Texas Civ.St. Inspection of corporate books and records arts. 1396–2.23(B). Former statute, providing for the inspection rights of a member of nonprofit corporation, Cases that cite this headnote allowed nonprofit corporation to require a pledge or order of nondisclosure in order for [9] Corporations and Business Organizations a member to be able to inspect and copy its Inspection of corporate books and records records. Vernon's Ann.Texas Civ.St. art. 1396– By accepting and renewing her membership each 2.23 (Expired). year in nonprofit corporation, member agreed to Cases that cite this headnote abide by the rules, policies, and agreements made by the corporation, including policies for treating employee and third party business information as [6] Corporations and Business Organizations confidential. Inspection of corporate books and records Trial court did not err, in action by member of Cases that cite this headnote nonprofit corporation for declaratory judgment that books and records of the corporation that [10] Corporations and Business Organizations she sought to inspect were not confidential, Inspection of corporate books and records by entering a protective order prohibiting There was no evidence in declaratory judgment member from disclosing documents designated action by member of nonprofit corporation that as confidential by the corporation, or by member took any action pursuant to terms declaring that corporation fully complied with all of a protective order to contest corporation's legal requirements relating to member's requests designation of certain records disclosed to to review its records; member received records member as “confidential,” and therefore those from corporation that public did not have the records were entitled to confidential treatment right to inspect, and her right to inspect and under the law without an in camera examination, copy those documents was subject to protection where protective order provided means by from further disclosure as confidential. Vernon's which member could challenge corporation's Ann.Texas Civ.St. art. 1396–2.23(B) (Expired). designation of confidentiality. Cases that cite this headnote Cases that cite this headnote

[7] Corporations and Business Organizations [11] Judgment Inspection of corporate books and records Attorneys Under former statute, a nonprofit corporation Summary judgment affidavit by lead counsel member's own right to inspect and copy books for nonprofit corporation was sufficient to and records of corporation did not trump support attorney fee award of $75,000 in privileges or other rights to confidentiality unsuccessful action by corporation member for provided for by Texas law. Vernon's Ann.Texas declaratory judgment that certain corporation Civ.St. art. 1396–2.23(B) (Expired). records disclosed to him were not confidential and thus were available to general public;

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counsel outlined work performed, opined that reasonable and necessary fees were $84,243, and James W. Morris, Goins Underkofler Crawford & Langdon testified that he had been involved in numerous LLP, for Appellee. such cases in Tarrant County, that he was PANEL: GARDNER and McCOY, JJ.; and WILLIAM familiar with usual and customary fees in such BRIGHAM (Senior Justice, Retired, Sitting by Assignment). cases, and that fees charged ranged from $100 to $300 per hour depending upon the person performing those services and that person's level of experience. OPINION

ANNE GARDNER, Justice. Cases that cite this headnote

[12] Judgment I. Introduction Attorneys Appellants Paula Gaughan and Dean Sanders (collectively, While reasonableness of an attorney's fee award Gaughan) and Appellee National Cutting Horse Association often presents a question of fact, an affidavit (the NCHA) filed cross-motions for summary judgment in filed by the movant's attorney that sets forth his Gaughan's suit against the NCHA for a declaratory judgment qualifications, his opinion regarding reasonable that the NCHA's books and records that Gaughan sought attorney's fees, and the basis for his opinion will to inspect and copy are not confidential. The trial court be sufficient to support summary judgment, if initially entered a protective order in favor of the NCHA uncontroverted. that prohibited Gaughan from disseminating the NCHA's books and records to others. Later, the trial court granted 8 Cases that cite this headnote *411 the NCHA's motion for summary judgment, denied Gaughan's motion for summary judgment, and incorporated [13] Costs the protective order into the final judgment. Gaughan Declaratory judgment contends in three issues that the trial court erred by Given that certain records disclosed to entering the protective order and thereby prohibiting her member of nonprofit corporation were entitled from disclosing documents designated as confidential by the to confidential treatment, services rendered NCHA, by granting summary judgment for the NCHA on the by corporation's lead counsel in reviewing, ground that the NCHA's records are entitled to confidential designating, and producing those records in treatment under the law, by denying her motion, and by ruling response to member's request were reasonable that there are no genuine issues of material fact concerning the and necessary, for purposes of calculating reasonableness and necessity of the NCHA's attorney's fees. attorney fee award in member's unsuccessful We affirm. action for declaratory judgment that no records disclosed to him were entitled to confidential treatment. Vernon's Ann.Texas Civ.St. art. II. Factual and Procedural Background 1396–2.23(B) (Expired). The NCHA is a non-profit corporation organized and existing Cases that cite this headnote under Texas law. Gaughan is a member in good standing of the NCHA. 1 On April 21, 2008, Gaughan made a written request pursuant to article 1396–2.23 of the Texas Non– Profit Corporation Act to “inspect the books and various Attorneys and Law Firms financial records of the NCHA.” 2 Gaughan requested *410 James W. Walker, Dan Gus, Walker Sewell LLP, six categories of documents from the NCHA—including Dallas, for Appellants. employment contracts, bank statements, payroll records, and payments to vendors—for the stated purpose that Gaughan was “genuinely interested in fostering increased participation

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in NCHA events by lowering the costs associated with that participation and making sure that the membership dues and The trial court then signed a protective order permitting other monies received by the NCHA are being spent with the the NCHA to designate certain documents that it had best interests of the NCHA membership in mind.” The NCHA agreed to produce to Gaughan as confidential (by stamping responded to Gaughan's letter on April 28, 2008, enclosing “Confidential” in a conspicuous manner on each page to be audited financial statements for the years 2004 through 2007, so designated) and prohibiting Gaughan from reproducing, but it requested that Gaughan clarify her stated purpose, pay disclosing, or disseminating those documents to anyone for staff and professional time necessary to respond to the other than her counsel except upon order of the trial court. request, and agree to maintain the confidentiality of certain The order stated that it was entered solely to facilitate information relating to third parties (such as employees and review and provided that at any time after delivery of vendors) before the NCHA would produce the remaining documents designated as confidential, counsel for Gaughan requested records. could challenge the designation by written notice to the NCHA and a motion to challenge the confidential nature of Gaughan responded to the NCHA on May 9, 2008, all or a portion of the information, in which event the NCHA disagreeing that her stated purpose was inadequate but would have the opportunity to establish that the disputed also clarifying that she wished to review the financial documents were entitled to confidential treatment. records to confirm that the “NCHA is not guilty of waste or mismanagement in its financial affairs and in the After entry of the protective order, the NCHA produced administration of the NCHA's business.” Gaughan declined 89,214 pages of documents to Gaughan but designated 36,556 to enter into a confidentiality agreement and objected to of those pages as confidential as permitted by the protective paying for staff or professional fees associated with the order. It is undisputed that Gaughan reviewed and copied NCHA's compliance with her inspection request. Gaughan all documents she requested from the NCHA, including also requested that all responsive documents be produced the documents designated as confidential. The NCHA also within one week. counterclaimed against Gaughan, seeking recovery of its attorney's fees and a judicial declaration that it had “acted The NCHA responded on May 13, 2008, again asserting the reasonably and in accordance with the law in responding to confidentiality of some of its records, specifically records [Gaughan's] requests to review the NCHA documents.” relating to its employees, third-party vendors, and sponsors. The NCHA stated that the confidentiality of its records “does [1] Gaughan and the NCHA eventually filed cross-motions not mean that you cannot have access to some or all of the for summary judgment. In her motion, Gaughan requested, information you desire[,] but it does mean that any access you among other things, a judicial declaration that “NCHA may may have must be in accordance with procedures which are not prevent [her] from disclosing to her fellow NCHA in the best interest of [the NCHA] and include fulfilling [the members or to other third parties the substance and form NCHA]'s obligation of confidentiality.” of all records reflecting the NCHA's financial activity.” 3 Gaughan argued that articles 1396–2.23 and 1396–2.23A Gaughan filed suit against the NCHA on May 20, 2008, of the non-profit corporation act required the NCHA to seeking a judicial declaration *412 that she is entitled to make its books and records available to members and the inspect and photocopy each of the categories of records general public alike, that the NCHA is therefore precluded identified in her April 21, 2008 letter. Gaughan also sought from designating any of its financial records as confidential, and obtained a temporary restraining order to prevent the and that the trial court should withdraw the protective NCHA from destroying or altering the records she sought order because it contravenes articles 1396–2.23 and 1396– to inspect and copy. The NCHA filed a motion to dissolve 2.23A. In addition, Gaughan's motion for summary judgment the temporary restraining order and offered to disclose all included the following alternative request for relief: documents requested by Gaughan subject to entry of a protective order to prevent her disclosure of information the NCHA believed to be confidential. Following the hearing on Strictly in the alternative, and only because [the trial the NCHA's motion, the trial court dissolved the temporary court's] Protective Order *413 otherwise requires it restraining order and granted the NCHA's request for entry of and remains in force until it is withdrawn as requested a protective order. hereinabove, Gaughan moves the Court to conduct an in

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camera inspection of the 36,556 pages of NCHA books and v. Parker, 249 S.W.3d 392, 399 (Tex.2008). A defendant who records that the NCHA has classified as confidential and, conclusively negates at least one essential element of a cause upon inspection of same, declare that they are not properly of action is entitled to summary judgment on that claim. Frost classified as confidential documents given the statutory Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010); mandate that they be made available to the NCHA members see Tex.R. Civ. P. 166a(b), (c). When both parties move and the general public alike. [Emphasis added.] for summary judgment and the trial court grants one motion The NCHA's motion sought summary judgment on its claims and denies the other, the reviewing court should review for a judicial declaration and attorney's fees. Within the both parties' summary judgment evidence and determine all motion, the NCHA argued that Gaughan did not need to questions presented. Mann Frankfort, 289 S.W.3d at 848; see file the lawsuit to obtain the requested documents; that Myrad Props., Inc. v. LaSalle Bank Nat'l Ass'n, 300 S.W.3d Texas law supports the trial court's entry of the protective 746, 753 (Tex.2009). The reviewing court should render the order; that the protective order provided a mechanism judgment that the trial court should have rendered. Mann for Gaughan to challenge the NCHA's designation of any Frankfort, 289 S.W.3d at 848. document as confidential; and that Gaughan had never challenged the NCHA's designation of any document as confidential—despite having possession of the vast majority IV. Discussion of the documents for months—but instead claimed that no information contained in the documents requested under A. The Protective Order art. 1396–2.23 could be treated as confidential and that Gaughan contends in her first issue that the trial court the protective order regarding the documents requested was erred by entering the protective *414 order and declaring contrary to law. by summary judgment that any of the NCHA's records regarding its business transactions with sponsors, vendors, In its final judgment granting the NCHA's motion for and employees are entitled to confidential treatment under summary judgment and denying that of Gaughan, the trial the law. She contends the trial court's orders are contrary court declared that the NCHA had fully complied with to the Texas statutes that require non-profit corporations to all of Gaughan's requests to review documents of the make their financial records open and available for inspection association and all legal requirements, that the NCHA had and copying by the general public. Specifically, Gaughan designated documents as confidential in accordance with argues that because the NCHA is a non-profit corporation the protective order, that Gaughan had taken no action to obligated by article 1396–2.23A to make its records, books, contest the designations, and that the documents designated as and annual reports available to the public for inspection and confidential by the NCHA were thus entitled to confidential copying, it cannot shield those records behind a claim of treatment as a matter of law. The trial court further ordered confidentiality. The NCHA responds that a member of a non- Gaughan to return all records marked as “Confidential” to the profit corporation may inspect “a much broader spectrum of NCHA and to not disclose, disseminate, or reveal any of the records” under article 1396–2.23 than the public is entitled to “Confidential” records or their contents to any third parties. inspect under article 1396–2.23A and that protective orders This appeal followed. are permissible under Texas law to ensure that confidential information provided to members pursuant to these or similar inspection statutes is protected from disclosure to others. III. Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. 1. Articles 1396–2.23 and 1396–2.23A v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). We consider Article 1396–2.23 of the Texas Non–Profit Corporation Act the evidence presented in the light most favorable to the provides: nonmovant, crediting evidence favorable to the nonmovant if A. Each corporation shall keep correct and complete reasonable jurors could, and disregarding evidence contrary books and records of account and shall keep minutes of to the nonmovant unless reasonable jurors could not. Mann the proceedings of its members, board of directors, and Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d committees having any authority of the board of directors 844, 848 (Tex.2009). We indulge every reasonable inference and shall keep at its registered office or principal office and resolve any doubts in the nonmovant's favor. 20801, Inc.

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in this State a record of the names and addresses of its 2.23A, however, a member of the public may only inspect the members entitled to vote. “records, books, and annual reports of the financial activity of the corporation.” See id. art. 1396–2.23A (emphasis added). B. A member of a corporation, on written demand stating Thus, the NCHA argues, a member of the public may only the purpose of the demand, has the right to examine and inspect financial records of a non-profit corporation while a copy, in person or by agent, accountant, or attorney, at any member of the corporation may inspect all records of that reasonable time, for any proper purpose, the books and corporation. See id. arts. 1396–2.23, 1396–2.23A. records of the corporation relevant to that purpose, at the expense of the member. The records Gaughan received from the NCHA include both financial records available for inspection by the public and Tex.Rev.Civ. Stat. Ann. art. 1396–2.23 (expired Jan. 2010). non-financial records not available for inspection by the Similarly, but not identically, article 1396–2.23A provides, in public. For example, Gaughan received vendor, sponsorship, relevant part: and employment contracts and documents containing the A. A corporation shall maintain current true and accurate addresses and Social Security Numbers of the NCHA's financial records with full and correct entries made with employees. Article 1396–2.23A, addressing the public's right respect to all financial transactions of the corporation, of inspection, does not provide that the public has the right to including all income and expenditures, in accordance with inspect records that are not financial records. generally accepted accounting practices. [3] Moreover, article 1396–2.23, addressing the right of B. Based on these records, the board of directors shall a member to inspect a broader spectrum of records than annually prepare or approve a report of the financial is allowed for the public, provides for neither a right of activity of the corporation for the preceding year.... inspection by the public of such records nor a right by a member to publish such information to the public. 4 Thus, the C. All records, books, and annual reports of the financial NCHA argues, and we agree, that Gaughan's theory that she is activity of the corporation shall be kept at the registered entitled to disseminate or share with the public all documents office or principal office of the corporation in this state for she received would engraft a right of inspection by the public at least three years after the closing of each fiscal year and onto article 1396–2.23, which speaks only to the right of shall be available to the public for inspection and copying inspection by members. If the legislature had intended that a there during normal business hours. The corporation may member would have the right to disclose all books and records charge for the reasonable expense of preparing a copy of of a non-profit corporation to the public, there would have a record or report. been no need for two separate statutes and no need to require a Id. art. 1396–2.23A (expired Jan. 2010) (emphasis added). member to provide a written request stating a proper purpose. Therefore, we decline to adopt Gaughan's interpretation of the two statutes by conflating them so as to provide a right 2. Scope and Purpose of article 1396–2.23A (public's of the public to inspect all books and records of a non-profit right to inspect) corporation, including records only available to members. [2] Gaughan argues that, because article 1396–2.23A mandates public access to the financial records of a non-profit The Texas Supreme Court has held that the phrase “financial corporation, the protective order allowing the NCHA to shield records” in article 1396–2.23A “does not include the names of its financial records from public disclosure by designating contributors or members” and that article 1396–2.23A “does them as confidential is contrary to Texas law. However, not require the blanket disclosure of contributors' names for Gaughan's argument is premised on the incorrect assumption public inspection.” In re Bay Area Citizens Against Lawsuit that all of the records of a non-profit corporation that a Abuse, 982 S.W.2d 371, 381–82 (Tex.1998) (hereinafter member is entitled to inspect and copy are *415 financial BACALA ). In so holding, the BACALA court looked to the records available to the public generally. As is clear from legislative intent of that statute, observing that it appeared article 1396–2.23(B), a member of a non-profit corporation “that article 1396–2.23A was intended to remedy a specific may, following written demand stating a proper purpose, problem: the lack of accountability regarding a non-profit examine “the books and records of [that] corporation relevant corporation's use of funds solicited from the public.” Id. at to that purpose.” Id. art. 1396–2.23(B). Under article 1396– 381 (citing Texas Appellate Practice & Educ. Resource Ctr. v.

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Patterson, 902 S.W.2d 686, 689 (Tex.App.-Austin 1995, writ decide, we must still determine whether documents Gaughan denied)). In that regard, the court quoted relevant background may inspect under art. 1396–2.23 (and which are not available information from the bill analysis regarding article 1396– to the public) may be subject to protection from disclosure to 2.23A's purpose: others because of confidentiality considerations. 5

*416 During the last interim, the author attempted to conduct a study 3. Scope and Purpose of article 1396–2.23 (member's of a non-profit drug rehabilitation right to inspect) program in Houston. This program had [5] [6] Gaughan asserts that the scope of article 1396–2.23, been soliciting funds from the public which provides for the inspection rights of a member of a non- and portrayed itself as a charitable profit corporation, is absolute in prohibiting any record from endeavor. However, there were rumors being treated as confidential and does not allow a non-profit that its funds were being used for corporation to require a pledge or order of non-disclosure in investments in such businesses as order to inspect and copy its records. We disagree for reasons nightclubs. During the six month urged by the NCHA. investigation, the author of this bill was unable to determine how the Decisions under article 1396–2.23 recognize that the statute program's funds were being used is not absolute in its disclosure requirements for members and because the records were inadequate. A that orders to protect confidential information are proper in major recommendation from the study requests made under that statute. In Citizens Ass'n for Sound was that Texas law should be amended Energy (CASE) v. Boltz, 886 S.W.2d 283, 285–86 (Tex.App.- to require non-profit organizations Amarillo 1994, writ denied), cert. denied, 516 U.S. 1029, soliciting funds from the public to keep 116 S.Ct. 675, 133 L.Ed.2d 524 (1995), a member of CASE, adequate records showing how the a non-profit association, sought review of CASE's records funds were actually being used. under article 1396–2.23. CASE opposed the production of certain documents and challenged the constitutionality of Id. at 381 (quoting Senate Comm. on Bus. & Indus. Bill the statute. Id. at 286. *417 The trial court entered a Analysis, Tex. S.B. 857, 65th Leg., R.S. (1977)). Thus, protective order addressing the confidential nature of the the BACALA court concluded the purpose of the legislation requested documents and ordered CASE to produce such was not to force non-profit corporations to identify the documents under that protective order. Id. at 287. On appeal exact sources of their income but was instead designed “to by CASE, the court of appeals affirmed, holding that in view expose the nature of the expenditures of that money once of the protective order which prohibited the member from received from the public and to make non-profit organizations disclosing the confidential information contained in such accountable to their contributors for those expenditures.” Id. documents, CASE's challenges to the statute were without The court continued, “[T]he seemingly broad scope of the merit. Id. statute's language is not matched by the legislative intent behind the statute.” Id.; see also Patterson, 902 S.W.2d at In Professional Microfilming, Inc. v. Houston, 661 S.W.2d 688–89 (concluding legislature designed art. 1396–2.23A as 767, 768 (Tex.App.-Fort Worth 1983, orig. proceeding), a a mechanism for making non-profit corporations accountable case in which mismanagement of Professional Microfilming, for donations solicited from the public). Inc. (PMI) was alleged, this court considered a financial records request by a shareholder and former director of PMI. [4] It follows that, although amounts received from or On mandamus, PMI complained of a discovery order by the paid to vendors, sponsors, or employees may constitute trial court that would have allowed the shareholder, who had “financial records,” the underlying contracts themselves (or become a competitor of PMI, to review records containing the employees' addresses and social security numbers) are PMI's sensitive customer, cost, and pricing information not financial records that the public is entitled to inspect. pursuant to a request made under business corporations act See BACALA, 982 S.W.2d at 381–82. Thus, even assuming that the public is entitled by art. 1396–2.23A to inspect article 2.44. 6 Id. at 768–69. PMI asserted that any such all financial documents of a non-profit corporation without review of PMI's confidential information by the shareholder regard to confidentiality, a question we are not called upon to would be damaging to PMI. Id. The trial court required PMI

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to produce the information but entered an order prohibiting case for the proposition that article 1396–2.23 neither forbids the shareholder and former director from disclosing any of a member from disclosing books and records provided to him the contents of those records to third parties. Id. at 769. In by a non-profit corporation nor requires the member to pledge denying mandamus relief sought by PMI, this Court stated: non-disclosure to others in order to obtain the corporation's books and records. Id. at 398. But Sharyland does not support the proposition that no restrictions on dissemination to others We also hold that Judge Houston's discovery order can be placed on an article 1396–2.23 request by a member adequately considered the sensitivity of the requested data, of a non-profit corporation. That case did not deal with the and the potential for misuse of that data by Hightower and right to inspect books and records under article 1396–2.23; Eikon. Judge Houston's order enjoined Hightower from rather, it involved a Freedom of Information Act request disclosing the information or using it for purposes other made to a third party to whom the corporation had provided than those connected with the litigation. The order also information as part of a loan application. Id. Moreover, provided that the documents requested to be produced Sharyland is distinguishable because it involved audited be sealed in envelopes and filed with the court, to be financial statements that a member of the public is entitled opened only by order of the court. Judge Houston thus to inspect under article 1396–2.23A. Id. at 399. The NCHA set up a procedure which would allow him to examine does not dispute that its audited financial reports are subject each document before disclosing it to Hightower, and to disclosure under the Freedom of Information Act. impose even greater restrictions than the initial injunction if necessary. [7] [8] In addition, a member's own right to inspect and Id. at 770 (emphasis added). Thus, we acknowledged copy books and records under article 1396–2.23 does not in PMI that the need to protect certain confidential trump privileges or other rights to confidentiality provided for information from dissemination to others may exist even by Texas law. In Huie v. DeShazo, 922 S.W.2d 920, 923– when a statutory right to inspection by the shareholder 25 (Tex.1996), the supreme court held that a trustee's duty is invoked. Id.; see also Lewis v. Pa. Bar Ass'n, 549 of disclosure does not override the attorney-client privilege Pa. 471, 701 A.2d 551, 555 (1997) (holding documents and expressly rejected a claim that the provisions of article otherwise accessible to members may be protected from 1396–2.23 overrode a claim of attorney-client privilege. In disclosure to third parties by considerations of privacy, analyzing an argument similar to the one made by Gaughan such as references to employee's health records; privilege, in this case, the Texas Supreme Court held as follows: such as records protected by attorney-client privilege or work product doctrine; or confidentiality where both [Real party in interest] Chenault relies on Burton v. corporate purpose and public's interest are served by Cravey, 759 S.W.2d 160 (Tex.App.-Houston [1st Dist.] keeping information confidential); Stroud v. Grace, 606 1988, no writ), for the proposition that the attorney- A.2d 75, 89 (Del.1992) (holding corporation's refusal client privilege does not apply where a party has a right to provide certain financial information to shareholder to information independently of the rules of discovery. without confidentiality agreement signed by shareholders In Burton, condominium owners filed a trial court did not violate corporation's duty of disclosure); *418 mandamus action against the condominium association to Pershing Square, L.P. v. Ceridian Corp., 923 A.2d enforce their statutory right to inspect the association's 810, 819–20 (Del.Ch.2007) (holding publication to books and records. See Tex. Prop.Code Ann. § 81.209; others by shareholder may be limited where information Tex.Rev.Civ. Stat. Ann. art. 1396–2.23. The trial court is confidential and release would harm company); allowed inspection of the records, including those in Disney v. The Walt Disney Co., 857 A.2d 444, 446 the possession of the association's attorney, finding as a (Del.Ch.2004) (holding that shareholder could not use factual matter that the attorney's records constituted part right of inspection to publicly disseminate otherwise of the association's records. The court of appeals affirmed, confidential records and that production was properly holding that the attorney-client privilege did not apply in conditioned upon confidentiality agreement, subject to light of the owners' unqualified right of inspection. 759 challenge of company's designation in court if parties could S.W.2d at 162. not resolve disagreements). Gaughan relies upon Sharyland Water Supply Corp. v. Block, It is unclear whether the records at issue in Burton were 755 F.2d 397 (5th Cir.1985), as the single case to support her merely records of the association in the possession of the position. Gaughan cites a statement from the opinion in that attorney, or whether they contained separate confidential

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attorney-client communications. To the extent that they which contain the association's policies for treating employee consisted of the former, we agree that they were not and third party business information as confidential. By protected. See [Nat'l Tank Co. v.] Brotherton, 851 S.W.2d its Employee Handbook and the Disclosure Policy, the [193,] 199 [ (Tex.1993) ]. However, to the extent that NCHA makes representations to its employees, vendors, the court held that the owners' *419 statutory right of sponsors, and other persons with whom it does business that inspection somehow trumped the privilege for confidential it will maintain certain information as confidential. Gaughan attorney-client communications, we disapprove of its disputes that any employment contract or business agreement holding, for the reasons previously discussed. We also with vendors or sponsors produced to her by the NCHA disapprove of the court's dicta that the trial court could, in contain confidentiality agreements, but the documents in its discretion decline to apply the attorney-client privilege question have not been made a part of the record on appeal. In even if all the elements of Rule 503 were met. See 759 any event, the Disclosure Policy limits the right of the NCHA S.W.2d at 162. and its members to further disseminate such information to others because the NCHA has an obligation to protect the Id. at 924 (emphasis added). Other jurisdictions agree. information *420 as confidential. Gaughan has not argued or See Schein v. N. Rio Arriba Elec. Coop., Inc., 122 cited any authority to the effect that she cannot contractually N.M. 800, 806, 932 P.2d 490 (N.M.1997) (holding agree not to disseminate to the public or the press any corporate documents subject to attorney-client privilege confidential information provided to her as a member. may be withheld from shareholders but upholding denial of protection for information examined by trial court in That Gaughan may be entitled to review the requested records camera and found not to contain indicia of confidentiality); under the applicable statute as a member of the corporation Nat'l Football League Props., Inc. v. Superior Court, 65 does not mean that she can do so without maintaining the Cal.App.4th 100, 75 Cal.Rptr.2d 893, 898 (1998) (holding confidentiality of information contained in those documents shareholder status does not in and of itself entitle an individual as agreed by her and as ordered by the trial court. The to unfettered access to corporate confidences); Riser v. above-referenced cases recognize that fact. The same type Genuine Parts Co., 150 Ga.App. 502, 504, 258 S.E.2d of prophylactic protective order afforded in both CASE and 184 (Ga.Ct.App.1979) (holding trial court did not err by PMI was properly afforded by the trial court in this case; denying corporate information to shareholder that contained that is, Gaughan's receipt, inspection, and copying of the confidential management information, legal opinions, and books and records of the NCHA was subject to the procedure personnel evaluation in absence of compelling reason); outlined in the order prohibiting her from sharing with others Morton v. Rogers, 20 Ariz.App. 581, 586, 514 P.2d 752 the documents designated “Confidential” by the NCHA (Ariz.Ct.App.1973) (holding right of director and shareholder unless she challenged the confidential designation of specific to examine books and records does not extend to trade documents or categories of documents, providing the NCHA secrets); see also In re LTV Secs. Litig., 89 F.R.D. 595, 604 the opportunity to furnish proof to support its designation (N.D.Tex.1981) (applying federal law in securities fraud suit of confidentiality. We agree with the NCHA that this is the and recognizing shareholder's statutory or common law right only way to balance and reconcile Gaughan's statutory right to inspection could not overcome otherwise valid assertion to review such documents and the NCHA's duty to maintain of attorney-client privilege); 5A FLETCHER CYCLOPEDIA as confidential third party business information contained in OF THE LAW OF CORPORATIONS § 2239.10 (2011) those documents. (collecting cases holding shareholders not entitled to trade secrets or confidential information contained in books and records of corporation unless such affects financial status of 4. Confidentiality as to other members of the NCHA 7 On appeal, Gaughan has argued that she only wishes to corporation or value of stock). share the documents in question with her fellow members [9] Moreover, by accepting and renewing her membership of the NCHA, not the general public, in order to enable the each year in the NCHA, Gaughan has agreed to abide by the membership to make informed decisions as to their votes for rules, policies, and agreements made by the NCHA. Gaughan officers and directors as well as to participate in governance has not disputed that those rules include the Employee by determining the most reasonable and prudent course for Handbook and the Financial Disclosure Policy and Procedure the future of the association. But we note that Gaughan adopted by the executive committee of the NCHA in 2004, requested in both the trial court and in this court that the protective order be set aside in its entirety, which would

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enable her to publish all of the information to the press and the NCHA” and that if the parties could not reach an public as well as her fellow members. Moreover, the NCHA agreement, Gaughan could “file a motion with the Court is a national organization with over 20,000 members. The to challenge the confidential nature of all or a portion of NCHA acknowledges that other members have a right to the Confidential Information.” The trial court's judgment review its records upon written request for a proper purpose includes a declaration that Gaughan “took no action pursuant stated. However, the Texas statutes make the NCHA the to the terms of the [Protective] Order to contest the repository of its books and records. If other members request ‘Confidential’ designation of records and, therefore, the inspection, the NCHA is entitled to require those members documents designated as ‘Confidential’ by the NCHA are to agree to abide by its disclosure policy or to enforce that therefore entitled to confidential treatment under the law.” policy as to confidential information just as it did as to Gaughan. If Gaughan is allowed to disseminate those records Gaughan argues that the trial court erred by making this to other members, the NCHA will be unable to track the declaration because she gave written notice to the NCHA's dissemination or to require that those other members abide by counsel on March 18, 2009, and included within her motion its Disclosure Policy as to confidential information to ensure for summary judgment a global request for in camera review that the confidential information is protected. of the 36,556 pages of confidential documents. However, the March 18 letter is not in the summary judgment record. While Because Gaughan received records from the NCHA that the NCHA's March 23 letter responding to the March 18 the public does not have the right to inspect under article letter is in the summary judgment record, the March 23 letter 1396–2.23A, and because her right to inspect and copy from the NCHA's counsel only mentions a general assertion those documents was subject to protection from further by Gaughan that she “has the right to keep and disseminate disclosure as confidential, the trial court did not err by all information produced by the NCHA in this matter.” The entering the protective order or by declaring that the records March 23 letter does not mention or refute any contentions as produced to Gaughan were subject to confidential treatment to why all or part of the documents designated as confidential prohibiting her from further disseminating them to others. by the NCHA should not be designated as confidential, nor Moreover, because it is undisputed that the NCHA produced does it suggest that Gaughan sent the March 18 letter for to Gaughan all records that she requested, the trial court did the purpose of complying with the protective order. Thus, not err by declaring that the NCHA “fully complied with all contrary to Gaughan's contention, the summary judgment legal requirements relating to [Gaughan's] requests to review record does not contradict the trial court's declaration that records of the association.” We therefore overrule Gaughan's Gaughan “took no action pursuant to the terms of the first issue. 8 [Protective] Order to contest the ‘Confidential’ designation of records.” And because Gaughan did not present summary judgment evidence that she complied with the protective *421 B. Designation of Documents as Confidential order, the trial court did not err by declaring that “the Under Protective Order documents designated as ‘Confidential’ by the NCHA are [10] Gaughan argues in her second issue that the trial court therefore entitled to confidential treatment under the law.” erred by declaring that the NCHA's financial records are entitled to confidential treatment under the law because it did Under the unique facts and procedural posture of this case, we not examine the records in camera to determine whether the hold that the trial court did not err by declaring that Gaughan assertion of confidentiality was valid. The NCHA responds “took no action pursuant to the terms of the [Protective] that Gaughan did not follow the terms of the protective order Order to contest the ‘Confidential’ designation of records” to challenge the designation of any records as confidential. and *422 that “the documents designated as ‘Confidential’ by the NCHA are therefore entitled to confidential treatment After the trial court entered the protective order, the under the law.” We overrule Gaughan's second issue. 9 NCHA produced 89,214 pages of documents to Gaughan and designated 36,556 of those pages as confidential. The protective order provided that “any time after the delivery C. Attorney's Fees of Confidential Information, counsel for [Gaughan] may [11] Gaughan contends in her third issue that the trial challenge the Confidential designation of all or any portion court erred by granting summary judgment for the NCHA's thereof by providing written notice thereof to counsel for

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attorney's fees because fact issues remain as to whether the necessity of its attorney's fees. 10 In the affidavit, the NCHA's fees were reasonable and necessary. counsel outlined the work performed for the NCHA in the case and, among other things, testified (1) that he had been [12] “While reasonableness of an attorney's fee award “practicing law for over twenty *423 two years in the State often presents a question of fact, an ‘affidavit filed by of Texas”; (2) that he had been involved in “numerous cases the movant's attorney that sets forth his qualifications, like this one in Tarrant County, Texas”; (3) that he was his opinion regarding reasonable attorney's fees, and the “familiar with the usual and customary fees for the work basis for his opinion will be sufficient to support summary done on cases of this type in Tarrant County, Texas”; (4) that judgment, if uncontroverted.’ ” Cammack the Cook, L.L.C. v. the fees charged by his firm ranged from $100 to $300 per Eastburn, 296 S.W.3d 884, 894 (Tex.App.-Texarkana 2009, hour “depending upon the person performing these services pet. denied) (quoting In re Estate of Tyner, 292 S.W.3d and their level of experience”; (5) that the hourly rates were 179, 184 (Tex.App.-Tyler 2009, no pet.)); see Bocquet v. reasonable and necessary for the services performed; and (6) Herring, 972 S.W.2d 19, 21 (Tex.1998) (“In general, ‘[t]he that “based on the work done in the case, the amount of time reasonableness of attorney's fees ... is a question of fact for spent, the nature of the tasks performed[,] and the amount the jury's determination.’ ”) (quoting Trevino v. Am. Nat'l Ins. in controversy,” it was his opinion that “the reasonable Co., 140 Tex. 500, 168 S.W.2d 656, 660 (1943)). Texas courts and necessary attorneys' fees incurred by the NCHA” were consider eight factors when determining the reasonableness $84,243. Gaughan did not file any controverting summary of attorney's fees: judgment evidence. Thus, NCHA presented uncontroverted summary judgment evidence of four of the Arthur Andersen (1) the time and labor required, the novelty and difficulty factors. See id. of the questions involved, and the skill required to perform the legal service properly; Gaughan argues that the trial court erred by granting summary (2) the likelihood ... that the acceptance of the particular judgment for the NCHA because the issues of reasonableness employment will preclude other employment by the and necessity are questions of fact and because the fees that lawyer; the NCHA's counsel testified were reasonable and necessary included $5,800 in fees charged before the lawsuit was (3) the fee customarily charged in the locality for similar filed, over $3,200 for services by an attorney not listed on legal services; the pleadings in the case for “attention to file on pending issues,” and “tens of thousands of dollars in attorneys' fees for (4) the amount involved and the results obtained; the review and provision of the NCHA's financial records.” Gaughan argues that these charges “represented fact issues (5) the time limitations imposed by the client or by the that precluded the entry of summary judgment.” circumstances;

(6) the nature and length of the professional relationship [13] First, while the reasonableness and necessity of with the client; attorney's fees is generally a question of fact, “[a]n attorney's affidavit can sufficiently establish the reasonableness of (7) the experience, reputation, and ability of the lawyer or attorney's fees for purposes of summary judgment.” Basin lawyers performing the services; and Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex.App.-San Antonio 1999, pet. denied); see Cammack the (8) whether the fee is fixed or contingent on results Cook, 296 S.W.3d at 894; see also Bocquet, 972 S.W.2d at obtained or uncertainty of collection before the legal 21 (stating that “in general,” reasonableness of attorney's fees services have been rendered. is a question of fact). Second, the NCHA sought more than Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d $84,000 in attorney's fees, but the trial court awarded the 812, 818 (Tex.1997) (citing Tex. Disciplinary R. Prof. NCHA $75,000 in attorney's fees. It therefore appears that the Conduct 1.04, reprinted in Tex. Gov't Code, tit. 2, subtit. G trial court did not award the NCHA the $5,800 in fees charged app. (State Bar Rules, art. X, § 9) (West 2005)). before the lawsuit or the approximately $3,200 for services by the attorney for “attention to file on pending issues.” Even if The NCHA offered an affidavit by its lead counsel as it did, the applicable statute does not prohibit recovery of fees summary judgment evidence of the reasonableness and incurred before the lawsuit is filed or billed by an attorney not

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Consultants, 2 S.W.3d at 373, 374 (holding that opposing listed on the pleadings. See Tex. Civ. Prac. & Rem.Code Ann. affidavit did not create fact issue for summary judgment § 37.009 (West 2008) (“In any proceeding under this chapter, purposes because it only criticized the amount of fees sought the court may award costs and reasonable and necessary as excessive and did not “set forth the affiant's qualifications attorney's fees as are equitable and just.”). Finally, we held or the basis for his opinion as to what a reasonable fee *424 above that, given the unique factual and procedural context would be”). We hold that the trial court did not err by granting of this case, the NCHA's records are entitled to confidential summary judgment to the NCHA for $75,000 in attorney's treatment. Therefore, the services performed by the NCHA's fees, and we overrule Gaughan's third issue. attorneys in reviewing, designating, and producing records to Gaughan were not rendered unreasonable or unnecessary based on Gaughan's contention that no NCHA records are entitled to confidential treatment. V. Conclusion

The NCHA's summary judgment established its entitlement Having overruled each of Gaughan's three issues, we affirm to summary judgment as to the amount of attorney's fees, the trial court's judgment. and Gaughan's arguments are mere criticisms of the amount sought without contradicting evidence. See Basin Credit

Footnotes 1 Sanders was originally a plaintiff in this lawsuit, but he withdrew from the lawsuit as a plaintiff. He is a party to this appeal because he and Gaughan are jointly and severally liable under the trial court's judgment for the NCHA's attorney's fees. 2 The written request actually cited Texas Business Organizations Code section 22.351, the successor to article 1396–2.23. See Tex. Bus. Org.Code Ann. § 22.351 (West 2009). However, the parties agree that article 1396–2.23 applies to this case. 3 Gaughan sought three additional judicial declarations via summary judgment, but she does not assert on appeal that the trial court erred by denying her motion for summary judgment on those grounds. Thus, we do not address Gaughan's request for those three additional judicial declarations. See generally LeBlanc v. Riley, No. 02–08–00234–CV, 2009 WL 885953, at *3 (Tex.App.-Fort Worth Apr. 2, 2009, no pet.) (mem. op.) (holding that a general issue broadly challenging a summary judgment is permissible but requiring an appellant to present argument and legal authority on appeal to preserve error on a particular cause of action on which the trial court granted summary judgment). 4 When the legislature passes two separate statutes on the same general subject matter, it is presumed to have done so for a particular purpose, and meaning must be given to both statutes. See Aldine Indep. Sch. Dist. v. Ogg, 122 S.W.3d 257, 270 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Font v. Carr, 867 S.W.2d 873, 881 (Tex.App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.). 5 Because Gaughan is a member of the NCHA, the applicable statute in this case is article 1396–2.23(B), governing the right of a member of a non-profit corporation, not the right of the public under article 1396–2.23A. 6 Texas Business Corporations Act article 2.44 entitled directors and certain shareholders of a corporation to review the books and records of a corporation for any proper purpose. Tex.Rev.Civ. Stat. Ann. art. 2.44. (expired Jan. 2010); see also Tex. Bus. Org.Code Ann. § 21.218 (West 2009) (current version of expired article 2.44). That statute, which is applicable to for-profit corporations, is similar to article 1396.–2.23, which is applicable to non-profit corporations and at issue in this case. Texas courts have looked to precedent under article 2.44 when dealing with issues presented under article 1396–2.23. See CASE, 886 S.W.2d at 289. 7 Gaughan does not contend that she has been denied the opportunity to inspect confidential or attorney-client communications, but the broader principle revealed by BACALA, Huie, CASE, PMI, and similar opinions—that the scope of the right of inspection for members of a non-profit corporation may be limited by legitimate considerations of privilege, trade secrets, and confidentiality—as well as the differing access granted to members and the public under articles 1396–2.23 and 1396–2.23A, reveals that even members of a non-profit corporation do not have unfettered access to the non-profit's corporate records. 8 Gaughan's first issue contends that the trial court erred by declaring that the NCHA's “financial records” are entitled to confidential treatment, but it is clear from Gaughan's briefing on appeal and in the trial court that she contends that the trial court erred by entering the protective order concerning any of the records she requested from the NCHA. As discussed above, however, Gaughan requested and received records that a non-member may not inspect. 9 We do not reach the issues of whether the NCHA met its burden of establishing confidentiality as to particular categories of records, or whether a non-member may disseminate to other non-members information received pursuant to article 1396–2.23A. Those issues are not before us given the unique procedural posture of this case and Gaughan's request that the trial court declare that all records produced by the NCHA are not confidential despite her receipt of documents to which a non-member does not have the right to

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inspect. See generally Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009) (“It is well settled that a trial court cannot grant a summary judgment motion on grounds not presented in the motion.”). 10 The NCHA attached redacted fee statements and a summary of the rates and fees charged by the law firm to the affidavit.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Gilmer v. Veatch, 56 Tex.Civ.App. 511 (1909) 121 S.W. 545

to sell and convey it, which conveys to the attorney no interest in the land to be sold, is not a 56 Tex.Civ.App. 511 “power coupled with an interest”-(citing Words Court of Civil Appeals of Texas. and Phrases, vol. 6, pp. 5478-5480; vol. 8, p. GILMER et al. 7758). v. 1 Cases that cite this headnote VEATCH et al.

June 24, 1909. | Rehearing [4] Principal and Agent Denied June 30, 1909. Disability of Principal Where a woman, after executing a power of Error from District Court, Orange County; W. B. Powell, attorney to sell her interest in land and before Judge. a sale was made by the agent, married, the marriage revoked the power. Action by May Veatch and others against A. Gilmer and others. Judgment in part for plaintiffs, and defendants bring 1 Cases that cite this headnote error. Reformed and affirmed.

See, also, 117 S. W. 430. [5] Principal and Agent Death of Principal In Texas lands cannot be sold under a naked power of attorney after the death of the principal. West Headnotes (6) Cases that cite this headnote

[1] Appeal and Error Propositions and Statements Accompanying [6] Vendor and Purchaser Assignment of Errors Relation of Vendor to Former Owner Assignments of error, not followed or supported Two persons who had inherited an undivided by such statements as is required by the rules of interest in land which was the community the appellate court, will not be considered. property of their grandparents executed a power of attorney to an agent, authorizing him to “sell 3 Cases that cite this headnote and transfer our interest in the estate of” the grandfather. The agent sold their entire interest [2] Principal and Agent in the land by deed conveying all the interest they What Law Governs had as heirs at law in the land. Held, that the purchaser who took in good faith, for value, and Where a power of attorney not coupled with with no notice that the land had been community an interest was given in California with nothing land, other than the deed, took the heirs' interest in its terms to indicate where it was to be in the land inherited from their grandmother as executed, and in an attempt to carry out the well as their grandfather; the deed not giving powers conferred land in Texas is sought to be notice that the land may have been community sold, the law of Texas will control. property. Cases that cite this headnote 1 Cases that cite this headnote

[3] Principal and Agent Agency Coupled with Interest A power of attorney given by joint owners of **545 The sale of land under the power of attorney referred land to another joint owner of the same land to was by deed conveying all the interest that J. Allen Veatch

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Gilmer v. Veatch, 56 Tex.Civ.App. 511 (1909) 121 S.W. 545

and May Veatch had as heirs at law in the land in question. south half and of an undivided one-eighth of the north half of The purchaser took in good faith for value, and without notice the Kennard league. He sold 1,427 acres, and died possessed other than the deed that the property had been the community of 1,349 acres. This was the community property of John A. property of the heirs' grandparents. Veatch and his wife, who died in 1845. John A. Veatch died in 1870. J. Allen Veatch and **546 May Veatch are their Attorneys and Law Firms grandchildren, and are entitled to an undivided 222 acres of the 1,349 acres, unless their title was divested by a sale made *512 Geo. E. Holland, for plaintiffs in error. *513 W. D. by S. H. Veatch under a written power of attorney executed Gordon, for defendants in error. by them to him authorizing him to “sell and transfer our Opinion interest in the estate of John A. Veatch, deceased.” Acting under this power, S. H. Veatch sold the entire interest of J. MCMEANS, J. Allen Veatch and May Veatch in the Kennard league. The trial court held that this power of attorney only authorized S. Suit by John Alfred Veatch and others, heirs of John A. H. Veatch to sell the interest of the land that was inherited Veatch, deceased, against A. Gilmer and others, of trespass by his principals from John A. Veatch, deceased, and not the to try title to a part of the Kennard league of land, in Sabine interest inherited by them from their deceased grandmother, and Newton counties. A trial in the court below resulted in who was *514 the wife of John A. Veatch, and awarded to a judgment against defendants for the title and possession of May and John Allen Veatch 111 acres, which was one-half an undivided interest amounting to 762 acres of the land in of the amount shown to have passed to them by descent from controversy. From this judgment John Alfred Veatch alone their grandparents. Following the opinion of the Supreme appealed, and the judgment of the lower court was affirmed Court on the appeal of John Alfred Veatch, before referred by the Court of Civil Appeals of the Fourth District (111 S. W. to, and adopting the reasons therein given, we hold that the 746). A petition for a writ of error was granted by the Supreme assignment is well taken, and that under the agreed facts the Court, and that court on a cross-assignment of error reformed defendants in the court below, plaintiffs in error here, are the judgment of the trial court and Court of Civil Appeals, and entitled to the share of J. Allen Veatch and May Veatch of the judgment, as reformed, was affirmed (117 S. W. 430). A 222 acres, instead of the one-half thereof as awarded by the sufficiently full statement of the issues will be found in the judgment of the lower court. opinions referred to, and need not be repeated here. Plaintiff in error's first assignment of error is: “The trial The appellees on that appeal filed and presented cross- court erred in his fourth conclusion of law in holding that assignments of error, only two of which were passed upon by the powers of attorney were naked powers, and not coupled the Court of Civil Appeals, that court holding that, defendants with an interest.” Under this assignment, the proposition is nor any of appellant's coplaintiffs having perfected an appeal, advanced that, “when an interest in the property to be dealt the cross-assignments of error, which had no reference to with under the agency is at the same time in the same person appellant, or that portion of the judgment appealed from, were with a power to dispose of it, this constitutes a power coupled not entitled to consideration. This appeal is by writ of error with an interest.” The question here presented is whether a sued out by defendants in the court below against all the power of attorney, given by one joint owner of land to another plaintiffs except John Alfred Veatch, and the assignments joint owner to sell and convey it, is a power “coupled with of error here presented are identical with the assignments an interest” within the legal meaning of that term. Plaintiffs presented on cross-appeal. in error contend that the instrument does not carry with it an interest in the land to be sold in order to couple an interest Plaintiff in error's fifth assignment assails the trial court's with the power; that the power is one thing, and the interest eighth conclusion of law, which is as follows: “I find that is another; and that when the power to sell is in the same the power of attorney from J. Allen Veatch and May Veatch person who has an interest in the thing to be sold, however that is valid, but only authorizes the conveyance of their interest interest is acquired, the power becomes one coupled with an in their grandfather's, John A. Veatch's, estate, and did not interest, and irrevocable. The powers of attorney in question authorize the conveyance of the mother's interest or the part were given by persons who owned an undivided interest in inherited by them from their grandmother, and that they are the same land. No interest or estate in the land to be sold entitled to recover an undivided 111 acres of the land in suit.” was conferred by the instruments upon the agent, but merely John A. Veatch during his lifetime became the owner of the authorized him to sell and convey their land. We do not think

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Gilmer v. Veatch, 56 Tex.Civ.App. 511 (1909) 121 S.W. 545

the contention is sound. See Words and Phrases, tit. “Power Fannie Veatch, after the execution of her power of attorney, Coupled with an Interest.” The assignment is overruled. and before a sale of her interest in the land was made by her agent, married; and the court concluded as a matter of law that The second assignment complains that the trial court erred in its fourth and fifth conclusions of law in holding that the her marriage revoked the power. This conclusion is assailed by the third assignment of error. We find no error in the court's power of attorney from Gitchell and wife was governed by conclusion. Judson v. Sierra, 22 Tex. 371; Henderson v. Ford, the laws of Texas, and was revoked at the death of the makers. 46 Tex. 627. This instrument was a general power of attorney, and was executed in the state of California. There was nothing in its The fourth assignment is not followed by a statement terms to indicate where or in what state it was to be executed. sufficient to explain it, as required by rule 31 (31 S. W. vii), It was, in fact, attempted to be executed by the sale of lands in and will not, therefore, be considered. Texas after the death of the makers. The statute of California provides that “agency is terminated by notice to the agent of The sixth assignment was disposed of by the Supreme Court, the death of the employer.” The power of attorney conferred and the seventh by the Court of Civil Appeals in the opinions upon the agent no interest or estate in the property to be sold; above referred to, and for that reason will not be here in other words, the power was not “coupled with an interest.” discussed. We think that, when in an attempt to carry out the powers conferred land in this state was attempted to be sold, the law We are of the opinion that, instead of recovering of J. Allen as recognized and applied by the courts of this state must Veatch and May Veatch 111 acres of the land, the plaintiffs control, and the mere fact that the instruments were signed in error should have recovered 222 acres; and accordingly the and delivered in California would not alter this rule. That the judgment will in that respect be reformed, and in all other sale of lands in this state under a naked power of attorney after respects affirmed. the death of the principal cannot be upheld seems to be well Reformed and affirmed. settled. Cleveland v. Williams, 29 Tex. 219, 94 Am. Dec. 274; Renfro v. Waco (Tex. Civ. App.) 33 S. W. 767; *515 Kent v. Cecil (Tex. Civ. App.) 25 S. W. 715; Connor v. Parsons Parallel Citations (Tex. Civ. App.) 30 S. W. 85; Cox v. Bray, 28 Tex. 263. The assignment is overruled. 121 S.W. 545

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Huie v. DeShazo, 922 S.W.2d 920 (1996) 64 USLW 2540, 39 Tex. Sup. Ct. J. 288

Attorney-client privilege protected confidential communications between trustee and attorney 922 S.W.2d 920 from discovery by trust beneficiary, Supreme Court of Texas. notwithstanding trustee's fiduciary duty to fully Harvey K. HUIE, Jr., Individually, as disclose material facts regarding administration Independent Executor of the Estate of of trust; trustee, rather than trust beneficiary, is Adeline M. Huie, Deceased, and as Trustee client. V.T.C.A., Property Code § 113.151(a); Rules of Civ.Evid., Rule 503(b). of the Melissa Huie Chenault Trust, Relator v. 39 Cases that cite this headnote The Honorable Nikki DeSHAZO, Judge, Respondent. [2] Trusts No. 95–0873. | Argued Nov. 30, Representation of cestui que trust by trustee 1995. | Decided Feb. 9, 1996. | Trustee's fiduciary duty toward trust beneficiary, Rehearing Overruled June 28, 1996. to fully disclose all material facts, exists independently of rules of discovery and applies Trust beneficiary sought to compel discovery, from an even if no litigious dispute exists between trustee attorney, of communications by a trustee to the attorney and beneficiaries. V.T.C.A., Property Code § relating to trust administration, in a suit by beneficiary 113.151(a). alleging that trustee breached his fiduciary duty. The trial court ordered the attorney to disclose communications made 10 Cases that cite this headnote before suit was filed. The Court of Appeals denied relief and the trustee petitioned for writ of mandamus. The Supreme [3] Trusts Court, Phillips, C.J., held that: (1) attorney-client privilege Representation of cestui que trust by trustee applied, notwithstanding trustee's fiduciary duties to fully Trustee's duty of full disclosure extends to all disclose all material facts; (2) privilege did not affect material facts affecting beneficiaries' rights and trustee's duty to disclose and provide full trust accounting; is not limited by any communications by trustee (3) attorney-client relationship existed between trustee and with attorney that may be protected by attorney- attorney; (4) trust was not client; (5) crime-fraud exception client privilege. V.T.C.A., Property Code § to attorney-client privilege did not apply; (6) compensation 113.151(a); Rules of Civ.Evid., Rule 503(b). of attorney with trust funds did not preclude attorney-work- product privilege; and (7) whether disputed documents were 11 Cases that cite this headnote prepared in anticipation of litigation was to be considered on remand. [4] Privileged Communications and Writ conditionally granted. Confidentiality Elements in general; definition Attorney-client privilege protects confidential communications between client and attorney West Headnotes (15) made for purpose of facilitating rendition of professional legal services to client. Rules of [1] Privileged Communications and Civ.Evid., Rule 503(b). Confidentiality 25 Cases that cite this headnote Fiduciary exception Privileged Communications and Confidentiality [5] Privileged Communications and Trustees, guardians, and administrators; Confidentiality pension plans

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Factual information; independent knowledge; observations and mental 6 Cases that cite this headnote impressions While attorney-client privilege extends to entire [9] Privileged Communications and communication, including facts contained in that Confidentiality communication, client cannot cloak material fact Criminal or other wrongful act or with privilege merely by communicating it to an transaction; crime-fraud exception attorney. Rules of Civ.Evid., Rule 503(b). Crime-fraud exception to attorney-client privilege did not apply to confidential 9 Cases that cite this headnote communications concerning trust administration from trustee to attorney given that trustee's [6] Privileged Communications and invocation of attorney-client privilege did not Confidentiality violate duty of full disclosure and, thus, Trustees, guardians, and administrators; attorney could not be compelled to testify pension plans about communications. Rules of Civ.Evid., Rule While trustee must fully disclose material facts 503(d)(1). regarding administration of trust, attorney-client 8 Cases that cite this headnote privilege protects confidential communications between trustee and his or her attorney. V.T.C.A., Property Code § 113.151(a); Rules of [10] Privileged Communications and Civ.Evid., Rule 503(b). Confidentiality Presumptions and burden of proof 3 Cases that cite this headnote Party resisting discovery bears burden of proving any applicable privilege. [7] Privileged Communications and Confidentiality 10 Cases that cite this headnote Trustees, guardians, and administrators; pension plans [11] Pretrial Procedure Trustee which retains attorney for advice Work-product privilege in administering trust is real client, rather Attorney work-product privilege applied to than trust beneficiaries, when determining prelitigation communications which trustee whether attorney-client privilege applies. Rules prepared in anticipation of litigation. of Civ.Evid., Rule 503(a)(1). 1 Cases that cite this headnote 10 Cases that cite this headnote

[12] Pretrial Procedure [8] Privileged Communications and Work-product privilege Confidentiality Whether attorney retained by trustee was Trustees, guardians, and administrators; compensated from trust funds, rather than pension plans trustee personally, was not determinative Neither trust beneficiary nor trust itself was of whether attorney work-product privilege client of attorney retained by trustee and, thus, protected communications made to trustee; any attorney-client privilege applied to confidential impropriety in compensating attorney from communication by trustee to attorney concerning trust funds would not abrogate work-product administration of trust. Rules of Civ.Evid., Rule privilege. 503(a)(1). Cases that cite this headnote

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[13] Pretrial Procedure Opinion Work-product privilege Determinative factor for application of attorney Chief Justice PHILLIPS delivered the opinion of the Court, work-product privilege is whether litigation was in which all Justices join. anticipated. The issue presented in this original mandamus proceeding is whether the attorney-client privilege protects Cases that cite this headnote communications between a trustee and his or her attorney relating to trust administration from discovery by a trust [14] Mandamus beneficiary. We hold that, notwithstanding the trustee's Matters of discretion fiduciary duty to the beneficiary, only the trustee, not the Trial court's erroneous legal conclusion, even trust beneficiary, is the client of the trustee's attorney. in an unsettled area of law, is an abuse of The beneficiary therefore may not discover communications discretion for purposes of determining whether between the trustee and attorney otherwise protected under mandamus relief is inappropriate; trial court has Texas Rule of Civil Evidence 503. Because the trial court no discretion when determining what law is or ruled otherwise, we conditionally grant writ of mandamus. applying law to facts.

87 Cases that cite this headnote I

[15] Mandamus Harvey K. Huie, the relator, is the executor of the estate Proceedings in civil actions in general of his deceased wife, who died in 1980. Huie is also the trustee of *922 three separate testamentary trusts created Mandamus relief was appropriate from order under his wife's will for the primary benefit of the Huies' three erroneously compelling disclosure of potentially daughters. One of the daughters, Melissa Huie Chenault, filed privileged information by attorney retained the underlying suit against Huie in February 1993 for breach by trustee, given that trustee lacked adequate remedy by appeal. of fiduciary duties relating to her trust. 1 Chenault claims that Huie mismanaged the trust, engaged in self-dealing, diverted 11 Cases that cite this headnote business opportunities from the trust, and commingled and converted trust property. Huie's other two daughters have not joined in the lawsuit.

*921 On petition for writ of mandamus. Chenault noticed the deposition of Huie's lawyer, David Ringer, who has represented Huie in his capacity as Attorneys and Law Firms executor and trustee since Mrs. Huie's death. Ringer has also represented Huie in many other matters unrelated to the trusts G. David Ringer, Timothy D. Zeiger, Michael D. McKinley, and estate during that period. Before Chenault filed suit, Dallas, Douglas W. Alexander, Austin, Dwight M. Francis, Ringer was compensated from trust and estate funds for his Dallas, for Relator. fiduciary representation. Since the suit, however, Huie has Donovan Campbell, Jr., T. Wesley Holmes, James J. Hartnett, personally compensated Ringer for all work. Jr., James J. Hartnett, Sr., Jack M. Kinnebrew, Gary E. Clayton, and Kim Kelly Lewis, Dallas, for Respondent. Although Ringer appeared for deposition, he refused to answer questions about the management and business Jay J. Madrid, R. Gregory Brooks, Madrid, Corallo & Brooks, dealings of the trust, claiming the attorney-client and P.C., Dallas, for J. Peter Kline, Robert L. Miars, John attorney-work-product privileges. Chenault subsequently A. Beckert, Richard N. Beckert, Edward J. Rohling, Jack moved to compel responses, and Huie moved for a protective Craycroft and Harvey Hotel Corp. order. After an evidentiary hearing, the trial court held that the attorney-client privilege did not prevent beneficiaries of the trust from discovering pre-lawsuit communications between

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Huie and Ringer relating to the trust. The court's order, signed fiduciaries and their counsel. Chenault nonetheless contends July 19, 1995, does not cite to any of the exceptions under that communications between Huie and Ringer regarding Texas Rule of Civil Evidence 503 or otherwise disclose trust matters cannot be privileged as to Chenault, a trust the court's rationale. 2 The court held that the attorney- beneficiary, even if the elements of Rule 503 are otherwise client privilege protected only communications made under met. Chenault's primary argument is that Huie's fiduciary the following circumstances: 1) a litigious dispute existed duty of disclosure overrides any attorney-client privilege that between Chenault and Huie; 2) Huie obtained legal advice might otherwise apply. to protect himself against charges of misconduct; and 3) Huie paid for the legal counsel without reimbursement from [2] Trustees and executors owe beneficiaries “a fiduciary the estate or trust. The court accordingly ordered Ringer to duty of full disclosure of all material facts known to them answer questions relating to events before February 1993, that might affect [the beneficiaries'] rights.” Montgomery when suit was filed and Huie began personally compensating v. Kennedy, 669 S.W.2d 309, 313 (Tex.1984). See also Ringer. The court also held that the attorney-work-product TEX.PROP.CODE § 113.151(a) (requiring trustee to account privilege did not apply to communications made before to beneficiaries for all trust transactions). This duty exists Chenault filed suit, again without stating its reasoning. independently of the rules of discovery, applying even if no litigious dispute exists between the trustee and beneficiaries. The court of appeals, after granting Huie's motion for leave to file petition for writ of mandamus, subsequently vacated that Chenault argues that the trustee's duty of disclosure extends order as improvidently granted, denying relief. After Huie to any communications between the trustee and the trustee's sought mandamus relief from this Court, we stayed Ringer's attorney. The fiduciary's affairs are the beneficiaries' affairs, deposition pending our consideration of the merits. according to Chenault, and thus the beneficiaries are entitled to know every aspect of Huie's conduct as trustee, including his communications with Ringer. We disagree.

II [3] [4] [5] The trustee's duty of full disclosure extends to all material facts affecting the beneficiaries' rights. Applying [1] The attorney-client privilege protects from disclosure the attorney-client privilege does not limit this duty. In confidential communications between a client and his Texas, the attorney-client privilege protects confidential or her attorney “made for the purpose of facilitating communications between a client and attorney made for the rendition of professional legal services to the the purpose of facilitating the rendition of professional client....” TEX.R.CIV.EVID. 503(b). This privilege allows legal services to the client. See TEX.R.CIV.EVID. 503(b). “unrestrained communication and contact between an While the privilege extends to the entire communication, attorney and client in all matters in which the attorney's including facts contained therein, see GAF Corp. v. Caldwell, professional advice or services are sought, without fear 839 S.W.2d 149, 151 (Tex.App.—Houston [14th Dist.] that these confidential communications will be disclosed 1992, orig. proceeding); 1 STEVEN GOODE ET. AL, by the attorney, voluntarily or involuntarily, in any legal TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF proceeding.” West v. Solito, 563 S.W.2d 240, 245 (Tex.1978). EVIDENCE: CIVIL AND CRIMINAL, § 503.5 n. 15 (1993), The privilege thus “promote[s] effective legal services,” a person cannot cloak a material fact with the privilege merely which “in turn promotes the broader societal interest of by communicating it to an attorney. See, e.g., National Tank the effective administration of justice.” Republic Ins. Co. v. Co. v. Brotherton, 851 S.W.2d 193, 199 (Tex.1993). Davis, 856 S.W.2d 158, 160 (Tex.1993).

This distinction may be illustrated by the following The Texas Trust Code provides that “[a] trustee may employ hypothetical example: Assume that a trustee who has attorneys ... reasonably necessary in the administration of the misappropriated money from a trust confidentially reveals trust estate.” TEX.PROP.CODE § 113.018. Chenault *923 this fact to his or her attorney for the purpose of obtaining does not dispute that Huie employed Ringer to assist Huie legal advice. The trustee, when asked at trial whether he in the administration of the Chenault trust. Indeed, Chenault or she misappropriated money, cannot claim the attorney- does not seriously dispute that an attorney-client relationship client privilege. The act of misappropriation is a material existed between Huie and Ringer about trust matters. 3 fact of which the trustee has knowledge independently of Further, Rule 503 contains no exception to the privilege for

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the communication. The trustee must therefore disclose the that the attorney-client privilege did not apply in light of the fact (assuming no other privilege applies), even though owners' unqualified right of inspection. 759 S.W.2d at 162. the trustee confidentially conveyed the fact to the attorney. However, because the attorney's only knowledge of the It is unclear whether the records at issue in Burton were misappropriation is through the confidential communication, merely records of the association in the possession of the the attorney cannot be called on to reveal this information. attorney, or whether they contained separate confidential attorney-client communications. To the extent that they Our holding, therefore, in no way affects Huie's duty consisted of the former, we agree that they were not protected. to disclose all material facts and to provide a full trust See Brotherton, 851 S.W.2d at 199. However, to the extent accounting to Chenault, even as to information conveyed to that the court held that the owners' statutory right of inspection Ringer. In the underlying litigation, Chenault may depose somehow trumped the privilege for confidential attorney- Huie and question him fully regarding his handling of client communications, we disapprove of its holding, for trust property and other factual matters involving the trust. the reasons previously discussed. We also disapprove of the Moreover, the attorney-client privilege does not bar Ringer court's dicta that the trial court could, in its discretion, decline from testifying about factual matters involving the trust, as to apply the attorney-client privilege even if all the elements long as he is not called on to reveal confidential attorney- of Rule 503 were met. See 759 S.W.2d at 162. client communications. Chenault also relies on a study by the Section of Real The communications between Ringer and Huie made Property, Probate and Trust Law of the American Bar confidentially and for the purpose *924 of facilitating legal Association, entitled Report of the Special Study Committee services are protected. The attorney-client privilege serves the on Professional Responsibility—Counselling the Fiduciary. same important purpose in the trustee-attorney relationship See 28 REAL PROP., PROB. & TR.J. 823 (1994). This as it does in other attorney-client relationships. A trustee study concludes that, while counsel retained by a fiduciary must be able to consult freely with his or her attorney to ordinarily represents only the fiduciary, the counsel should be obtain the best possible legal guidance. Without the privilege, allowed to disclose confidential communications relating to trustees might be inclined to forsake legal advice, thus trust administration to the beneficiaries. Id. at 849–850. The adversely affecting the trust, as disappointed beneficiaries study reasoned as follows: could later pore over the attorney-client communications in second-guessing the trustee's actions. Alternatively, trustees The fiduciary's duty is to administer might feel compelled to blindly follow counsel's advice, the estate or trust for the benefit ignoring their own judgment and experience. See In re of the beneficiaries. A lawyer whose Prudence–Bonds Corp., 76 F.Supp. 643, 647 (E.D.N.Y.1948) assignment is to provide assistance (concluding that, without the privilege, “the experience in to the fiduciary during administration management and best judgment by [the trustee] is put aside ... is also working, in tandem with which, in the end may result in harm to the [beneficiaries]”). the fiduciary, for the benefit of the beneficiaries, and the lawyer Chenault relies on Burton v. Cravey, 759 S.W.2d 160 has the discretion to reveal such (Tex.App.—Houston [1st Dist.] 1988, no writ), for the information to the beneficiaries, if proposition that the attorney-client privilege does not apply necessary to protect the trust estate. where a party has a right to information independently of The interests of the beneficiaries the rules of discovery. In Burton, condominium owners filed should not be compromised by a a trial court mandamus action against the condominium barrier of confidentiality. association to enforce their statutory right to inspect the Id. Several English common-law cases, and treatises citing association's books and records. See TEX.PROP.CODE § those cases, also support this view. See, e.g., In re Mason, 81.209; TEX.REV.CIV.STAT.ANN. art. 1396–2.23. The 22 Ch.D. 609 (1883); Talbot v. Marshfield, 2 Dr. & Sm. 549 trial court allowed inspection of the records, including those (1865); Wynne v. Humbertson, 27 Beav. 421 (1858). See also in the possession of the association's attorney, finding as a BOGART, THE LAW OF TRUSTS AND TRUSTEES, § 961 factual matter that the attorney's records constituted part of the (2nd. ed. 1983); SCOTT, THE LAW OF TRUSTS, § 173 (3rd association's records. The court of appeals affirmed, holding ed. 1967).

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chance to gain from the professional We decline to adopt this approach. We find the countervailing services rendered. The very intention arguments supporting application of the privilege, discussed of the communication is to aid previously, more persuasive. Moreover, Rule 503 contains no the beneficiaries.... In effect, the exception applicable to fiduciaries *925 and their attorneys. beneficiaries were the clients of [the If the special role of a fiduciary does justify such an trustees' attorney] as much as the exception, it should be instituted as an amendment to Rule trustees were, and perhaps more so. 503 through the rulemaking process. Ringer testified that he had the “fullest expectation” that his communications with 355 A.2d at 713–14. Huie would be privileged. This expectation was justified considering the express language of Rule 503 protecting [8] We conclude that, under Texas law at least, the trustee confidential attorney-client communications. We should who retains an attorney to advise him or her in administering not thwart such legitimate expectations by retroactively the trust is the real client, not the trust beneficiaries. See amending the rule through judicial decision. Thompson v. Vinson & Elkins, 859 S.W.2d 617 (Tex.App. —Houston [1st Dist.] 1993, writ denied) (beneficiary lacked [6] We thus hold that, while a trustee must fully standing to sue trustee's attorney for malpractice, as no disclose material facts regarding the administration of attorney-client relationship existed between them). “Client” the trust, the attorney-client privilege protects confidential is defined under Rule 503 as communications between the trustee and his or her attorney a person, public officer, or under Rule 503. 4 corporation, association, or other organization or entity, either public or private, who is rendered professional III legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services A from him. [7] We also reject the notion that the attorney-client TEX.R.CIV.EVID. 503(a)(1). It is the trustee who is privilege does not apply because there was no true empowered to hire and consult with the attorney and to act attorney-client relationship between Huie and Ringer. This on the attorney's advice. While Huie owes fiduciary duties to argument finds support in some other jurisdictions, where Chenault as her trustee, he did not retain Ringer to represent courts have held that an attorney advising a trustee in Chenault, but to represent himself in carrying out his fiduciary connection with the trustee's fiduciary duties in fact represents duties. Ringer testified, for example, that he has “never given the trust beneficiaries. Accordingly, the trustee has no any legal advice to Mrs. Chenault,” and in fact had only seen privilege to withhold confidential communications from the her on a few isolated occasions. It would strain reality to beneficiaries. See, e.g., Wildbur v. ARCO Chemical Co., 974 hold that a trust beneficiary, who has no direct professional F.2d 631 (5th Cir.1992); United States v. Evans, 796 F.2d relationship with the trustee's attorney, is the real client. See In 264 (9th Cir.1986); In the Matter of Torian, 263 Ark. 304, re Prudence–Bonds Corp., 76 F.Supp. 643 (E.D.N.Y.1948); 564 S.W.2d 521 (1978); Riggs Nat'l Bank of Washington v. *926 Shannon v. Superior Court, 217 Cal.App.3d 986, 266 Zimmer, 355 A.2d 709 (Del.Ch.1976); In re Hoehl's Estate, Cal.Rptr. 242, 246 (1990). We thus hold that Huie, rather than 181 Wis. 190, 193 N.W. 514 (1923). The court in Riggs Chenault, was Ringer's client for purposes of the attorney- reasoned as follows: client privilege. As a representative for the beneficiaries of the trust which he is administering, the trustee is B not the real client in the sense that he is personally being served. Chenault also advances an argument on post-submission brief And, the beneficiaries are not to this Court that the trust itself was Ringer's real client. This simply incidental beneficiaries who approach, however, is inconsistent with the law of trusts. Mrs.

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Huie created the testamentary trusts by devising property and communication. I have always to Huie as trustee. See TEX.PROP.CODE § 112.001(3). handled my work with Mr. Huie It is Huie that holds the trust property for the benefit of with the fullest expectation that my Chenault, and it is Huie that is authorized to hire counsel. See correspondence with him and my TEX.PROP.CODE § 113.018. The term “trust” refers not to communications with him and his a separate legal entity but rather to the fiduciary relationship correspondence with me and his governing the trustee with respect to the trust property. See communication with me would be TEX.PROP.CODE § 111.004. Ringer thus represented Huie privileged.... I also have Mr. Huie's in his capacity as trustee, not the “trust” as an entity. instruction and expectation that his communications be confidential....

Ringer did not specifically address any of the numerous IV certified questions before the court, and thus there is no testimony about whether or why each particular question calls [9] Chenault also argues that communications between for the disclosure of confidential communications. Chenault Ringer and Huie should be disclosed under the crime- thus contends that Huie did not prove “what particular fraud exception to the attorney-client privilege. See deposition testimony would entrench upon the alleged TEX.R.CIV.EVID. 503(d)(1). Chenault does not argue that attorney-client privilege....” Huie responds that many of the the alleged breaches of trust for which she is suing are crimes questions on their face call for privileged communications, or fraud within this exception; rather, she contends that the but at the same time concedes that other questions “arguably failure to disclose communications in and of itself is fraud. present a close question as to whether confidential attorney- Because we have held that the trustee's invocation of the client communications ... would be compromised.” attorney-client privilege does not violate his or her duty of full disclosure, we find Chenault's crime-fraud argument to The trial court's ruling is based on its conclusion that the be without merit. attorney-client privilege does not apply to any pre-litigation communications between a trustee and the trustee's attorney, a contention we have rejected. In light of this holding, we V believe the trial court should have an opportunity to consider, in the first instance, whether Huie has carried his evidentiary burden as to each of the certified questions for which Ringer A claimed, on Huie's behalf, the attorney-client privilege. The [10] The party resisting discovery bears the burden of court may, in its discretion, receive further evidence from the proving any applicable privilege. See State v. Lowry, 802 parties. S.W.2d 669, 671 (Tex.1991). Chenault argues that even if the attorney-client privilege is otherwise available, Huie failed to carry his evidentiary burden to establish its applicability in B this case. Chenault further argues that many of the certified questions Ringer, who was allowed to give testimony in narrative form, relate to federal tax returns *927 filed by the estate. Relying testified in part as follows: on cases interpreting the federal attorney-client privilege, she contends that the privilege does not apply when an attorney is The questions that were propounded employed to prepare tax returns, as the attorney is primarily to me during my deposition by performing accounting, rather than legal, services. See, e.g., [Chenault's counsel] I believe were In re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th argumentative, and they sought to Cir.1987); United States v. Davis, 636 F.2d 1028, 1043 (5th go at the very core of things I Cir.1981); Canaday v. United States, 354 F.2d 849, 857 (8th understood, things that I knew, or Cir.1966). But see Colton v. United States, 306 F.2d 633, 637 even questions that related to whether (2d Cir.1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 something occurred or not, would L.Ed.2d 499 (1963). go to the essence of the advice

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whether it was proper for Ringer to be compensated from trust funds for any work that may have been done in anticipation The attorney-client privilege embodied in Rule 503 requires of litigation, we hold that any such impropriety would not that the communication be “made for the purpose of abrogate the work-product privilege. See Lasky, Haas, Cohler facilitating the rendition of professional legal services to the & Munter v. Superior Court, 172 Cal.App.3d 264, 218 client....” The trial court, in considering whether Huie has met Cal.Rptr. 205 (1985) (public policy underlying full disclosure his evidentiary burden, should in the first instance determine by trustee does not overcome work-product privilege, even whether this element is satisfied as to each of the certified where attorney is compensated from trust corpus). questions.

Because the trial court concluded that the work-product privilege did not apply to materials or communications VI generated prior to the time suit was filed and Huie began personally compensating Ringer, it appears that the court [11] The trial court also overruled Huie's attorney-work- never reached the issue of when Huie anticipated litigation. product objections as to communications made before the The court should therefore reconsider Huie's work-product date Chenault filed suit. Huie contends that the work-product objections in accordance with this opinion. privilege protects communications made after 1988, the time when he contends that he anticipated litigation.

An attorney's “work product” refers to “specific documents, VII reports, communications, memoranda, mental impressions, [14] [15] Chenault argues that because the legal question conclusions, opinions, or legal theories, prepared and confronting the trial court was an issue of first impression assembled in actual anticipation of litigation or for trial.” in Texas, the court could not have “abused its discretion” National Tank Co. v. Brotherton, 851 S.W.2d 193, 200 in resolving the issue, and thus mandamus relief is (Tex.1993). The trial court did not rule on Huie's claims inappropriate. We disagree. “A trial court has no ‘discretion’ of work-product privilege independently of his claims in determining what the law is or applying the law to the of attorney-client privilege; rather, the court summarily facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). overruled both of these claims as to all pre-litigation Consequently, the trial court's erroneous legal conclusion, communications. It thus appears that the trial court concluded, even in an *928 unsettled area of law, is an abuse as it did for the attorney-client privilege, that the work- of discretion. See Lunsford v. Morris, 746 S.W.2d 471 product privilege simply does not apply in the fiduciary- (Tex.1988). Moreover, because the trial court's order compels attorney relationship prior to the time suit is actually filed. the disclosure of potentially privileged information, Huie [12] [13] We disagree with this conclusion. The policy lacks an adequate remedy by appeal. See Walker, 827 S.W.2d at 843. reasons supporting the attorney-client privilege in the context of the fiduciary-attorney relationship support even more We therefore conditionally grant the writ of mandamus strongly the work-product privilege, as the latter protects and direct the trial court to vacate its July 19, 1995, the confidentiality of work prepared in anticipation of discovery order. The trial court shall reconsider Huie's claims litigation. There can be little dispute that a fiduciary must of attorney-client and attorney-work-product privilege in be allowed some measure of confidentiality in defending accordance with this opinion. The court may in its discretion against an anticipated suit for breach of fiduciary duty. receive additional evidence from the parties. Further, we do not believe it is determinative that Ringer was compensated from trust funds, rather than by Huie personally, before Chenault filed suit. The determinative Parallel Citations factor for the work-product privilege is instead whether litigation was anticipated. While we express no opinion on 64 USLW 2540, 39 Tex. Sup. Ct. J. 288

Footnotes

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1 Chenault sued individually, as next friend of her minor daughter, and as next friend of her minor niece, who is under Chenault's conservatorship. Chenault also named several business associates of Huie as additional defendants. 2 The trial court initially relied on Texas Rule of Civil Evidence 503(d)(5), which creates an exception to the attorney-client privilege as between joint clients of an attorney regarding matters of common interest to the clients. The court, however, later amended its order to delete this reference. 3 Chenault argues for the first time in a post-submission brief that Ringer represented the trust itself as an entity, rather than Huie as trustee. This argument is addressed in section III–B below. 4 Chenault also argues that Huie, by accepting the appointment as trustee with knowledge of his duty of disclosure, impliedly waived the protection of the attorney-client privilege. Because we conclude that a trustee does not violate the duty of full disclosure by invoking the attorney-client privilege, we reject this waiver argument.

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13 Cases that cite this headnote 982 S.W.2d 371 Supreme Court of Texas. [3] Mandamus In re BAY AREA CITIZENS AGAINST Modification or vacation of judgment or LAWSUIT ABUSE, Relator. order When a discovery order violates First No. 97–0812. | Argued Feb. 3, Amendment rights, the party seeking mandamus 1998. | Decided Dec. 10, 1998. generally has no adequate remedy by appeal. U.S.C.A. Const.Amend. 1. Citizens and taxpayers brought action against city and nonprofit organizations, claiming improper use of property 13 Cases that cite this headnote and improper transfer of public funds. The District Court denied plea to jurisdiction, and ordered nonprofit organization to provide discovery relating to identity of its [4] Constitutional Law contributors. The Corpus Christi Court of Appeals denied Freedom of Association nonprofit organization's motion for leave to file writ of Freedom of association for the purpose of mandamus, and organization petitioned for mandamus relief advancing ideas and airing grievances is a from the Supreme Court. The Supreme Court, Abbott, J., held fundamental liberty guaranteed by the First that: (1) appeal would provide adequate remedy with regard Amendment. U.S.C.A. Const.Amend. 1. to plea to jurisdiction; (2) requiring disclosure of donor lists would violate First Amendment; (3) requiring disclosure of 1 Cases that cite this headnote only corporate contributors would violate First Amendment; and (4) Texas Non–Profit Corporation Act did not require [5] Constitutional Law disclosure of donor lists. Freedom of Association Because compelled disclosure of the identities Petition denied in part and conditionally granted in part. of an organization's members or contributors may have a chilling effect on the organization's contributors as well as on the organization's West Headnotes (18) own activity, the First Amendment requires that a compelling state interest be shown before a court may order disclosure of membership in [1] Mandamus an organization engaged in the advocacy of Rulings as to pleadings particular beliefs. U.S.C.A. Const.Amend. 1. Nonprofit organization challenging denial of plea to jurisdiction could not obtain relief by 1 Cases that cite this headnote way of writ of mandamus, in action by city taxpayers alleging improper use of property and [6] Constitutional Law public funds, in absence of any showing that Freedom of Association situation was extraordinary one in which remedy Constitutional Law by appeal was inadequate. Political Rights and Discrimination 8 Cases that cite this headnote It is immaterial to scope of First Amendment protection whether the beliefs sought to be advanced by association pertain to political, [2] Mandamus economic, religious or cultural matters. U.S.C.A. Remedy by Appeal or Writ of Error Const.Amend. 1. A party seeking mandamus relief must establish that it has no adequate remedy by appeal. Cases that cite this headnote

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[7] Constitutional Law [11] Constitutional Law Freedom of Association Particular Issues and Applications State action which may have the effect of When a litigant seeks, through the power of curtailing the freedom to associate is subject to the courts, to discover information protected the closest scrutiny. U.S.C.A. Const.Amend. 1. by the First Amendment, the litigant must make a showing of need beyond its mere Cases that cite this headnote relevance; litigant seeking such information must demonstrate that it is substantially related [8] Constitutional Law to a compelling government interest. U.S.C.A. Freedom of Association Const.Amend. 1. To secure an order preventing the disclosure Cases that cite this headnote of its donor lists, organization bears the initial burden to make a prima facie showing that disclosure orders will burden First Amendment [12] Constitutional Law rights. U.S.C.A. Const.Amend. 1. Discovery requests and subpoenas Privileged Communications and Cases that cite this headnote Confidentiality Constitutional privileges in general [9] Constitutional Law Nonprofit organization's donor lists did not have Freedom of Association a sufficient nexus to the taxpayers' interest in Showing of harm to First Amendment rights proving wrongful use of property and public that is required to protect organization's donor funds to be subject to discovery, consistent with lists from disclosure is light; evidence offered First Amendment, in suit by taxpayers; identity need show only a reasonable probability that of private contributors was not required to show the compelled disclosure will subject donors improper use of public funds or use of property to threats, harassment, or reprisals from either in violation of conditions in deed. U.S.C.A. government officials or private parties. U.S.C.A. Const.Amend. 1. Const.Amend. 1. Cases that cite this headnote 3 Cases that cite this headnote [13] Constitutional Law [10] Constitutional Law Discovery requests and subpoenas Discovery requests and subpoenas Pretrial Procedure Privileged Communications and Order Confidentiality Discovery orders requiring disclosure of Constitutional privileges in general nonprofit organization's donor lists would Evidence of past boycott threats made against burden First Amendment, due to threats businesses that supported nonprofit organization of political and economic reprisals, even satisfied organization's initial burden to make if disclosure were limited to corporate a prima facie showing that discovery orders contributors, thus precluding discovery in requiring disclosure of donor lists would absence of compelling state interest; besides burden First Amendment rights, thus requiring discouraging corporations from donating compelling state interest to justify such orders. to organization, disclosure of corporate U.S.C.A. Const.Amend. 1. contributors' names would burden organization's and its individual contributors' rights of 2 Cases that cite this headnote association. U.S.C.A. Const.Amend. 1.

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1 Cases that cite this headnote 18 Cases that cite this headnote

[14] Corporations and Business Organizations Books and records Attorneys and Law Firms Nonprofit organization's obligation under Texas Non–Profit Corporation Act to prepare and *372 William W. Pierson, Myra K. Morris, Corpus Christi, disclose “financial records” did not require Chester J. Makowski, Houston, for Relator. disclosure of donor lists. Vernon's Ann.Texas Civ.St. art. 1396–2.23A. Darrell L. Barger, Patricia ann Shackelford, Gonzalo Joseph Barrientos, Corpus Christi, David W. Holman, Houston, 3 Cases that cite this headnote David L. Perry, Corpus Christi, for Respondent.

Opinion [15] Constitutional Law Avoidance of constitutional questions ABBOTT, Justice, delivered the opinion for a unanimous Court should, if possible, interpret statute in a Court. manner that avoids constitutional infirmities. In this mandamus proceeding, Bay Area Citizens Against 4 Cases that cite this headnote Lawsuit Abuse (“BACALA”) complains of two discovery orders requiring BACALA to produce certain documents and answer certain deposition questions concerning the identities [16] Statutes of its contributors. BACALA further complains that the trial Language court improperly denied its plea to the jurisdiction. We find When interpreting a statute, court begins with the that BACALA has failed to show that it lacks an adequate words of the statute itself. remedy by appeal from the trial court's denial of the plea to the jurisdiction; however, we conditionally grant mandamus 10 Cases that cite this headnote relief with respect to those portions of the discovery orders requiring BACALA to disclose its contributors' identities. [17] Statutes Intent Courts look to legislative intent when construing *373 I a statute.

8 Cases that cite this headnote Background

In 1950, the City of Corpus Christi deeded property located [18] Statutes at 1201 N. Shoreline to the Corpus Christi Chamber of Language and intent, will, purpose, or Commerce. The deed provided that the Chamber would: policy Statutes (a) ... erect upon the property herein conveyed a permanent Legislative History building ... to house said Chamber ...; Statutes (b) ... maintain ... a permanent all-year Tourist Information Construction in View of Effects, Bureau in said Building, and provide such literature as Consequences, or Results is customarily employed ... extolling the benefits and To determine legislative intent, courts may advantages of the City of Corpus Christi; consider the language of the statute, the legislative history, the nature and object to (c) ... provide in said building such space ..., for be obtained, and the consequences that would the displaying of exhibits, depicting the commercial, follow from alternate constructions.

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industrial, agricultural, mineral and maritime assets of the departments funded by public tax monies were located on one City.... side of the building while privately funded entities, including BACALA, were on the other. Other entities that have The deed also contained the following reversion clause: occupied the Shoreline building include Beautify Corpus Christi, SCORE, and the Minority Business Opportunity [I]n the event said grantee shall ... Commission. permit the use of said land or premises, or any part thereof, for any purpose A few citizens and taxpayers of Corpus Christi (collectively other than herein provided without “taxpayers”), sued the Alliance, BACALA, and the City of the written permission of the grantor, Corpus Christi seeking to restrain and enjoin BACALA's the property conveyed hereby together and the Alliance's allegedly improper use of the Shoreline with all improvements thereon shall property and public tax revenues “for private special revert to the City of Corpus Christi.... interests.” The taxpayers allege that the City's transfer In accordance with the deed, the Chamber built and has of public funds to the Alliance and its authorizing the maintained a building on the property. Alliance's and BACALA's use of the Shoreline property constitute “the granting of public monies and other things In response to the business community's support for tort of value to the Defendant corporations for special private reform, the Chamber created a lawsuit abuse committee. In purposes” in violation of Article III, Section 52 of the Texas 1994, the Chamber entered a joint venture agreement merging Constitution. 2 The *374 taxpayers also seek to recover all its lawsuit abuse committee with BACALA. allegedly illegal and unauthorized payments previously made by the City to the Alliance and BACALA, and to determine BACALA is a non-profit corporation organized under Texas whether the Shoreline property has reverted to the City under law and qualifying under section 501(c)(6) of the Internal the terms of the deed. Revenue Code. According to its articles of incorporation, BACALA's purpose is to “promote common business interests and to better business conditions in the Corpus II Christi Bay Area by effecting a basic change in the public's attitude toward liability and litigation so as to end this strangling lawsuit crisis and prevent its recurrence.” Procedural History BACALA has a board of trustees, but does not have members. It does, however, have contributors. BACALA filed a plea to the jurisdiction, arguing that the taxpayers lacked standing to sue BACALA. BACALA Soon after the BACALA/Chamber joint venture, the argued that because the taxpayers could not properly sue for Chamber merged into the Greater Corpus Christi Business the recovery of past expenditures and because BACALA had Alliance (“the Alliance”). The Alliance is a private, non-profit already vacated the Shoreline property, the trial court lacked Texas corporation comprising the Chamber, the Convention subject matter jurisdiction. The trial court denied BACALA's and Visitors Bureau, and the Economic Development plea. Corporation. Pursuant to a consulting agreement with the City, the Alliance took responsibility for tourist promotion, During discovery, the taxpayers noticed the deposition of began receiving substantial tax monies from the City to Kim Keef, BACALA's executive director and designated representative, and attached a subpoena duces tecum. In promote convention and tourism, 1 and moved into the response, BACALA filed a motion to quash and for Chamber building on the Shoreline property. protective order, arguing that the taxpayers' claim for illegal expenditures of monies by the Alliance did not directly Although BACALA maintained a separate identity from the involve BACALA, and therefore BACALA should not be Alliance, the Alliance allowed BACALA to use rent-free subject to harassing and burdensome discovery requests. The office space on the Shoreline property from July 1994 to April trial court ordered BACALA to produce Keef for deposition 1997. During this time, BACALA used an Alliance telephone and to preserve all objections at that time. The court also ruled extension and other utilities, reimbursing the Alliance for that disputes concerning the production of documents should long distance and postage. The building was divided such that

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be deferred until after the deposition. The deposition went forward as ordered; however, BACALA's counsel objected Plea to the Jurisdiction to approximately thirty questions on the basis that they violated BACALA's constitutional rights. The taxpayers filed [1] BACALA asserts that the taxpayers do not have standing a motion to compel answers to the deposition questions, to bring suit against BACALA and therefore the trial court arguing that the information sought concerning, among other abused its discretion by denying its plea to the jurisdiction. things, BACALA's sources of funding and contributions was We hold that BACALA is not entitled to mandamus relief necessary “to determine the propriety of the use of public for the trial *375 court's denial of its plea to the jurisdiction funds and public property.” because BACALA has failed to show that it lacks an adequate remedy by appeal. The taxpayers also served a deposition on written questions on BACALA's custodian of records, requesting a broad range [2] A party seeking relief must establish that it has no of BACALA's financial documents. BACALA produced adequate remedy by appeal. See Walker v. Packer, 827 some of the requested documents; however, it filed a motion S.W.2d 833, 840 (Tex.1992). Generally, “appeal is an for protective order asserting that some of the discovery adequate remedy to address a trial court's denial of a plea requests violated the United States and Texas Constitutions, to the jurisdiction, and therefore a writ of mandamus will were overly broad, unduly burdensome, not calculated to lead not issue to correct it.” Canadian Helicopters Ltd. v. Wittig, to the discovery of admissible evidence, not relevant, and 876 S.W.2d 304, 306, 308–09 (Tex.1994); see also Bell exceeded the scope of permissible discovery. In response, Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 the taxpayers filed a motion to compel production of all (Tex.1990) (quoting Abor v. Black, 695 S.W.2d 564, 566– documents and things sought in the subpoena duces tecum 67 (Tex.1985)). Although there may be some extraordinary and the deposition on written questions. The motion to situations in which remedy by appeal is inadequate and compel included BACALA's contributor lists. mandamus relief is justified, BACALA has made no showing that this case involves such a situation. Bell Helicopter, 787 The trial court ordered Keef to answer certain questions S.W.2d at 955. Because BACALA has failed to show that it concerning BACALA's mailing and contributor lists, the lacks an adequate remedy by appeal for the trial court's denial creative sources and funding for BACALA's advertisements, of its plea to the jurisdiction, we need not address whether any affiliation with other Citizens Against Lawsuit Abuse the trial court abused its discretion in denying the plea. See organizations, any use of out-of-state phone banks, and any Canadian Helicopters, 876 S.W.2d at 310. relationship to a private industry. The trial court further ordered BACALA to produce “the list of donors and amounts of donations for the years 1994, 1995, and 1996,” subject to a protective order limiting the information's use to preparation IV for this litigation. Discovery Orders BACALA filed a motion for leave to file a writ of mandamus with the Thirteenth Court of Appeals. The court BACALA complains of the trial court's discovery orders of appeals granted an emergency stay and requested briefing, requiring BACALA to provide deposition testimony and but subsequently denied the motion. BACALA then filed produce documents disclosing the names of BACALA's a petition for writ of mandamus with this Court. In its contributors. 3 BACALA argues that the names of its petition, BACALA complains of (1) the trial court's order contributors are not relevant to the litigation and are denying BACALA's plea to the jurisdiction, (2) the order protected by the associational rights guaranteed by the First that BACALA produce a list of donors and their donation Amendment of the United States Constitution. 4 amounts, and (3) the order that Keef answer deposition questions concerning BACALA's donor list. [3] When a discovery order violates First Amendment rights, the party seeking mandamus generally has no adequate remedy by appeal. See Tilton v. Moye, 869 S.W.2d 955, III 958 (Tex.1994) (citing Walker, 827 S.W.2d at 843). Because the portions of the trial court's orders directing BACALA to

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disclose its contributors' names violate the First Amendment, rights, however, the burden must be light. Terry, 886 F.2d at we conditionally grant mandamus relief. 1355 (“[I]n making out a prima facie case of harm the burden is light.”). The Supreme Court has recognized that “unduly strict requirements of proof could impose a heavy burden” and that a party “must be allowed sufficient flexibility in A the proof of injury to assure a fair consideration of [its] claim.” Buckley, 424 U.S. at 74, 96 S.Ct. 612. “The evidence Freedom of Association offered need show only a reasonable probability that the compelled disclosure of a party's contributors' names will [4] [5] [6] [7] BACALA asserts that the trial court'ssubject them to threats, harassment, or reprisals from either orders compelling disclosure of its contributors' names Government officials or private parties.” Id. The proof may impermissibly burden both its own and its contributors' First include “specific evidence of past or present harassment of Amendment rights. Freedom of association for the purpose of members due to their associational ties, or of harassment advancing ideas and airing grievances is a fundamental liberty directed against the organization itself.” Id. guaranteed by the First Amendment. 5 NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). [10] At the hearing on the taxpayers' motion to compel and Compelled disclosure of the identities of an organization's BACALA's motion for protective order, BACALA submitted members or contributors may have a chilling effect on the several letters as evidence that its supporters had been organization's contributors as well as on the organization's subject to boycott threats. The first letter was a law firm's own activity. See Buckley v. Valeo, 424 U.S. 1, 66–68, 96 resignation from the Chamber because of the Chamber's S.Ct. 612, 46 L.Ed.2d 659 (1976). For this reason, the First position concerning tort reform. A second letter prevailed Amendment requires that a compelling state interest be shown upon local lawyers to urge their clients not to do business with before a court may order disclosure of membership in an BACALA supporters, listing Chamber members who voted organization engaged in the advocacy of particular beliefs. to support BACALA and major contributors to BACALA. Tilton, 869 S.W.2d at 956 (citing NAACP, 357 U.S. at 462– This letter stated that BACALA “is basically about limiting 63, 78 S.Ct. 1163). “ ‘[I]t is immaterial whether the beliefs and destroying our right to trial by jury.” Another letter, from sought to be advanced by association pertain to political, a lawyer to a local district judge, explained that the lawyer economic, religious or cultural matters, and state action which would not be contributing to a judicial conference because may have the *376 effect of curtailing the freedom to the conference would be held at a barbecue restaurant owned associate is subject to the closest scrutiny.’ ” Id. (quoting by a BACALA supporter. This letter referred to BACALA as NAACP, 357 U.S. at 460–61, 78 S.Ct. 1163). “an organization which has degradated [sic] our judiciary, our judicial system and the citizens who spend their valuable time serving so faithfully on our juries” and asserted that the author B “simply will not knowingly do business with anyone who so attacks our judicial system or the good people who run and participate in it.” A final letter, from a lawyer to the president Burden on Right of Association of the U.S. Lexington Museum on the Bay, stated that the lawyer would not support the association because its deputy [8] [9] To secure an order preventing the disclosure of executive director was BACALA's treasurer. BACALA also its donor lists, BACALA bears the initial burden to make a offered testimonial evidence that many contributors donate prima facie showing that the trial court's orders will burden money on an anonymous basis and that some fear an adverse First Amendment rights. See Buckley, 424 U.S. at 74, 96 impact on their businesses if they are identified as BACALA S.Ct. 612; New York State Nat'l Org. for Women v. Terry, supporters. 886 F.2d 1339, 1355 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990); Brock v. The taxpayers respond that they introduced evidence to Local 375, Plumbers Int'l Union, 860 F.2d 346, 349–50 show that disclosure would result in no such reprisals. For (9th Cir.1988). Many courts have grappled with the question example, one of the taxpayers' lawyers, the author of the of what constitutes a sufficient showing of harm to First letter concerning the barbecue restaurant, testified that he had Amendment rights. Brock, 860 F.2d at 350 n. 1 (listing cases). recently eaten at the barbecue restaurant and that he and the In order to guarantee protection of a party's First Amendment

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restaurant owner were long-time friends. The taxpayers do However, such a factual record of violent past harassment not dispute, however, that the threats were made or that they is not the only situation in which courts have recognized a were intended when made; they merely claim that the threats potential infringement on an association's First Amendment should no longer be taken seriously. rights. Local 1814, Int'l Longshoremen's Assoc. v. Waterfront Comm'n of New York Harbor, 667 F.2d 267, 271 (2d The taxpayers further argue that BACALA's evidence of Cir.1981); see also Community–Service Broadcasting of retaliation is too speculative to satisfy its burden of proof. Mid–America, Inc. v. Federal Communications Comm'n, See Buckley, 424 U.S. at 70, 96 S.Ct. 612. In Buckley, the 593 F.2d 1102, 1118 (D.C.Cir.1978) (“The absence of Court concluded that the appellants' evidence of retaliation such concrete evidence [of harassment], however, does not was “highly speculative” and therefore NAACP v. Alabama mandate dismissal of the claim out of hand; rather it is was inapposite. Id. at 69–73, 96 S.Ct. 612. The Buckley the task of the court to evaluate the likelihood of any appellants relied primarily on the “clearly articulated fears of chilling effect....”). In Local 1814, the court found it sufficient individuals, well experienced *377 in the political process” that longshoremen contributors would perceive a connection and testimonial evidence that “one or two persons refused to between contributing to a political fund and being called make contributions because of the possibility of disclosure.” before the Waterfront Commission and would therefore Id. at 71–72, 96 S.Ct. 612. The appellants offered no stronger discontinue their contributions. Local 1814, 667 F.2d at 272; evidence of threats or harassment. Id. at 72 n. 88, 96 S.Ct. 612. see also Tilton, 869 S.W.2d at 956 (holding trial court's order of production of ministry's contributor lists unconstitutional BACALA's evidence is stronger than that offered by the when requests were aimed at persons sharing particular appellants in Buckley. As opposed to mere subjective beliefs and the harm alleged was that contributors could be fears and testimony that some donors would refuse to subpoenaed for questioning). And in Pollard v. Roberts, the donate, BACALA's evidence demonstrates that individuals Supreme Court affirmed the district court's recognition of the opposed to BACALA's agenda had boycotted the business potential infringement on First Amendment rights that could establishments of persons affiliated with BACALA and result from political and economic reprisals, even though no encouraged others to do the same. This is the type of “specific factual showing of such reprisals had been made: evidence of past or present harassment of members due to their associational ties” and “harassment directed against the While there is no evidence of record in this case that organization” recognized by the Court in Buckley. Buckley, any individuals have as yet been subjected to reprisals 424 U.S. at 74, 96 S.Ct. 612. The evidence shows actual, on account of the contributions in question, it would be non-speculative hostility and demonstrates a reasonable naive not to recognize that the disclosure of the identities probability of economic reprisals against contributors that of contributors ... would subject at least some of them to may burden First Amendment rights. Cf. NAACP, 357 U.S. potential economic or political reprisals of greater or lesser at 462, 78 S.Ct. 1163. Under such circumstances, compelled severity.... disclosure of BACALA's contributor lists may dissuade ... Disclosure or threat of disclosure well may tend contributors and hinder BACALA's and its contributors' to discourage both membership and contributions thus ability to pursue collective advocacy of their beliefs. See id. producing financial and political injury to the party at 462–63, 78 S.Ct. 1163. affected.

The taxpayers also argue that the alleged harm falls short Pollard v. Roberts, 283 F.Supp. 248, 258 (E.D.Ark.), aff'd. of the type of retaliation shown by parties in other cases per curiam, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968) such as Brown v. Socialist Workers '74 Campaign Comm., (emphasis added). 459 U.S. 87, 99, 103 S.Ct. 416, 74 L.Ed.2d 250 (1982), and NAACP v. Alabama, in which courts protected associations In sum, BACALA has offered factual, non-speculative from disclosing supporters' names. In Brown, for example, evidence of economic and political reprisals against itself the campaign committee introduced evidence of harassment and its contributors. This evidence is sufficient to satisfy its including threatening phone calls, hate mail, destruction burden of proof. of property, and physical violence. We agree with the taxpayers that the threat to BACALA is not as severe as that demonstrated in cases such as Brown or NAACP.

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the Alliance has already provided records of any monies it has given to BACALA. *378 C

Concerning the use of the property, the taxpayers assert Compelling State Interest that if the source of BACALA's funding was not the local citizenry of Corpus Christi, but instead was large, out-of- [11] [12] The taxpayers argue that the information covered town corporations anticipating litigation in the area and by the trial court's orders is relevant to their case and attempting to influence the public and the local jury pool, thus discoverable. When a litigant seeks, through the power that would be “highly relevant to the issue of whether public of the courts, to discover information protected by the property and funds are being misused.” They also argue that First Amendment, the litigant must make a showing of the list of contributors is relevant to debunk BACALA's need beyond its mere relevance. See, e.g., Federal Election position that its activities benefit local business and industry. Comm'n v. Larouche Campaign, 817 F.2d 233, 234–35 (2d Assuming that the taxpayers' claims are tenable, disclosure of Cir.1987); Tilton, 869 S.W.2d at 956. The litigant seeking the contributors' names is still not justified. The location of information must demonstrate that the information required BACALA's contributors does not help to determine whether to be disclosed is substantially related to a compelling public property and funds are being misused: where the government interest. See Buckley, 424 U.S. at 64, 96 S.Ct. money comes from sheds no light on how it is used. Nor do 612; Gibson v. Florida Legislative Investigation Comm., 372 the location and identity of BACALA's contributors bear a U.S. 539, 546, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); Ex parte substantial relation to a determination of whether the Alliance Lowe, 887 S.W.2d 1, 3 (Tex.1994). has violated the deed, causing the property to revert to the City. Moreover, the remedy sought for the alleged misuse The taxpayers admit that their interest in BACALA's of the property is to prevent BACALA's further use of the donor information “is based solely on the relevance such building. BACALA has already vacated the property. Thus, information has to the disputed issues in this lawsuit—the disclosure of BACALA's contributors' names simply does proper use of public funds and the nature of the use being not have a sufficient nexus to the taxpayers' interest in made of public property.” We hold that the taxpayers have proving BACALA's and the Alliance's alleged wrongful use failed to show a substantial relation between the identity of of the property and public funds. See Pollard, 283 F.Supp. at BACALA's contributors and the taxpayers' goal of exposing 258 (“[I]n order to overcome the prohibitions of [the First] and preventing the alleged misuse of the property and public Amendment the defendant was required to make a far greater funds. showing of relevancy and public interest in the disclosure than has been made here.”). Accordingly, we hold that the The taxpayers assert that BACALA's donor information is trial court abused its discretion by ordering disclosure of necessary to determine whether public monies and property BACALA's *379 donor lists. 6 were used in violation of the Texas Constitution, Article III, Section 52(a) and whether the Shoreline property reverted to the City. The taxpayers have alleged that public tax money was improperly conveyed to BACALA through the Alliance. D In their motion to compel, the taxpayers argued that they sought the financial records of BACALA and “the member Corporate Donors entities of the Alliance” to “reconstruct the path of public, tax payer money through the various accounts held by the [13] The taxpayers alternatively contend that even if the Alliance and its member entities for the years 1994, 1995 and donor lists in general are protected from disclosure, the 1996.” However, the names of BACALA's contributors other names of BACALA's corporate donors may still be disclosed than the Alliance are not relevant to such a determination, because corporations do not have First Amendment rights. especially in light of the heightened relevance standard The taxpayers argue that there is “no freedom of association required by the Constitution. See Pollard, 283 F.Supp. at 257 claim for corporate donors” because “a corporation, being (“Even if it be conceded that defendant's investigation might a creature of State, has no ‘personal’ constitutional rights be advanced if he knew that certain individuals had made that can be asserted on its behalf.” To support their position, contributions ..., we do not think that that fact would make the taxpayers cite Super X Drugs of Texas, Inc. v. State, relevant the disclosure of all of the contributors....”). Further,

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505 S.W.2d 333, 337 (Tex.Civ.App.—Houston [14th Dist.] individual contributors' rights of association. BACALA's 1974, no writ), in which the court held that a corporation has evidence of political and economic reprisals against its no Fifth Amendment right against self-incrimination because supporters is sufficient to indicate a reasonable probability that right is a personal right that belongs to individuals, that disclosure of its corporate contributors' names would not corporations. Thus, the taxpayers conclude, “BACALA decrease the number of contributions made to BACALA cannot assert ‘freedom of association’ claims on behalf of by those corporations. See Pollard, *380 283 F.Supp. its corporate donors and mandamus cannot extend to those at 258 (“Disclosure or threat of disclosure well may donors.” tend to discourage both membership and contributions thus producing financial and political injury to the party The Supreme Court's decision in First National Bank of affected.”); United States Servicemen's Fund v. Eastland, Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 488 F.2d 1252, 1265–68 (D.C.Cir.1973) (when disclosure 707 (1978), undermines the taxpayers' argument. In Bellotti, results in a drop in contributions, that disclosure violates the Supreme Court rejected the argument that corporations, a corporation's First Amendment rights of association and as creatures of the state, have only those rights granted assembly), rev'd on other grounds, 421 U.S. 491, 95 S.Ct. them by the state, noting that “such an extreme position 1813, 44 L.Ed.2d 324 (1975). Cf. NAACP, 357 U.S. at could not be reconciled either with the many decisions 459–60, 78 S.Ct. 1163 (“The reasonable likelihood that holding state laws invalid under the Fourteenth Amendment the Association itself through diminished financial support when they infringe protected speech by corporate bodies, and membership may be adversely affected if production is or with decisions affording corporations the protection of compelled is a further factor pointing towards our holding constitutional guarantees other than the First Amendment.” that petitioner has standing to complain of the production Id. at 778 n. 14, 98 S.Ct. 1407 (citations omitted). The order on behalf of its members.”). This, in turn, would Court further recognized that “[c]orporate identity has been burden the rights of individuals who were not dissuaded from determinative in several decisions denying corporations contributing. See Medrano v. Allee, 347 F.Supp. 605, 619 certain constitutional rights, such as the privilege against (S.D.Tex.1972) (the right to assemble is in part a collective compulsory self-incrimination, ... but this is not because the right, and abridgment of that right by dissuading others from States are free to define the rights of their creatures without exercising it effectively curtails its exercise by those who are constitutional limit.” Id. at 779 n. 14, 98 S.Ct. 1407. not intimidated), aff'd in part and vacated in part on other grounds, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974). The taxpayers' argument is further undermined by the As we stated previously, the taxpayers have failed to show Supreme Court's holding that “[t]he proper question ... is a substantial relation between the identity of BACALA's not whether corporations ‘have’ First Amendment rights and, contributors, corporate or otherwise, and the alleged misuse if so, whether they are coextensive with those of natural of the property to justify this burden on First Amendment persons. Instead, the question must be whether the [state rights. action] abridges expression that the First Amendment was meant to protect.” Bellotti, 435 U.S. at 776, 98 S.Ct. 1407. Thus, the taxpayers' focus on whether BACALA's corporate E contributors have constitutional rights is misplaced. Instead, the proper question is whether disclosure of their identities “abridges expression that the First Amendment was meant to The Texas Non–Profit Corporation Act protect.” Id. [14] The taxpayers also argue that article 1396–2.23A of When considering whether disclosure will burden First the Texas Non–Profit Corporation Act 7 requires BACALA Amendment rights, the focus should be broader than the to disclose all of its financial information, including the rights of the corporate contributors alone. Cf. Bellotti, identities of its contributors. The taxpayers further argue 435 U.S. at 776, 98 S.Ct. 1407 (“The Constitution often that since BACALA voluntarily incorporated as a nonprofit protects interests broader than those of the party seeking corporation, it waived any constitutional rights it might have their vindication.”). Besides discouraging corporations in protecting the identity of its contributors. from donating to BACALA, disclosure of the corporate contributors' names would also burden BACALA's and its

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

BACALA agrees that some financial records, such as than just the amount received must be maintained. Id. art. financial statements and tax returns, are subject to disclosure 1396–2.23A(A). However, the statute does not expressly under article 1396–2.23A. BACALA has produced those require that contributors' identities be made available to the records to the taxpayers. However, BACALA and amici argue public. that article 1396–2.23A is unconstitutional if it also requires disclosure of BACALA's contributors. 8 Looking to legislative intent, it appears that article 1396– 2.23A was intended to remedy a specific problem: the lack [15] We should, if possible, interpret the statute in a manner of accountability regarding a non-profit corporation's use of that avoids constitutional infirmities. Barshop v. Medina funds solicited from the public. Texas Appellate Practice County Underground Water Conservation Dist., 925 S.W.2d & Educ. Resource Ctr. v. Patterson, 902 S.W.2d 686, 689 618, 629 (Tex.1996). We must thus determine whether the (Tex.App.—Austin 1995, writ denied). The bill analysis interpretation of article 1396–2.23A urged by the taxpayers provides relevant background information regarding article would render the statute unconstitutional. 1396–2.23A's purpose:

During the last interim, the author [16] [17] [18] When interpreting a statute we begin attempted to conduct a study of a with the words of the statute itself. Smith v. Clary Corp., non-profit drug rehabilitation program 917 S.W.2d 796, 799 (Tex.1996). When interpreting civil in Houston. This program had been statutes, we give words their ordinary meaning. TEX. GOV'T soliciting funds from the public CODE § 312.002. Courts also look to legislative intent when and portrayed itself as a charitable construing a statute. Union Bankers Ins. Co. v. Shelton, endeavor. However, there were rumors 889 S.W.2d 278, 280 (Tex.1994). To determine legislative that its funds were being used for intent, courts may consider the language of the statute, the investments in such businesses as legislative history, the nature and object to be obtained, nightclubs. During the six month and the consequences that would follow from alternate investigation, the author of this bill constructions. Id.; see also TEX. GOV'T CODE § 312.005 was unable to determine how the (“In interpreting a statute, a court shall ... consider at all times program's funds were being used the old law, the evil, and the remedy.”). because the records were inadequate. A major recommendation from the study Article 1396–2.23A is entitled “Financial Records and was that Texas law should be amended Annual Reports.” It states that non-profit corporations to require non-profit organizations “shall maintain current true and accurate financial records soliciting funds from the public to keep with full and correct entries made with respect to all adequate records showing how the financial transactions of the corporation, including all income funds were actually being used. and expenditures, in accordance with generally accepted accounting practices.” TEX.REV.CIV. STAT. ANN.. art. SENATE COMM. ON BUS. & INDUS., BILL ANALYSIS, 1396–2.23A(A). Based on these records, a board of directors Tex. S.B. 857, 65 th Leg., R.S. (1977) (emphasis added). must annually prepare or *381 approve a report of the Thus, the purpose of the legislation was not to force non-profit financial activity of the corporation for the preceding year. Id. corporations to identify the exact sources of their income; art. 1396–2.23A(B). In addition, article 1396–2.23A requires rather, it was to expose the nature of the expenditures of that “[a]ll records, books, and annual reports of the financial that money once received from the public and to make non- activity of the corporation shall be kept at the registered office profit organizations accountable to their contributors for those or principal office of the corporation ... and shall be available expenditures. Thus, the seemingly broad scope of the statute's to the public for inspection and copying there during normal language is not matched by the legislative intent behind the business hours.” Id. art. 1396–2.23A(C). statute.

The statute's directive that non-profit corporations maintain The statute's uncertainty as to whether it requires disclosure “financial records with full and correct entries made with of contributors leads us to conclude that it does not. The respect to all financial transactions of the corporation, statute can be upheld as constitutional when interpreted as including all income and expenditures,” suggests that more not requiring disclosure of contributors' names. If, however,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

the statute grants blanket access to all non-profit corporations' donor lists, it would violate the First Amendment in some circumstances, thus rendering it unconstitutional as applied ***** 9 in those circumstances. In BACALA's case, compulsory In sum, we deny BACALA's request for mandamus relief disclosure would encroach on freedom of association. from the trial court's denial of its plea to the jurisdiction BACALA and amici are correct that the statute cannot because BACALA has failed to show that it lacks an adequate constitutionally be applied to BACALA because there is remedy by appeal. However, the trial court's orders requiring no substantial relation between the information sought by BACALA to produce the names of its donors violates the the taxpayers (BACALA's contributors' identities) and a First Amendment and BACALA has no adequate remedy compelling state interest. 10 Because we must construe by appeal. Therefore, we conditionally grant BACALA's the Act to avoid such constitutional infirmities, Barshop, petition for writ of mandamus in part. We direct the trial 925 S.W.2d at 629, we hold that the phrase “financial court to vacate those portions of its discovery orders requiring records” does not include the names of contributors or BACALA to disclose the identities of its donors. We are members. Therefore, article 1396–2.23A does not require confident that the district court will comply; only if its fails *382 the blanket disclosure of contributors' names for public to promptly do so will the writ issue. inspection.

Footnotes 1 The Convention and Visitors Bureau began receiving hotel/motel tax revenues from the City. The Chamber and the Economic Development Corporation remained privately funded. 2 “[T]he Legislature shall have no power to authorize any ... city ... to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever....” TEX. CONST. art. III, § 52. 3 Although the trial court ordered Keef to answer deposition questions covering a variety of topics, BACALA complains only of the portion of the order requiring Keef to testify about BACALA's donor list. Similarly, although the trial court ordered BACALA to produce a number of different documents, BACALA complains only of the portion of the trial court's order requiring BACALA to produce its donor lists for 1994, 1995, and 1996. Therefore, the other portions of the discovery orders are not before us. 4 Although BACALA asserted associational rights under Article I, Section 27 of the Texas Constitution, BACALA cited authority only under the U.S. Constitution. Consequently, we do not consider the extent to which Article I, Section 27 provides an independent basis for protection. See Tilton v. Moye, 869 S.W.2d 955, 956 n. 2 (Tex.1994). 5 U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”). 6 The taxpayers assert that the trial court's protective order, which limits the use of the donor information to litigation purposes only, alleviates any First Amendment concerns. A protective order allows a court to grant disclosure rights while deferring to First Amendment concerns. Ex parte Lowe, 887 S.W.2d at 4. Especially when the information is sought by private litigants, the existence of a protective order limiting dissemination of the information to litigation purposes may be a factor to be considered when determining whether disclosure is justified, although the protective order “itself does not justify disclosure.” Id. However, the protective order in this case does not alleviate BACALA's First Amendment concerns because the taxpayers' lawyers, who would receive the information under the protective order, are the very persons who have made some of the boycott threats. 7 TEX.REV.CIV. STAT. ANN.. art. 1396–2.23A (Vernon 1997). 8 In support of this proposition amicus briefs were submitted by the American Civil Liberties Union of Texas, other Citizens Against Lawsuit Abuse organizations, and a coalition of non-profit corporations, joined by the Texas Medical Association. 9 See, e.g., Familias Unidas v. Briscoe, 619 F.2d 391, 398 (5 th Cir.1980). 10 As stated supra, the Constitution requires that once a party makes a prima facie showing of harm from disclosure of contributors' identities, the party seeking to compel disclosure “must show convincingly a substantial relation between the information sought and a subject of overriding and compelling state interest.” Ex parte Lowe, 887 S.W.2d at 3. The state interest served by the statute is ensuring the accountability of non-profit corporations for expenditures of contributions. Even if this interest is a compelling state interest, there is no “substantial relation” between requiring disclosure of contributors' identities and ensuring such accountability. See Pollard, 283 F.Supp. at 257 (finding no showing that disclosure of contributors' identities was relevant to the state's unquestionably legitimate interest in preventing vote buying).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 In re Campbell, 106 S.W.3d 788 (2003)

106 S.W.3d 788 (Mem) Court of Appeals of Texas, OPINION Texarkana. Opinion by Justice ROSS. In re Catrena Roberts CAMPBELL. Catrena Roberts Campbell filed a petition with this Court No. 06–03–00060–CV. | Submitted seeking issuance of a writ of habeas corpus. Her petition was based on an order of contempt entered in connection with a May 12, 2003. | Decided May 13, 2003. child custody proceeding. The order found her in contempt Original Habeas Corpus Proceeding. for twenty-eight violations and sentenced her to thirty days on each act of contempt, but then suspended the imposition Attorneys and Law Firms of those sentences if Campbell cooperated with a therapist.

Melvyn Carson Bruder, Dallas, for relator. The portion of the order holding Campbell in contempt and David M. Stagner, Stagner & Corley, Sherman, Ed T. Smith, imposing punishment has now been vacated by the trial court. Bonham, for real party in interest. Accordingly, the order about which this original proceeding complains no longer exists, and the petition is moot. Before MORRISS, C.J., ROSS and CARTER, JJ. Accordingly, we dismiss the petition for writ of habeas corpus as moot.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (1985)

Mandamus will not issue to control action of lower court in matter involving discretion, 700 S.W.2d 916 therefore relator, attacking ruling of trial court as Supreme Court of Texas. abuse of discretion must establish that facts and Sue JOHNSON, Relator, law permit trial court to make but one decision. v. 372 Cases that cite this headnote The Honorable FOURTH COURT OF APPEALS, Respondent. [3] Mandamus No. C–4100. | Dec. 11, 1985. Motions and Orders in General Mandamus Rape victim sued guard and agency providing security for Scope of Inquiry and Powers of Court apartment complex for negligence. The jury found guard and agency negligent, and that guard's conduct was proximate Supreme Court had to make independent inquiry cause of assault but that security agency's was not. Jury as to whether trial court's order was so arbitrary, did not answer damage issue and court granted plaintiff's unreasonable or based upon so gross and motion for mistrial. Security agency sought mandamus in prejudicial an error of law as to establish abuse Court of Appeals. The San Antonio Court of Appeals, Fourth of discretion when reviewing Court of Appeals' Supreme Judicial District, Antonio G. Cantu, J., conditionally decision on mandamus, and writ of mandamus granted mandamus, in response to which trial court rendered would issue only to correct clear abuse of judgment that plaintiff take nothing. Trial court granted discretion. plaintiff's timely motion for new trial, and security agency 634 Cases that cite this headnote sought mandamus relief. Court of Appeals granted relief, and plaintiff filed writ of mandamus to Supreme Court seeking to compel Court of Appeals to rescind its judgment. The Supreme Court, McGee, J., held that Court of Appeals' grant Attorneys and Law Firms of mandamus ordering trial court to rescind grant of new trial was improper. *916 Law offices of Pat Maloney, Janice Maloney, San Antonio, for relator. So ordered. House & House, C.G. House, San Antonio, for respondent.

West Headnotes (3) ORIGINAL MANDAMUS

[1] Mandamus McGEE, Justice. Nature and Scope of Remedy in General The question in this mandamus proceeding is whether a trial Mandamus issues only to correct clear abuse court has discretion to grant a new trial in the interest of of discretion or violation of duty imposed by justice. We hold that the granting of a new trial for that reason law when there is no other adequate remedy is within the trial court's discretion and conditionally order the by law, and Court of Appeals acts in excess of court of appeals to vacate its previous judgment. its writ power when it grants mandamus relief absent these circumstances, under V.T.C.A., Relator, Sue Johnson, was raped and brutally beaten in her Government Code § 22.221(b). apartment. She sued the security guard on duty the night of the incident and the security agency providing security for 612 Cases that cite this headnote the apartment complex. The cause was tried to a jury which found the guard negligent and his conduct a proximate cause [2] Mandamus of the assault. The security agency was found negligent but Matters of Discretion its negligence was not found to be a proximate cause. The

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (1985)

damage issue was conditionally submitted and so the jury [1] Although the writ of mandamus is a discretionary did not answer it. Johnson objected to the incomplete verdict remedy, its use is subject to certain conditions. See Appellate before the jury was discharged and asked for a mistrial. The Procedure in Texas, § 1.2(1)(b) (2d ed. 1979). Namely, the mistrial was granted. court of appeals may issue writs of mandamus “agreeable to the principles of law regulating those writs.” TEX.GOV'T The security agency sought mandamus in the court of appeals, CODE § 22.221(b). Mandamus issues only to correct a clear arguing that the mistrial was erroneously granted. The *917 abuse of discretion or the violation of a duty imposed by court of appeals conditionally granted the mandamus in law when there is no other adequate remedy by law. State an unpublished opinion, holding that (1) there was no v. Walker, 679 S.W.2d 484, 485 (Tex.1984). The court of irreconcilable conflict in the jury's answers and (2) Johnson appeals, therefore, acts in excess of its writ power (abuses waived her right to a jury trial on damages by failing to object its discretion) when it grants mandamus relief absent these to the conditional submission of the damages special issue. circumstances. See Peeples v. Fourth Court of Appeals, ––– S.W.2d –––– (Tex.1985); Ginsberg v. Fifth Court of Appeals, In response to the mandamus, the trial court rendered 686 S.W.2d 105 (Tex.1985). judgment that Johnson take nothing from defendants. Johnson, thereafter, timely filed a motion for new trial which [2] A trial court, on the other hand, abuses its discretion was granted. when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. King v. Guerra, The security agency again sought mandamus relief and, in 1 S.W.2d 373, 376 (Tex.Civ.App.—San Antonio 1927, writ an unpublished opinion, the court of appeals again granted ref'd); Bush v. Vela, 535 S.W.2d 803, 805 (Tex.Civ.App.— it, this time overturning the trial court's order of new trial Corpus Christi 1976, mand. overr.). A relator who attacks because it was “granted for the same reasons the mistrial the ruling of a trial court as an abuse of discretion labors was erroneously granted.” Johnson, by mandamus action to under a heavy burden. Lutheran Social Services, Inc. v. this court, seeks to compel the court of appeals to rescind its Meyers, 460 S.W.2d 887, 889 (Tex.1970). The relator must judgment. establish, under the circumstances of the case, that the facts and law permit the trial court to make but one decision. This Since June 19, 1983, the courts of appeals have exercised determination is essential because mandamus will not issue concurrent mandamus jurisdiction with the Supreme Court to control the action of a lower court in a matter involving over district judges of this state. Government Code, ch. 480, discretion. Pat Walker & Company, Inc. v. Johnson, 623 §§ 22.002 and 22.221, 1985 Tex.Sess.Law Serv. 3367, 3369, S.W.2d 306, 308 (Tex.1981). As we wrote in Jones v. 3386 (to be codified at TEX.GOV'T CODE §§ 22.002(a) Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959): and 22.221(b) (Vernon)). As a result of this expansion of jurisdiction, we have increasingly been asked to decide When it is once decided that a whether a court of appeals has abused its discretion in trial judge exercising a “discretionary” granting mandamus relief. This issue typically arises when authority has but one course to the court of appeals grants mandamus relief to a party based follow and one way to decide then upon an abuse of discretion in the trial court. The party the discretionary power is effectually adversely affected by the mandamus judgment seeks review destroyed and the rule which *918 by mandamus in this Court, arguing that the court of appeals purports to grant such power is abused its discretion in holding that the trial court abused its effectively repealed. discretion. The use of the phrase, “abuse of discretion,” to In order to find an abuse of discretion, the reviewing court describe the alleged misfeasance of both the trial court and must conclude that the facts and circumstances of the case the court of appeals is unfortunate because its meaning in extinguish any discretion in the matter. each context is not the same. The discretion exercised by a trial court when ruling on an interlocutory matter is ordinarily [3] We apply these principles in mandamus proceedings. quite broad, whereas the discretion exercised by an appellate Our focus remains on the trial court's order regardless of court possessing mandamus power is much more confined. the court of appeals' decision on mandamus. We make an independent inquiry whether the trial court's order is so arbitrary, unreasonable, or based upon so gross and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (1985)

prejudicial an error of law as to establish abuse of discretion. The security agency argues that Johnson's motion for new A mere error in judgment is not an abuse of discretion. trial was premised on the same grounds asserted in its motion Although we may believe that the court of appeals has for mistrial (that is, waiver of damages and irreconcilable exercised better judgment than the trial court in the matter, we conflict in the jury's answers), which were rejected by the must nevertheless grant the mandamus and direct the court court of appeals. Therefore, the agency urges that the trial of appeals to vacate its judgment if there is some basis in court abused its discretion by granting the new trial on those reason and law for the order of the trial court. If the matter is identical grounds. Johnson's motion for new trial did include a truly one requiring the exercise of discretion, such discretion ground previously presented in her motion for mistrial, that is, lies with the trial court. An appellate court may not substitute no waiver of damages. However, Johnson additionally prayed its discretion for that of the trial court. Davis v. Huey, 571 that the trial court grant her motion for new trial “in the S.W.2d 859, 863 (Tex.1978); Jones v. Strayhorn, 159 Tex. interest of justice and fairness.” The court's order stated that: 421, 321 S.W.2d 290, 295 (1959). The writ of mandamus will issue only in a proper case to correct a clear abuse of After reading said motion for new trial discretion. See Crane v. Tunks, 160 Tex. 182, 328 S.W.2d and hearing argument of counsel on 434 (1959); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 said motion for new trial, [the trial (1956). court] finds that said motion is good and that a new trial should be granted. Trial courts have always had broad discretion in the granting of new trials. Johnson v. Court of Civil Appeals for the The order does not state the grounds on which the trial court Seventh Supreme Judicial Dist. of Texas, 162 Tex. 613, 350 granted Johnson's motion for new trial. Upon inquiry by the S.W.2d 330 (1961); Wright v. Swayne, 104 Tex. 440, 140 security agency, Judge Haberman stated: S.W. 221 (1911). In Johnson, we recognized two instances when a Texas appellate court has overturned the trial court's In total fairness of the entire case, the grant of a new trial. These instances are: court is granting a new trial.

1. When the trial court's order was wholly void as where it The record does not disclose that the new trial was granted was not rendered in the term in which the trial was had; on the same grounds previously overruled by the court of and appeals. We hold that the trial court granted the new trial “in the interest of justice and fairness.” This was not an abuse of 2. Where the trial court has granted a new trial specifying in discretion. Accordingly, the trial court's judgment should not the written order the sole ground that the jury's answers have been disturbed. to special issues were conflicting.

Johnson, 350 S.W.2d at 331. We conditionally grant Johnson's petition for writ of mandamus. The writ will issue only if the court of appeals Neither of the above instances are present in this case. The does not vacate its mandamus judgment. motion for new trial was granted during the trial court's plenary power over the case and the trial court did not specify conflict in answers as grounds for granting the motion.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001) 44 Tex. Sup. Ct. J. 364

Whether a judicial decree is a final, appealable judgment must be determined from its language 39 S.W.3d 191 and the record in the case. Supreme Court of Texas. 34 Cases that cite this headnote Douglas LEHMANN and Virginia Lehmann, Petitioners, v. [3] Judgment HAR–CON CORPORATION, Respondent. Final judgment Melvin G. Harris and Helena M. Harris, Petitioners, A judgment that finally disposes of all remaining v. parties and claims, based on the record in the Harbour Title Company, Respondent. case, is final, regardless of its language.

112 Cases that cite this headnote Nos. 99–0406, 99–0461. | Argued Jan. 26, 2000. | Decided Feb. 1, 2001. [4] Judgment In personal injury action, the 129th District Court, Harris Final judgment County, granted summary judgment in favor of one A judgment that actually disposes of every defendant. Plaintiffs appealed. In unrelated action for tort and remaining issue in a case is not interlocutory breach of contract, the 281st District Court, Harris County, merely because it recites that it is partial or refers granted summary judgment for one defendant. Plaintiffs to only some of the parties or claims. appealed. The Houston Court of Appeals, Fourteenth District, 1998 WL 429853 and 1999 WL 211859, dismissed appeals 11 Cases that cite this headnote as untimely perfected. Plaintiffs in both cases petitioned for review, and cases were consolidated. The Supreme Court, Hecht, J., held that: (1) inclusion of a Mother Hubbard [5] Judgment clause does not indicate that a judgment rendered without a Final judgment conventional trial is final for purposes of appeal, overruling If a court has dismissed all of the claims in a case Mafrige, 866 S.W.2d 590, and (2) orders from which but one, an order determining the last claim is plaintiffs had appealed were not final, appealable judgments. final.

Reversed and remanded. 16 Cases that cite this headnote

Baker, J., filed concurring opinion in which Enoch and [6] Appeal and Error Hankinson, JJ., joined in part. Nature and Scope of Decision If the intent to dispose of all claims is clear from the order, then the order is final and appealable, West Headnotes (12) even though the record does not provide an adequate basis for rendition of judgment.

[1] Appeal and Error 62 Cases that cite this headnote Necessity of final determination As a general rule, an appeal may be taken only [7] Appeal and Error from a final judgment. Nature and Scope of Decision Inclusion of a Mother Hubbard clause—which is 320 Cases that cite this headnote the statement, “all relief not granted is denied,” or essentially those words—does not indicate [2] Appeal and Error that a judgment rendered without a conventional Final Judgments or Decrees

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001) 44 Tex. Sup. Ct. J. 364

trial is final for purposes of appeal; overruling Order that did not indicate that it was a final Mafrige v. Ross, 866 S.W.2d 590. judgment and did not dispose of all pending claims and parties was not a final, appealable 109 Cases that cite this headnote judgment.

330 Cases that cite this headnote [8] Appeal and Error Nature of remedy by dismissal Right to appeal should not be lost by an overly [12] Appeal and Error technical application of the law. Finality as to All Parties Appeal and Error 5 Cases that cite this headnote Determination of part of controversy Order stating that plaintiffs took nothing as [9] Appeal and Error to “one of the defendants” was not a final, Final Judgments or Decrees appealable judgment; language did not suggest In cases in which only one final and appealable that all of plaintiffs' claims were denied, and judgment can be rendered, when there has not defendant named in order was not the only been a conventional trial on the merits, an order defendant remaining in the case. or judgment is not final for purposes of appeal 100 Cases that cite this headnote unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties. Attorneys and Law Firms 626 Cases that cite this headnote *192 Howard R. King, Hill Angel & King, Houston, for Petitioner in No. 99-0406. [10] Appeal and Error Finality as to All Parties James E. Simmons, Simmons & Lawrence, John H. Appeal and Error Thomisee, Jr., Henry S. Platts, Chalker Bair, Houston, for Determination of part of controversy Respondent in No. 99-0406. An order does not dispose of all claims and James F. Tyson, Houston, Jerry D. Conner, Conner & Dreyer, all parties, for purposes of appealability, merely Houston, for Petitioner in No. 99-0461. because it is entitled “final,” or because the word “final” appears elsewhere in the order, or Ben A. Baring, Paul J. McConnell, III, DeLange Hudspeth even because it awards costs, nor does an order McConnell & Tibbetts, Houston for Respondent in No, completely dispose of a case merely because it 99-0461. states that it is appealable; rather, there must be some other clear indication that the trial court Opinion intended the order to completely dispose of the Justice HECHT delivered the opinion of the Court, in which entire case. Chief Justice PHILLIPS, Justice OWEN, Justice ABBOTT, 236 Cases that cite this headnote and Justice O'NEILL joined.

In these two consolidated cases we revisit the persistent [11] Appeal and Error problem of determining when a judgment rendered without a Finality as to All Parties conventional trial on the merits is final for purposes of appeal. Appeal and Error We consider only cases in which one final and appealable Determination of part of controversy judgment can be rendered and not cases, like some probate and receivership proceedings, in which multiple judgments final for purposes of appeal can be rendered on certain

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discrete issues. 1 And we consider a judgment's finality only denied the Lehmanns' motion and granted Har–Con's motion. for purposes of appeal and not for other purposes, such as The court's order granting Har Con's motion stated in full:

issue and claim preclusion. 2 In Mafrige v. Ross, 3 we held that a summary judgment is final if it contains language purporting to dispose of all claims and parties. We gave as [caption] one example of such language what we have called a “Mother Hubbard” clause 4 —a recitation that all relief not expressly ORDER 5 granted is denied. Since then, the routine inclusion of this general statement in otherwise plainly interlocutory orders On this 12 day of March, 1998 came on to be and its ambiguity in many contexts have rendered it inapt for considered the Motion for Summary Judgment of HAR– determining finality when there has not been a conventional CON CORPORATION. After considering the motion, trial. We no longer believe that a Mother Hubbard clause in an the response, the summary judgment evidence and the order or in a judgment issued without a full trial can be taken argument of counsel, the Court is of the opinion that the to indicate finality. We therefore hold that in cases in which motion should be in all things granted. It is therefore, only one final and appealable judgment can be rendered, ORDERED, ADJUDGED AND DECREED that a judgment issued without a conventional trial is final for the Motion for Summary Judgment by HAR–CON purposes of appeal if and only if either it actually disposes of CORPORATION be and it is hereby GRANTED. all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final All relief not expressly granted herein is denied. judgment *193 as to all claims and all parties. In the two cases before us, the court of appeals concluded that judgments Signed this the 12 day of March, 1998 that do not meet this test were final and dismissed the appeals s/__________ as having been untimely perfected. 6 We reverse and remand for consideration of the merits of the appeals. JUDGE PRESIDING

[s/ Attorneys for Har–Con Corporation]

I The order did not reference Virginia's claims on behalf of her son against Har–Con, although it would appear that Har Con's summary judgment on its indemnity claim Lehmann v. Har–Con Corp. would effectively bar recovery for Virginia's son. The order Douglas and Virginia Lehmann sued the University of St. also did not reference Virginia's son's claims against the Thomas and Har–Con Corp. in the district court in Harris University, which would not appear to be affected by Har– County to recover damages for injuries Douglas suffered in a Con's summary judgment. The order contained a “Mother construction accident. The University cross-claimed against Hubbard” clause stating that “[a]ll relief not expressly Har–Con for indemnity. The Lehmanns settled with Har–Con granted herein is denied.” and executed a release, agreeing in part to indemnify Har–Con The district clerk advised the Lehmanns by postcard that an against certain claims which had been or could be asserted interlocutory summary judgment order had issued. The record by or through them. Virginia then filed an amended petition does not reflect whether the parties received a copy of the on behalf of her minor son against both defendants, claiming actual order after it was signed. The Lehmanns tell us that damages for loss of parental consortium because of his the practice of the district clerk in Harris County is not to father's injuries. In response, Har–Con filed a counterclaim send copies of orders to the parties but to give parties notice against Virginia and a third-party petition against Douglas, by postcard when orders are signed. The notice does not seeking indemnity from them under the terms of their prior completely describe the content of the order. release. The Lehmanns appear to have believed that the summary The Lehmanns and Har–Con all moved for summary judgment order was interlocutory because they moved to judgment on Har–Con's indemnity claims. The district court sever it and Har–Con's claims into a separate action, ostensibly to make the summary judgment final. The court

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granted the motion to sever on the twenty-fifth day after the summary judgment order was signed. Twenty-eight days after On August 28, 1998, came on to be heard the Motion for the severance *194 order was signed, the Lehmanns noticed Summary Judgment of one of the defendants, Harbour Title their appeal from the summary judgment order. Company, and the Court having considered the Motion, together with any response, and the supplemental briefing If the summary judgment was not final until the severance filed by the parties to date is of the opinion that said Motion order was signed, then the Lehmanns' appeal was timely. But is with merit and should be granted. It is therefore the court of appeals held that the summary judgment order ORDERED that defendant Harbour Title Company's was final when it issued because of the Mother Hubbard Motion for Summary Judgment is in all things granted; clause and that the order was not modified by the severance it is further so as to restart the time for perfecting appeal. 7 Because the Lehmanns did not perfect appeal within thirty days of the ORDERED that the Plaintiffs, Melvin G. Harris and signing of the order as prescribed by the rules of appellate Helena M. Harris take nothing as to any of their claims procedure, 8 the court dismissed the appeal for want of against Harbour Title Company. jurisdiction. In holding that the summary judgment order was All relief requested and not herein granted is denied. final, the court followed our decision in Mafrige, although the court expressed concerns that the inclusion of a Mother SIGNED this 15 day of October 1998. Hubbard clause in an otherwise plainly interlocutory order should not make the order final. s/__________

JUDGE PRESIDING We granted the Lehmanns' petition for review and consolidated it for argument and decision with Harris v. APPROVED AND ENTRY REQUESTED: Harbour Title Co. 9 [s/ Attorneys for Harbour Title Company]

Although the order did not reference the Harrises' Harris v. Harbour Title Co. pending claims against the Rice defendants, it nevertheless contained a Mother Hubbard clause stating that “[a]ll relief Melvin and Helena Harris sued five defendants—Greenfield requested and not herein granted is denied.” Financial Corp. and Larry J. Greenfield (“the Greenfield The Harrises assert that they received notice of the order defendants”), Tim Rice and Rice Development, Inc. (“the by a postcard that described the order as an interlocutory Rice defendants”), and Harbour Title Co.—in the district summary judgment, but the postcard is not in our record. The court in Harris County on breach-of-contract and tort claims record does not reflect whether the parties obtained a copy arising from a conveyance of real property. The court granted of the order after it was signed. It appears that the district an interlocutory default judgment against Tim Rice on clerk followed her usual procedure of notifying the parties by liability only, leaving for later a determination of the damages *195 postcard in lieu of providing copies of the order. to be assessed against him. The Harrises nonsuited their claims against the Greenfield defendants. The fifth defendant, The district court apparently did not consider the summary Harbour Title Co., moved for summary judgment, which the judgment order to be final; forty-six days after it was signed, court granted with the following order: the court generated a form order setting the case for trial the next year. The Harrises, too, appear to have believed the summary judgment to be interlocutory; two weeks after the [caption] order issued setting the case for trial, the Harrises obtained what was captioned a “Final Default Judgment” against the Rice defendants. Twenty-five days later the Harrises noticed Order Granting Harbour Title Company's their appeal from Harbour Title's summary judgment.

Motion for Summary Judgment If Harbour Title's summary judgment did not dispose of the Harrises' claims against the Rice defendants, and the default

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judgment against those defendants was the final order in the may dispose of all parties and claims by general language or case, then the Harrises' appeal was timely. But following inference, a party or trial court may think that a judgment is Mafrige, as it had done in Lehmann, the court of appeals interlocutory, only to be told later by the appellate court after concluded that the summary judgment order was final and the time for appeal has passed that the judgment was final. A therefore dismissed the appeal as not having been timely party who is uncertain whether a judgment is final must err perfected. We granted the Harrises' petition for review and on the side of appealing or risk losing the right to appeal. consolidated it with Lehmann for argument and decision. 10 In 1881, after struggling with these problems for many years, 17 we attempted to resolve them in the case of Linn

II v. Arambould. 18 There we stated that a final judgment after trial must dispose of the issues “intrinsically, and not inferentially.” 19 That is, specificity was strictly required. A The results of this rule were predictable. Appellate courts [1] [2] Though its origins are obscure and its rationale frequently declared shabbily drafted judgments interlocutory even though the trial courts and the parties had obviously has varied over time, 11 the general rule, with a few mostly statutory exceptions, is that an appeal may be taken only intended for them to be final. 20 Confused parties were spending time and money attempting to appeal from possibly from a final judgment. 12 A judgment is final for purposes final judgments, only to have the appellate courts dismiss of appeal if it disposes of all pending parties and claims in the appeals for want of jurisdiction. 21 As this Court later the record, except as necessary to carry out the decree. 13 reflected on Arambould 's intrinsic-disposition requirement (An order that does not dispose of all pending parties and for finality: claims may also be final for purposes of appeal in some instances, such as orders that resolve certain discrete issues in some probate 14 and receiverships 15 cases, but we exclude By its application most judgments easily became black or those cases from consideration here. Nor do we consider white—final or interlocutory; but all too often judgments when a judgment may be final for purposes other than appeal, which were obviously intended to be final were being such as claim and issue preclusion. 16 ) Because the law held interlocutory because of careless draftsmanship. The does not require that a final judgment be in any particular rule had to be changed to accommodate oversight or form, whether a judicial decree is a final judgment must be carelessness. 22 determined from its language and the record in the case. In 1896 we altered course. In Rackley v. Fowlkes, 23 the Since timely perfecting appeal (as well as filing certain post- plaintiff had, in a prior suit, sued for title to real property and judgment motions and requests) hangs on a party's making for rent for the four years the property was in the defendant's this determination correctly, certainty is crucial. possession, but at trial he offered no evidence of the amount of rent due until after the evidence was closed, and because From the beginning, however, certainty in determining the offer was late the court refused to hear it. The court in whether a judgment is final has proved elusive. What has that suit rendered judgment awarding title to the plaintiff vexed courts in this State and elsewhere is this: must a final without mentioning his claim for rent. When the plaintiff filed judgment dispose of all parties and claims specifically, or a second suit for the rent, the defendant asserted res judicata may it do so by general language or even by inference? If a in defense. The trial court rendered judgment for the plaintiff, specific disposition of each party and *196 claim is strictly concluding that the rent claim had not been adjudicated in required, a judgment apparently intended by the parties and the prior suit, and the court of civil appeals affirmed. We the trial court to be final and appealable may not be. An appeal reversed the judgments of the lower courts, not because the from such a judgment must be dismissed or at least abated, rent claim should have been adjudicated *197 in the first resulting in delay and a waste of the courts' and the parties' suit, but because it was adjudicated: resources. More importantly, if a judgment intended to be final did not meet the strict requirements, then the case would remain open, allowing the possibility of further proceedings The proposition seems to be sound in principle and and appeal years later. On the other hand, if a judgment well supported by authority that where the pleadings and

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judgment in evidence show that the pleadings upon which the trial was had put in issue plaintiff's right to recover upon two causes of action, and the judgment awards him We feel constrained to hold that the judgment of the trial a recovery upon one, but is silent as to the other, such court, although irregular and imperfect in form, is sufficient judgment is prima facie an adjudication that he was not to support the appeal. However, we feel impelled to say, entitled to recover upon such other cause. This liberal also, that we think that, as a matter of practice, and to avoid construction of the judgment against the party who sought confusion, every final judgment should plainly, explicitly, to recover therein is supported by the presumption that and specifically dispose of each and every party to the the court performed the duty devolved upon it upon the cause, and of each and every issue therein presented by the submission of the cause by disposing of every issue pleadings. 31 presented by the pleadings so as to render its judgment *198 Two cases decided after Trammell suggest that the final and conclusive of the litigation, and by the further fact entire record should be considered in determining whether that the policy of the law favors the speedy settlement of a post-trial judgment is final. In Hargrove v. Insurance litigation and opposes the harassing of the defendant with Investment Corp., we held that a judgment for the plaintiff two suits for the same cause. 24 was final when “considered as a whole in the light of the entire Three years later we used the rule stated for purposes of res record”. 32 Similarly, in Ferguson v. Ferguson, we held that judicata in Rackley to determine whether a judgment was final a judgment awarding the plaintiff recovery on some of her for purposes of appeal. In Davies v. Thomson, 25 the plaintiffs claims while silent as to others was final, stating that “[i]n sued for money and an interest in real property as their share arriving at whether or not a judgment is final, the pleadings of a joint venture. The trial court rendered judgment on a jury and evidence must also be taken into consideration”. 33 verdict awarding the plaintiffs money without mentioning Neither case should be read to deviate from the presumptive the claim for an interest in real property. We held that the rule of Trammell. We did not hold in either case that the judgment disposed of both claims was therefore final and record could be used to show that a post-trial judgment final appealable. 26 on its face was really not final. In two other cases during the same time period we did not mention the record in applying Neither Rackley nor Davies mentioned Arambould or Trammell. 34 attempted to reconcile their results with the rule in that case, thereby generating confusion in the appellate courts In 1966, we reaffirmed Rackley, Davies, and Trammell in over how to determine finality in cases involving cross- North East Independent School District v. Aldridge. 35 The claims and counterclaims. Some courts treated judgments that school district sued Aldridge for breach of contract, and he merely implicitly disposed of all claims as final, while other asserted in his defense that he had contracted only as an agent courts required that final judgments expressly adjudicate for his principal. He also brought a third-party action against each claim. 27 In 1913, the Court resolved the conflict in his principal, alleging that the principal was responsible for Trammell v. Rosen, 28 rejecting the rule stated in Arambould. any damages to which the school district might be entitled. The plaintiff in Trammell sued on a promissory note secured The trial court granted a partial summary judgment holding by property that the defendant and his wife claimed was Aldridge personally liable to the district and directed that the their homestead. The couple counterclaimed to establish their case proceed to trial to determine the amount of damages homestead claim and for damages for wrongful sequestration. to be awarded. The parties then stipulated to the amount of The trial court instructed a verdict for the plaintiff on his damages, and the trial court rendered judgment for the district claim and against the defendants on their counterclaim. against Aldridge based on the stipulation. The judgment The judgment recited the verdict and awarded damages did not mention Aldridge's third-party action against his principal. The court of civil appeals dismissed Aldridge's to the plaintiff but did not mention the counterclaim. 29 Citing Rackley, the Court concluded that the judgment was appeal, holding that the trial court's judgment was not final. 36 final, reasoning that by granting the plaintiff's claim the We held that the judgment against Aldridge disposed of the trial court implicitly but necessarily denied the defendants' third-party action and was final for purposes of appeal. After reviewing the courts' historical difficulties in making finality counterclaim. 30 Still, the Court strongly encouraged courts determinations, we stated the following rule to expressly address each claim and party in final judgments to avoid further confusion:

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Citing Trammell, the Court acknowledged that while a final for determining, in most instances, whether judgments in judgment need not expressly dispose of each issue so long which parties and issues made by the pleadings are not as other provisions of the judgment necessarily imply that disposed of in express language are, nevertheless, final the unmentioned issues have been disposed of, a dismissal of for appeal purposes. When a judgment, not intrinsically the plaintiff's suit did not necessarily imply a disposal of the interlocutory in character, is rendered and entered in a case defendant's cross-action . 43 The Court explained: regularly set for conventional trial on the merits, no order for a separate trial of issues having been entered ..., it will be presumed for appeal purposes that the Court intended [I]f the court had intended to merely sustain the to, and did, dispose of all parties legally before it and of all plea in abatement and dismiss plaintiff's suit, and had issues made by the pleadings between such parties. 37 intended to retain the defendant's cross-action for further We added: “Of course, the problem [of determining whether consideration, it would have entered the very judgment that judgments are final] can be eliminated entirely by a careful was entered in this case. The mere failure of the judgment drafting of judgments to conform to the pleadings or by to refer to defendant's cross-action was not sufficient in inclusion in judgments of a simple statement that all relief itself to raise an inference that it was thereby intended to not expressly granted is denied.” 38 Inclusion of a catch-all dispose of the cross-action. 44 statement—which we later denominated a “Mother Hubbard” Although the judgment did not “merely” sustain the plea in clause 39 —would make clear that a post-trial judgment on the abatement but also decreed that the plaintiff take nothing, the merits, presumed to have disposed of all claims, did indeed inclusion of the dismissal in the judgment as the first basis do so. for decision was enough to make Trammell 's presumptive finality rule inapplicable.

Davis may have departed too far from Trammell. The trial *199 B court's decree following a jury trial on the merits that the plaintiff take nothing without mention of the defendant's The presumption that a judgment rendered after a counterclaim should perhaps have been presumed to deny conventional trial on the merits is final and appealable has all relief, despite the alternative ruling that the plaintiff's proved fairly workable for nearly a century, but we have claim should be dismissed. But regardless of Davis 's unusual never thought that it could be applied in other circumstances, circumstances, the case makes the point, which we expressly as we first explained nearly sixty years ago. In Davis v. acknowledged in Aldridge, that “[i]t will not be presumed that McCray Refrigerator Sales Corp., 40 the plaintiff sued for the a judgment dismissing a plaintiff's suit on nonsuit, plea to the unpaid balance of the purchase price of a refrigerator, and jurisdiction, plea in abatement, for want of prosecution, etc., the defendant counterclaimed for cancellation of the debt and also disposed of the issues in an independent cross-action.” 45 for damages for payments already made and lost merchandise due to improper refrigeration. The defendant also filed a plea We have since held that “etc.” includes default judgments in abatement on the grounds that the plaintiff was a foreign corporation not licensed to do business in Texas and therefore and summary judgments. 46 The reason for not applying a not entitled to sue in state court. The trial court deferred presumption in any of these circumstances *200 is that the ruling on the defendant's plea until after the case was tried ordinary expectation that supports the presumption that a on the merits. After the jury returned a verdict, the trial court judgment rendered after a conventional trial on the merits rendered judgment both that the plaintiff's claim be dismissed will comprehend all claims simply does not exist when some form of judgment is rendered without such a trial. On the and that the plaintiff take nothing. 41 The only basis the trial contrary, it is quite possible, perhaps even probable these court had for dismissal was the defendant's plea in abatement, days in cases involving multiple parties and claims, that any while the only basis for rendering a take-nothing judgment judgment rendered prior to a full-blown trial is intended to was plaintiff's failure of proof at trial. The judgment did dispose of only part of the case. Accordingly, the finality of not mention the defendant's counterclaim. The court of civil the judgment must be determined without the benefit of any appeals rejected the defendant's argument that the judgment presumption. was interlocutory and reversed and rendered judgment for the plaintiff. 42 This Court reversed and dismissed the appeal.

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[3] [4] [5] A judgment that finally disposes of all *201 We held that this language conclusively disposed of all remaining parties and claims, based on the record in the case, parties and issues, as it clearly did, although in reaching this 47 conclusion, we reiterated our observation in Aldridge that the is final, regardless of its language. A judgment that actually disposes of every remaining issue in a case is not interlocutory finality of a judgment would be made clear “by inclusion ... merely because it recites that it is partial or refers to only of a simple statement that all relief not expressly granted some of the parties or claims. Thus, if a court has dismissed is denied.” 53 This observation, appropriate in Aldridge in all of the claims in a case but one, an order determining the reference to judgments after a conventional trial on the merits, last claim is final. 48 This is settled law in Texas, and while was misleading in Schlipf, because the only “relief” properly there have been proposals to change it by rule, proposals that under consideration when the order issued was that raised are currently pending consideration by this Court's Advisory by the motion for summary judgment 54 —the plaintiffs' Committee, we are not inclined to depart from it here. The entitlement to royalties. After a full trial on the merits, the language of an order or judgment cannot make it interlocutory statement in a judgment that all relief not requested is denied when, in fact, on the record, it is a final disposition of the case. signifies finality; there is no expectation that the court tried only part of the case, absent an order for severance or separate [6] But the language of an order or judgment can make it trials. But after a motion for partial summary judgment, the final, even though it should have been interlocutory, if that same statement in a judgment is ambiguous. It may refer language expressly disposes of all claims and all parties. It only to the motion on which the trial court is ruling, not to is not enough, of course, that the order or judgment merely all claims of all parties, and not even to other claims of the use the word “final”. The intent to finally dispose of the case movant. must be unequivocally expressed in the words of the order itself. But if that intent is clear from the order, then the order is Two years later, in Teer v. Duddlesten, we emphasized final and appealable, even though the record does not provide that the Aldridge language—all relief not expressly granted an adequate basis for rendition of judgment. So, for example, is denied—which we termed for the first time a “Mother if a defendant moves for summary judgment on only one of Hubbard” clause, has no place in partial summary judgments four claims asserted by the plaintiff, but the trial court renders because, by definition, those proceedings do not address all judgment that the plaintiff take nothing on all claims asserted, of the facts and issues in a case. 55 A Mother Hubbard clause, 49 the judgment is final—erroneous, but final. A judgment we said, could not convert a partial summary judgment into that grants more relief than a party is entitled to is subject to a final order. 56 Following Teer, most courts of appeals held reversal, but it is not, for that reason alone, interlocutory. 50 that a Mother Hubbard clause could not make final a judgment rendered without a full trial, 57 although other courts reached Texas appellate courts, this Court included, have had the contrary conclusion. 58 difficulty determining when a judgment is final on its face —by its own express terms, in other words—even though it should not have been because no sufficient basis for rendering We attempted to clarify matters in Mafrige v. Ross. 59 There, two plaintiffs sued some twelve defendants for malicious a final judgment was presented. In Schlipf v. Exxon Corp., 51 the plaintiffs sued for gas royalties and prejudgment interest, prosecution, slander, libel, conspiracy, and negligence. 60 and moved for summary judgment only on the royalties issue. No party other than the plaintiffs asserted any claims. The Neither the defendant nor an intervenor moved for summary defendants, some individually and some in groups, filed a judgment against the plaintiffs. The trial court granted the total of eight summary judgment motions, some directed plaintiffs' motion, awarding the royalties claimed, but denied against one of the plaintiffs and some against both. 61 Only prejudgment interest. The judgment recited: one motion addressed both of the plaintiffs and all of the claims asserted; 62 even together, the other seven motions did

the relief herein granted Plaintiffs, ... is in satisfaction of not address both plaintiffs and all claims. 63 The trial court all of their claims and causes of action ... and all claims granted all eight motions with eight separate orders, one for and/or causes of action herein asserted by all parties herein each motion. 64 Each order stated that the *202 plaintiff or and not herein granted are hereby in all things denied and plaintiffs, depending on whether the motion had been directed concluded.... 52 at one or both, were to take nothing against the movant or

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movants. 65 Thus, taken together, the eight orders provided Defendants”, but also ordering that summary judgment was that both of the plaintiffs were to take nothing against all of proper “as to all remaining Defendants”, thereby suggesting the defendants. On the plaintiffs' appeal, however, the court that the court intended to render a final summary judgment. 71 of appeals held that there was not a final judgment because However, the trial court subsequently severed the summary most of the defendants had not moved for summary judgment judgment by order inviting other defendants to move on the on all claims by both plaintiffs and thus were not entitled same grounds. 72 Although this order contained a Mother to a final judgment, and the “take nothing” language of the Hubbard clause, we held that judgment had not been rendered orders did not make them final. 66 The court also held that if for the non-moving defendants. 73 the orders had contained Mother Hubbard clauses they would have been final under this Court's precedents, although the But in Bandera Electric Cooperative, Inc. v. Gilchrist, 74 we court of appeals did not agree that that would have been the held that a Mother Hubbard clause in a summary judgment proper result. 67 made it final. There the plaintiff moved for summary judgment on its claims without mentioning the defendant's We reversed, holding that the “take nothing” language in counterclaims. 75 The defendant did not move for summary the eight summary judgment orders disposed of all claims judgment. The trial court *203 granted the plaintiff's asserted by both plaintiffs against each of the defendants and motion by order that included a Mother Hubbard clause. thus constituted a final judgment. We then explained: We concluded that the order was final, albeit erroneous. 76 If a summary judgment order appears We attempted to explain that our ruling was consistent with to be final, as evidenced by the Martinez because the conflict in the orders involved in that inclusion of language purporting to case showed that they were not final even though “a Mother dispose of all claims or parties, the Hubbard clause ... would have created a final and appealable judgment should be treated as final for judgment”. 77 Besides its obvious inadequacy in explaining purposes of appeal. If the judgment the result in Martinez, this explanation suggested that a grants more relief than requested, it Mother Hubbard clause would by itself make any summary should be reversed and remanded, but judgment final, contrary to our holding in Teer. not dismissed. We think this rule to be practical in application and effect; Determining the significance of omitting a Mother Hubbard litigants should be able to recognize clause in an order has been no easier. In Park Place Hosp. a judgment which on its face purports v. Estate of Milo, we suggested that the absence of a Mother to be final, and courts should be able Hubbard clause indicated that a summary judgment was to treat such a judgment as final for intended to be interlocutory. 78 There, the trial court granted 68 purposes of appeal. summary judgment for three of five remaining defendants and later severed the judgment from the case. We concluded that As examples of “language purporting to dispose of all claims the judgment did not become final for purposes of appeal or parties,” we gave not only the “take nothing” language until it was severed, in part based on the omission of a of the orders before us, and the statement that summary Mother Hubbard clause. But in two other cases we held judgment is granted as to all claims asserted, but also the that the omission of a Mother Hubbard clause did not make standard Mother Hubbard clause-that all relief not expressly a summary judgment interlocutory that otherwise appeared granted is denied. 69 In so doing we revived the ambiguity final. In Continental Airlines, Inc. v. Kiefer, 79 the defendant created in Schlipf that Teer had tried to end. moved for summary judgment “on all claims brought by” the plaintiffs. After the motion was filed, but before it was The ambiguity has persisted in our decisions. In Martinez v. heard and decided, the plaintiffs amended their pleadings Humble Sand & Gravel, Inc., 70 we held that the inclusion of to add additional claims. The defendant did not amend its a Mother Hubbard clause in an order did not necessarily make motion to address these later claims. The trial court granted it final. There, some but not all of the defendants moved for what it entitled a “final summary judgment”, dismissing summary judgment, and the trial court granted the motions, the plaintiffs' cause of action—“cause”, singular—although dismissing the plaintiff's cause of action against “those

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multiple causes of action had been asserted. We held that the orders so frequently that it cannot be taken as any indication judgment was final, explaining as follows: of finality.

As we have already explained, an order can be a final Finality “must be resolved by a determination of the judgment for appeal purposes even though it does not purport intention of the court as gathered from the language of the to be if it actually disposes of all claims still pending in the decree and the record as a whole, aided on occasion by the case. Thus, an order that grants a motion for partial summary conduct of the parties.” 5 RAY W. MCDONALD, TEXAS judgment is final if in fact it disposes of the only remaining CIVIL PRACTICE § 27:4[a], at 7 (John S. Covell, ed., issue and party in the case, even if the order does not say that it 1992 ed.); see Ferguson v. Ferguson, 161 Tex. 184, 338 is final, indeed, even if it says it is not final. (Again, we do not S.W.2d 945, 947 (1960). In the circumstances described consider here the various kinds of cases in which there may be here, we think the district court intended to render a final, more than one final judgment for purposes of appeal.) Also, appealable judgment.... Neither the parties nor the court of an order can be final and appealable when it should not be. For appeals have suggested that the judgment was not final. 80 example, an order granting a motion for summary judgment The judgment did not include a Mother Hubbard clause, but that addressed all of the plaintiff's claims when it was filed but we did not find its omission significant. We reached a similar did not address claims timely added by amendment after the conclusion in Inglish v. Union State Bank. 81 motion was filed may state unequivocally that final judgment is rendered that the plaintiff take nothing by his suit. Granting In sum, our opinions have not been entirely consistent on more relief than the movant is entitled to makes the order whether the inclusion or omission of a Mother Hubbard clause reversible, but not interlocutory. 83 does or does not indicate that a summary judgment is final for purposes of appeal. This ambivalence has resulted in While the present problems in determining whether an order 82 is a final judgment should be lessened significantly by considerable confusion in the courts of appeals. denying the standard Mother Hubbard clause of any indicia of finality in any order not issued after a conventional trial, the difficulty in determining what does make an order III final and appealable remains. One solution would be stricter requirements for the form of a final judgment. Rule 58 of A the Federal Rules of Civil Procedure takes this approach by requiring that to be final a judgment must “be set forth on a [7] Much confusion can be dispelled by holding, as we now separate document” and be entered by the clerk on the civil do, that the inclusion of a Mother Hubbard clause—by which docket. The separate-document requirement was added to the we mean the statement, “all relief not granted is denied”, rule in 1963 to remove uncertainty over whether a trial judge's or essentially those words— *204 does not indicate that a opinion or order constituted a final judgment. 84 Rule 58, with judgment rendered without a conventional trial is final for its dual requirements, “ ‘enhances certainty by insisting on purposes of appeal. We overrule Mafrige to the extent it states formality.’ ” 85 The United States Supreme Court has insisted otherwise. If there has been a full trial on the merits either to on strict compliance with the rule, quoting Professor Moore's the bench or before a jury, the language indicates the court's observation that the rule intention to finally dispose of the entire matter, assuming that a separate or bifurcated trial is not ordered. But in an order on an interlocutory motion, such as a motion for partial summary “ ‘would be subject to criticism for its formalism were it judgment, the language is ambiguous. It may mean only that not for the fact that something like this was needed to make the relief requested in the motion—not all the relief requested certain when a judgment becomes effective, which has a by anyone in the case—and not granted by the order is denied. most important bearing, inter alia, on the time for appeal The clause may also have no intended meaning at all, having and the making of post-judgment motions that go to the been inserted for no other reason than that it appears in a form finality of the judgment *205 for purposes of appeal.’ ” 86 book or resides on a word processor. For whatever reason, the standard Mother Hubbard clause is used in interlocutory The one recognized exception is a party's failure to object. 87

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The price of certainty, however, as federal rulemakers his claims against X” when there is more than one defendant have come to realize, is that in many cases the failure to or other parties in the case does not indicate finality. comply with Rule 58 means that no final judgment was ever rendered, and the time for appeal remains open. 88 A To determine whether an order disposes of all pending claims proposed amendment to Rule 58 would provide that if final and parties, it may of course be necessary for the appellate judgment is not rendered on a separate document, it is deemed court *206 to look to the record in the case. Thus, in the rendered on the sixtieth day after the clerk's entry on the civil example just given, if the record reveals that there is only one plaintiff and only one defendant, X, the order is final, but if the docket. 89 While this proposal helps ensure that every case record reveals the existence of parties or claims not mentioned will be closed, it also makes it more likely that a party will in the order, the order is not final. On the other hand, an order not be aware that the time for appeal is running—the problem that expressly disposes of the entire case is not interlocutory the 1963 amendment to Rule 58 was meant to cure—because merely because the record fails to show an adequate motion he does not know of the clerk's entry on the civil docket. or other legal basis for the disposition. The record may help illumine whether an order is made final by its own language, There may be other solutions to these dilemmas which could so that an order that all parties appear to have treated as final be implemented by changes in our own rules, and this Court's may be final despite some vagueness in the order itself, while Advisory Committee is presently studying the issues. But we an order that some party should not reasonably have regarded do not write rules by opinion. 90 We must decide what Texas as final may not be final despite language that might indicate law requires for finality given the present rules. otherwise.

[8] [9] [10] In the past we have tried to ensure that the One may argue after Aldridge and Mafrige that it is perilous right to appeal is not lost by an overly technical application to suggest any particular language that will make a judgment 91 of the law. Fundamentally, this principle should guide final and appealable because that language can then be in determining whether an order is final. Simplicity and inserted in orders intended to be interlocutory. But to leave certainty in appellate procedure are nowhere more important in doubt the degree of clarity required for finality creates than in determining the time for perfecting appeal. From the its own problems. The Mother Hubbard clause proved to cases we have reviewed here, we conclude that when there give no indication of finality not just because it found its has not been a conventional trial on the merits, an order way into every kind of order, but because it was inherently or judgment is not final for purposes of appeal unless it ambiguous, as we have explained. A statement like, “This actually disposes of every pending claim and party or unless judgment finally disposes of all parties and all claims and is it clearly and unequivocally states that it finally disposes of appealable”, would leave no doubt about the court's intention. all claims and all parties. An order that adjudicates only the An order must be read in light of the importance of preserving plaintiff's claims against the defendant does not adjudicate a party's right to appeal. If the appellate court is uncertain a counterclaim, cross-claim, or third party claim, nor does about the intent of the order, it can abate the appeal to permit an order adjudicating claims like the latter dispose of the clarification by the trial court. 92 But if the language of plaintiff's claims. An order that disposes of claims by only one the order is clear and unequivocal, it must be given effect of multiple plaintiffs or against one of multiple defendants despite any other indications that one or more parties did not does not adjudicate claims by or against other parties. An intend for the judgment to be final. An express adjudication order does not dispose of all claims and all parties merely of all parties and claims in a case is not interlocutory because it is entitled “final”, or because the word “final” merely because the record does not afford a legal basis for appears elsewhere in the order, or even because it awards the adjudication. In those circumstances, the order must be costs. Nor does an order completely dispose of a case merely appealed and reversed. because it states that it is appealable, since even interlocutory orders may sometimes be appealable. Rather, there must be some other clear indication that the trial court intended the order to completely dispose of the entire case. Language that B the plaintiff take nothing by his claims in the case, or that the [11] [12] Nothing in the order in Lehmann indicates that it case is dismissed, shows finality if there are no other claims is a final judgment, and it did not dispose of all pending claims by other parties; but language that “plaintiff take nothing by and parties. The order in Harris states that plaintiffs take

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nothing as to “one of the defendants”, but that language does moved for summary judgment on only one of the claims. 96 not suggest that all of the plaintiffs' claims were denied. As Again in Young v. Hodde, we agreed that a Mother Hubbard the order recites and as the record demonstrates, the defendant clause in an order granting summary judgment for the plaintiff named in the order was not the only defendant remaining disposed of a defendant's counterclaim, even though the in the case. Thus, we conclude that a final and appealable plaintiff's motion had addressed only his own claims and judgment was not rendered in either case. not the counterclaim. 97 It has simply never been the law in Texas that a summary judgment generally disposing of We are concerned that in neither case were the non-movants all claims and parties is nevertheless interlocutory merely provided a copy of the court's signed order but were merely because rendition of a final judgment was improper. In sent notice by postcard that an order had been signed. The essence, the concurring opinion's position is that a trial court Rules of Civil Procedure do not require clerks to send all has no jurisdiction to grant more relief than is requested, and parties copies of all orders, only final orders. 93 Nevertheless, that if it does so, its action is absolutely void. We do not agree the practice of courts in some counties is to require that a that a court's power to act, as distinct from the proper exercise party seeking an order provide copies and addressed, postage- of that power, is defined by a party's request for relief. paid envelopes for all other parties. The Court's Advisory Committee should consider whether the rules should require The concurring opinion acknowledges that its position may that all parties be given copies of all orders signed in a case. result in more appeals being taken from orders that look final but are really interlocutory, but it argues that appellate courts can easily deal with such problems by abating appeals to IV allow trial courts to clarify their orders. What the concurring opinion ignores is that trial courts and parties will assume We must respond briefly to the concurring opinion. It would that orders with general dispositive language mean what they hold that no “type of conclusory finality language can ever say, only to learn months or years after an appeal should be read to grant more relief than requested by the parties.” 94 have been taken that no final judgment was ever rendered. This goes too far. The legitimate problem with Mother JUSTICE BAKER would insist that every order granting Hubbard clauses, which we failed to appreciate in Mafrige, summary judgment is that they are ambiguous: one cannot be sure whether the specifically identify: (1) the claims denial of all relief other than what has been expressly *207 each party brought; (2) the grounds granted is limited to relief requested in a motion or extends to upon which each party seeks summary all relief requested in the litigation. But it is a long way from judgment; (3) each ground upon the now well-established fact that Mother Hubbard clauses which the trial court granted summary can understandably be misread to the concurring opinion's judgment; and (4) each ground upon conclusion that clear language should be given no meaning. which the trial court denied summary We require certainty for finality, but we cannot say that judgment. certainty is impossible. Any order that failed to meet these requirements would be The concurring opinion claims as authority for its position interlocutory, according to JUSTICE BAKER, “regardless of pre-Mafrige law, but before Mafrige, this Court repeatedly how clearly it states that it is a final judgment disposing of held that general language in a summary judgment finally all parties and issues.” 98 The very real risk of such a rule is disposed of the litigation even though no party had requested that thousands of judgments intended to be final would remain final relief. In Schlipf v. Exxon Corp. we held that an order interlocutory because they did not comply with all of these granting the plaintiffs' motion for summary judgment on requirements. *208 This is precisely what has happened one of its claims and generally denying all other relief was in the federal system, as we have already explained, even final, even though no defendant had moved for summary though the federal rules impose far fewer requirements on judgment or requested the denial of any relief. 95 Similarly, final judgments than the concurring opinion would. in Chessher v. Southwestern Bell Telephone Co. we held that a summary judgment generally disposing of all four claims asserted by the plaintiff was final, even though the defendant

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should return to the principle we announced in Teer v. Duddlesten—that a Mother Hubbard clause simply “has no ***** place in a partial summary judgment,” and that a summary For the reasons we have explained, the judgments of the judgment order is not an appealable, final judgment unless it court of appeals in these cases are reversed, and the cases are actually disposes of all parties and issues. 664 S.W.2d 702, remanded to that court for further proceedings. 703–04 (Tex.1984).

The Court states: “[W]e do not write rules by opinion.” 39 Justice BAKER filed a concurring opinion in which Justice S.W.3d at 205. The Court is right; we should not establish ENOCH joined, except for Part IV and the discussion of rules by judicial fiat. We should not have done so in Inglish and Bandera, and in which Justice HANKINSON Mafrige and we should not have perpetuated the Mafrige joined, except Part IV. problems with Inglish and Bandera. Any new summary The Court granted these petitions in Lehmann and Harris to judgment finality rule should be achieved by this Court's solve the Mafrige problems. The Court fails to do so. Thus, formally promulgating a new procedure rule. The Court while I concur in the result the Court reaches, I cannot agree should recognize this, overrule Mafrige and its progeny, with the reasoning it uses to reach that result. and await a recommendation by *209 our rules advisory committee. Because the Court refuses to take this path, I In March 1993, we granted writ in Mafrige v. Ross to concur in the judgment only. resolve the inherent problems in determining finality of summary judgments for purposes of appeal. 866 S.W.2d 590 (Tex.1993). There we recognized that determining finality I. MAFRIGE AND ITS PROGENY had “been a recurring and nagging problem throughout the judicial history of this state.” Mafrige, 866 S.W.2d at 590. Before Mafrige, courts determined summary judgment Thus, in a major departure from our prior jurisprudence, we finality by reviewing the live pleadings, the summary created a new rule providing: “If a summary judgment order judgment motion, and the summary judgment order. Harris appears to be final, as evidenced by the inclusion of language County v. Nash, 22 S.W.3d 46, 49–50 (Tex.App.—Houston purporting to dispose of all claims or parties, the judgment [14th Dist.] 2000, pet. filed); Kaigler v. General Elec. Ins. should be treated as final for purposes of appeal.” Mafrige, Mortgage Corp., 961 S.W.2d 273, 275 (Tex.App.—Houston 866 S.W.2d at 592. [1st Dist.] 1997, no pet.). A summary judgment was deemed final and appealable only if it expressly disposed of all parties Despite the certainty we intended this bright-line rule to and issues or if it was severed from the remainder of the suit. provide, the last seven years have proved that the Mafrige Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., rule has created more problems than it solved—confusing the 159 Tex. 550, 324 S.W.2d 200, 200 (1959) (“[A] summary lower courts, operating as a trap for unwary litigants, and judgment which does not dispose of all parties and issues in consistently bringing about arguably unjust and oftentimes the pending suit is interlocutory and not appealable unless absurd results. So, in November 1999, we granted the a severance of that phase of the case is ordered by the trial petitions in these cases to resolve the Mafrige problems. court.”). Inexplicably, the Court begins its opinion by chronicling the evolution of the rules and presumptions governing finality With Mafrige, this Court attempted to simplify this process of orders following a conventional trial on the merits from by holding that the “magic language” of a Mother the middle of the last century to the present. 1 Then, with Hubbard or similar finality clause conclusively transforms very little discussion of the problems Mafrige and its progeny an interlocutory summary judgment into a final, appealable created in determining summary judgment finality, the Court order. Mafrige, 866 S.W.2d at 592. We have twice revisited concludes that the solution is to maintain the principle of the Mafrige to clarify its scope. See Inglish v. Union State Bank, Mafrige legal fiction—with only slight modification. 945 S.W.2d 810, 811 (Tex.1997) (holding that the Mafrige rule applies even when neither party appeals the erroneous However, rather than solve, the Court merely perpetuates summary judgment); Bandera Elec. Coop., Inc. v. Gilchrist, the problems Mafrige created. The cases grappling to apply 946 S.W.2d 336, 337 (Tex.1997) (explaining that when the Mafrige illustrate that there is but one real solution. We Mafrige rule renders a partial summary judgment final for

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purposes of appeal, the appellate court should reverse and Ins. Co. v. Mefford, No. 05–96–01581–CV, 1998 WL 821537 remand only the erroneously disposed claims). Unfortunately, (Tex.App.—Dallas Nov. 30, 1998, no pet.) (not designated Mafrige did little towards alleviating the lower courts' for publication), 1998 WL 821537, at *2 2 (holding that order confusion—and Inglish and Bandera only compounded it. granting defendant's summary judgment “in all things” did The Court's opinion suffers the same problem. Namely, its not purport to be final). slightly-modified Mafrige rule falls far short of remedying the myriad of problems the Mafrige fiction and its progeny While the Court recognizes that the “routine inclusion of [a created. Mother Hubbard clause] in otherwise plainly interlocutory orders and its ambiguity in many contexts have rendered it inapt for determining finality,” 39 S.W.3d at 192, it ignores A. FINALITY LANGUAGE the obvious problems courts have faced interpreting other language “purporting to dispose of all claims or parties.” One source of confusion under Mafrige has been uncertainty Mafrige, 866 S.W.2d at 592. In fact, despite the Court's about what language triggers its finality rule. In Mafrige, extensive analysis and discussion, its holding represents but we held that a partial summary judgment is treated as a minor departure from Mafrige. final for appeal purposes when the order contains a Mother Hubbard clause stating that “all relief not expressly granted Its modified rule has two parts. The first represents no change is denied” or other language “purporting to dispose of all in Texas law. It simply reiterates that a summary judgment claims or parties.” 866 S.W.2d at 590 & n. 1, 592. We order that actually disposes of all parties and issues is final further clarified that “other” finality language includes “a for purposes of appeal. 39 S.W.3d at 192. The second part statement that the summary judgment is granted as to all provides that a Mother Hubbard clause is no longer enough claims asserted by the plaintiff, or a statement that the plaintiff to invoke the fiction that an otherwise interlocutory order is takes nothing against defendant.” Mafrige, 866 S.W.2d at 590 treated as final for purposes of appeal. Instead, to invoke the n. 1.; see also Inglish, 945 S.W.2d at 811 (holding statement Mafrige fiction, an interlocutory order must now “clearly and that “[d]efendant is entitled to summary judgment in this unequivocally state [ ] that it finally disposes of all claims case,” and that plaintiff should “take nothing on account and all parties.” 39 S.W.3d at 205. The Court further explains of his lawsuit” rendered partial summary judgment final that the statements “plaintiff take nothing by his claims in the for purposes of appeal); Springer v. Spruiell, 866 S.W.2d case” and “[t]his judgment finally disposes of all parties and 592, 593 (Tex.1993) (holding that summary judgment order all claims and is appealable” clearly and unequivocally state reciting plaintiffs “have and recover nothing” purported to that an order is final. 39 S.W.3d at 205. In essence, the Court's dispose of all parties and issues). rule does no more than replace one set of magic language with another—while ignoring the reality that courts will likely Despite these examples, some lower courts have refused face the same challenges deciding what language “clearly and to hold orders containing this exact language final for unequivocally states” that an order is final, 39 S.W.3d at 205, purposes of appeal. E.g., Carey v. Dimidjian, 982 S.W.2d as they did deciding what other language clearly “purport[s] 556, 558 (Tex.App.—Eastland 1998, no pet.) (holding that to dispose of all claims or parties” under Mafrige. 866 S.W.2d order containing Mother Hubbard clause was not final and at 592. appealable where the motion was labeled “Partial Summary Judgment” and the parties treated the order as interlocutory); Hinojosa v. Hinojosa, 866 S.W.2d 67, 69–70 (Tex.App.— B. OMITTED PARTIES El Paso 1993, no writ) (holding that order containing Mother Hubbard clause did not render judgment final because it did Applying Mafrige to omitted parties, like those in both not dispose of counterclaim). Other courts have struggled Lehmann and Harris, has also troubled the lower courts. with what “other” language purports to render a judgment Specifically, they have struggled with deciding when finality final—often reaching opposite conclusions about identical language operates to render a summary judgment final against clauses. Compare *210 Postive Feed, Inc. v. Guthmann, omitted parties. This issue often surfaces when both the 4 S.W.3d 879, 881 (Tex.App.—Houston [1st Dist.] 1999, summary judgment motion and the resulting order omit any no pet.) (holding that order granting defendant's summary specific reference to one or more parties. 3 In this situation, judgment “in all things” purported to be final), with St. Paul several courts have held that Mafrige applies, reasoning that

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issues and parties are co-extensive and thus if “an order However, the Court's resolution merely sidesteps the real disposes of all issues in a case, then it necessarily disposes of problem. What happens in the next case when, on facts all parties to a case, and vice versa.” Kaigler, 961 S.W.2d at identical to Lehmann, a trial court signs an interlocutory 276; see also Lehmann v. Har–Con Corp., 988 S.W.2d 415, summary judgment with the Court's new magic language 416–17 (Tex.App.—Houston [14th Dist.] 1999, pet. granted); rather than a Mother Hubbard clause? We are right back Harper v. Newton, 910 S.W.2d 9, 12 n. 1 (Tex.App.—Waco), where we started. Substituting one magic phrase for another rev'd sub nom. on other grounds, Dallas County v. Harper, leads nowhere. 913 S.W.2d 207 (Tex.1995). The reality is simply that omitted parties oftentimes do not In contrast, other courts have interpreted Mafrige more believe that a summary judgment order that they have not narrowly, reasoning that an “order that explicitly grants a seen, that does not mention them, and that results from summary judgment in favor of less than all the defendants a hearing in which they did not participate will operate does not clearly evidence an intent to dispose of all to dispose of them or their claims. But, under the Court's claims against all defendants, especially those against whom standard, if these parties do not perfect a timely appeal from *211 summary judgment was not sought, regardless of the the erroneous judgment, their right to appeal is forever lost. inclusion of a Mother Hubbard clause.” Lowe v. Teator, 1 This result elevates form over substance and hinders parties' S.W.3d 819, 823–24 (Tex.App.—Dallas 1999, pet. filed); see rights to have the merits of their claims considered. See, e.g., also Midkiff v. Hancock E. Tex. Sanitation, Inc., 996 S.W.2d Rodriguez v. NBC Bank, 5 S.W.3d 756, 763 n. 4 (Tex.App.— 414, 416 (Tex.App.—Beaumont 1999, no pet.); Vanderwiele San Antonio 1999, no pet.) (recognizing this Court's “express v. Llano Trucks, Inc., 885 S.W.2d 843, 845 (Tex.App.— goal of reaching the merits of a cause of action, instead of Austin 1994, no writ). dismissing actions on procedural technicalities”).

Here the Court summarily dismisses this omitted parties problem: C. OMITTED CROSS–CLAIMS Nothing in the order in Lehmann AND COUNTERCLAIMS indicates that it is a final judgment, The courts of appeals have also treated omitted cross-claims and it did not dispose of all pending and counterclaims inconsistently—despite our holding in claims and parties. The order in Harris Bandera. In Bandera, the trial court signed an order with a states that plaintiff take nothing as Mother Hubbard clause that did not mention the defendant's to “one of the defendants”, but that counterclaims. 946 S.W.2d at 337. This Court explained that language does not suggest that all “[b]ecause the order contained a Mother Hubbard clause of the plaintiffs' claims were denied. denying all other relief, it also purported to dispose of [the As the order recites and as the defendant's] counterclaims.” Bandera, 946 S.W.2d at 337. record demonstrates, the defendant But several courts have refused to apply Mafrige in this named in the order was not the only situation, maintaining that a summary judgment that does defendant remaining in the case. Thus, not mention counterclaims or cross-claims cannot purport to we conclude that a final appealable be final-regardless of whether it contains finality language. judgment was not rendered in either E.g., Sommers v. Concepcion, 20 S.W.3d 27, 33 (Tex.App. case. —Houston [14th Dist.] 2000, pet. denied); Hervey v. Flores, 39 S.W.3d at 206. Despite the presence of a Mother Hubbard 975 S.W.2d 21, 25 (Tex.App.—El Paso 1998, pet. denied); clause, the trial court and parties in Lehmann continued cf. Coleman Cattle Co., Inc. v. Carpentier, 10 S.W.3d treating the order as interlocutory-even in the face of 430, 433 n. 2 (Tex.App.—Beaumont 2000, no pet.). Other this Court's admonishment that a Mother Hubbard clause courts have followed Bandera 's mandate, holding that finality language—such as “plaintiff takes nothing” *212 indicates finality. 4 988 S.W.2d at 416. The Court now holds —renders a judgment final for appeal purposes, despite that the order did not purport to be final based solely on omission of any reference to defendant's counterclaims. In re its new rule discounting the dispositive effect of Mother Monroe, No. 05–99–01758–CV, 2000 WL 378519 (Tex.App. Hubbard clauses. —Dallas Mar.31, 2000, orig. proceeding) (not designated for

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publication), 2000 WL 378519, at *1–2; see also Kaigler, 961 to make the order final there must be “some other clear S.W.2d at 275–76. indication that the trial court intended the order to completely dispose of the entire case.” 39 S.W.3d at 205. In the example The Court's rule does not provide a satisfactory remedy for above, does the additional statement that “this is a final, this situation either. The Court states: appealable order” provide this “other clear indication”? These very issues are repeatedly raised in the courts of appeals, and An order that adjudicates only the the Court's modified rule simply does not resolve them. plaintiff's claims against the defendant does not adjudicate a counterclaim, cross-claim, or third party claim, nor does an order adjudicating claims like D. TRIAL COURTS' AND PARTIES' INTENT the latter dispose of the plaintiff's Differing philosophies about the effect the trial courts' and claims. An order that disposes of parties' intent should have on how Mafrige applies has created claims by only one of multiple the most confusion and inconsistency. The courts of appeals plaintiffs or against one of multiple have taken three approaches. Some courts apply a bright-line defendants does not adjudicate claims test, holding that a Mother Hubbard clause or other finality by or against other parties. An order language always renders an order final for appeal purposes, does not dispose of all claims and all regardless of any evidence of contrary intent. E.g., Preston parties merely because it is entitled v. American Eagle Ins. Co., 948 S.W.2d 18, 20–21 & n. “final,” or because the word “final” 1 (Tex.App.—Dallas 1997, no writ) (holding that summary appears elsewhere in the order, or judgment purported to be final despite fact it was entitled even because it awards costs. Nor “partial summary judgment”); cf. In re Cobos, 994 S.W.2d does an order completely dispose of 313, 315 (Tex.App.—Corpus Christi 1999, orig. proceeding) a case merely because it states that it (“As Mafrige and Inglish make clear, the intent of the trial is appealable, since even interlocutory court is not the controlling consideration in determining orders may sometimes be appealable. whether a judgment is final.”). Other courts modify this Rather, there must be some other clear approach, looking only within the four corners of the order indication that the trial court intended and giving effect to any evidence of contrary intent found the order to completely dispose of the there. E.g., Rodriguez, 5 S.W.3d at 763–64 (Tex.App.—San entire case. Antonio 1999, no pet.) (“Looking within the four corners 39 S.W.3d at 205. of the summary judgment order, the plain language of the *213 Mother Hubbard clause did not, and could not, purport Under its modified finality rule, the lower courts' to grant or deny any more relief than the relief which [the disagreement in this area will continue because too many defendant] sought.”); Midkiff, 996 S.W.2d at 416 (looking questions are left unanswered. For example, should a “final” to order “as a whole” to conclude that summary judgment summary judgment order stating that defendant is granted order containing Mother Hubbard clause did not purport to summary judgment “in all things” dispose of a cross-claim be final). by another defendant as well as the claim by the plaintiff that brought the original claim? In this situation, there is no Finally, despite our holding in Inglish that the trial court's doubt that the order is unambiguous. However, it is likewise intent is irrelevant in this context, other courts still refuse to clear, but not from the order, that the third party's claim apply Mafrige if there is evidence of contrary intent anywhere against the defendant was never considered. Should an order in the record. This usually occurs when the parties and court granting summary judgment for a plaintiff that recites it is treat an order as interlocutory by continuing with the litigation a final and appealable order be final for counterclaims not rather than appealing the erroneous order. E.g., Lowe, 1 mentioned in the motion or order? The order unequivocally S.W.3d at 823–24 (holding that summary judgment could not states that it is a final, appealable order. Nonetheless there be final where the record reflected that there were parties who is a counterclaim that has not been considered. The Court did not participate in the summary judgment proceeding); states that a summary judgment granted for a plaintiff “does Carey, 982 S.W.2d at 558 (relying, in part, on court's and not adjudicate a counterclaim” and then goes on to say that

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parties' treatment of order containing Mother Hubbard clause re Tejas, Nos. 01–98–00688–CV, 01–98–00689–CV, 01– as interlocutory to conclude judgment was not final). 98–00690–CV, 1998 WL 394562 (Tex.App.—Houston [1st Dist.] July 13, 1998, orig. proceeding) (not designated for The Court's solution to this problem is as confusing as publication), 1998 WL 394562, at *1 n. 1. And another has the rule it seeks to supplant. It appears to reject the expressly refused to extend Mafrige to any order that is bright-line approach Mafrige espouses and instead adopt a not a summary judgment. Biltmore Swim & Racquet Club rule combining the second and third approaches. First, the Recreational Ass'n v. McAbee, No. 05–98–00252–CV, 1998 Court notes that an order is final for appeal purposes if it WL 459819 (Tex.App.—Dallas Aug.10, 1998, no pet.) (not “unequivocally states that it finally disposes of all parties designated for publication), 1998 WL 459819, at *1. and all claims and is appealable.” 39 S.W.3d at 205. It also explains that “[i]f the language of the order is clear In Aldridge, this Court held that a presumption of finality and unequivocal, it must be given effect despite any other exists when an order is signed following a traditional trial indications that one or more parties did not intend for on the *214 merits. Aldridge, 400 S.W.2d at 897–98. But the judgment to be final.” 39 S.W.3d at 206. From these we specifically noted that such a finality presumption would statements, the Court's new rule walks and talks a lot like not be appropriate in other contexts. Aldridge, 400 S.W.2d at a bright-line Mafrige rule, with magic language establishing 897. Then in Mafrige we carved out an exception to what we finality. had said in Aldridge by holding that an irrebuttable finality presumption applies to summary judgments containing a However, the Court also states that “[t]o determine whether Mother Hubbard or similar finality clause. Mafrige, 866 an order disposes of all pending claims and parties, it may S.W.2d at 592. Here again, just as we had limited Aldridge of course be necessary for the appellate court to look to the to conventional trials on the merits, we expressly limited record in the case.” 39 S.W.3d at 205. This sounds more like Mafrige to summary judgments. Mafrige, 866 S.W.2d at a pre-Mafrige rule, where a court must look to the record 591 (“[T]he issue is whether ... a summary judgment, and the order to determine if an order actually disposes of all which purports to be final by the inclusion of Mother pending parties and issues. Hubbard language or its equivalent, should be treated as final for purposes of appeal.”). Unfortunately, several courts of Because of the lower courts' confusion and disagreement appeals have erroneously applied Mafrige in other contexts, about the role of intent in determining finality, I am convinced causing confusion over how to determine finality of various that the Court has not provided a workable rule that clearly other types of orders. defines that role as it applies to determining summary judgment finality. Mafrige and its progeny are limited to summary judgments —with good reason. No good can come of interjecting additional uncertainty into (1) conventional trials on the merits, to which the majority acknowledges the Aldridge E. APPLYING MAFRIGE TO NON– presumption has “proved a fairly workable” rule, 39 S.W.3d SUMMARY JUDGMENT ORDERS at 200, or (2) numerous other types of orders, when even Finally, the question of whether Mafrige applies outside the the majority acknowledges that “the ordinary expectation” summary judgment context has confused the lower courts. supporting a finality presumption “simply does not exist when Courts of appeals have applied Mafrige to a plea to the some form of judgment is rendered without such a trial” jurisdiction, Webb v. HCM Mgmt. Corp., No. 07–96–0369– because “it is quite possible, perhaps even probable these CV, 1998 WL 16033 (Tex.App.—Amarillo Jan. 12, 1998, days ... that any judgment rendered prior to a full-blown trial pet. denied) (not designated for publication) 1998 WL 16033, is intended to dispose of only part of the case.” 39 S.W.3d at at *1; an agreed judgment, In re Cobos, 994 S.W.2d at 315– 200. 16; a directed verdict, e.g., Polley v. Odom, 957 S.W.2d 932, 943 (Tex.App.—Waco 1997, judgm't vacated); and a However, the Court's opinion here implicates finality of all severance order, Harris County Flood Control Dist. v. Adam, judgments. This expansion into issues not before the Court 988 S.W.2d 423, 427 (Tex.App.—Houston [1st Dist.] 1999, today can only cause mischief in areas already plagued by pet. filed). In contrast, at least one court has declined to confusion. If the Court persists in adhering to Mafrige's apply Mafrige to a dismissal for want of jurisdiction. In

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principles, it should at least limit its holding, as we did in this bright-line rule, the reality is that still, after seven years, Mafrige, to summary judgments. it continues to operate as a trap for unwary litigants, bringing about arguably unjust and oftentimes draconian results.”); Swanda, Summary Judgment, Mother Hubbard Clauses, and Mafrige v. Ross, APPELLATE ADVOCATE, May 1997, at II. POLICY CONSIDERATIONS 3 (complaining that the questions Mafrige raises “are just as Not surprisingly, the post-Mafrige era has given rise to elusive” as the questions it sought to resolve). considerable analysis by courts and commentators of both the competing policies Mafrige implicates and suggestions Strong policies support our practice of adhering to settled for reform. A few have applauded the bright-line rule. rules of law “unless there exists the strongest reasons for See Kaigler, 961 S.W.2d at 275–76 (recognizing that chang[e].” Benavides v. Garcia, 290 S.W. 739, 740–41 (Tex. the rule provides harsh results, but emphasizing that Comm'n App.1927, judgm't adopted). But we have also uniform enforcement “encourage[s] attentiveness to correct recognized the “doctrine of stare decisis does not stand as judgments”); Boyce, Mafrige v. Ross and the Pitfalls of an insurmountable bar to overruling precedent.” Gutierrez v. Presumptions, APPELLATE ADVOCATE, Nov. 1997, at 7 Collins, 583 S.W.2d 312, 317 (Tex.1979). “Generally, we (opining that Mafrige “resolved the confusion created by prior adhere to our precedents for reasons of efficiency, fairness, contradictory language and flatly inconsistent holdings”). and legitimacy.” Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex.1995). However, when adherence to a judicially-created However, praises have been few and far between. Criticism rule of law no longer furthers these interests, and “the general has been the rule and the comments call for this Court to interest will suffer less by such departure, than from a strict reconsider our decision: adherence,” we should not hesitate to depart from a prior holding. Benavides, 290 S.W. at 740. The lower courts' What began as a benign growth application of Mafrige over the last seven years illustrates allowing review of unripe claims undeniably that this is just such a case. on appeal, in Mafrige, became a malignant cancer cutting off causes We intended Mafrige, Inglish, and Bandera to provide of action before trial, in Inglish. If certainty to litigants. Instead, they have bred chaos. Most it were up to me, I would lock disturbing is that the casebooks are now replete with Mother Hubbard in the cupboard and examples of dismissed cases where the parties and courts return to the rule before Aldridge that clearly intended an order containing finality language to a judgment is final and appealable be interlocutory. 5 E.g., Inglish, 945 S.W.2d at 811; In re only if it expressly disposes of all Cobos, 994 S.W.2d at 315–16; Pena v. Valley Sandia, Ltd., parties and all claims in the case. That 964 S.W.2d 297, 298–99 (Tex.App.—Corpus Christi 1998, appellants can even cite authority for no pet.); Kaigler, 961 S.W.2d at 275–76. Even the Court the absurd result they seek, illustrates acknowledges: how wrong a turn the law has taken in this area—and how strong the need to right it. [T]he ordinary expectation that supports the presumption that a judgment rendered after a conventional trial on the Harris County Flood Control Dist., 988 S.W.2d at 427–28 merits will comprehend all claims simply does not exist (Taft, J., concurring in denial of rehearing en banc); see when some form of judgment is rendered without such a also, e.g., Lehmann, 988 S.W.2d at 418 (“Mafrige is not trial. On the contrary, it is quite possible, perhaps even as clear to litigants as the supreme court believes it is.... In probable these days in cases involving multiple parties short, Mafrige has created several problems: 1) it is catching and claims, that any judgment rendered prior to a full- the parties by surprise ...; 2) it exalts form over substance; blown trial is intended to dispose of only part of the and 3) in more than a few situations, it ignores common case. Accordingly, the finality of the judgment must be sense.”); Carlson & Dunn, Navigating *215 Procedural determined without the benefit of any presumption. Minefields: Nuances in Determining Finality of Judgments, Plenary Power, and Appealability, 41 S. TEX. L.REV. 953, 971 (2000) (“[D]espite the appeal of the certainty provided by

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39 S.W.3d at 200. Because of this reality, it is difficult to relief than requested, the court of appeals should address understand why the Court persists in adhering to Mafrige's the merits of the appeal, remanding only the part of the principles. judgment that exceeds the relief requested in the summary The author of the Court's opinion recently opined: “Appellate judgment motion. 946 S.W.2d at 337. Undeniably, these rules procedure should not be tricky. It should be simple, it should were designed to simplify summary judgment finality. But, in be certain, it should make sense, and it should facilitate application, these cases only demonstrate that we should have consideration of the parties' argument on the merits....” adhered to our own admonishments that this Court simply Lane Bank Equip. Co. v. Smith Southern Equip., Inc., should not make rules by opinion. E.g., Alvarado v. Farah 10 S.W.3d 308, 314 (Tex.2000) (Hecht, J., concurring). Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992) (explaining that This Court has repeatedly refused to adopt positions which we should not revise rules by opinion); see also Verburgt elevate form over substance. See, e.g., Phillips v. Beaber, v. Dorner, 959 S.W.2d 615, 619 (Tex.1997) (Baker, J., 995 S.W.2d 655, 658 (Tex.1999); Nueces Canyon Consol. dissenting) (noting that this Court's jurisprudence forbids rule Indep. Sch. Dist. v. Central Educ. Agency, 917 S.W.2d amendments by judicial fiat). 773, 775–76 (Tex.1996). The Court here even recognizes that “[s]implicity and certainty in appellate procedure are Thus, we should overrule Mafrige, Inglish, and Bandera—to nowhere more important than in determining the time for the extent they created new rules by judicial fiat—and instead perfecting appeal.” 39 S.W.3d at 205. Unfortunately though, tackle the problems of summary judgment finality through the Court declines to embrace this opportunity *216 to our rulemaking process. Accordingly, we should return to effectuate meaningful change and provide certainty for courts our prior position that a Mother Hubbard clause (or other and litigants. Instead the Court leaves them as it found them, magic language) has no place in any summary judgment grappling with determining whether summary judgment order—final or partial—and that a trial court may not sua orders are fictitiously made final. sponte grant more relief than the parties request simply by adding conclusory finality language to a summary judgment order. Further, a summary judgment should be entitled to no presumption at all about whether it is final. III. THE SOLUTION

The Court notes: “[W]e do not write rules by opinion. We Returning to the law as it was pre-Mafrige requires must decide what Texas law requires for finality, given the determining the state of the law before Mafrige. Mafrige present rules .” 39 S.W.3d at 205. Yet, the Mafrige finality actually held two things: (1) that “ ‘Mother Hubbard’ rule this Court created represented such a major departure language or its equivalent in an order granting summary from prior Texas law. In fact, but for the judicially-created judgment makes an otherwise partial summary judgment final Mafrige rule, no one would dispute that “what Texas law for appeal purposes;” and (2) that if a summary judgment requires for finality” of summary judgments is an order “grants more relief than requested, it should be reversed and actually disposing of all parties and issues. remanded, but not dismissed.” 866 S.W.2d at 590, 592.

Rather than simply amend the Mafrige finality rule and Before Mafrige, this first holding was not the law. In Teer v. perpetuate the problems the unworkable system Mafrige and Duddlesten we held that: its progeny created, the Court should focus on shaping a real There is no presumption in partial summary judgments solution—one providing the desired certainty and protecting that the judgment was intended to make an adjudication parties' right to appellate review. This requires wiping about all parties and issues. The Mother Hubbard clause the slate clean. Mafrige created enough problems with its that “all relief not expressly granted is denied” has no place fictional finality and its holding that trial courts can use magic in a partial summary judgment hearing. The concepts of a language to create final summary judgments by granting partial summary judgment on the one hand, and a judgment relief not requested. 866 S.W.2d at 591–92. In Inglish we *217 that is presumed to determine all issues and facts on compounded the problem by confirming that Mafrige applies the other, are inconsistent. even when the parties continue litigating rather than appealing a partial summary judgment made final under Mafrige. 945 664 S.W.2d at 704. In Mafrige we recognized this earlier S.W.2d at 811. We completed the trilogy in Bandera, holding statement in Teer, but rejected it and held that finality that when a party appeals a summary judgment granting more

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language could render a partial summary judgment final for between the competing policies of promoting certainty and purposes of appeal. 290 S.W.2d at 592. preserving parties' rights to appellate review. And, under this approach, the trial court and the parties drafting summary Mafrige's second holding—that a summary judgment judgment orders would have the burden, and the incentive, to granting more relief than requested should be reversed ensure that the pleadings, summary judgment motions, and and remanded, but not dismissed—does not appear to be the summary judgment orders match. If a premature appeal is an entirely new rule. In both Teer and Chessher, another taken, the court of appeals need only compare the pleadings, pre-Mafrige case, we reversed and remanded (rather than motions, and order. If the order does not dispose of parties or dismissed) summary judgment orders after determining that issues raised in the pleadings, then it is interlocutory and the they were interlocutory because they granted more relief court must dismiss the appeal. 7 If the order explicitly *218 than requested. See Teer, 664 S.W.2d at 705; Chessher v. disposes of issues and parties not raised in the motion, it is Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983). erroneous and the court must reverse the entire order. But see Ross v. Arkwright Mut. Ins. Co., 834 S.W.2d 385, 393 (Tex.App.—Houston [14th Dist.] 1992) (opining that Most importantly, this approach alters the consequences of these cases are “in direct contravention of TEX.R. CIV. poorly-drafted orders. Specifically, the consequence flowing P. 166a(c)” and discussing disagreement in the courts over from a poorly drafted order becomes the risk of a premature whether summary judgment orders granting more relief than appeal rather than an untimely one. This eliminates the requested were interlocutory or appealable, but erroneous, greatest risk Mafrige created—that an interlocutory order, judgments), rev'd sub. nom. Mafrige, 866 S.W.2d at 590. contrary to the trial court's and (at least one party's) intent, Thus, while the courts were not entirely in agreement, it will be fictitiously made final, starting the appellate and appears we had already established the rule that a summary plenary power timetables even while the litigation continues. judgment order granting more relief than requested is not No one would argue that conducting a trial after the trial interlocutory—it is simply erroneous. For this reason, I agree court's plenary power has expired is not a waste of judicial with the Court that if an order actually does dispose of each resources. Moreover, because overruling Bandera eliminates claim and every party, it is an appealable judgment, even if the benefits of a premature appeal, taking such an appeal it grants more relief than requested. This is consistent with would not be a cost-efficient mistake for litigants to make, the long-standing rule that if an order actually disposes of increasing the incentive to ensure orders are more clearly all parties and issues, it is final for appeal purposes. E.g., drafted. If a premature appeal is nonetheless taken, it would Houston Health Clubs, Inc. v. First Court of Appeals, 722 not create an onerous burden for the appellate court. The S.W.2d 692, 693 (Tex.1986). However, consistent with my opposing party need only file a brief pointing out that view that we should overrule Mafrige and its progeny and the pleadings, motion, and order do not match, leading to recognize no presumption for or against finality, I do not automatic remand or dismissal. believe any type of conclusory finality language can ever be read to grant more relief than requested by the parties. 6 No one disputes that rules governing summary judgment finality could be helpful to the bench and bar and facilitate We should determine summary judgment finality by judicial efficiency. But history, as well as our own precedent, comparing the live pleadings and the summary judgment has shown that judicial opinions are not the place to achieve order. A summary judgment order should only be final if it this. Any attempt to adhere to the Mafrige principle or retain matches the contents of the pleadings. And, as was the law parts of it while rejecting others can only lead to more before Bandera, a court of appeals should summarily reverse problems. Instead, this Court should overrule Mafrige and its any summary judgment granting more relief than requested, progeny and start anew. As the Court even notes, our rules without any sua sponte severance of some issues while others advisory committee is currently studying summary judgment are remanded. finality. 39 S.W.3d at 216. Retaining parts of Mafrige, Inglish, Bandera as modified by the Court's less-than-clear opinion Wiping the slate clean by overruling the rules created in today—only to follow with promulgation of a concurrent Mafrige, Inglish, and Bandera while we study the best method finality rule—will only lead to more confusion. of tackling summary judgment finality through our formal rule-promulgation process is the better solution for several I agree that the cases here should be reversed. But, because reasons. First, this approach strikes a more reasonable balance the Court refuses to fix the problems its judicial rulemaking

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in Mafrige caused and allow our rulemaking process to work, or claims—regardless of how clearly it states that it is a final I cannot join the Court's opinion. judgment disposing of all parties and issues.

Most significantly, in practice this would lead to better drafting and fewer erroneous appeals. Specifically, if required IV. RECOMMENDATION to expressly list each ground upon which summary judgment I recognize that the Supreme Court of Texas Advisory is requested, trial courts are not likely to add grounds to their Committee on Rules of Civil Procedure has been studying order that the summary judgment motion did not raise. the problem of summary judgment finality. It has proposed an amendment to Rule 166a of the Texas Rules of Civil Second, I would suggest the committee consider a rule Procedure: requiring that the prevailing party, who is charged with drafting the court's order, serve copies on all other parties at (j) Statement of Grounds. An order least ten days before the trial court is to sign and enter the granting summary judgment must order. Consistent with this suggestion, I agree with the Court's state the ground or grounds on suggestion that the clerk send copies of all the actual signed which the motion was granted. No orders—rather than just a postcard indicating that the court judgment may be affirmed on other has signed an order. grounds stated in the motion unless they are asserted by appellee in The majority's author criticizes my first recommendation, the appellate court as alternative asserting that there is a “very real risk” that requiring judges grounds for affirmance. to be explicit in their summary judgment orders would result in “thousands of judgments intended to be final ... remain[ing] I do not believe this proposed amendment goes far enough. interlocutory.” 39 S.W.3d at 196. He contends that “[t]his is precisely what has happened in the federal system even First I would suggest to the committee that they consider though the federal rules impose far fewer requirements on requiring each summary judgment order specifically identify: final judgments than the dissent would.” 39 S.W.3d at 208. (1) the claims each party brings; (2) the grounds upon which Federal Rule 58, to which he refers, requires that all final each party seeks summary judgment; (3) each ground upon judgments “be set forth on a separate document” and be which the trial court granted summary judgment; and (4) each entered by the clerk on the docket. FED.R.CIV.P. 58. ground upon which the trial court denied summary judgment. This criticism only serves to amplify the real dangers This solution is intuitive. In the vast majority of cases, of straying outside the summary judgment context in this formality, rather than including magic language, would these cases. How finality of different types of judgments provide notice to parties about what has actually happened. In is determined must be governed by the nature of the practice, this procedure alleviates many problems Mafrige's judgment. Houston Health Clubs, Inc., 722 S.W.2d at 693 finality rule has caused. (“In determining whether a judgment is final, different presumptions apply depending on whether the judgment Under this approach, a summary judgment is not final unless follows a conventional trial on the merits or results from the order specifically identifies each claim for relief, the default or a motion for summary judgment.”). Cognizant of grounds upon which each party seeks summary judgment, and this, my recommendation, unlike Federal Rule 58, is limited the court's disposition *219 of each claim and party. The to summary judgment finality. appellate court's jurisdiction is determined only by looking at whether the trial court rendered an order expressly disposing The live pleadings define the issues in a case. The issues of all remaining parties and issues. If the trial court errs by tried do not always mirror these pleadings. See Vance v. omitting certain claims or parties from the order, as happened Wilson, 382 S.W.2d 107, 108 (Tex.1964). Nonetheless, we in Lehmann and Harris, it is not a final order for purposes have repeatedly recognized that a presumption should exist of appeal. Under this approach a party never loses its right to that all issues presented by the pleadings are disposed of in appeal based upon the finality of a summary judgment order a conventional trial on the merits. See Aldridge, 400 S.W.2d that is silent about the party or its claims or that sua sponte at 897–98; Vance, 382 S.W.2d at 108. This presumption grants relief no party requested without mentioning the parties

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In Texas, the test for determining summary judgment finality can be rebutted by a contrary showing in the record. See has always been whether the judgment disposes of all parties Richey v. Bolerjack, 589 S.W.2d 957, 959 (Tex.1979). But and all issues raised in the pleadings. In Mafrige we created absent such a rebuttal, this presumption prevents judgments a legal fiction to simplify the process of determining finality. from languishing after trial based solely on variations in the But Mafrige created more problems than it solved. It is pleadings and judgment. This presumption has saved us from beyond me why the Court insists on struggling through pages the types of problems the federal system has experienced. and pages of history about presumptions, magic language, and Mother Hubbard clauses instead of squarely considering However, we sensibly limited this presumption to judgments the problems Mafrige caused and providing a solution. Its “not intrinsically interlocutory in character.” Aldridge, 400 willingness to cling to this legal fiction, while refusing to S.W.2d at 897. We have also explained that summary recognize that our rulemaking in Mafrige and its progeny was judgments are intrinsically interlocutory and thus they should not the correct solution, will only create more problems. not be presumed final. Houston Health Clubs, Inc., 722 S.W.2d at 693. Thus, there is nothing illogical about requiring I concur in the judgment in these cases. But, because the Court that finality language be explicit. And I respectfully disagree declines to overrule Mafrige, Inglish, and Bandera, and await that my recommendation, limited to summary judgments, will our promulgation of a rule governing summary judgment cause such *220 major havoc in the court system. Further, finality, I do not concur in its reasoning. I believe the additional formality in this context is worth the certainty and protections such a rule provides. Parallel Citations

44 Tex. Sup. Ct. J. 364 V. CONCLUSION

Footnotes 1 See Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995) (involving probate proceedings); Huston v. Federal Deposit Ins. Corp., 800 S.W.2d 845, 847 (Tex.1990) (involving receivership proceedings). 2 See Street v. Honorable Second Court of Appeals, 756 S.W.2d 299, 301 (Tex.1988). 3 866 S.W.2d 590 (Tex.1993). 4 Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984). 5 Mafrige, 866 S.W.2d at 590 n. 1. 6 Lehmann v. Har–Con Corp., 1998 WL 429853 (Tex.App.—Houston [14th Dist.] 1998), 988 S.W.2d 415 (1999) (op. on reh'g); Harris v. Harbour Title Co., 1999 WL 211859 (Tex.App.—Houston [14th Dist.] 1999). 7 988 S.W.2d 415 (op. on reh'g). 8 See TEX.R.APP. P. 26.1 (appellate time limits). 9 43 TEX. SUP.CT. J. 94, 96 (Nov. 12, 1999). 10 43 TEX. SUP.CT. J. 94, 96 (Nov. 12, 1999). 11 See CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE §§ 3906–3907 (1992). 12 See, e.g., North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966); Gulf C. & S. F. Ry. v. Fort Worth & N. O. Ry., 68 Tex. 98, 2 S.W. 199, 200 (1886), op. on reh'g, 68 Tex. 98, 3 S.W. 564 (1887); see TEX. CONST. art. V, § 3–b (direct appeals to the Supreme Court); TEX. CIV. PRAC. & REM.CODE §§ 15.003(c) (interlocutory joinder and intervention appeals), 51.012 (court of appeals jurisdiction), 51.014 (interlocutory appeals); TEX. GOV'T CODE §§ 22.001(c) (direct appeals), 22.225(d) (interlocutory appeal to the Supreme Court). 13 See Jack B. Anglin Co., v. Tipps, 842 S.W.2d 266, 272 (Tex.1992); Linn v. Arambould, 55 Tex. 611, 617–18 (1881) (surveying several tests for determining when a judgment is final). See generally 49 C.J.S. Judgments § 11 (1947); 46 AM.JUR.2D Judgments § 200–206 (1994). 14 Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995). 15 Huston v. Federal Deposit Ins. Corp., 800 S.W.2d 845, 847 (Tex.1990). 16 See Street v. Second Court of Appeals, 756 S.W.2d 299, 301 (Tex.1988).

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17 See Hanks v. Thompson, 5 Tex. 6, 8 (1849) (defining a final judgment as awarding the judicial consequences which the law attaches to the facts and determining the subject matter of the controversy between the parties); accord West v. Bagby, 12 Tex. 34 (1854). See also Fitzgerald v. Fitzgerald, 21 Tex. 415 (1858); Hancock v. Metz, 7 Tex. 177 (1851) (both holding that a judgment for the defendant for costs did not constitute a final judgment); Warren v. Shuman, 5 Tex. 441, 450 (Tex.1849) (finding that a judgment that awards costs without disposing of the subject matter of the controversy is not a final judgment). See generally 31 JEREMY C. WICKER, TEXAS PRACTICE, CIVIL TRIAL & APPELLATE PROCEDURE § 506, at 289–311 (1985) (chronicling, in depth, the challenges of distinguishing between final and interlocutory judgments in various contexts beginning in the mid–19th century). 18 55 Tex. 611 (1881). 19 Id. at 619. 20 See Aldridge, 400 S.W.2d at 895. 21 See, e.g., East & West Tex. Lumber Co. v. Williams, 71 Tex. 444, 9 S.W. 436 (1888); Hill v. Templeton, 25 S.W. 652 (Tex.Civ.App.1894); Mills v. Paul, 4 Tex.Civ.App. 503, 23 S.W. 395 (1893). 22 Aldridge, 400 S.W.2d at 895. 23 89 Tex. 613, 36 S.W. 77, 78 (1896). 24 Id. at 78 (citations omitted). 25 92 Tex. 391, 49 S.W. 215 (1899). 26 Id. at 217. 27 See Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161, 1162 (1913) (listing the various appellate courts subscribing to each school of construction). 28 Id. 29 Id. at 1161. 30 Id. at 1161–1163. 31 Id. at 1163. See also Burton Lingo Co. v. First Baptist Church, 222 S.W. 203, 204 (Tex. Comm'n App.1920, holding approved) (citing Trammell for support of its presumption that the judgment disposed of a claim). 32 142 Tex. 111, 176 S.W.2d 744, 746 (1944). 33 161 Tex. 184, 338 S.W.2d 945, 947 (1960). 34 Gamble v. Banneyer, 137 Tex. 7, 151 S.W.2d 586 (1941); Vance v. Wilson, 382 S.W.2d 107 (Tex.1964) (res judicata). 35 400 S.W.2d 893 (Tex.1966). 36 North East Indep. Sch. Dist. v. Aldridge, 392 S.W.2d 607 (Tex.Civ.App.—San Antonio 1965), rev'd and remanded, 400 S.W.2d 893 (Tex.1966). 37 400 S.W.2d at 897–898. 38 Id. at 898. 39 Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984). 40 136 Tex. 296, 150 S.W.2d 377 (1941). 41 McCray Refrigerator Sales Corp. v. Davis, 140 S.W.2d 477, 478 (Tex.Civ.App.—Fort Worth 1940), rev'd, 136 Tex. 296, 150 S.W.2d 377 (1941). 42 Id. 43 150 S.W.2d at 378. 44 Id. 45 Aldridge, 400 S.W.2d at 897. 46 See, e.g., Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692 (Tex.1986), and the cases cited therein. 47 Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex.1995) (per curiam); H.B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex.1963) (per curiam); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 707 (1961). 48 Farmer, 907 S.W.2d at 496; H.B. Zachry Co., 364 S.W.2d at 193; McEwen, 345 S.W.2d at 707. 49 Young v. Hodde, 682 S.W.2d 236 (Tex.1984) (per curiam); Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983) (per curiam). 50 Id. 51 644 S.W.2d 453 (Tex.1982) (per curiam). 52 Id. at 454. 53 Id.

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54 See New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.1990) (per curiam); Young v. Hodde, 682 S.W.2d 236 (Tex.1984) (per curiam); Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983) (per curiam). 55 Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.1984). 56 Id. 57 E.g., Bethurum v. Holland, 771 S.W.2d 719 (Tex.App.—Amarillo 1989, no writ); Sakser v. Fitze, 708 S.W.2d 40, 42 (Tex.App. —Dallas 1986, no writ) (declaring that a Mother Hubbard clause in an order does not convert an intrinsically interlocutory partial summary judgment into a final judgment). 58 E.g., Georgetown Assoc., Ltd. v. Home Fed. Sav. & Loan Ass'n, 795 S.W.2d 252, 253 (Tex.App.—Houston [14th Dist.] 1990, writ dism'd w.o.j.); Hodde v. Young, 672 S.W.2d 45, 47 (Tex.App.—Houston [14th Dist.] ) (holding that a judgment was final and appealable because it contained a Mother Hubbard clause), writ ref'd, n.r.e., 682 S.W.2d 236 (Tex.1984) (per curiam) (noting that the erroneous rendition of a final judgment is not fundamental error). 59 866 S.W.2d 590 (Tex.1993). 60 Id. at 590. 61 Id. 62 Ross v. Arkwright Mut. Ins. Co., 834 S.W.2d 385, 388–389 (Tex.App.—Houston [14th Dist.] 1992), rev'd sub nom. Mafrige v. Ross, 866 S.W.2d 590 (Tex.1993). 63 Id. 64 866 S.W.2d at 590–591. 65 Id. 66 Ross, 834 S.W.2d at 394. 67 Id. at 393–395. 68 Mafrige, 866 S.W.2d at 592; accord Springer v. Spruiell, 866 S.W.2d 592 (Tex.1993) (per curiam). 69 Id. at 590 n. 1. 70 875 S.W.2d 311 (Tex.1994) (per curiam). 71 Id. at 313. 72 Id. 73 Id. 74 946 S.W.2d 336 (Tex.1997) (per curiam). 75 Id. at 337. 76 Id. 77 Id. at 337 n. 2. 78 909 S.W.2d 508, 510 (Tex.1995). 79 920 S.W.2d 274, 276 (Tex.1996). 80 Id. at 277. 81 945 S.W.2d 810 (Tex.1997) (per curiam). 82 See, e.g., Elaine A. Carlson & Karlene S. Dunn, Navigating Procedural Minefields: Nuances in Determining Finality of Judgments, Plenary Power, and Appealability, 41 SO. TEX. L.REV.. 953, 969–1001 (2000); William J. Cornelius & David F. Johnson, Tricks, Traps, and Snares in Appealing a Summary Judgment in Texas, 50 Baylor L.Rev. 813, 825–835 (1998). 83 See Young v. Hodde, 682 S.W.2d 236, 237 (Tex.1984) (per curiam); Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983) (per curiam); Schlipf v. Exxon Corp., 644 S.W.2d 453 (Tex.1983) (per curiam). 84 Bankers Trust Co. v. Mallis, 435 U.S. 381, 384–385, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). 85 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 2781 (2d ed.1995) (quoting Benjamin Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961–1963, 77 HARV. L.REV. 801, 831 (1964)). 86 United States v. Indrelunas, 411 U.S. 216, 220–221, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973). 87 Bankers Trust, 435 U.S. at 387–388, 98 S.Ct. 1117. 88 COMMITTEE ON RULES OF PRACTICE & PROCEDURE OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF APPELLATE, BANKRUPTCY, CIVIL, AND CRIMINAL PROCEDURE 100–114 (Aug.2000). 89 Id.

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90 State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992); Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992). 91 Verburgt v. Dorner, 959 S.W.2d 615, 616–617 (Tex.1997). 92 TEX.R.APP. P. 27.2. 93 See TEX.R. CIV. P. 306a(3). 94 Post at 217. 95 644 S.W.2d 453 (Tex.1982) (per curiam). 96 658 S.W.2d 563 (Tex.1983) (per curiam). Although our opinion did not quote the trial court's order, an examination of the record in the case reveals that the order recited that the court had considered the defendant's motion for summary judgment, the plaintiff's responses, and the defendant's reply, and had notified the parties that “it had determined to grant the defendant's motion for summary judgment.” The decretal portion of the order stated “that plaintiff, Paul G. Chessher, take nothing of and from defendant, Southwestern Bell Telephone Company. Costs of court are hereby taxed against plaintiff, Paul G. Chessher.” 97 Young v. Hodde, 682 S.W.2d 236, 236–237 (Tex.1984) (per curiam), writ ref'd n.r.e., 672 S.W.2d 45 (Tex.App.—Houston [14th Dist.] ). 98 Post at 219 (emphasis in original). 1 These rules and presumptions are irrelevant to the issues before the Court today. As we have repeatedly admonished—in Mafrige, in Aldridge, and even in the Court's opinion today—the rules governing finality after a conventional trial are wholly inappropriate for determining finality of summary judgments. See Mafrige, 866 S.W.2d at 592; North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897–98 (Tex.1966); Lehmann, 39 S.W.3d 191. 2 The unpublished opinions cited in Part I are cited only as examples, not as precedent. See TEX.R.APP. P. 47.7. 3 This issue also arises when a trial court expressly mentions and disposes of a party even though that party was not mentioned in the motion for summary judgment. Here, the lower courts have been more willing to apply Mafrige and hold that the order purports to dispose of all parties and issues. See, e.g., Mikulich v. Perez, 915 S.W.2d 88, 91–92 (Tex.App.—San Antonio 1996, no writ). 4 In fact, the district clerk sent all the parties (including those omitted from the summary judgment order) a postcard indicating that an “Order for Interlocutory Summary Judgment” had been signed. Lehmann, 988 S.W.2d at 416. 5 Oftentimes in these cases litigation continues to move forward. Any error in including magic finality language in a summary judgment is not discovered until it is too late; the appellate timetable has expired and the trial court has lost plenary power to act. The litigants have forever lost their right to complain of the judgment. 6 It would not be enough for a court to generally state “plaintiff takes nothing,” “defendant is granted summary judgment in all things,” or “this is a final appealable judgment.” Conclusory finality clauses (i.e. “magic language”) do not indicate that a trial court actually granted relief not requested for or against parties or issues are not mentioned in the order. 7 Of course, this procedure would not apply if the order fell within the category of cases for which there can be more than one final judgment, or the category of orders for which a court of appeals has been granted statutory authority to review interlocutory orders.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 25 Nehring v. McMurrain, 45 S.W. 1032 (1898)

Attorneys and Law Firms 45 S.W. 1032 Court of Civil Appeals of Texas. *1032 David H. Hewlett and Geo. F. Pendexter, for appellants. Hugh L. Davis and Geo. S. Walton, for appellees. NEHRING ET AL. v. Opinion MCMURRAIN ET AL. FISHER, C. J. June 1, 1898. This, in effect, is an action of trespass to try title, brought Appeal from district court, Travis county; R. E. Brooks, June 29, 1896, by the appellees (plaintiffs below) against Judge. the appellants. The case was tried at the December term, 1897, of the district court of Travis county, and judgment Trespass to try title by Victoria McMurrain and others against below was rendered in favor of the plaintiffs on the following Fritz Nehring and others. From a judgment for plaintiffs, verdict: “We, the jury, find for the plaintiffs against all defendants appeal. Reversed. the defendants,-- Fritz Nehring, Theodore Plattore, J. Meil, John Priem, Rec. Hammann, and J. L. Hume,--and give the plaintiffs an undivided one-third interest in the 960 acres of land, as described in plaintiffs' petition.” The judgment sets West Headnotes (3) out the following agreement: “It is agreed between the parties plaintiff and defendant to this suit, in open court: That the defendants are the owners of an undivided two-thirds interest [1] Death in and to 960 acres of land described in plaintiffs' petition, and Admissibility of Evidence as to Death that only an undivided one-third interest in said land is at issue To rebut the presumption of death arising in this case, and that, if plaintiffs are entitled to recover any from a person's disappearance, testimony of a part of the land in controversy in this suit, that such interest is witness, who saw a person bearing the supposed an undivided one-third or one-sixth interest, according to the deceased's name, as to his appearance, and finding of the jury as to whether Frank Conrad, or his mother, conversations had with him in regard to his Mrs. Smith, died first. That if the jury find Frank Conrad died, family connections, is admissible. leaving his mother, Mrs. Smith, as his only heir, plaintiffs are 1 Cases that cite this headnote entitled to recover an undivided one-third interest in said land; if Mrs. Smith died prior to Frank Conrad's death, plaintiffs are only entitled to recover an undivided one-sixth interest in said [2] Principal and Agent land.” From this agreement it is apparent that the important Death of Principal question in the case is which of the two--Frank Conrad or A power to execute a conveyance of land is his mother, Mrs. Smith--died first. The verdict of the jury, in revoked by the death of the principal. effect, determined that Mrs. Smith survived her son, Frank Conrad. According to the evidence offered by the plaintiffs, Cases that cite this headnote Frank Conrad was born about 1850, and was last seen alive about the year 1866, and was last heard from when he was [3] Trespass to Try Title at New Orleans, some time in the year 1868. Mrs. Smith, his Declaration or Petition mother, it seems, disappeared about the year 1878, and has not been seen or heard of since that time. The presumption In trespass to try title, where partition is desired, of death arising from a continued and unexplained absence the interests of the several parties should be for seven years and over of Frank Conrad was relied upon stated in the petition. by the plaintiffs to establish the proposition that he died 1 Cases that cite this headnote before his mother, Mrs. Smith. To rebut this presumption, the defendants offered in evidence the depositions of witness Achee, who, it seems, was not connected with the family of Conrad or his mother, Mrs. Smith. Upon objection by the

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plaintiffs, these depositions were excluded, and this ruling Stinchfield v. Emerson, 52 Me. 465. See Scott's Lessee v. is here complained of. The evidence of this witness was Ratliffe, 5 Pet. 81.” In Flynn v. Coffee, 12 Allen, 133, it was to the effect that in 1889, in Baton Rouge parish, La., he held “that, in order to rebut the presumption of death arising met with, and became acquainted with, a man by the name from the absence of seven years, evidence is admissible to of Frank Conrad. The witness goes on and describes the show that the person has been heard from, as living within appearance of this Frank Conrad, and gives his probable age, that time, though by others than the members of his family.” and testifies as to some conversations that he had with Frank Mullery v. Hamilton, 71 Ga. 720, was a case where a legacy Conrad, in which he gave an account of himself and his had been left to a certain child; and the question was whether family connections. The issue raised by this evidence was he survived the testatrix, and whether a certain person, who one of identity, and not pedigree. If the purpose had been did survive her, and who claimed to be the legatee, was in to establish the pedigree by the evidence of this witness, it fact so. On the question of identity it was held admissible would not have been admissible, but here the object was to to show the name such person bore, his personal appearance identify the Frank *1033 Conrad known to this witness as and conversation, and the account he gave of himself and his the Frank Conrad who the plaintiffs claim had previously family connections and associations. And evidence of these disappeared. The evidence of this witness would have some facts was from witnesses, it seems, who were not connected bearing upon the question of identity, and in rebutting the with the family, and had no previous knowledge of its history. presumption of the death of Frank Conrad, which arose from Our conclusion is that much of this testimony was admissible, his disappearance since 1868. The objections that could be and the court erred in excluding it. urged to this evidence would not go to its admissibility, but could solely affect its credibility; and its effect in this latter There was no error of the court in overruling the applications respect was a question for the jury. Similarity of name is some of the defendants for a severance. They did not hold by evidence of identity. 9 Am. & Eng. Enc. Law, 863. And, on distinct titles, emanating from different sources, but they all the question of identity, it is admissible to show the name the held under common vendors. Therefore it was not a case in person bore, his personal appearance and conversations, and which they could properly sever. the account he gave of himself and his family connections and In response to the second assignment of error, it is sufficient associations. Id., 866. And the information that is furnished to say that there was no judgment rendered for partition of the upon this subject need not come from a source which is related land. Therefore the failure of the plaintiffs, in their petition, to, or familiar with the family history of, the person who has to state the interest of the several parties, could not be held disappeared. What knowledge may be possessed by strangers reversible error. But, in view of another trial, we suggest that, upon this subject is admissible. In Wentworth v. Wentworth, if a partition is desired, it would be proper for the plaintiffs to 71 Me. 74, the court said: “The rule of law is that upon a state the interest of the several parties, if it can be done. person's leaving his usual home and place of residence for temporary purposes, and not being heard of, or known to be There was no error in the ruling of the court in excluding living, for the term of seven years, the presumption is that he is the deed of partition made by Raymond. The death of Frank not alive. It must appear that he has not been heard of by those Conrad revoked the power and the authority of Raymond to persons who would naturally have heard from him during execute the deed of partition. the time that he had been alive. The rule, however, does not confine the intelligence to any particular class of persons. It There was no error in the charge of the court as complained of may be to persons in or out of the family. The mere failure to in the fifth assignment of error, when we consider the effect hear from an absent person for seven years, who was known to of the entire charge. have a fixed place of residence abroad, would not be sufficient We express no opinion concerning the facts. This much is to raise the presumption of his death, unless due inquiry said in response to those assignments of error that complain had been made at such place without getting tidings of him. of the error in refusing to grant a new trial on account of the Loring v. Steineman, 1 Metc. (Mass.) 211; Flynn v. Coffee, insufficiency of evidence on certain questions. 12 Allen, 133; Doe v. Jesson, 6 East, 80; Doe v. Deakin, 4 Barn. & Ald. 433; Doe v. Andrews, 15 Adol. & E. (N. S.) We find no error in the eighth and ninth assignments of error. 760; Bac. Abr. tit. ‘Evidence’ (H), and cases cited; 2 Greenl. Ev. § 278, and notes; White v. Mann, 26 Me. 361; Stevens v. McNamara, 36 Me. 178; Kidder v. Blaisdell, 45 Me. 467;

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For the reasons stated in refusing to admit the testimony discussed, the judgment is reversed, and the cause remanded. Reversed and remanded.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594 (1996) 40 Tex. Sup. Ct. J. 198

Trial court's power to decide motion for sanctions pertaining to matters occurring before 940 S.W.2d 594 judgment is no different than its power to decide Supreme Court of Texas. any other motion during its plenary jurisdiction. SCOTT & WHITE MEMORIAL HOSPITAL d/ Vernon's Ann.Texas Rules Civ.Proc., Rule 13. b/a Scott & White Memorial Hospital, Scott 46 Cases that cite this headnote & White Clinic, d/b/a Scott & White Clinic, Allan E. Nickel, M.D., Emmett Mackan, M.D., Elias J. Fanous, M.D., Paul Wuthrich, M.D., [3] Costs Nature and Grounds of Right Thomas Coburn, M.D., et al., Petitioners, v. Time during which trial court has authority to impose sanctions on motion is limited to when Roy SCHEXNIDER, Christine Schexnider, it retains plenary jurisdiction and is not limited and Robert D. Green, Respondents. by rule governing nonsuits. Vernon's Ann.Texas No. 95–1242. | Dec. 13, 1996. Rules Civ.Proc., Rules 13, 162.

Plaintiffs brought medical malpractice action against hospital 49 Cases that cite this headnote and doctors. The 169th District Court, Bell County, J.F. Clawson, J., granted summary judgment to certain defendants [4] Costs and granted defendants' motion for sanctions. The Austin Nature and Grounds of Right Court of Appeals, Powers, J., 906 S.W.2d 659, reversed. On Courts impose sanctions against parties filing defendants' application for writ of error, the Supreme Court frivolous claims to deter similar conduct in held that trial court had power during its plenary jurisdiction the future and to compensate aggrieved party to grant motion for sanctions even though motion was not by reimbursing costs incurred in responding to pending when nonsuit was filed, abrogating Hjalmarson, 840 baseless pleadings. Vernon's Ann.Texas Rules S.W.2d 153. Civ.Proc., Rule 13.

Writ granted, Court of Appeals' judgment affirmed in part and 12 Cases that cite this headnote reversed in part, and case remanded.

West Headnotes (4) Attorneys and Law Firms

*595 Lisa L. Havens–Cortes, Bob Burleson, Burleson, [1] Costs Bowmer, Courtney, Burleson, Normand & Moore, Temple, Nature and Grounds of Right David McAdams Sibley, Keith C. Cameron, Naman, Howell, Trial court had power during its plenary Smith & Lee, Waco, for petitioners. jurisdiction to grant motion for sanctions, which Jimmy Williamson, Houston, Michael L. Davis, Robert D. was filed by defendants who were voluntarily Green, Green, Downey & Black, Houston, for respondents. nonsuited, even though motion was not pending when nonsuit was filed; abrogating Hjalmarson, 840 S.W.2d 153. Vernon's Ann.Texas Rules OPINION Civ.Proc., Rules 13, 162. PER CURIAM. 63 Cases that cite this headnote We overrule Respondents' motion for rehearing. We [2] Costs withdraw our opinion of August 16, 1996, and substitute the Nature and Grounds of Right following in its place.

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[1] Rule 162 applies only to sanctions motions filed before Does the trial court have the power during its plenary the nonsuit takes place and therefore does not apply to this jurisdiction to grant a motion for sanctions under Texas Rule case. 1 Rule 162 allows a nonsuit “any time before the of Civil Procedure 13 though the motion was not pending plaintiff has introduced all of his evidence other than rebuttal when a nonsuit was filed? We answer that question yes. evidence.” It also provides that “[a] dismissal under this rule shall have no effect on any motion for sanctions, attorney's On January 7, 1992, Roy and Christine Schexnider filed a fees or other costs, pending at the time of dismissal, as medical malpractice suit against Scott & White Memorial determined by the court.” (Emphasis added.) Because Rule Hospital, Scott & White Clinic, and eight Scott & White 162 speaks only to the effects of a nonsuit on a motion for doctors, including Dr. Nickel. The Schexniders added twenty- sanctions pending at the time of dismissal, the court of appeals one other Scott & White doctors as defendants on January 28, reasoned that a trial court does not have jurisdiction over a 1992. On February 10, 1992, the Schexniders added two more later-filed sanctions motion. We disagree. Scott & White doctors, including Dr. Heriot. [2] [3] Absent the filing of certain motions not at issue As the case proceeded, the defendants neither requested here, a trial court's plenary power to act in a case does discovery from the Schexniders nor challenged the pleadings not expire until thirty days after the court has signed the or parties. Approximately two and a half years after the judgment. TEX.R.CIV.P. 329b(d), (e). A trial court's power to Schexniders filed suit, all defendants moved for summary decide a motion for sanctions pertaining to matters occurring judgment. The doctors supported their motions with affidavits before judgment is no different than its power to decide in which they swore that the treatments they rendered met any other motion during its plenary jurisdiction. Thus, the the applicable standard of care. The doctors signed and swore time during which the trial court has authority to impose to the affidavits approximately a year before they filed their sanctions on such a motion is limited to when it retains motion for summary judgment. Shortly after the defendants plenary jurisdiction and is not limited by Rule 162. 2 Rule 162 moved for summary judgment, but before the trial court ruled merely acknowledges that a nonsuit does not affect the trial on the motions, the Schexniders nonsuited all the doctors court's authority to act on a pending sanctions motion; it does except Drs. Nickel and Heriot by omitting them from their not purport to limit the trial court's power to act on motions Third Amended Original Petition. On November 4, 1994, the filed after a nonsuit. In this case, the trial court imposed trial court granted a final summary judgment in favor of the sanctions while it retained plenary jurisdiction. Nothing in remaining defendants. Rule 162 or any previous decision of this Court deprives a trial court of this power. Thereafter, all of the defendants, including those who had been nonsuited, moved for sanctions under Rule 13, alleging In reaching a contrary result, the court of appeals relied that the Schexniders' suit was “groundless and brought in bad primarily upon Hjalmarson v. Langley, 840 S.W.2d 153 faith and for the purpose of harassment as to all non-party (Tex.App.—Waco 1992, orig. proceeding). In Hjalmarson, movants.” After an evidentiary hearing, the trial court ordered the defendant moved for Rule 13 sanctions two weeks after the Schexniders' attorney, Robert D. Green, to pay $25,000.00 the trial court signed an order granting the plaintiff's nonsuit. in sanctions to the nonsuited defendants. All of this occurred Although the defendant filed the motion while the trial court while the trial court retained plenary jurisdiction. had plenary jurisdiction, the trial court did not sign the order purporting to grant the motion until after the court's The court of appeals reversed both the summary judgment jurisdiction had expired. The court of appeals held that the and the sanctions order, holding that Texas Rule of Civil sanctions order was void both because the trial court ruled Procedure 162, the rule governing nonsuits, deprived the trial on the motion without reinstating the case, and because the court of jurisdiction to grant the motion for sanctions after the trial court had no power to act after expiration of its plenary nonsuit. 906 S.W.2d 659. We agree with the court of appeals' jurisdiction. Id. at 154–55. decision to reverse the summary judgment, but we disagree with its conclusion that Rule 162 deprived the trial court of Although the court in Hjalmarson correctly concluded that the *596 power to order sanctions while it retained plenary the trial court could not grant the motion after its plenary jurisdiction. jurisdiction had expired, it incorrectly concluded that the trial court must reinstate a case before granting a Rule 13

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motion filed after a nonsuit. Reinstatement, governed by Rule Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 398, 165a(3), applies to cases dismissed for want of prosecution, 110 S.Ct. 2447, 2457, 110 L.Ed.2d 359 (1990) (citation not to voluntary nonsuits. A trial court need not reinstate a omitted). 3 case in order to exercise its powers under Rule 13.

While we reject the court of appeals' reason for reversing [4] As we pointed out in Aetna Casualty & Surety Co. v. the sanctions order, the Schexniders presented two additional Specia, whether a sanction survives a nonsuit depends on the challenges to the sanctions order, neither of which was purpose served by imposing the sanction. 849 S.W.2d 805, addressed by the court of appeals. The Schexniders presented 806–07 (Tex.1993). Rule 13 sanctions serve both deterrent points of error to the court of appeals challenging the evidence and compensatory purposes. Courts impose sanctions against supporting the sanctions order, including whether the order parties filing frivolous claims to deter similar conduct in was unjust and excessive. They also challenged the failure of the future and to compensate the *597 aggrieved party the sanctions order to state the “particulars” supporting the by reimbursing the costs incurred in responding to baseless imposition of sanctions, as Rule 13 requires. As these points pleadings. Rule 162 would frustrate these purposes if it present additional independent bases for the court of appeals' allowed a party to escape sanctions by simply nonsuiting judgment, we may address them ourselves or direct the court the aggrieved party. The United States Supreme Court has of appeals to do so on remand. See McKelvy v. Barber, 381 pointed to a similar rationale in upholding the imposition of S.W.2d 59, 64 (Tex.1964). We choose the latter. sanctions under Federal Rule of Civil Procedure 11 three and a half years after voluntary dismissal of a case: Accordingly, the Court grants Petitioners' application for writ Baseless filing puts the machinery of justice in motion, of error, and pursuant to Texas Rule of Appellate Procedure burdening courts and individuals alike with needless 170, without hearing oral argument, reverses the court of expense and delay. Even if the careless litigant quickly appeals' judgment with respect to Rule 13 sanctions and dismisses the action, the harm triggering Rule 11' s remands this case to that court for consideration of the concerns has already occurred. Therefore, a litigant who Schexniders' other points of error attacking the sanctions violates Rule 11 merits sanctions even after a dismissal. order. We affirm the remainder of the court of appeals' Moreover, the imposition of such sanctions on abusive judgment. litigants is useful to deter such misconduct. If a litigant could purge his violation of Rule 11 merely by taking Parallel Citations a dismissal, he would lose all incentive to “stop, think and investigate more carefully before serving and filing 40 Tex. Sup. Ct. J. 198 papers.”

Footnotes 1 We note that, effective September 1, 1995, the Legislature has specified that a court “may not award monetary sanctions on its own initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party ... to be sanctioned.” TEX.CIV.PRAC. & REM.CODE § 10.004(e). 2 Several courts of appeals have also held that a trial court may not impose sanctions after its plenary jurisdiction has expired. See Vera v. Perez, 884 S.W.2d 182, 184 (Tex.App.—Corpus Christi 1994, no writ); Jobe v. Lapidus, 874 S.W.2d 764, 766–68 (Tex.App.—Dallas 1994, writ denied); Warfield Elec. Of Texas, Inc. v. Harry Hines Prop. Venture, 871 S.W.2d 273, 275 (Tex.App.—Eastland 1994, no writ). Another, however, has affirmed sanctions for filing a frivolous pleading imposed after a trial court's plenary jurisdiction expired, reasoning that some collateral matters that do not affect the judgment on the merits may be considered outside the jurisdictional time period. Wolma v. Gonzalez, 822 S.W.2d 302, 303 (Tex.App.—San Antonio 1991, orig. proceeding). We disapprove of Wolma to the extent it holds that a trial court may sanction pre-judgment conduct after its plenary jurisdiction has expired. 3 Since the United States Supreme Court decided Cooter & Gell, Rule 11 has been amended to create a safe harbor: “[A motion for sanctions] shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion ... the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” FED.R.CIV.P. 11(c)(1)(A).

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Discovery sanctions are rarely proper subject for mandamus review. 905 S.W.2d 43 Court of Appeals of Texas, Cases that cite this headnote San Antonio.

Jose VELEZ and Manuel Munoz, Jr., Appellants, [4] Judges v. Judicial powers and functions in general Jose Garcia DE LARA and Jose Botello, Appellees. Jurisdiction to reconsider an interlocutory ruling is vested in the court rather than the individual No. 04–93–00369–CV. | July 31, 1995. judge, and one district judge may hold court for another district judge, and thus second judge Claimants appealed ruling of the 37th District Court of Bexar in civil proceeding had authority to rule on County, Andy Mireles, J., that vacated order of sanctions motions for sanctions and for contempt brought for discovery violations imposed by a different judge in for opposing party's failure to comply with first same proceeding, denied claimants' motion for contempt, and judge's order of sanctions. Vernon's Ann.Texas declined to impose additional monetary sanctions. The Court Const. Art. 5, § 11. of Appeals, Stone, J., held that: (1) trial court had authority to set aside sanctions order; (2) trial court had authority to 3 Cases that cite this headnote rule on claimants' motion to compel and motion for additional sanctions; and (3) Court of Appeals had no jurisdiction to entertain an appeal from a refusal to hold a party in contempt. [5] Judges Judicial powers and functions in general Affirmed. Second trial judge in civil proceeding had authority to review and set aside discovery sanctions imposed by previous judge. Vernon's Ann.Texas Const. Art. 5, § 11. West Headnotes (10) Cases that cite this headnote

[1] Motions Authority and jurisdiction of court or judge [6] Appeal and Error Trial courts retain authority to reconsider any Questions of Fact on Motions or Other interlocutory order until the judgment becomes Interlocutory or Special Proceedings final. A hearing on a motion for sanctions is like a nonjury trial and the trial judge's order will not 4 Cases that cite this headnote be disturbed if it is supported by any evidence of probative force. [2] Appeal and Error Cases that cite this headnote Relating to witnesses, depositions, evidence, or discovery Discovery sanctions cannot be the subject of an [7] Appeal and Error interlocutory appeal. Vernon's Ann.Texas Rules Depositions, affidavits, or discovery Civ.Proc., Rule 215, subd. 2, par. b. In determining whether a trial court abused its discretion in issuing a sanctions order, appellate 2 Cases that cite this headnote courts should view the evidence in the light most favorable to the trial court's ruling. [3] Mandamus Cases that cite this headnote Proceedings in civil actions in general

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[8] Courts Before CHAPA, C.J., and RICKHOFF and STONE, JJ. Abuse of discretion in general A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to OPINION amount to a clear and prejudicial error of law. STONE, Justice. Cases that cite this headnote This is an appeal from an order entered by one district court judge setting aside a previous sanctions order entered by a [9] Pretrial Procedure different district court judge. Appellants contend the second Failure to Disclose; Sanctions trial judge was without authority to vacate the sanctions order Trial court in civil proceeding did not abuse its because such orders can be reviewed on appeal only after discretion in its ruling on a motion for sanctions entry of a final judgment on the merits. We find that the trial brought because of opposing party's alleged court had authority to set aside the order of sanctions and that failure to comply with earlier judge's monetary it did not abuse its discretion in ruling on appellants' motions sanctions for discovery violations, where court for additional sanctions. To the extent the trial court's order did not impose requested monetary sanctions but was a contempt adjudication, this court has no jurisdiction and ordered moving party to clarify its objections expresses no opinion as to its validity. to the discovery produced by opposing party, established a deadline for opposing party to Appellees Jose Garcia DeLara and Jose Botello were furnish supplemental responses, and ordered the national president and treasurer, respectively, of the opposing party to submit to second deposition, League of United Latin American Citizens (LULAC), which and where court heard extensive argument from maintained a bank account with the International Bank both sides before ruling. of Commerce (IBC). Appellees also maintained a separate undisclosed account at another bank under LULAC's name. Cases that cite this headnote At their 1990 annual meeting, the LULAC National Board of Directors elected appellants Jose Velez and Manuel Munoz [10] Contempt to be the new president and treasurer, respectively, and Decisions reviewable authorized them to make signatory changes on all bank accounts. IBC instituted this suit as an interpleader action. Court of Appeals has no jurisdiction to entertain Appellants filed a cross action on behalf of LULAC against an appeal from a refusal to hold a party in Appellees for a full accounting and a turnover of all LULAC contempt; such refusal is not a final, appealable funds. IBC was ultimately dismissed from the litigation by judgment. agreement of all parties. 3 Cases that cite this headnote During the discovery process appellants claimed that appellees failed to respond to a subpoena duces tecum and did not willingly disclose the other bank account. Appellants *44 Appeal from the 37th District Court of Bexar filed a motion for sanctions and on February 25, 1991, County, Trial Court No. 90–CI–09727; Andy Mireles, Judge the Honorable Judge Antonio Cantu ordered appellees to each pay a $100.00 fine and an additional $500.00 for each Presiding 1 . Friday after March 1, 1991, that they did not produce the Attorneys and Law Firms information. Subsequently, appellees accidently produced a copy of one check from the other account. Appellants again Armando Lopez, Lopez, Sinderson & Fraga, L.L.P., Houston, moved for sanctions citing violations of the court's February for appellants. 25th order. On August 1, 1991, Judge Cantu signed an order finding that appellees had violated his earlier order and fined Ricardo G. Cedillo, Susan G. Lozano, Davis, Adami & each $500.00 for each Friday from March 1, 1991 to July Cedillo, Inc., San Antonio, for appellees. 26, 1991, totalling $10,500.00 each, jointly and severally,

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and he reaffirmed the $100.00 penalty against each. The (b) states, such sanctions can be reviewed on appeal after order specifically recites that a motion for contempt will be entry of a final judgment. Nonetheless, trial courts retain entertained by the court if the parties refuse to abide by the authority to reconsider any interlocutory order until the terms of the order. judgment becomes final. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993); Kone v. Security Finance Co., 158 Appellees filed motions for reconsideration to have the Tex. 445, 313 S.W.2d 281, 286 (1958). The Fort Worth Court sanctions order set aside, but these motions were never of Appeals has specifically ruled that a subsequent judge can presented to the trial court. Appellants filed a motion for withdraw a previous sanctions order entered by another judge. contempt alleging appellees' failure to comply with the Carrizales v. Wal–Mart Stores, Inc., 794 S.W.2d 129, 130 order of August 1st signed by Judge Cantu. Appellants (Tex.App.—Fort Worth 1990, writ denied) (successor judge also filed motions to compel answers to interrogatories and had absolute right to set aside multimillion dollar sanction for additional sanctions. The motions were heard by the order entered by predecessor judge). Honorable Judge Susan Reed, who entered an order on November 18, 1991 which denied the motion for contempt, [4] Further, the record does not support appellants' claims ruled that the previous sanctions granted by Judge Cantu for that appellees engaged in “judge shopping” until they found contempt were unenforceable as a matter of law, ordered a judge willing to set aside the sanctions order. Our state appellants to clarify their objections to appellees' answers to constitution provides that district judges may exchange interrogatories, ordered appellees to file any supplemental districts or hold court for one another whenever it is answers before November 25th, and ordered appellees to expedient. TEX. CONST. art. 5, § 11. In Bexar County, each submit to another deposition. Appellants thereafter non- which utilizes a central docket system, the presiding judge suited their claims against appellees and perfected their assigns cases to any available judge, including currently appeal to this court complaining of the rulings issued by Judge elected judges and visiting judges. See Local Rules of the Susan Reed. Civil District Courts of Bexar County, Rule 3.2. Since the jurisdiction to reconsider an interlocutory ruling is vested in the court rather than the individual judge, and since one district judge may hold court for another district judge, Judge *45 AUTHORITY OF THE TRIAL COURT Reed had authority to rule on the motions for sanctions and for Appellants contend that Judge Cantu's order was not contempt. That authority was not vested solely in Judge Cantu reviewable by Judge Reed, but was only reviewable on as the judge who issued the sanctions order. See Hyundai appeal after final judgment. Appellants rely on TEX.R.CIV.P. Motor America v. O'Neill, 839 S.W.2d 474, 481 (Tex.App.— 215(2)(b)(8), which states that a sanctions order “shall be Dallas 1992, no writ). subject to review on appeal from the final judgment.” Appellants further note that discovery sanctions are not appealable until the trial court renders a final judgment, and SANCTIONS ORDER that this means of appealing a sanction order is an adequate remedy. Bodnow Corp. v. City of Hondo, 721 S.W.2d [5] [6] [7] [8] [9] To the extent Judge Reed's order 839, 840 (Tex.1986) (per curiam) (discovery sanctions not constituted a review of the interlocutory sanctions order appealable until final judgment is rendered by trial court); issued by Judge Cantu, it was an authorized exercise of her Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801, 802 authority. Likewise, Judge Reed had authority to rule on the (Tex.1986) (per curiam) (right to appeal discovery order after motions to compel and for sanctions. 2 We find no abuse of final judgment is adequate remedy). Appellants thus conclude discretion in her ruling. A hearing on a motion for sanctions that Judge Reed was without authority to modify or withdraw is like a non-jury trial and the trial judge's order will not be the sanctions orders previously signed by Judge Cantu. disturbed if it is supported by any evidence of probative force. Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219, [1] [2] [3] While the legal principles cited by appellants 224 (Tex.App.—Dallas 1989, writ denied). In determining are generally true, they do not mandate the conclusion reached whether a trial court abused its discretion in issuing a by appellants. We recognize that discovery sanctions cannot sanctions order, appellate courts should view the evidence in be the subject of an interlocutory appeal, and are rarely a the light most favorable to the trial court's ruling. Vaughn proper subject for mandamus review. Rather, as Rule 215(2) v. Texas Employment Comm'n, 792 S.W.2d 139, 142–43

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[10] In addition to the motion to compel and for sanctions, (Tex.App.—Houston [1st. Dist.] 1990, no writ); Parks v. U.S. appellants presented to Judge Reed their motion for contempt Home Corp., 652 S.W.2d 479, 485 (Tex.App.—Houston [1st based upon appellees' alleged failure to comply with the Dist.] 1983, writ dism'd). A trial court abuses its discretion order of August 1, 1990. That motion was denied by when it reaches a decision so arbitrary and unreasonable as Judge Reed because she found the prior sanctions order to amount to a clear and prejudicial *46 error of law. See to be unenforceable as a matter of law. This court has no Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, jurisdiction to entertain an appeal from a refusal to hold 241–42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. a party in contempt because it is not a final, appealable 2279, 90 L.Ed.2d 721 (1986); City of Dallas v. Ormsby, et judgment. Norman v. Norman, 692 S.W.2d 655, 655 al., 904 S.W.2d 707, 709 (Tex.App.—Amarillo 1995, n.w.h.). (Tex.1985) (per curiam); Ex parte Cardwell, 416 S.W.2d 382, In the instant case the court heard extensive argument from 384 (Tex.1967); see also Gawlik v. Gawlik, 707 S.W.2d 256, all parties, and rather than imposing monetary sanctions, 257 (Tex.App.—Corpus Christi 1986, no writ). the court: (1) ordered appellants to clarify their objections to the discovery produced by appellees; (2) established a To the extent appellants complain of the trial court's order deadline for appellees to furnish supplemental responses; and refusing to hold appellees in contempt, this court has no (3) ordered both appellees to submit to second depositions. jurisdiction and renders no opinion. In all other regards the We find no abuse of discretion in this ruling. judgment of the trial court is affirmed.

CONTEMPT RULING

Footnotes 1 The actual order on appeal was signed by the Honorable Judge Susan Reed. 2 The motions to compel answers to interrogatories and for sanctions are not included in this Court's transcript; however, all parties argued the merits of these motions at the hearing before Judge Reed.

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Presumptions and Burden of Proof 827 S.W.2d 833 Party seeking mandamus relief had burden of Supreme Court of Texas. providing not only a petition and affidavit, but also a statement of facts from evidentiary hearing Charles F. WALKER and Mary that had been held. Rules App.Proc., Rule 121(a) Jeanette Walker et al., Relators, (2)(C, F). v. 20 Cases that cite this headnote The Honorable Anne PACKER, Judge, Respondent.

No. C–9403. | Feb. 19, 1992. | Rehearing [3] Mandamus Overruled May 6, 1992. | Dissenting Presumptions and Burden of Proof Opinion by Justice Gammage May 7, 1992. Plaintiffs bringing motion for leave to file petition for writ of mandamus arguing that trial Parents of child born with brain damage, who had brought court clearly abused its discretion by refusing action against obstetrician, hospital where child was born, to order defendant to produce documents from and nurse attending at delivery, brought petition for writ of insurer's files and by ordering that portions of mandamus arguing that the trial court abused its discretion other responsive documents be stricken failed to by refusing to order hospital to produce documents from meet their burden of providing Court of Appeals its insurer's files and by ordering that portions of other with record upon which they could establish responsive documents be stricken. The Supreme Court, their right to mandamus relief; plaintiffs failed to Phillips, C.J., held that: (1) plaintiffs had not presented provide Supreme Court with statement of facts sufficient record to demonstrate that trial court clearly abused from evidentiary hearing. Rules App.Proc., Rule its discretion in failing to grant plaintiffs requested discovery 121(a)(2)(C, F). from one of defendants, and (2) plaintiffs had adequate remedy by way of appeal as to documents they sought from 824 Cases that cite this headnote nonparty for impeachment purposes.

Petition denied. [4] Pretrial Procedure Request, Notice, or Motion and Response Gonzalez, J., concurred with opinion. or Objection Trial court erred in mechanically applying Doggett, J., dissented with opinion in which Mauzy, J., Russell decision, which disapproved of global joined. discovery of documents merely to impeach potential witness, to deny discovery of Gammage, J., dissented with opinion. documentary evidence by medical malpractice plaintiffs to impeach one of defendants' expert witnesses, a faculty member in obstetrics; plaintiffs presented to trial court evidence of West Headnotes (18) hospital's policy restricting faculty's freedom to testify for plaintiffs, raising the possibility [1] Mandamus that the faculty member was biased, and Presumptions and Burden of Proof plaintiffs' request was narrowly tailored. Vernon's Ann.Texas Rules Civ.Proc., Rule 166b, Party seeking mandamus relief has burden of subd. 2, par. a; Rules of Civ.Evid., Rule 613(b). providing Supreme Court with sufficient record to establish right to mandamus relief. 9 Cases that cite this headnote 465 Cases that cite this headnote [5] Mandamus Scope of Inquiry and Powers of Court [2] Mandamus

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Trial court clearly abuses its discretion, for purposes of mandamus, with respect to 92 Cases that cite this headnote resolution of factual issues or matters committed to trial court's discretion, only if trial court could [10] Mandamus reasonably have reached only one decision; Remedy by Appeal or Writ of Error reviewing court may not substitute its judgment Mandamus will not issue where there is adequate for that of trial court. remedy by appeal. 781 Cases that cite this headnote 277 Cases that cite this headnote

[6] Mandamus [11] Mandamus Matters of Discretion Modification or Vacation of Judgment or On mandamus review of trial court's Order determination of legal principles, clear failure by Party seeking review of discovery order by trial court to analyze or apply the law correctly mandamus must demonstrate that the remedy will constitute abuse of discretion, and may offered by an ordinary appeal is inadequate. result in appellate reversal by extraordinary writ. 24 Cases that cite this headnote 1803 Cases that cite this headnote

[12] Mandamus [7] Mandamus Remedy by Appeal or Writ of Error Scope of Inquiry and Powers of Court Appellate remedy is not inadequate, for purposes On mandamus review of trial court's erroneous of mandamus, merely because it may involve denial of requested discovery in medical more expense or delay than obtaining an malpractice case on sole basis of Russell, extraordinary writ. Supreme Court would consider the trial court's decision as a legal conclusion to be reviewed 135 Cases that cite this headnote with limited deference.

20 Cases that cite this headnote [13] Mandamus Modification or Vacation of Judgment or Order [8] Mandamus Party will not have adequate remedy by way Proceedings in Civil Actions in General of appeal, for purposes of mandamus, when Trial court's erroneous denial of plaintiffs' appellate court would not be able to cure the trial requested discovery in medical malpractice case court's discovery error, which occurs when trial to impeach one of defendants' expert witnesses court erroneously orders disclosure of privileged on sole basis of Russell constituted clear abuse information which will materially affect the of discretion, for purposes of mandamus relief. rights of the aggrieved party. 385 Cases that cite this headnote 176 Cases that cite this headnote

[9] Mandamus [14] Mandamus Remedy by Appeal or Writ of Error Remedy by Appeal or Writ of Error Requirement that person seeking mandamus Appeal will not be an adequate remedy, for relief establish lack of adequate appellate remedy purposes of mandamus, where the party's ability is “fundamental tenet” of mandamus practice. to present viable claim or defense at trial is vitiated or severely compromised by trial court's

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discovery error, but it is not enough to show mandamus is appropriate. Vernon's Ann.Texas merely the delay, inconvenience or expense of Rules Civ.Proc., Rule 166b, subd. 4. an appeal, rather, the relator must establish the effective denial of reasonable opportunity to 18 Cases that cite this headnote develop the merits of his or her case. [18] Mandamus 389 Cases that cite this headnote Modification or Vacation of Judgment or Order [15] Mandamus Medical malpractice plaintiff seeking documents Modification or Vacation of Judgment or from defendant hospital to impeach one of Order defendant's expert witnesses had adequate When trial court imposes discovery sanctions remedy by appeal, and, thus, mandamus was which have effect of precluding decision inappropriate way to compel discovery, where on merits of party's claims, party's remedy the information was not privileged, burdensome by eventual appeal is inadequate, for or harassing, nor did it vitiate or severely purposes of mandamus, unless sanctions are compromise the plaintiffs' ability to present imposed simultaneously with rendition of final, a viable claim, the materials were considered appealable judgment. below, and there was no reason why they would not be available on appeal. 97 Cases that cite this headnote 121 Cases that cite this headnote

[16] Mandamus Modification or Vacation of Judgment or Order Attorneys and Law Firms Remedy by appeal may be inadequate, for purposes of mandamus, where trial court *835 Les Weisbrod and Michael S. Box, Dallas, for relators. disallows discovery and missing discovery cannot be made part of appellate record, or trial Philipa Remington, Stephen W. Johnson, James A. Williams, court after proper request refuses to make it Kevin J. Keith, Martha L. Strother, Gary W. Sibley, Dallas part of record, and reviewing court is unable to and Delmar L. Cain, Austin, for respondent. evaluate effect of trial court's error on the record before it. OPINION 46 Cases that cite this headnote PHILLIPS, Chief Justice. [17] Mandamus This original mandamus action involves two pre-trial Proceedings in Civil Actions in General discovery requests sought by *836 relators, plaintiffs in If trial court disallows discovery and missing a medical malpractice lawsuit. The first discovery dispute discovery cannot be made part of appellate involves documents which the plaintiffs seek from one of record, or trial court after proper request refuses the defendants, while the second involves documents which to make it part of record, and reviewing court they seek from a nonparty for impeachment purposes. As to is unable to evaluate effect of trial court's error the first matter, we hold that relators have not presented a on record before it, court must carefully consider sufficient record to demonstrate that the trial court clearly all relevant circumstances, such as claims and abused its discretion in failing to grant them all requested defenses asserted, type of discovery sought, relief. As to the second, we hold that relators have an adequate what it is intended to prove, and presence or remedy by appeal. Thus, mandamus is inappropriate, and we lack of other discovery, to determine whether deny the writ.

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to what was requested in the request for production—that is, writings, notes, and notations in the adjuster's file or The St. Paul and Aetna Records attorney's file mentioning, alluding to, or making reference Catherine Johanna Walker sustained brain damage at birth in to the tape recorded statement of Nurse White.” At about January 1983. In January 1985, her parents, Charles F. and the same time, the Walkers also served on Aetna Casualty Mary Jeanette Walker, sued Dr. Paul Crider, the obstetrician, and Surety Company, St. Paul's insurer, an “Amended Notice St. Paul Hospital, where Catherine was born, and Iris Jean of Intention to Take Deposition Upon Written Questions White, a nurse attending at the delivery. —Duces Tecum,” seeking, among other things, the same documents. Aetna moved to quash the notice. In August 1987, the Walkers served on St. Paul their third request for production of documents pursuant to Tex.R.Civ.P. The trial judge appointed a special master to review the 167. One request asked for: Walkers' motion to compel and Aetna's motion to quash. After an evidentiary hearing on September 5, 1989, the master Any and all writings, notes, prepared findings, which formed the basis for two extensive documents, letters, etc., concerning, orders signed by the trial court on September 20, 1989. In the mentioning, alluding to, or making first order, the court found that the Walkers were “entitled reference to (either directly or to all documentation sought in [the request] from the files indirectly), the tape recorded of Defendant St. Paul or its attorney of record, but not from statement given by Nurse White to the files of Aetna Insurance Company, except as they may an Aetna adjuster, including but not appear in the files of St. Paul or the attorneys of record of limited to any notes or entries in any St. Paul.” The court also stated that it “has been advised that Aetna adjuster's file, any attorney's St. Paul has supplied all documentation that is responsive to file, or any file or writing in possession [the request], but that additional documentation will be made of any employee, representative or available *837 to the Court for in camera review.” The court agent of St. Paul Hospital. This request therefore sustained the Walkers' motion to compel “to the is in reference to the tape recorded extent that on Friday, September 8, 1989 the Special Master statement which you have been unable will review in the Chambers of the 134th District Court the to locate, but which was previously relevant portions of the St. Paul files and their attorney [sic] requested.... files, which may be in response to Plaintiff's request....” The court, however, did not order St. Paul to produce documents St. Paul responded as follows: from Aetna's files for in camera inspection. 2 In an effort to respond to this request, this Defendant again checked with After the master's September 8 in camera inspection, the court all appropriate personnel and files ordered discovery of three additional documents from the at St. Paul Hospital and the law files of St. Paul and its attorneys, which it found “relate to firm of Bailey and Williams. No the matters sought in discovery and should be supplied after such statement or taped recording was irrelevant portions of such documents are stricken.” found. For the third time the Aetna Casualty and Surety Company was After unsuccessfully seeking relief in the court of appeals, asked to check its records and files and the Walkers moved for leave to file a petition for writ a partially transcribed statement was of mandamus with this court, arguing that the trial court located, a copy of which is attached. clearly abused its discretion by refusing to order St. Paul to No taped recording was located. produce the documents from Aetna's files and by ordering that portions of the other responsive documents be stricken. The Nearly two years later, the Walkers filed a motion to Walkers contend that the order was a clear abuse of discretion compel under Tex.R.Civ.P. 215, asserting that St. Paul because St. Paul 1) never objected to the Walkers' request for production, 2) had a superior right to the Walkers to compel failed to respond completely to the request. 1 The Walkers production of the documents in Aetna's possession, and 3) complained that “St. Paul Hospital did not even respond never asked that any parts of the documents be excised.

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overly broad” and that production would be “costly and The record before us does not include the statement of burdensome.” facts from the evidentiary hearing on the Walkers' motion to compel production. Without it, we cannot determine on Two months later, in an unrelated lawsuit, the Walkers' what basis the trial judge and the special master reached counsel deposed Dr. Alvin L. Brekken, another obstetrics their conclusions. Since we cannot assess whether or not faculty member at the Center. Dr. Brekken testified that the trial court's order was correct, we obviously cannot take the obstetrics department's official policy, distributed in the additional step of determining that the court's order, if writing to all faculty members, requires a doctor to obtain incorrect, constituted a clear abuse of discretion. authorization from other faculty members before testifying for any plaintiff in a medical malpractice case. Based on this [1] [2] [3] As the parties seeking relief, the Walkers had testimony, the Walkers sought a court order to depose Wagers the burden of providing this Court with a sufficient record to and obtain the requested documents. establish their right to mandamus relief. Since an evidentiary hearing was held, the Walkers had the burden of providing After reviewing the Gilstrap and Brekken depositions and us not only a petition and affidavit, see Tex.R.App.P. 121(a) pleadings of counsel, the trial court ordered the Center to (2)(C) and (F), but also a statement of facts from the produce the documents for in camera review by the special hearing. See, e.g., Cameron County v. Hinojosa, 760 S.W.2d master. Subsequently, in her September 20, 1989 order, the 742, 744 (Tex.App.—Corpus Christi 1988, orig. proceeding); trial judge denied the discovery, stating in part: Greenstein, Logan & Co. v. Burgess Mktg. Inc., 744 S.W.2d 170, 177 (Tex.App.—Waco 1987, writ denied); see also [S]uch requested discovery is Western Casualty & Surety Co. v. Spears, 730 S.W.2d improper pursuant to the Rulings of the Supreme Court of Texas in Russell 821, 822 (Tex.App.—San Antonio 1987, orig. proceeding). 3 v. Young [452 S.W.2d 434 (Tex.1970) Having failed to meet this burden, the Walkers have not ], as the potential witness is not a provided us with a record upon which they can establish their party to the suit and the records do right to mandamus relief against St. Paul. not relate to the subject matter of the suit, but are sought solely for the purpose of impeachment, according to The Obstetrics Faculty Records the Plaintiffs' pleadings.

[4] The second discovery dispute arises out of the Walkers' Although noting that some of the documents “would be attempt to secure documentary evidence to impeach one relevant to this cause of action,” the court nevertheless denied of the defendants' expert witnesses, Dr. Larry Gilstrap, a discovery because “all such documents are controlled by the faculty member in obstetrics at the University of Texas Health Russell decision.” Science Center at Dallas (“the Center”). Gilstrap testified at his deposition that expert witness fees earned by obstetrics In Russell, a party sought wholesale discovery of financial faculty members are deposited into a “fund” in the obstetrics records of a potential medical expert witness who was “billing department”; that obstetrics faculty members get paid not a party to the lawsuit. 4 The documents requested did “indirectly” from this fund; that the fund is handled by Judy not relate directly to the subject matter of the suit, but Wagers, a Center employee; and that he was unaware of any were sought solely in an attempt to impeach the potential obstetrics department policy restricting faculty members from witness by showing bias or prejudice. The credibility of the testifying for plaintiffs in medical malpractice cases. witness, however, had not yet been put in doubt. Under these circumstances, we held that the documents were not *838 Thereafter, the Walkers noticed Wagers' deposition, discoverable, and we directed the trial court to vacate its order requesting that she provide all documents regarding (1) the allowing the requested discovery. 452 S.W.2d at 435. We operation of the above-mentioned “fund” from 1985 to 1988; reasoned that “[t]here is ... a limit beyond which pre-trial and (2) limitations placed upon obstetrics faculty members discovery should not be allowed.” Id. at 437. relating to their testimony in medical malpractice cases. The Center, on behalf of Wagers, moved to quash the notice, The present case is distinguishable. Here, the Walkers arguing that the request for documents was “vague and presented to the trial court evidence of a specific circumstance

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—the Center's policy restricting the faculty's freedom to court. See, e.g., Joachim v. Chambers, 815 S.W.2d 234, testify for plaintiffs—raising the possibility that Dr. Gilstrap 237 (Tex.1991); Jampole v. Touchy, 673 S.W.2d 569, 574 is biased. Thus, the Walkers are not engaged in global (Tex.1984); West v. Solito, 563 S.W.2d 240, 244 (Tex.1978); discovery of the type disapproved in Russell; rather, they Womack v. Berry, 156 Tex. 44, 50, 291 S.W.2d 677, 682 narrowly seek information regarding the potential bias (1956). See generally, David W. Holman & Byron C. suggested by the witness' own deposition testimony and that Keeling, Entering the Thicket? Mandamus Review of Texas of his professional colleague. District Court Witness Disclosure Orders, 23 St. Mary's L.J. 365, 390 (1991); Cassidy, 31 S.Tex.L.Rev. at 510; Note, The Our rules of civil procedure, and the federal rules upon which Use of Mandamus to Review Discovery Orders in Texas: they are based, mandate a flexible approach to discovery. A An Extraordinary Remedy, 1 Rev.Litig. 325, 326–27 (1981); party may seek any information which “appears reasonably Comment, 32 Sw.L.J. at 1290. calculated to lead to the *839 discovery of admissible evidence.” Tex.R.Civ.P. 166b(2)(a). Evidence of bias of A trial court clearly abuses its discretion if “it reaches a a witness is relevant and admissible. See Tex.R.Civ.Evid. decision so arbitrary and unreasonable as to amount to a clear 613(b). 5 and prejudicial error of law.” Johnson v. Fourth Court of Appeals, 700 S.W.2d at 917. This standard, however, has The trial court erred in failing to apply the foregoing rules to different applications in different circumstances. determine whether the documents were discoverable. Instead, the trial court simply read Russell as an absolute bar to [5] With respect to resolution of factual issues or matters discovery, even though the circumstances here are quite committed to the trial court's discretion, for example, the distinguishable. In so doing, the trial court misapplied the reviewing court may not substitute its judgment for that of the Russell holding. We expressly disapprove such a mechanical trial court. See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41–42 (Tex.1989) (holding that determination *840 of approach to discovery rulings. 6 discoverability under Tex.R.Civ.P. 166b(3)(d) was within discretion of trial court); Johnson, 700 S.W.2d at 918 (holding Having concluded that the trial court erred in denying the that trial court was within discretion in granting a new trial discovery based solely on Russell, we now must determine “in the interest of justice and fairness”). The relator must whether the appropriate remedy lies by writ of mandamus. establish that the trial court could reasonably have reached “Mandamus issues only to correct a clear abuse of discretion only one decision. Id. at 917. Even if the reviewing court or the violation of a duty imposed by law when there is no would have decided the issue differently, it cannot disturb the other adequate remedy by law.” Johnson v. Fourth Court of trial court's decision unless it is shown to be arbitrary and Appeals, 700 S.W.2d 916, 917 (Tex.1985). 7 We therefore unreasonable. Johnson, 700 S.W.2d at 918. examine whether the trial court's error in the present case constituted a clear abuse of discretion and, if so, whether there [6] On the other hand, review of a trial court's determination is an adequate remedy by appeal. of the legal principles controlling its ruling is much less deferential. A trial court has no “discretion” in determining what the law is or applying the law to the facts. Thus, 1. Clear Abuse of Discretion a clear failure by the trial court to analyze or apply the Traditionally, the writ of mandamus issued only to compel law correctly will constitute an abuse of discretion, and the performance of a ministerial act or duty. See Wortham v. may result in appellate reversal by extraordinary writ. See Walker, 133 Tex. 255, 277, 128 S.W.2d 1138, 1150 (1939); Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex.1991) Arberry v. Beavers, 6 Tex. 457 (1851); Helen A. Cassidy, (trial court abused discretion by misinterpreting Code of The Instant Freeze–Dried Guide to Mandamus Procedure in Judicial Conduct); NCNB Texas National Bank v. Coker, 765 Texas Courts, 31 S.Tex.L.Rev. 509, 510 (1990); Comment, S.W.2d 398, 400 (Tex.1989) (trial court abused discretion The Expanding Use of Mandamus to Review Texas District by failing to apply proper legal standard to motion to Court Discovery Orders: An Immediate Appeal Is Available, disqualify counsel); Eanes ISD v. Logue, 712 S.W.2d 741, 32 Sw.L.J. 1283, 1288 (1979). 742 (Tex.1986) (trial court abused discretion by erroneously finding constitutional violation). Since the 1950's, however, this Court has used the writ to correct a “clear abuse of discretion” committed by the trial

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[7] [8] In determining whether the trial court abused mandamus to correct a discovery abuse without considering its discretion in the present case, we treat the trial court's whether the relator had an adequate remedy by appeal. The erroneous denial of the requested discovery on the sole real party in interest in Allen raised this argument, but the basis of Russell as a legal conclusion to be reviewed with Court avoided the issue by citing Barker. Id. at 801. limited deference to the trial court. This is consistent with our approach in previous mandamus proceedings arising out Commentators quickly criticized the Barker and Allen of the trial court's interpretation of legal rules. Cf. Axelson, opinions. See James Sales, Pre–Trial Discovery in Texas, 31 Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex.1990); Barnes Sw.L.J. 1017, 1033 (1977); Comment, The Expanding Use of v. Whittigton, 751 S.W.2d 493, 495–96 (Tex.1988); Terry v. Mandamus to Review Texas District Court Discovery Orders: Lawrence, 700 S.W.2d 912, 913–14 (Tex.1985). Under this An Immediate Appeal Is Available, 32 Sw.L.J. 1283, 1300 analysis, the trial court's erroneous interpretation of the law (1979) (In most cases “forcing a party to await the completion constitutes a clear abuse of discretion. of the trial in order to seek appellate review will not endanger his substantial rights....”); Note, Mandamus May Issue To Compel A District Judge to Order Discovery, 9 Tex.Tech 2. Adequate Remedy by Appeal L.Rev. 782 (1978) (mandamus should not be a substitute for In order to determine whether the writ should issue, however, appeal). we must further decide whether the Walkers have an adequate remedy by appeal. In Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984), the Court again used the extraordinary writ of mandamus to [9] Mandamus will not issue where there is “a clear and compel discovery which had been denied by the trial court. adequate remedy at law, such as a normal appeal.” State Unlike in Barker and Allen, however, the Court in Jampole v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus addressed whether relator had an adequate appellate remedy. is intended to be an extraordinary remedy, available only The underlying suit in Jampole was a products liability action, in limited circumstances. The writ will issue “only in and the disputed discovery materials included alternate design situations involving manifest and urgent necessity and not and assembly documents. The Court held that relator did for grievances that may be addressed by other remedies.” not have an adequate remedy by appeal because denial of Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 this discovery effectively prevented relator from proving (Tex.1989) (quoting James Sales, Original Jurisdiction of the material allegations of his lawsuit. 673 S.W.2d at 576. the Supreme Court and the Courts of Civil Appeals of Texas Remedy by appeal in a discovery mandamus is not adequate in Appellate Procedure in Texas, § 1.4[1] [b] at 47 (2d where a party is required “to try his lawsuit, debilitated by the ed. 1979)). The requirement that persons seeking mandamus denial of proper discovery, only to have that lawsuit rendered relief establish the lack of an adequate appellate remedy is a certain nullity on appeal....” Id. a “fundamental tenet” of mandamus practice. Holloway, 767 S.W.2d at 684. Although the Court in Jampole recognized the need to address whether relator had an adequate remedy by appeal, [10] Our requirement that mandamus will not issue where it expressly refused to overrule Barker and Allen. Id. there is an adequate remedy by appeal is well-settled. 8 On a Perhaps because of this, we have on several occasions since few occasions, however, we have not focused *841 on this Jampole used mandamus to correct discovery errors without requirement when applying mandamus review of discovery considering whether the relator had an adequate appellate orders. For example, in Barker v. Dunham, 551 S.W.2d 41 remedy. See Loftin v. Martin, 776 S.W.2d 145 (Tex.1989); (Tex.1977), the trial court refused to compel defendant's Barnes v. Whittington, 751 S.W.2d 493 (Tex.1988); Lunsford representative to answer certain deposition questions, and the v. Morris, 746 S.W.2d 471 (Tex.1988); Turbodyne Corp. v. plaintiff applied to this Court for a writ of mandamus. We Heard, 720 S.W.2d 802 (Tex.1986); Terry v. Lawrence, 700 concluded that the trial court had abused its discretion, and S.W.2d 912 (Tex.1985); Lindsay v. O'Neill, 689 S.W.2d 400 ordered that the writ conditionally issue. We never discussed (Tex.1985). the well-settled requirement of inadequate remedy by appeal. On many other occasions, however, we have still required a A few months later, in Allen v. Humphreys, 559 S.W.2d 798 showing of inadequate *842 remedy by appeal in mandamus (Tex.1977), the Court again conditionally issued a writ of proceedings involving other types of pre-trial orders, even

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those involving discovery. See, e.g., TransAmerican Natural discovery progressed and the evidence was developed at trial. Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991); Moreover, the delays and expense of mandamus proceedings Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59–60 may be substantial. This proceeding, for example, involving (Tex.1991); Bell Helicopter Textron, Inc., v. Walker, 787 rulings on collateral discovery matters, has delayed the trial S.W.2d 954, 955 (Tex.1990); Stringer v. Eleventh Court of on the merits for over two years. The impact on the appellate Appeals, 720 S.W.2d 801, 801–02 (Tex.1986). In Hooks, for courts must also be considered. We stated in Braden that example, we reaffirmed that the “cost or delay of having to “[t]he judicial system cannot afford immediate review of go through trial and the appellate process does not make the every discovery sanction.” 811 S.W.2d 922, 928. It follows remedy at law inadequate.” 808 S.W.2d at 60. that the system cannot afford immediate review of every discovery order in general. 9 We therefore disapprove of [11] The requirement that mandamus issue only where Cleveland, Crane, Jampole and any other authorities to the there is no adequate remedy by appeal is sound, and we extent that they imply that a remedy by appeal is inadequate reaffirm it today. No mandamus case has ever expressly merely because it might involve more delay or cost than rejected this requirement, or offered any explanation as to mandamus. why mandamus review of discovery orders should be exempt from this “fundamental tenet” of mandamus practice. Without Justice Doggett's dissent argues that because discovery errors this limitation, appellate courts would “embroil themselves often constitute harmless errors under Tex.R.App.P. 81(b) unnecessarily in incidental pre-trial rulings of the trial courts” (1), parties denied mandamus relief will be deprived of and mandamus “would soon cease to be an extraordinary any remedy since the *843 error will not provide a writ.” Braden v. Downey, 811 S.W.2d 922, 928 (Tex.1991). basis for appellate reversal. This is nothing more than a We thus hold that a party seeking review of a discovery order thinly disguised attack on the harmless error rule. Avoiding by mandamus must demonstrate that the remedy offered by interlocutory appellate review of errors that, in the final an ordinary appeal is inadequate. We disapprove of Barker, analysis, will prove to be harmless, is one of the principal Allen, and any other authorities to the extent they might be reasons that mandamus should be restricted. read as abolishing or relaxing this rule. Justice Doggett's dissent also suggests that we will be [12] We further hold that an appellate remedy is not unable to develop a coherent body of discovery law without inadequate merely because it may involve more expense unrestricted mandamus review. We do not think, however, or delay than obtaining an extraordinary writ. As we that losing parties will be reluctant to raise perceived observed in Iley v. Hughes, the “delay in getting questions discovery errors on appeal, nor will an appellate court be decided through the appellate process ... will not justify foreclosed from writing on discovery issues, even when intervention by appellate courts through the extraordinary the error may be harmless. See, e.g., Lovelace v. Sabine writ of mandamus. Interference is justified only when parties Consolidated, Inc., 733 S.W.2d 648, 652–53 (Tex.App.— stand to lose their substantial rights.” 158 Tex. at 368, 311 Houston [14th Dist.] 1987, writ denied). S.W.2d at 652. Nor are we impressed with the dissenters' claim that strict On some occasions, this Court has used, or at least mentioned, adherence to traditional mandamus standards will signal an the more lenient standard first articulated in Cleveland v. end to effective interlocutory review for some parties or Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (Tex.1926), that classes of litigants. There are many situations where a party the remedy by appeal must be “equally convenient, beneficial, will not have an adequate appellate remedy from a clearly and effective as mandamus.” See, e.g., Jampole v. Touchy, erroneous ruling, and appellate courts will continue to issue 673 S.W.2d 569, 576 (Tex.1984); Crane v. Tunks, 160 Tex. the extraordinary writ. In the discovery context alone, at least 182, 190, 328 S.W.2d 434, 439 (Tex.1959). This standard, three come to mind. literally applied, would justify mandamus review whenever an appeal would arguably involve more cost or delay than [13] First, a party will not have an adequate remedy by mandamus. This is unworkable, both for individual cases appeal when the appellate court would not be able to cure the and for the system as a whole. Mandamus disrupts the trial trial court's discovery error. This occurs when the trial court proceedings, forcing the parties to address in an appellate erroneously orders the disclosure of privileged information court issues that otherwise might have been resolved as which will materially affect the rights of the aggrieved party,

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such as documents covered by the attorney-client privilege, 576 (“Because the evidence exempted from discovery would West v. Solito, 563 S.W.2d 240 (Tex.1978), or trade secrets not appear in the record, the appellate courts would find it without adequate protections to maintain the confidentiality impossible to determine whether denying the discovery was of the information. Automatic Drilling Machines v. Miller, harmful.”). If the procedures of Tex.R.Civ.P. 166b(4) are 515 S.W.2d 256 (Tex.1974). As we noted in Crane: “After followed, this situation should only rarely arise. If and when it the [privileged documents] had been inspected, examined and does, however, the court must carefully consider all relevant reproduced ... a holding that the court had erroneously issued circumstances, such as the claims and defenses asserted, the the order would be of small comfort to relators in protecting type of discovery sought, what it is intended to prove, and their papers.” 160 Tex. at 190, 328 S.W.2d at 439. It may the presence or lack of other discovery, to determine whether also occur where a discovery order compels the production mandamus is appropriate. 10 of patently irrelevant or duplicative documents, such that it clearly constitutes harassment or imposes a burden on the [18] In the present case, the Walkers seek documents from producing party far out of proportion to any benefit that may the Center to impeach one defendant's expert witness. This obtain to the requesting party. See, e.g., Sears, Roebuck & information is not privileged, burdensome or harassing, nor Co. v. Ramirez, 824 S.W.2d 558, 35 Tex.Sup.Ct.J. 454 (1992) does it vitiate or severely compromise the Walkers' ability to (demand for tax returns); General Motors Corp. v. Lawrence, present a viable claim. In fact, as we have already noted, the 651 S.W.2d 732 (Tex.1983) (demand for information about trial court may ultimately conclude that it is not admissible all vehicles for all years). or even discoverable. Finally, although the materials are not before us, they were considered below, and we know [14] [15] Second, an appeal will not be an adequate of no reason why they would not be available on appeal. remedy where the party's ability to present a viable claim Therefore, under our traditional standards of mandamus or defense at trial is vitiated or severely compromised by review, as measured by the factors we mention above, the the trial court's discovery error. It is not enough to show Walkers have an adequate remedy by appeal and mandamus merely the delay, inconvenience or expense of an appeal. is inappropriate. Rather, the relator must establish the effective denial of a reasonable opportunity to develop the merits of his or her For the above reasons, we conclude that the Walkers have case, so that the trial would be a waste of judicial resources. not established their right to relief by mandamus on either We recently held that when a trial court imposes discovery discovery matter. Therefore, we deny the Walkers' petition sanctions which have the effect of precluding a decision on for writ of mandamus. the merits of a party's claims—such as by striking pleadings, dismissing an action, or rendering default judgment—a party's remedy by eventual appeal is inadequate, unless the sanctions are imposed simultaneously with the rendition of GONZALEZ, J., concurs and files an opinion. a final, appealable judgment. TransAmerican Natural Gas DOGGETT, J., dissents and files an opinion, joined by Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991). Similarly, MAUZY, J. a denial of discovery going to the heart of a party's case may render the appellate remedy inadequate. GAMMAGE, J., dissents and files an opinion.

[16] [17] Finally, the remedy by appeal may be inadequate GONZALEZ, Justice, concurring. where the trial court disallows discovery and the missing I agree with the court's disposition of this cause but disagree discovery cannot be made part of the appellate record, or with the court's opinion regarding the “Obstetrics Faculty the trial court after proper request refuses to make it part Records.” Specifically, I disagree with the court's attempt to of the record, and the reviewing court is unable to evaluate distinguish Russell v. Young, 452 S.W.2d 434 (Tex.1970). the effect of the trial court's error *844 on the record Nevertheless, I concur in the result. before it. See Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 558 (Tex.1990) (“[M]andamus is the only remedy Russell holds that wholesale discovery of the private records because the protective order shields the witnesses from of a non-party witness is not permitted if the sole purpose for deposition and thereby prevents the evidence from being discovery is to impeach the credibility of the non-party. 1 452 part of the record.”); see generally Jampole, 673 S.W.2d at S.W.2d at 435. The policy considerations of Russell still apply

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today. By disapproving of Russell as “a mechanical approach or the claim or defense of any other to discovery rulings,” at 839, the court forces trial courts to party. get further involved in discovery matters. This increases the backlog, delay, and cost of litigation by creating the need for This same text is now codified in Rule 166b(2)(a). Clearly, more hearings. impeachment evidence regarding collateral matters would not relate to the subject matter of the pending action. In the instant case, the plaintiffs sought to discover documents from the University of Texas Health Science Implicitly, the court concludes that the credibility of a non- Center to confirm the existence of a written policy restricting party witness alone is a relevant avenue of inquiry and, thus, is faculty members from testifying for plaintiffs in medical a matter properly open to discovery under some new, broader malpractice cases. This policy was sought for use in definition of relevancy. impeaching defendant's expert witness, Dr. Gilstrap. In refusing discovery, the trial court concluded *845 that While I agree that the definition of relevance in Rule 401 of the relevance of this material was limited to impeachment. the Texas Rules of Civil Evidence includes matters bearing on As such, the requested documents fell squarely within the credibility, this alone does not explain or distinguish Russell. prohibition of Russell. A witness' credibility has always been a relevant matter. As the United States Supreme Court has said: “[p]roof of bias Despite the court's mischaracterization of Russell, the issues is almost always relevant because the jury, as finder of fact and type of evidence sought here and in Russell are identical. and weigher of credibility, has historically been entitled to Just as in Russell, the records sought in the instant case did assess all evidence which might bear on the accuracy and not relate directly to the subject matter of the suit. The only truth of a witness' testimony.” United States v. Abel, 469 difference between the present case and Russell is the identity U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984). of the party seeking the information. In Russell, a defendant Yet in Russell, we said that a trial court lacked “authority” sought evidence to impeach the plaintiffs' expert; here, the to order discovery from a non-party solely for purposes of plaintiff sought evidence to impeach a defendant's expert. impeachment. 452 S.W.2d at 435. We chose to withdraw Surely, we cannot have a rule that changes in application all discretion in this particular area of discovery. Russell depending on whether the relator is a plaintiff or a defendant concedes that impeachment evidence may be relevant and in the trial court. admissible at trial, but holds that it cannot be discovered from a non-party for its own sake prior to trial. 452 S.W.2d at 436. In my opinion, the court strains to distinguish Russell. The court suggests that the trial judge made a mistake in her The fact that a matter may have some relevance yet not be ruling by failing to read Russell in conjunction with the subject to discovery is hardly a novel concept. The basic rules of civil procedure and evidence. However, when we premise of the rules of discovery is to weigh the legitimate adopted the new Texas Rules of Civil Evidence, there was needs of litigation against the other rights and values that no discussion whatsoever that, by their adoption, we intended would be irreparably harmed by unfettered discovery. Russell to reject the settled rule that information sought solely for strikes the proper balance by protecting non-party witnesses impeachment of a non-party is not discoverable. Russell, 452 from indiscriminate invasions into their private lives where S.W.2d at 435; see also W.W. Rodgers & Sons Produce Co. v. the information sought would not appreciably shed light on Johnson, 673 S.W.2d 291, 294–95 (Tex.App.—Dallas 1984, the issues of the case. orig. proceeding). Furthermore, the scope of discovery has not changed in the twenty years since Russell has been on the Furthermore, the decision in Russell was not grounded on books. When Russell was decided, the scope of discovery was whether the credibility of the witness had been placed in codified in Texas Rule of Civil Procedure 186a. It provided doubt. Instead, the court highlighted the fact that *846 in pertinent part that: the witness had not offered testimony at trial nor was his deposition introduced into evidence at trial. The court said: [p]arties may obtain discovery regarding any matter which is relevant Relator has not yet taken the witness to the subject matter in the pending stand nor has his deposition been action whether it relates to the claim or introduced into evidence because defense of the party seeking discovery there has not yet been a trial;

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relator's records cannot possibly have Finding a wrong and denying a remedy echoes the logic of impeachment value because there is the majority's recent conclusion that a tax is unconstitutional nothing yet to impeach and there but must be paid anyway. See Carrollton–Farmers Branch may never be anything to impeach, Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d depending upon the contents of the 489, 524 (1992) (Edgewood III ) (Doggett, J., dissenting). testimony, if any, which is introduced Rather than correcting the abuse, the court simply gives the during the trial of the lawsuit. Walkers the same message it gave Texas taxpayers—wait. Only after a full jury trial based upon incomplete discovery Russell, 452 S.W.2d at 437. Thus, it is evident that the court will the judiciary even consider any possibility of relief. has today reinterpreted Russell with little or nothing to gain in a way that further obscures the proper scope of discovery. For those who have previously sought more specific guidelines for the use of mandamus concerning discovery I am concerned that as a result of today's ruling, some non- orders, the majority responds with not one but two standards parties will be subjected to harassment and intrusion into for reviewing trial court action: orders compelling discovery their private lives, and that trial courts will be inundated may be immediately corrected; review of denied discovery with hearings on collateral issues far afield from the merits is postponed indefinitely in a manner to ensure that no of the cause of action or defense. The court has attempted meaningful relief will ever be forthcoming. to fix something that was not broken. This reinterpretation of Russell will further tax our overburdened judicial system without appreciably benefiting the litigants or the system. I. Finally, for the reasons expressed in Joachim v. Chambers, What a different path this court now pursues than that so 815 S.W.2d 234, 241 (Tex.1991) (Gonzalez, J., dissenting), I recently proclaimed in its unanimous decision that agree with the clarification of the standards for the issuance of mandamus. Discovery is ... the linchpin of the search for truth, as it makes “a trial less *847 a game of blind man's bluff and more a fair contest with the issues and facts disclosed to DOGGETT, Justice, dissenting. the fullest practicable extent.” Them that's got shall get State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991) (quoting Them that's not shall lose United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958)). Similarly ignored are —God Bless The Child 1 our recent, unanimous writings in Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553, 555 (Tex.1990, orig. proceeding) With a double standard, the majority strikes a devastating (“[Discovery should provide] the fullest knowledge of the blow at the most direct method of curbing abuses of judicial facts and issues prior to trial.... [T]he ultimate purpose of power. Many judicial excesses far beyond the scope of discovery ... is to seek the truth....”); and Tom L. Scott, Inc. v. anything alleged in this particular case will henceforth receive McIlhany, 798 S.W.2d 556, 559 (Tex.1990, orig. proceeding) only an official nod and wink from the Texas Supreme Court. (“The primary policy behind discovery is to seek truth so that disputes may be decided by facts that are revealed rather Mandamus is the legal tool by which appellate courts can than concealed.”). Without mandamus review to add meaning promptly correct arbitrary and capricious rulings by trial to these laudatory expressions, they are just hollow words. judges. Today's opinion announces that this remedy will be The new signal is clear—circumvent discovery and conceal available to support concealment of the truth but not its information. disclosure. Mandamus is officially declared a one-way street in the Texas courts—our judiciary can help to hide but not to Today's opinion reflects the radical change in philosophy detect. which has taken firm hold in this court—discovery is no longer a search for truth, it is merely a game of hide and seek. Despite a determination that a “clear abuse of discretion” has No longer may appellate courts intercede through mandamus occurred in this particular case, at 840, all relief is denied. even for the trial court's complete abuse of discretion in

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denying access to vital data; under the newly-announced double standard, intervention can, however, be accorded for Elizabeth G. Thornburg, Interlocutory Review of Discovery those who persevere in evasion. Orders: An Idea Whose Time Has Come, 44 Sw.L.J. 1045, 1082 (1990) (hereinafter Review of Discovery Orders ) When a local business is defrauded, when a community is (footnote omitted). 2 In this way the *848 majority ensures exposed to dangerous toxic wastes, when a manufacturer that the scales of justice—which at the onset of litigation are ignores reports that a safety design change would reduce user often in reality uneven—never achieve balance. injuries, when a monopoly extorts unfair gain from the public, when discrimination results in job loss, and in numerous Until this court included discovery orders within the scope other circumstances, the burden of proving wrongdoing is of mandamus review, very few reported opinions addressed exceedingly difficult to satisfy without obtaining evidence of this important subject. Trial judges were effectively accorded that wrong from the files of the perpetrator. In such situations unlimited discretion with a “resulting atmosphere [that] denial of discovery effectively means denial of all relief. That was very hostile to discovery.” Id. at 1071. As a practical reality does not go unrecognized by today's majority. matter, discovery battles, often both complex and time- consuming, were shunned. When the party controlling vital Entities that begin litigation in control of most of the relevant data exercises the power of withholding it, fighting every evidence can often defeat their adversaries simply by denying important request, the judicial command “go work it out” them the power of information: often amounts to a denial of meaningful discovery. The mud-wrestling that frequently ensues in such contests may [T]hose with established positions of discourage a trial judge from determining who is acting fairly power are more likely to ... win and who started the fight. If mandamus is not available to by preventing their adversaries from correct ill-considered or hasty denials, the hope for ultimate producing evidence; they are less justice in complex litigation is prematurely crushed. The likely to be in the position of having to majority's decision today marks a return to those dark ages extract evidence from their opponents when discovery was regularly denied as the path of least to make out their case. resistance and greatest convenience for the judiciary.

23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5422, at 674 (1980). With its separate and unequal treatment of litigants, the majority gives yet II. another edge to the already advantaged. Providing immediate review for orders that start the flow of information but By its very nature, discovery involves a search for what is refusing to consider those that stop it, the majority once again largely unknown from someone who may have an incentive expresses its preference for helping the powerful over the to make that search as long and tortuous as possible. Efforts seemingly powerless. Those opposing meaningful discovery to prevent discovery have been limited only by the boundless imagination of the top legal talent in America. Requests are tend to be institutions rather than either too broad or too narrow; records produced are either individuals, and tend to be among the minimal or in such voluminous, disorganized form as to make more wealthy and powerful segments locating relevant information most difficult; vital documents of society. A review system that gives vanish in “routine document destruction” programs or are priority (that is, immediate review) to misplaced. Accordingly, our discovery rules have required the complaints of privilege holders, continual revision to cope with the newest ways invented but which consigns the complaints of by those intent on subverting the process. Each revision of parties seeking discovery until after the Texas Rules of Civil Procedure during the last decade final judgment, gives an advantage has included attempted clarification and improvement of to those wealthy institutional litigants. discovery procedures. This has produced a body of law that is They have the power to achieve more “complex and rapidly evolving.” David W. Holman & Byron favorable results during the pretrial C. Keeling, Entering the Thicket? Mandamus Review of Texas process; their opponents must wait. District Court Witness Disclosure Orders, 23 St. Mary's L.J.

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365, 375 (1991) (hereinafter Mandamus of Disclosure Orders then, both more consistency and more accuracy in trial court ). decisions. See id. at 1077. 3

Given the creativity of those who would thwart discovery, The role of this court is particularly important in answering rules of procedure cannot be drawn to provide clear novel or significant questions of discovery law. See guidance in every situation; judicial interpretation is Mandamus of Disclosure Orders at 376 (“[P]re-trial appellate essential. The more complicated the rule, the more review of [important discovery] questions could lend critical necessary the construction and the greater the likelihood for guidance to the development of Texas discovery practice.”). misinterpretation. See id. at 386 (“Erroneous interpretations Rather than avoiding its responsibility, this court should of these changes ... are likely with the absence of prior utilize mandamus review to reduce the abuse of judicial significant precedent.... [and] could have a substantial effect power when “a unique question of discovery” law is on the subsequent course of a lawsuit.”). This court's presented. David West, Note, The Use of Mandamus to responsibility does not and cannot end when the text of Review Discovery Orders in Texas: An Extraordinary promulgated amendments appears in the Texas Bar Journal. Remedy, 1 Rev.Litigation 325, 327 (1981) (hereinafter The Rather, the court has a duty both to make the rules and to Use of Mandamus ). interpret them. Most trial court mistakes denying discovery result from the Our American system of jurisprudence is founded on the need to make repeated, quick decisions based upon limited precept that it is of great benefit to have a written body of case information. Recognizing this circumstance, trial judges law construing controlling legal principles and applying them sometimes actually encourage litigants to raise disputed to particular facts. This approach is undeniably desirable in rulings affecting truly vital matters for appellate examination the discovery context: through mandamus by automatically staying their orders. Refusal of prompt appellate review not only denies a party its In a system where trial court rights but may also deprive a trial court of desired guidance. decisions are unreported and have no precedential value, the creation of a Today's opinion appropriately recognizes that “this Court will body of reported appellate case law not grant mandamus relief unless we determine that the error regarding discovery has substantial is of such importance to the jurisprudence of the state as value. Case law on discovery promotes to require correction.” At 839 n. 7. But under the standard uniform interpretation of the discovery announced, questions of importance concerning judicially- rules and, in time, decreases the approved concealment of facts will never be considered. The opportunity for individual *849 significance to the state's jurisprudence of a ruling should judge's biases to shape discovery certainly not be controlled by whether the order granted or outcomes. Reported decisions develop denied discovery. clear rules, where rules are possible, and narrow the range of judicial discretion in other areas simply by providing numerous cases finding III. that the trial court did or did not abuse its discretion. Such case law With mandamus now severely limited, many important issues can be particularly helpful in a will not be reviewed. See generally Review of Discovery jurisdiction that has recently amended Orders at 1056; The Use of Mandamus at 337 & n. 94. Abuses its discovery rules. Over time, the of judicial power will go forever uncorrected when the party existence of discovery case law may disallowed discovery, realizing the difficulty of proving a even clarify the rules sufficiently so as case with less than full information and the uphill task of to decrease the number of disputes in maintaining a successful appeal, is either forced to settle or the trial court. forgoes a costly and extended appeal following defeat on the entire case. Nor will improper rulings ever be reviewed Review of Discovery Orders at 1080 (footnotes omitted). where one denied discovery, although severely handicapped, Appellate opinions properly applying mandamus produce, nonetheless prevails at trial.

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Similarly, in Allen v. Humphreys, 559 S.W.2d 798 (Tex.1977, Where appeals do occur, remedies will be rare even for orig. proceeding), the trial court refused to order discovery of egregious pretrial rulings. To succeed in this endeavor, one tests, surveys and complaints by similarly affected persons. must show that This court found an abuse of discretion and granted the writ, despite the argument that the plaintiff had “an adequate the error complained of amounted to remedy via the normal appellate process.” Id. at 801. It is such a denial of the rights of appellant difficult to perceive, in light of this argument and the court's as *850 was reasonably calculated to subsequent grant of mandamus relief, how the majority can cause and probably did cause rendition now claim that “we [had] not focused” on the requirement of of an improper judgment in the case, an inadequate remedy by appeal in Allen and on, admittedly, or was such as probably prevented a “few [other] occasions.” At 840–841. the appellant from making a proper presentation of the case to the appellate Following these two opinions, this court has not hesitated court. to consider and correct the wrongful denial of discovery. By issuing mandamus to rectify an erroneous trial court Tex.R.App.P. 81(b). This standard is universally regarded ruling refusing discovery in Jampole v. Touchy, 673 S.W.2d as a “more difficult hurdle” than abuse of discretion. Helen 569 (Tex.1984, orig. proceeding), this court recognized that A. Cassidy, The Instant Freeze–Dried Guide to Mandamus appeal is not an adequate remedy: Procedure in Texas Courts, 31 S.Tex.L.Rev. 509, 512 (1990). As another commentator has aptly concluded, [R]equiring a party to try his lawsuit, debilitated by the denial of proper discovery, only to have that lawsuit only an unusual discovery order would rendered a certain nullity on appeal, falls well short of a be dispositive enough to show the remedy by appeal that is “equally convenient, beneficial, harmful error that most jurisdictions and effective as mandamus.” require for appellate reversal. Many appellants, therefore, would not even Id. at 576 (quoting Crane v. Tunks, 160 Tex. 182, 190, raise the discovery points on appeal. 328 S.W.2d 434, 439 (1959) (citation omitted)); see also Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 Review of Discovery Orders at 1056; see also Mandamus of (Tex.1926). Disclosure Orders at 376 n. 40 (observing that, because of the harmless error rule, many discovery rulings are not pursued A trial court's unwillingness to order the production of on appeal). In denying mandamus today, the majority closes accident scene photographs was overturned by mandamus and locks the appellate courthouse door to any meaningful in Terry v. Lawrence, 700 S.W.2d 912 (Tex.1985, orig. consideration of numerous significant matters. proceeding). In Lindsey v. O'Neill, 689 S.W.2d 400, 402 (Tex.1985, orig. proceeding) (per curiam), the court overturned by mandamus an order limiting the scope of IV. a deposition and quashing the accompanying document request. A blanket order protecting hospital records was Only with the tragic recent change in course by this court's similarly vacated by mandamus in Barnes v. Whittington, majority has such denial of access become acceptable. 751 S.W.2d 493 (Tex.1988, orig. proceeding). In Lunsford Previously both this court and the courts of appeals had v. Morris, 746 S.W.2d 471 (Tex.1988, orig. proceeding), employed their writ power as necessary to correct the abusive this court again granted mandamus to remedy a trial refusal of discovery. Among those cases providing the court's erroneous disallowance *851 of relevant discovery. foundation for appropriate mandamus review is Barker v. See also Loftin v. Martin, 776 S.W.2d 145 (Tex.1989, Dunham, 551 S.W.2d 41 (Tex.1977, orig. proceeding), in orig. proceeding) (correcting by mandamus wrongful denial which the trial court had overruled a motion to complete an of discovery); Turbodyne Corp. v. Heard, 720 S.W.2d expert witness's deposition and to compel production of his 802 (Tex.1986, orig. proceeding) (per curiam) (mandamus work papers. We interceded, stating that: “It is settled that directing trial court to rescind order denying discovery of the writ of mandamus may issue in a discovery proceeding to documents from insurer in subrogation action); Ginsberg v. correct a clear abuse of discretion by a trial judge.” Id. at 42. Fifth Court of Appeals, 686 S.W.2d 105 (Tex.1985, orig.

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proceeding) (erroneous bar of deposition by court of appeals of privilege, the violation of which necessarily impinges on 4 the objecting party's rights. cured by mandamus).

It is only after fifteen years of repeated judicial reliance upon Second, mandamus will issue when a trial court orders the Barker and Allen in the issuance of numerous opinions that disclosure of “trade secrets without adequate protections we learn these precedents of our court are not good law. This to maintain the confidentiality of the information.” At 843 is all the more strange in that we had explicitly refused to (citing, without discussion, Automatic Drilling Machs., Inc. overrule them. When that very request was urged in Jampole, v. Miller, 515 S.W.2d 256 (Tex.1974, orig. proceeding)). 673 S.W.2d at 576, our answer was unmistakable: “We Posing numerous problems, this hastily-drawn exception has decline to do so.” But the majority's new answer is simple: no relevance to the instant case and was concocted by the “Line them up against the wall.” What does it matter that majority without any briefing or argument by counsel. One a dozen or more Texas Supreme Court cases and countless privilege is thereby unjustifiably elevated above all others. decisions of the courts of appeals are to the contrary? They Moreover, the writing implies an absolute protection of trade secrets from discovery when in fact this privilege is most can be disposed of in a mass execution of precedent. 5 definitely qualified, as recognized by Automatic Drilling, Today's firing squad announces that it is only answering the command of Jim Sales and two law students who separately 515 S.W.2d at 259, 6 the rule itself, Tex.R.Civ.Evid. 507 criticized the court during the period 1977–79. At 840–841. (trade secrets not protected when nondisclosure conceals It thereby rationalizes constructing so distorted a standard on fraud or works injustice), and even Mr. Sales, whose writing the corpses of so many prior authorities. purportedly warranted today's brash action. 7 Nor does this exception consider the availability in some cases of the One of the most significant casualties is Jampole v. Touchy, interlocutory appeal mechanism provided in Tex.R.Civ.P. which has formed the centerpiece for discovery in litigation 76a(8) to address the adequacy of a protective order. See Eli over defective products and toxic substances for almost Lilly & Co. v. Marshall, Order Granting Leave to File Petition a decade. The majority, in a massive understatement, for Writ of Mandamus (Doggett, J., dissenting), 829 S.W.2d “disapproves” Jampole “to the extent [it implies] that a 156 (Tex.1991). remedy by appeal is inadequate merely because it might involve more delay or cost than mandamus.” At 842. The third situation requiring mandamus is an “order [that] Although leaving untouched for now this court's prior writing compels the production of patently irrelevant or duplicative on the proper scope of discovery, the majority has in fact documents, such that it clearly constitutes harassment or overruled that landmark precedent in its entirety. Despite imposes a burden on the producing party far out of proportion a gross abuse of discretion in denying critical discovery in to any benefit that may obtain to the requesting party.” At 843. Jampole, the majority's only correction by mandamus would This “catch-all” exception indeed makes the extraordinary be to require inclusion of the disputed materials in *852 the writ of mandamus an ordinary one. In almost any complex record, to await a deferred and meaningless appellate review. litigation, the claim of burden is essentially a form objection to discovery. It is difficult to perceive a dispute in which the party seeking to obstruct the process could not and, after today's decision, will not claim harassment or imposition V. of an undue burden. See, e.g., Sears, Roebuck & Co. v. Instead of affording the relief that prior rulings demand, the Ramirez, 824 S.W.2d 558 (Tex.1992) (per curiam) (granting majority announces, after considerable mental gymnastics, mandamus to preclude disclosure of corporate tax returns that “at least three [discovery situations] come to mind” where on the basis of undue burden and unnecessary expense, not mandamus is justified, at 843; then it strangely proceeds to privilege). 8 describe six. The first three instances where remedy by appeal is inadequate stem from a trial court's wrongful allowance A fourth exception, based on *853 Transamerican Natural of discovery. First, mandamus will issue if “disclosure of Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991, orig. privileged information ... will materially affect the rights proceeding), is described when the trial court imposes of the aggrieved party.” At 843. This requisite is easily “discovery sanctions ... precluding a decision on the merits fulfilled with discovery objections that include an assertion of a party's claims ... unless the sanctions are imposed simultaneously with the rendition of a final, appealable

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judgment.” At 843 (emphasis deleted). The majority falsely suggests that today's standard creates a symmetry with carefully consider all relevant circumstances, such as the Transamerican. Unlike Transamerican, which treated the claims and defenses asserted, the type of discovery sought, striking of a petition in the same manner as the entry of a what it is intended to prove, and the presence or lack default judgment, this ruling creates a double standard. Unlike of other discovery, to determine whether mandamus is Transamerican, which involved a readily-perceptible wrong appropriate. such as an order of dismissal, a determination of whether At 844. Within these constraints, there will always be hidden documents “go to the heart of a party's case,” at 843, a readily available excuse to deny both discovery and involves significant uncertainties. mandamus. In most cases the materials can be boxed up, file-stamped, and More importantly, Transamerican was issued at a time when sent to the appellate court. How this will accomplish anything the announced policy of this court was to deter abuses of more than cluttering the judicial chambers is quite another discretion without regard to whether discovery was granted matter. No clue is given as to how to resolve the obvious or denied. A wide spectrum of sanction orders arising from difficulties inherent in appellate determination, without any discovery rulings are immediately appealable. See Braden effective argument and analysis by counsel, of whether each v. Downey, 811 S.W.2d 922 (Tex.1991, orig. proceeding). item would have affected the result. Moreover, this approach Superimposing Transamerican and Braden on today's double improperly requires courts of appeals to act as juries while standard sends a clear message to the rare trial court that denying to the true fact-finder evidence that may be highly would impose significant penalties on those who obstruct *854 relevant to the proceeding. This distrust of juries— discovery with deceit and delay—be careful. There is no real of ordinary people resolving factual disputes—is increasingly danger of immediate and genuine appellate examination of reflected in the majority's decisions. 10 an order denying discovery, but there is a constant threat of appellate review of an order granting discovery or imposing The only hope for review of a trial court's order denying meaningful sanctions on obstructionists. Once again the discovery is upon proof that a claim has been “vitiated or majority provides an incentive for concealment. severely compromised by the trial court's discovery error.” At 843. It must be shown “that the trial would be a waste of The remaining two situations address the wrongful denial judicial resources,” at 843, and that “a denial of discovery of discovery, and constitute a narrow path in the [goes] to the heart of a party's case.” At 843. It is far from clear woods compared to the expressway for resisting discovery whether these encompass one or three different standards. constructed in the previous four exceptions. Mandamus is What is clear is that few cases, if any, will satisfy whatever possible when standard is applied.

the missing discovery cannot be made The majority offers no example of a case in which a party part of the appellate record, or the trial has ever met such a heavy burden. Apparently an applicant court after proper request refuses to for mandamus in this court must confess that, without the make it part of the record, and the discovery sought, the trial court should and must direct a reviewing court is unable to evaluate contrary verdict. Any semblance of a chance at prevailing the effect of the trial court's error on prevents a determination that the trial would be a “waste the record before it. of judicial resources” or that the discovery denied goes “to the heart of a party's case.” While this situation may At 843–844. The quick fix of including materials in the theoretically arise in the future, it will be most unlikely. Nor appellate record is both ingenious and ingenuous. It has the is there any explanation of how a party can be expected immediate “benefit” of excluding a great number of errors in to show such a probability without having any of the the discovery area from mandamus review. As the majority materials in question. We have previously recognized the in fact recognizes, “this situation should only rarely arise.” hardship inherent in showing need for documents when their At 844. 9 And if it ever does, the majority guarantees that contents are unknown. State v. Lowry, 802 S.W.2d 669, no relief will be forthcoming, by directing that the reviewing 673 (Tex.1991) (“It is difficult for the [relators] to make a court more particularized showing of need for these documents, the contents of which are unknown to them.”).

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Application of today's font of mandamus law to the VI. Walkers' situation is most revealing. The majority summarily concludes that the trial court's misapplication of the law In supporting today's opinion, Justice Gonzalez insists that to deprive them of relevant evidence “does [not] vitiate we must stem what he claims is an alarming increase in or severely compromise the Walkers' ability to present a the number of mandamus filings. At 844–846 (Gonzalez, J., viable claim.” At 844. Most ironically, today's announcement concurring). The view that “the sky is falling” is best reflected imposes one type of double standard on top of another alleged in the gruesome statistics and conclusions of his dissenting double standard. The Walkers claim they have uncovered opinion in Joachim v. Chambers, 815 S.W.2d 234, 241 a double standard at a taxpayer-financed institution that (Tex.1991). See also Jampole, 673 S.W.2d at 578 (Barrow, encourages faculty to defend those accused of medical J., dissenting); cf. C.L. Ray & M.R. Yogi McKelvey, The malpractice while discouraging professional advice on behalf Mandamus Explosion, 28 S.Tex.L.Rev. 413, 413–14 (1987). of the alleged victim. It is the merits of this revelation that the majority so eagerly seals away from both the Walkers and Blaming an ever-increasing caseload for the Texas courts the public. on the advent of the discovery mandamus is wholly insupportable. These petitions most often present emergency Fully aware of the impact of expert credibility on the situations requiring expedited review and, consequently, are outcome of much medical malpractice litigation, the majority frequently viewed as a thorn in the side of appellate courts. denies the Walkers the very information that could perhaps See Review of Discovery Orders at 1059 n. 99. But I cannot demonstrate the bias of a key witness. An official blessing is agree that justice should be denied or delayed solely to thus provided for trial court action that may have a material, accommodate appellate judges. adverse effect on their ability to present a viable case. Having now learned that the denial of impeachment evidence is Recent studies have debunked the myth of the mandamus never susceptible to mandamus, it remains to be seen what explosion. The Joachim dissent, to which Justice Gonzalez other critical information will next be similarly viewed as once again points with pride today, is based upon an analysis unimportant to this majority. that fails to segregate filings arising from discovery disputes. A more detailed study of Supreme Court experience during a While the nature of the double standard approved by today's period of more than ten years correctly concluded that: writing requires that this dissent focus on wrongful denials, I recognize that the wrong can be every bit as real from [I]nterlocutory review of discovery orders ... has [had] a improper grants of discovery. As a practical matter there is positive effect.... The increase [in appellate caseloads] has probably less danger that a trial judge will capriciously ignore been an extremely small and manageable one.... properly established objections and privileges to accord too much information instead of too little. Nevertheless, I ..... favor the use of mandamus to control abuse without regard The numbers, then, suggest that while the availability of to how it occurs or whom is helped. What I deplore is interlocutory review of discovery orders added cases to the the discrimination which the majority officially substitutes appellate docket, interlocutory review has not added a large for even-handedness. Scholars viewing *855 the so-called or burdensome number of cases. “Walker mandamus standard” should recognize that it is not a standard but an excuse for ignoring wrongdoing. Review of Discovery Orders at 1047, 1059.

After today's decision, discovery disputes will no longer be The fact is that most petitions are denied, with fewer than resolved on a level playing field. I believe that mandamus 3% granted by us during fiscal year 1991. Most of these should be available to correct any trial court abuse concerning were handled expeditiously, with over half resolved within a subject that is important to the jurisprudence of the state and one month of filing. Moreover, Justice Gonzalez completely which substantially affects rights of an aggrieved party. If this ignored the fact that mandamus requests in this court actually requisite is satisfied, relief should be accorded without regard decreased over the last three years. There were 202 of these to whether the trial court has granted or denied discovery. in fiscal 1991, down from 257 and 258, respectively, in fiscal 1989 and 1990. Although the court's overall workload is

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expanding, the contribution of mandamus filings is certainly meaning of the majority's carefully chosen words will do well 11 to observe how the court actually disposes of each of these not uncontrollable. “In deciding whether courts should permit interlocutory *856 review in specific cases, judges matters. and commentators tend to emphasize the needs of court administration over the needs of the litigants.” Id. at 1049. While cutting off the right to mandamus review when VIII. CONCLUSION discovery is denied may reduce the appellate workload, the result will be a significant decline in the quality of justice. The In an apparent attempt to cope with a false “mandamus inconvenience caused by the unexpected arrival of a petition explosion,” today's opinion has offered us an explosion of that often demands immediate action is the price paid “to another type—a reverberating detonation of this court's prior assure that ... trial proceedings are fair and equitable to all rulings. True the majority has considerable experience in concerned parties.... ‘[W]e must not sacrifice justice upon disregarding precedent as merely a lifeless thing of the the altar of expediency.’ ” Mandamus Review of Disclosure past. See Edgewood III, 826 S.W.2d at 516, 517 (Doggett, Orders at 422 (quoting David W. Holman & Byron C. J., dissenting); Terrazas, 829 S.W.2d at 739 (Mauzy, J., Keeling, Disclosure of Witnesses in Texas: The Evolution dissenting); Stewart Title Guaranty Co. v. Sterling, 822 and Application of Rules 166b(6) and 215(5) of the Texas S.W.2d 1, 12 (Tex.1991) (Doggett, J., dissenting). But a Rules of Civil Procedure, 42 Baylor L.Rev. 405, 458 (1990)) dozen or more Texas Supreme Court authorities and even (emphasis added). more rulings from the courts of appeals cut down at one time is not a modest accomplishment. Precedent, no matter how voluminous or how well-established, will clearly not restrain this majority from accomplishing its preconceived VII. social policy objectives. The majority announces here not a standard, but a pseudo- standard. In reality, the rule is little more than “how can Through both deed and now word, the majority invites a we help those whom we want to help?” The only true true explosion in mandamus filings. What does an attorney precedent for this is Terrazas v. Ramirez, 829 S.W.2d 712 whose client faces the possibility of a judgment for significant (Tex.1991), where Republican relators in redistricting were damages have to lose from accepting the beneficence of a accorded relief in the Supreme Court never sought in any majority of this court ever willing to serve as protector of the other forum. This “triple R exception to mandamus,” id. at privileged? Will a deposition site other than that ordered by 760–61 (Mauzy, J., dissenting), only presages the continued the trial court *857 be more costly and inconvenient to the pursuit of this goal. claimant? Get a stay from the Texas Supreme Court, even if your petition is still pending in the court of appeals. See If doubts remain as to the one-sidedness of the standard Continental Can Co. v. Wittig, No. D–2015, 35 Tex.S.Ct.J. announced today, its application to currently pending cases 355, 1992 WL 17415 (Jan. 29, 1992) (stay of trial court should resolve them. See, e.g., Remington Arms Co. v. order directing engineering employee of products liability Canales, No. D–1867, 35 Tex.S.Ct.J. 245 (Dec. 13, 1991) defendant to be deposed in Houston rather than Chicago even (trial court order which found documents relating to firearm though mandamus petition was pending in court of appeals). safety relevant and required their production stayed despite Did the trial court resolve a conflict in deposition schedules no timely response or objection being made); Eli Lilly & Co. in a manner unacceptable to an insurance company? Don't v. Marshall, No. D–1827, 35 Tex.S.Ct.J. 168, 354 (Dec. 3, worry, the Texas Supreme Court will stay proceedings even 1991 and Jan. 23, 1992) (stays of trial court order directing without bothering to get a response from the affected judge. production of information relating to the drug Prozac); see See Cigna Corp. v. Spears, No. D–2069, 35 Tex.S.Ct.J. 463 id. at 189 (Order Granting Leave to File Petition for Writ of (Feb. 19, 1992). Any attorney whose client desires to make Mandamus) (Doggett, J., dissenting); Valley Baptist Medical more difficult access to information that will jeopardize its Center v. Bennett, No. D–1193, 34 Tex.S.Ct.J. 668 (June credibility, suggest its liability or defeat its defenses would 18, 1991) (stay issued to protect hospital from disclosure of be foolish to accept a trial court discovery order. A majority materials relating to policy of informing patients of risk of of the Texas Supreme Court is ready and willing to interfere treatment), and 35 Tex.S.Ct.J. 452 (Feb. 12, 1992) (motion for the asking. for leave to file granted). One interested in verifying the true

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 Walker v. Packer, 827 S.W.2d 833 (1992)

I would hold that mandamus is available to correct a trial The ripple effect created by today's refusal to accord court error which negatively and materially affects the right mandamus review to pretrial discovery orders will swell to of aggrieved parties to adequately present their cases, whether tidal-wave proportion, and sweep before it any hope of fair the particular party is seeking discovery or resisting it. and consistent application of our Texas discovery rules. In See Iley v. Hughes, 158 Tex. 362, 368, 311 S.W.2d 648, many cases it will leave buried in the sand any possibility 652 (1958); see also Elizabeth G. Thornburg, Interlocutory of trials directed by the full and truthful revelation of the Review of Discovery Orders: An Idea Whose Time Has Come, underlying facts. Juries will be forced to resolve critical 44 SW.L.J. 1045 (1990). In the case before us, the trial court's disputes based not on truths but rather upon whatever half- denial of discovery has a material and adverse effect on the truths can be discovered. Left in the wreckage on the beach Walkers' ability to present their case. The information they will be the tattered remains of the many prior decisions of this seek could impugn the credibility of key expert witnesses at court and others that viewed litigation as a search for truth in trial. Because their medical malpractice claim, like all such which fair and prompt appellate review of an order denying claims, will likely stand or fall on the credibility of the expert discovery was vital. witnesses, I would hold that the Walkers are entitled to the information they seek, and that relief by appeal is inadequate.

MAUZY, J., joins in this dissenting opinion. Discovery is the “linchpin of the search for truth,” and “[a]ffording parties full discovery promotes the fair resolution GAMMAGE, Justice, dissenting. of disputes by the judiciary.” State v. Lowry, 802 S.W.2d 669, I dissent. Today's decision departs from previous instances 671 (Tex.1991). Today the court removes and disposes of that where this court has provided mandamus relief to correct a “linchpin” and abandons enforcement of fair and adequate wrongful denial of discovery, and labors too hard to conclude discovery. Because I believe that mandamus relief should be that appeal is an adequate remedy for a party who is denied readily available when a court allows either too much or too adequate discovery. little discovery, I dissent.

Footnotes 1 St. Paul contends that the Walkers' request for mandamus relief is barred by laches since the Walkers delayed almost two years before seeking to compel production. Because we find that the Walkers have failed to establish the requirements for mandamus relief, we do not reach this issue. 2 The court also sustained Aetna's motion to quash, holding that the discovery requested was improper under the investigation exemption, the attorney-client privilege, and the work-product privilege. The Walkers do not complain to us about this ruling. 3 Even if no evidence had been presented, the Walkers would have had the burden of filing an affidavit so stating. See Barnes v. Whittington, 751 S.W.2d 493, 495 (Tex.1988) (“The undisputed fact that no testimony was adduced at any of the hearings, as set forth in the affidavit of relator's counsel, satisfies the relator's burden under Rule 121.”). 4 The records sought in Russell included, among others: (2) All appointment books maintained by [the expert physician] during 1969; (3) All statements, listings, ledgers, or other books showing the accounts receivable of [the expert physician] during 1969; (4) All deposit slips or tickets showing deposits into bank accounts of [the expert physician] during 1969; (5) All statements, listings, ledgers, journals, or other books showing receipt of payments, either in cash, by check or by any other means [by the expert physician] during 1969; (6) All statements of account or bills for services rendered [by the expert physician] during 1969; (7) All accounting ledgers, journals or other books of account of [the expert physician] maintained during 1969; and (8) All financial statements showing income and expenses of [the expert physician] during 1969. 452 S.W.2d at 435. 5 Evidence of bias is not admissible if the witness “unequivocally admits such bias or interest” at trial. Tex.R.Civ.Evid. 613(b). To date, however, Dr. Gilstrap has not admitted any bias, but rather has flatly denied it. In this situation, such evidence should be discoverable. 6 We do not decide whether the documents were properly discoverable, only that the trial court erred in denying discovery based solely on Russell. If the Walkers sought the documents solely to attack the credibility of Dr. Gilstrap by showing that his deposition testimony was untrue, for instance, the information would probably not be reasonably calculated to lead to the discovery of admissible

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 Walker v. Packer, 827 S.W.2d 833 (1992)

evidence. See Tex.R.Civ.Evid. 608(b). (“Specific instances of the conduct of a witness [other than criminal convictions], for the purpose of attacking ... his credibility, may not be ... proved by extrinsic evidence.”). 7 Additionally, this Court will not grant mandamus relief unless we determine that the error is of such importance to the jurisprudence of the state as to require correction. Cf. Tex.Gov't Code § 22.001(a)(6); Tex.R.App.P. 140(b). This issue, however, is properly resolved in deciding whether to grant leave to file the petition, not in its disposition. 8 See, e.g., TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991) (imposition of discovery sanctions); Schultz v. Fifth Judicial District Court of Appeals, 810 S.W.2d 738, 739 n. 4 (Tex.1991) (refusal to enforce turnover order by contempt); Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex.1991) (refusal to bar judicial officer from testifying as expert witness); Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59–60 (Tex.1991) (refusal to grant nonsuit); Bell Helicopter Textron, Inc., v. Walker, 787 S.W.2d 954, 955 (Tex.1990) (refusal to dismiss for lack of subject-matter jurisdiction); Champion Int'l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988) (grant of new trial); Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801, 801–02 (Tex.1986) (imposition of discovery sanction); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (grant of new trial); Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985) (denial of plea in abatement); State v. Walker, 679 S.W.2d 484, 485 (Tex.1984) (refusal to reinstate temporary injunction); Pat Walker & Co. v. Johnson, 623 S.W.2d 306, 309 (Tex.1981) (refusal to extend time for filing statement of facts); State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (refusal to suspend attorney); Pope v. Ferguson, 445 S.W.2d 950, 953 (Tex.1969) (refusal to dismiss criminal case pending against relator), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970); Crane v. Tunks, 160 Tex. 182, 190, 328 S.W.2d 434, 439 (1959) (discovery order); Iley v. Hughes, 158 Tex. 362, 367–68, 311 S.W.2d 648, 652 (1958) (bifurcation of trial); Harrell v. Thompson, 140 Tex. 1, 1, 165 S.W.2d 81, 81 (1942) (restriction of oil and gas production by Railroad Commission); Ben C. Jones & Co. v. Wheeler, 121 Tex. 128, 130, 45 S.W.2d 957, 958 (1932) (refusal to enter judgment nunc pro tunc); Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (1926) (refusal to enter judgment); Aycock v. Clark, 94 Tex. 375, 376–77, 60 S.W. 665, 666 (1901) (refusal to enter injunction); Screwmen's Benevolent Ass'n v. Benson, 76 Tex. 552, 555, 13 S.W. 379, 380 (1890) (expulsion of member from charitable corporation). 9 We recently held that a mandamus action was never required to preserve error on appeal. Pope v. Stephenson, 787 S.W.2d 953 (Tex.1990). We explained: “The decision not to pursue the extraordinary remedy of mandamus does not prejudice or waive a party's right to complain on appeal.” Id. at 954. 10 Courts use a similar approach in determining whether a witness has properly invoked the Fifth Amendment privilege against self- incrimination. It is often impossible for a witness to prove that an answer might incriminate him without actually answering and thereby forfeiting the privilege. Therefore, rather than requiring actual proof of the privilege, courts sustain the privilege if it is “evident from the implications of the question, in the setting in which it is asked, that a responsive answer [might be incriminating].” Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). 1 If the records have relevance apart from their potential for impeachment, however, Russell does not bar discovery. See Ex Parte Shepperd, 513 S.W.2d 813, 816 (Tex.1974). 1 Billie Holiday, God Bless the Child (Okeh Records 1941) (words and music by Arthur Herzog, Jr. & Billie Holiday). 2 These entities rarely need information to prevail: Even when an institutional litigant appears as a plaintiff suing an individual defendant as, for example, when a corporation sues an individual on a debt, the institutional litigant tends to already have the information needed to prove its case. Review of Discovery Orders at 1070 n. 162. They are also less likely to require information from an opponent to establish affirmative defenses. Id. at 1070. 3 With no appellate opinions setting forth appropriate limitations upon trial court discretion, “litigants may receive widely divergent rulings from different judges, even in the same geographical location.” Id. at 1077. Proper use of mandamus discourages forum shopping to obtain a trial judge more likely to provide a more favorable ruling and allows for greater consistency and accountability: [Such] review ... even[s] out inconsistencies in trial court rulings, and ... allows trial judges to operate with a more accurate understanding of the meaning of the discovery rules.... If the appellate court is consistent, it can fix disparities and inequities produced by the trial courts and promote consistency among the trial level decisionmakers. Id. at 1047, 1077 (footnotes omitted). 4 Intermediate appellate courts have also recognized the importance of mandamus to avoid trial court abuse in improperly limiting or denying discovery. See, e.g., Kentucky Fried Chicken Nat'l Mgmt. Co. v. Tennant, 782 S.W.2d 318 (Tex.App.—Houston [1st Dist.] 1989, orig. proceeding) (writ granted when discovery of plaintiff's psychiatric records denied); Foster v. Heard, 757 S.W.2d 464 (Tex.App.—Houston [1st Dist.] 1988, orig. proceeding) (mandamus issued against trial court's denial of discovery of post-accident investigation report); Super Syndicate, Ltd. v. Salazar, 762 S.W.2d 749 (Tex.App.—Houston [14th Dist.] 1988, orig. proceeding) (granting mandamus against trial court's denial of discovery of claims investigator's files); Goodspeed v. Street, 747 S.W.2d 526 (Tex.App.—Fort Worth 1988, orig. proceeding) (trial court's denial of discovery of hospital records based on privilege without presentation of evidence overturned); Estate of Gilbert v. Black, 722 S.W.2d 548, 551 (Tex.App.—Austin 1987, orig. proceeding)

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(denial of discovery of insurer's internal communications overturned on mandamus, despite argument that “mandamus is proper only [for] improperly ordered discovery of privileged material, not when the trial court has denied discovery.”); Essex Crane Rental Corp. v. Kitzman, 723 S.W.2d 241 (Tex.App.—Houston [1st Dist.] 1986, orig. proceeding) (writ granted to correct trial court's order quashing deposition); Velasco v. Haberman, 700 S.W.2d 729, 730 (Tex.App.—San Antonio 1985, orig. proceeding) (mandamus appropriate “not only where the trial court order improperly grants discovery, but the writ may also issue where the trial court improperly limits or denies discovery.”); Aztec Life lns. Co. v. Dellana, 667 S.W.2d 911 (Tex.App.—Austin 1984, orig. proceeding) (mandamus issued against trial court for denying discovery of claims files). 5 The majority identifies by name five cases in conflict with today's writing, declaring that: “We disapprove of Barker and Allen, and any other authorities,” at 842, and “[we] disapprove of Cleveland, Crane, Jampole, and any other authorities,” at 842, to the extent they conflict with the new Walker standard. Subsumed within the “other” designation are a great number of additional cases from this court and the courts of appeals that would grant to the Walkers relief when the trial court has clearly abused its discretion in denying discovery. The court's willingness to sweepingly erase whole unidentified categories of recent precedent is exemplified by their signing of a blank check: “any other authorities,” meaning all other authorities, are now endangered. 6 The few cases citing Automatic Drilling do not expand its holding to that suggested by the court today. See Jampole, 673 S.W.2d at 574–75 (“We hold that discovery cannot be denied because of an asserted proprietary interest in the requested documents when a protective order would sufficiently preserve that interest.”); Firestone Photographs, Inc. v. Lamaster, 567 S.W.2d 273, 278 (Tex.Civ.App.—Texarkana 1978, no writ) (“[T]he claim of trade secrets ... does not necessarily defeat the right of discovery.”). 7 James B. Sales, Pretrial Discovery in Texas Under the Amended Rules: Analysis and Commentary, 27 S.Tex.L.Rev. 305, 345–46 (1986), stating that: Trade secrets ... are not, per se, exempt from discovery. The trial court is obligated to weigh the need for discovery against the interests on secrecy.... The need to protect the confidentiality of documents does not constitute an absolute bar to discovery.... 8 Although also citing General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex.1983, orig. proceeding), as allowing mandamus relief from an allegedly burdensome trial court discovery order, the majority fails to note the very expansive discovery permitted in that case. The efforts of General Motors to limit discovery to results from tests performed on the particular type of truck and the particular type of impact involved in the subject incident were rejected, and it was directed to supply all impact test results for all types of trucks manufactured over a 23–year period. 9 If the trial court “refuses to make [the discovery] part of the record,” At 843, presumably the only relief accorded under today's standard would be issuance of a writ directing inclusion of these materials. 10 See Caller Times Publishing Co. v. Triad Communications, 826 S.W.2d 576, 597–608 (Tex.1992) (Doggett, J., dissenting) (addressing court's refusal to allow evidence of predatory intent); see also Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 527 (Tex.1990) (Doggett, J., dissenting); Crim Truck & Tractor Co. v. Navistar Int'l Transp. Co., 823 S.W.2d 591, 596 & n. 1 (Tex.1992) (Mauzy, J., dissenting); Reagan v. Vaughn, 804 S.W.2d 463, 488 (Tex.1990) (Doggett, J., concurring and dissenting). 11 Supreme Court Filings Year Mandamus All Total Mandamus Discovery Discovery Mandamus and Applications as Percentage Orders Filings for Writ of Total 1979 24 129 933 2.6% 1981 17 98 943 1.8% 1989 51 257 1078 4.7% 1991 64 202 1257 5.1%

Interlocutory Review of Discovery Orders at 1058–59; the 1989 and 1991 figures are derived from my review of court filings.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 21 Watson v. Homeowners Ass'n of Heritage Ranch, Inc., 346 S.W.3d 258 (2011)

Mandamus Necessity of demand 346 S.W.3d 258 Court of Appeals of Texas, Mandamus Dallas. Refusal or default There are three requisites to a common law E. Steve WATSON, Appellant, action for a writ of mandamus: (1) a legal duty v. to perform a non-discretionary act; (2) a demand The HOMEOWNERS ASSOCIATION for performance of the act; (3) and a refusal to OF HERITAGE RANCH, INC., Appellee. perform.

No. 05–10–00364–CV. | July 28, 2011. Cases that cite this headnote

Synopsis Background: Nonprofit homeowners association member [3] Common Interest Communities brought action against homeowners association seeking a writ Association records of mandamus to permit him to inspect the books and records Mandamus of the association. The association filed a general denial and Corporations and associations subject to raised the affirmative defenses that the suit was not ripe or was mandamus moot because it never denied member the right to examine Homeowners association nonprofit did not and copy its books and records. The 416th District Court, refuse to permit member to examine the books Collin County, Chris Oldner, J., entered summary judgment and records at a reasonable time, and, therefore, in favor of association. Member appealed. member was not entitled to mandamus relief compelling association to permit him to examine records, notwithstanding member's allegations [Holding:] The Court of Appeals, Moseley, J., held that that the association engaged in improper homeowners association did not refuse to permit member to accounting practices, failed to document examine the books and records at a reasonable time. transactions, and kept false and misleading financial records; member was permitted to examine and copy the association's records for Affirmed. a total of approximately 22 hours. V.T.C.A., Business Organizations Code § 22.351.

Cases that cite this headnote West Headnotes (3)

[1] Mandamus Conduct of hearing or trial Attorneys and Law Firms

Mandamus *259 E. Steve Watson, Attorney at Law, Allen, TX, pro se. Appeal and Error An original proceeding for a writ of mandamus Robert L. Harris, Shannon, Gracey, Ratliff & Miller, LLP, initiated in the trial court is a civil action subject Dallas, TX, for Appellee. to trial and appeal on substantive law issues and Before Justices MORRIS, MOSELEY, and MYERS. the rules of procedure as any other civil suit.

Cases that cite this headnote OPINION

[2] Mandamus Opinion By Justice MOSELEY. Nature of acts to be commanded

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Watson v. Homeowners Ass'n of Heritage Ranch, Inc., 346 S.W.3d 258 (2011)

E. Steve Watson sued The Homeowners Association of enforce his rights if the additional documents were not made Heritage Ranch, Inc. (the HOA) seeking a writ of mandamus available to him by September 30, 2009. Watson alleged the to permit him to inspect the books and records of the HOA. HOA advised him on September 30, 2009 that it would review The HOA filed a general denial and raised the affirmative his request at the board meeting in October, “but gave no defenses that Watson's suit was not ripe or was moot because assurance that Plaintiff would be permitted continued access the HOA never denied him the right to examine and copy the to such records for purposes of examination and/or *260 HOA's books and records. Eventually the trial court granted copying.” Watson filed this suit on October 1, 2009. the HOA's motion for summary judgment. Watson appeals, arguing in a single issue that genuine issues of material fact The HOA moved for summary judgment, asserting that the were raised regarding his claims and the HOA's affirmative HOA had not refused Watson's written demands to examine defenses. We affirm the trial court's judgment. and copy its books and records, that Watson's assertions that the HOA would not permit him to examine the books and Watson is a member of the HOA, which is a non-profit records in the future were not ripe, and that Watson's prior corporation. Former article 1396–2.23 gives members of a written demands were moot because he had been permitted to non-profit corporation the right, on a proper written demand, examine and copy the books and records both before suit was to examine and copy records as follows: filed and again on November 16 and 17 and December 21, 2009. Watson's response and his affidavit argue he was given B. A member of a corporation, on limited access to some documents for approximately two days written demand stating the purpose before he filed suit. After he filed the suit, he was denied of the demand, has the right to access until November 16, 2009 and again until December 22, examine and copy, in person or 2009, when he was allowed to examine records for a period of by agent, accountant, or attorney, at less than two days. The trial court granted the HOA's motion any reasonable time, for any proper for summary judgment without specifying the grounds on purpose, the books and records of the which it relied. corporation relevant to that purpose, at the expense of the member. [1] [2] We review a trial court's summary judgment de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 Act of May 24, 1993, 73d Leg., R.S., ch. 733, § 12, 1993 S.W.3d 211, 215 (Tex.2003). We apply the well-established Tex. Gen. Laws 2873, 2879 (expired Jan. 1, 2010) (current standards for reviewing summary judgments. See Nixon v. version at TEX. BUS. ORGS.CODE ANN. § 22.351 (West Mr. Property Management Co., 690 S.W.2d 546, 548–49 2010)). The HOA's bylaws authorize the board of directors to (Tex.1985); see also TEX.R. CIV. P. 166a. An original establish reasonable rules regarding inspection of its records proceeding for a writ of mandamus initiated in the trial court by members, including the notice to be given, the hours and is a civil action subject to trial and appeal on substantive days of the week when inspection may be made, and payment law issues and the rules of procedure as any other civil suit. of the cost of reproducing requested copies of the documents. Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 1 (Tex.1991). There are three requisites to a common law Watson alleged he made a written demand to inspect the action for a writ of mandamus: a legal duty to perform a non- records of the HOA on May 20, 2009 to determine if the discretionary act, a demand for performance of the act, and a financial records of the HOA were properly and accurately refusal to perform. Dallas Fort Worth Int'l Airport Bd. v. Cox, kept and whether true results of the HOA's financial 261 S.W.3d 378, 382 (Tex.App.-Dallas 2008, no pet.). operations were communicated to the members. He alleged he was permitted to examine and copy some records, but that [3] Watson's request for mandamus is based on the HOA's the HOA later refused to make additional records available. alleged refusal to perform its legal duty under article 1396– In an e-mail dated September 9, 2009, Watson requested 2.23 to permit him to inspect its books and records. To invoke additional documents regarding the relationship between the the right to examine and copy records under that statute, the HOA and Western Golf Properties (WGP), the manager of member of the non-profit corporation must make a written the golf course located on the subdivision. On September demand stating a proper purpose. He may then examine and 18, 2009, Watson made a formal written demand to review copy, at any reasonable time, the books and records relevant the additional documents, stating the same purpose as in his to the proper purpose at his expense. See Act of May 24, 1993, May 20, 2009 demand. He stated that he would file suit to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Watson v. Homeowners Ass'n of Heritage Ranch, Inc., 346 S.W.3d 258 (2011)

records for approximately twenty-two hours on November 16 73d Leg., R.S., ch. 733, § 12, 1993 Tex. Gen. Laws 2873, 2879 (expired Jan. 1, 2010). and 17 and December 21, 2009. 2 The president also testified the HOA would make its books and records available to To establish entitlement to the writ of mandamus, Watson Watson in the future after proper notice of a proper purpose was required to show (1) the HOA had a legal duty under and at a reasonable time at Watson's expense. article 1396–2.23, (2) he made a written demand stating a proper purpose, and (3) the HOA refused to permit him to Watson's response and affidavit state that he was denied examine the books and records at a reasonable time. See Cox, access to the records at various times, but admit that he was 261 S.W.3d at 382. The HOA does not claim that Watson's given access on November 16, 2009 and on December 22, stated purpose was improper. 2009. He does not dispute that he was permitted to examine and copy the HOA's records for a total of approximately The summary judgment evidence shows Watson made the twenty-two hours in November and December. May 20, 2009 and September 18, 2009 written demands described above. The summary judgment record indicates the Watson's summary judgment response is replete with HOA gave Watson access to the HOA's books and records in allegations of improper accounting practices, failures to document transactions, and false and misleading financial response to the May 20, 2009 written demand. 1 records of the HOA. These assertions, however, are not material to whether the HOA refused to permit him to The HOA's September 30, 2009 letter stated that the board had discussed Watson's September 18 demand and “agreed examine the books and records at a reasonable time. 3 that there is not a problem in you examining *261 the records you requested.” The letter also stated the board We conclude the summary judgment record establishes that decided it needed to establish a policy for payment of the costs the HOA did not deny Watson's written demands to examine associated with the making the records available and copying and copy the relevant books and records. Accordingly, the them and would do so at its October meeting. The letter trial court did not err by granting the HOA's motion for indicated Watson would be allowed to review the charges and summary judgment. We overrule Watson's sole issue. proceed with his request at that time. We affirm the trial court's judgment. The HOA's president testified in his affidavit that, after Watson filed suit, he again examined the HOA's books and

Footnotes 1 Watson reviewed the 2007–2009 balance sheets, 2007–2009 profit & loss statements, 2007–2009 trial balance of the general ledger associated with the golf course and restaurant, and other documents including the reserve analysis and audited financial statements from 2003 through 2008. 2 Watson examined and copied monthly statements, balance sheets, profit and loss statements, cash flow statements, account and reserve reconciliations, annual audited statements, invoices, checks, the general ledger, contracts with WGP, other financial records, and membership lists during the November and December 2009 inspection dates. 3 Watson also complains about the sufficiency of the HOA's responses to discovery in the litigation, but the record does not indicate the trial court was ever asked to rule on these complaints. Whether the HOA properly responded to the discovery requests in this case does not bear on whether it complied with its statutory duty under article 1396–2.23. Thus, Watson's complaints about discovery do not raise a genuine issue of material fact in response to the motion for summary judgment.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

category of documents constitutes court records. Vernon's Ann.Texas Rules Civ.Proc., Rule 76a. 940 S.W.2d 359 Court of Appeals of Texas, Cases that cite this headnote Dallas.

Angela M. WOOD, M.D., et al., Appellants, [3] Records v. Court records JAMES R. MORIARTY, P.C., d/b/a Moriarty & Court of Appeals reviews trial court's ruling Associates, Kathy L. Buchanan, Dallas Observer, on motion to seal court records under abuse of Toni P., et al., and Eva Renea A., et al., Appellees. discretion standard. Vernon's Ann.Texas Rules Civ.Proc., Rule 76a. No. 05–95–01727–CV. | Feb. 19, 1997. 2 Cases that cite this headnote Psychiatrists brought libel and slander action against attorney who represented patients in lawsuit against psychiatrists. The [4] Records 101st Judicial District Court, Dallas County, Jay Patterson, Court records J., denied psychiatrists' motion to restrict use of or access to discovery records consisting of financial and office records. In determining if trial court abused its discretion Psychiatrists appealed. The Court of Appeals, Lagarde, J., in ruling on motion to seal documents, test is held that: (1) it lacked jurisdiction over appeal insofar as it whether trial court acted without reference to concerned denial of relief under rule permitting court to limit guiding rules or principles provided by rule scope of discovery; (2) sufficient evidence supported finding governing sealing of documents or if trial that discovery documents were “court records”; and (3) trial court acted in arbitrary or unreasonable manner. court did not abuse its discretion in denying motion. Vernon's Ann.Texas Rules Civ.Proc., Rule 76a.

5 Cases that cite this headnote Affirmed.

[5] Appeal and Error Abuse of discretion West Headnotes (12) When reviewing matters committed to trial court's discretion, Court of Appeals may not [1] Records substitute its judgment for that of trial court. Court records 1 Cases that cite this headnote Party seeking to seal court records must prove required elements by preponderance of evidence. Vernon's Ann.Texas Rules Civ.Proc., Rule 76a. [6] Appeal and Error Province of trial court 1 Cases that cite this headnote Appeal and Error Province of trial court [2] Records In a nonjury trial or hearing, trial judge is sole Court records judge of witnesses' credibility and weight given Trial court may not presume particular document their testimony. or group of documents are court records, for purposes of motion to seal, when party raises 1 Cases that cite this headnote issue of whether discovery documents are court records; rather court must make a factual [7] Records determination of whether specific document or Court records

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

Court of Appeals had jurisdiction over documents were “court records” in court's ruling defendants' claim that trial court erred in denying denying libel plaintiffs' motion to restrict use or their motion to restrict use of and access to access to those documents. Vernon's Ann.Texas discovery documents under rule permitting court Rules Civ.Proc., Rule 76a; Rules App.Proc., to seal court records. Vernon's Ann.Texas Rules Rule 50(d). Civ.Proc., Rule 76a. Cases that cite this headnote Cases that cite this headnote [12] Records [8] Appeal and Error Court records Relating to witnesses, depositions, Trial court did not abuse its discretion in denying affidavits or discovery psychiatrists' motion to restrict use of and access Court of Appeals lacked jurisdiction over to discovery records, consisting of financial and defendants' appeal insofar as it concerned denial office records, in their libel and slander action of relief under rule permitting court to limit against attorney who was representing patients in scope of discovery. Vernon's Ann.Texas Rules lawsuit against psychiatrists, where psychiatrists Civ.Proc., Rule 166b, subd. 5, par. c. presented no evidence that lack of restrictions on use of discovery would harm their defense Cases that cite this headnote in patients' action or that any existing orders in patients' action would prevent patients from [9] Records obtaining those requested documents. Vernon's Court records Ann.Texas Rules Civ.Proc., Rule 76a. Trial court ruled, in granting plea in intervention, 1 Cases that cite this headnote that all unfiled discovery constituted “court records,” and thus court did not abuse its discretion in ruling on motion to seal discovery documents by failing to determine whether Attorneys and Law Firms discovery documents sought to be sealed were court records. Vernon's Ann.Texas Rules *360 William A. Smith, J. Douglas Uloth, Smith & Uloth, Civ.Proc., Rule 76a. P.C., Dallas, for Appellants.

Cases that cite this headnote Thomas J. Williams, Haynes & Boone, L.L.P., Fort Worth, Ronald L. Palmer, C. Craig Tadlock, Baker & Botts, L.L.P., [10] Appeal and Error Dallas, James R. Moriarty, The Law Offices of James R. Failure to make bill of exceptions, case, or Moriarty & Associates, Houston, for Appellees. statement of facts Before LAGARDE, MALONEY and MORRIS, JJ. In absence of a statement of facts, Court of Appeals must presume that sufficient evidence was introduced in trial court to support trial OPINION court's decision. Rules App.Proc., Rule 50(d). LAGARDE, Justice. 1 Cases that cite this headnote Angela M. Wood, M.D., et al. appeal the trial court's order [11] Records denying their motion to restrict access to discovery pursuant Court records to rule 76a. See TEX.R. CIV. P. 76a. Appellants bring four points of error contending that the trial court abused its In the absence of statement of facts, Court discretion in denying appellants' motion to restrict discovery of Appeals presumed that sufficient evidence (i) in failing to determine whether the discovery documents supported trial court's finding that discovery

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

were court records, (ii) in failing to analyze or apply correct legal principles, and (iii) because no evidence or insufficient [C]ourt records, as defined in this rule, are presumed to be evidence supports the trial court's ruling. We overrule the open to the general public and may be sealed only upon a points and affirm the trial court's order. showing of all of the following:

(a) a specific, serious and substantial interest which clearly outweighs: FACTUAL BACKGROUND (1) this presumption of openness; Appellants are ten psychiatrists and their professional corporations operating as a partnership, Dallas Psychiatric (2) any probable adverse effect that sealing will have Associates. From 1987 to 1991, these doctors practiced upon the general public health or safety; at Brookhaven Psychiatric Pavilion, which was owned by (b) no less restrictive means than sealing records will National Medical Enterprises. James Moriarty is an attorney adequately and effectively protect the specific interest who placed allegedly libelous advertisements in newspapers asserted. and on radio stating that appellants had received kickbacks, had overcharged patients, had charged patients for services TEX.R. CIV. P. 76a(1). The party seeking to seal the not performed, and had physically and mentally abused court records must prove the elements of rule 76a(1) by a patients. Moriarty represents about six hundred plaintiffs in preponderance of the evidence. Upjohn Co. v. Freeman, 906 a lawsuit against appellants filed in Montgomery County. S.W.2d 92, 96 (Tex.App.—Dallas 1995, no writ); Eli Lilly & After Moriarty filed the Montgomery County suit, appellants Co. v. Biffle, 868 S.W.2d 806, 809 (Tex.App.—Dallas 1993, brought this suit against him and Kathy Buchanan alleging no writ). libel and slander. Appellants asserted as damages, inter alia, loss of income and patients. During discovery, Moriarty [2] A trial court may not presume a particular document requested that appellants turn over certain personal and or group of documents constitutes court records if a party in business financial records. Appellants filed a motion asking a rule 76a motion raises the issue of whether the discovery the trial court to limit the scope of discovery under rule of in question constitutes court records as defined in the rule. civil procedure 166b or to restrict public access to the records Upjohn, 906 S.W.2d at 95–96; Eli Lilly, 868 S.W.2d at 808. under rule 76a. The Dallas Observer, Toni *361 P., et al., When the issue is raised, the trial court must make a factual and Eva Renea A., et al., 1 intervened in the suit for purposes determination of whether a specific document or category of of the motion to seal under rule 76a(4). Appellants did not documents constitutes court records. Upjohn, 906 S.W.2d at tender the documents to the trial court for in camera review. 96; Eli Lilly, 868 S.W.2d at 808. Following a hearing, the trial court denied appellants' request to seal. Pursuant to rule 76a(8), appellants brought this appeal [3] [4] We review the trial court's ruling on the rule 76a from the trial court's order denying the rule 76a motion. See motion under an abuse of discretion standard. Upjohn, 906 TEX.R. CIV. P. 76a(8). S.W.2d at 95; Eli Lilly, 868 S.W.2d at 809. The test for an abuse of discretion is not whether the facts present a proper case for the trial court's action. Rather, the test is whether the trial court acted without reference to any guiding rules or RULE 76A principles, or acted in an arbitrary or unreasonable manner. [1] Rule 76a of the rules of civil procedure provides Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, that “court records ... are presumed to be open to the 241–42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. general public....” TEX.R. CIV. P. 76a(1). “Court records” 2279, 90 L.Ed.2d 721 (1986); Upjohn, 906 S.W.2d at 95. are defined in the rule as, among other things, “discovery, Rule 76a provides the guiding rules and principles for sealing not filed of record, concerning matters that have a probable court records. Upjohn, 906 S.W.2d at 95; Dunshie v. General adverse effect upon the general public health or safety.” Motors Corp., 822 S.W.2d 345, 347 (Tex.App.—Beaumont TEX.R. CIV. P. 76a(2)(c). Rule 76a provides: 1992, no writ). An abuse of discretion does not exist when the trial court bases its decision on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); Zmotony v. Phillips, 529 S.W.2d 760, 762 (Tex.1975); Upjohn, 906 S.W.2d at 95.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

discovery constitute ‘court records' as that term is defined [5] [6] When we review matters committed to the trial and interpreted for purposes of application of Tex.R. Civ. P. court's discretion, we may not substitute our judgment for 76a.” 3 Therefore, we overrule appellants' first point of error. that of the trial court. Upjohn, 906 S.W.2d at 95. Even if we would decide the issue differently, we may not disturb the trial In their second point of error, 4 appellants contend that no court's decision unless it is arbitrary and unreasonable. Id. In a evidence or insufficient evidence supports the trial court's nonjury trial or hearing, the trial judge is the sole judge of the order denying appellants' motion to restrict use of and access witnesses' credibility and the weight given their testimony. to discovery. Under this point, appellants argue that no Id.; Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d evidence or insufficient evidence supports the trial court's 219, 224 (Tex.App.—Dallas 1989, writ denied). finding that the discovery documents are court records. The order containing the finding that the discovery documents are court records states that the decision was based on JURISDICTION the pleadings, the evidence submitted, and the argument of counsel. The briefs refer to a statement of facts from the [7] In their first “reply point,” appellees assert that this Court hearing on the motion to seal, but no statement of facts has lacks jurisdiction over the appeal because appellants contend been filed in this case. 5 The briefs note that certain exhibits, in their first point of error that the trial court did not determine which are not included in the record before this Court, were that the discovery documents *362 were court records. If submitted to the trial court and admitted into evidence. the documents are not court records, then rule 76a is not applicable. See Dunshie, 822 S.W.2d at 348; see also TEX.R. [10] Appellants had the responsibility to ensure that the CIV. P. 76a(8). Appellants' argument under the point is that statement of facts was filed. TEX.R.APP. P. 53(k); Smith v. the trial court appeared to presume that the records were court Grace, 919 S.W.2d 673, 676 (Tex.App.—Dallas 1996, writ records without making a factual determination. Courts of denied), petition for cert. filed, 65 U.S.L.W. 3489 (U.S. Jan. appeals do have jurisdiction to review this complaint. See 2, 1997) (No. 96–1057); see also TEX.R.APP. P. 50(d). The Upjohn, 906 S.W.2d at 96; Eli Lilly, 868 S.W.2d at 808. requirement of a statement of facts applies to issues that We conclude that we have jurisdiction over the appeal. We require reference to the evidence. *363 Smith, 919 S.W.2d at overrule appellees' first reply point. 2 677. In the absence of a statement of facts, we must presume that sufficient evidence was introduced in the trial court to [8] All of appellants' points of error assert that the trial court support the trial court's decision. Id.; Northeast Wholesale erred in denying their motion to restrict use of and access to Lumber, Inc. v. Leader Lumber, Inc., 785 S.W.2d 402, 405 the discovery documents pursuant to rules 76a and 166b(5) (Tex.App.—Dallas 1989, no writ). (c) of the Texas Rules of Civil Procedure. This Court has jurisdiction over the appeal insofar as it concerns the denial [11] Appellees state that the trial court admitted defendants' of relief under rule 76a. This Court has no jurisdiction over exhibits one through three at the hearing. Appellees state the appeal insofar as it concerns the denial of relief under these exhibits were certified copies of criminal judgments rule 166b. See Dunshie, 822 S.W.2d at 348. Accordingly, we against National Medical Enterprises and Peter Alexis. The dismiss appellants' points of error to the extent they do not other evidence considered by the trial judge was contained involve denial of relief under rule 76a. in affidavits filed with the district clerk. The affidavits are before this Court in the transcript and supplemental transcript. The judgments introduced at the hearing, however, do not COURT RECORDS appear to be part of the record before this Court. Because the parties allege that the trial court received evidence at the [9] In their first point of error, appellants contend that the hearing not before this Court in the transcript, review of the trial court abused its discretion in failing to determine that the sufficiency of the evidence in this case requires review of the documents sought to be sealed were court records. The record statement of facts. Appellants failed in their duty to file the shows that the trial court did determine that the documents statement of facts in this case. Accordingly, we must presume were court records. In the order granting the Dallas Observer's that some evidence and sufficient evidence supports the trial plea in intervention, the trial court ruled, “All documents filed court's finding that the documents were court records. We with the clerk of this Court in this action and all unfiled overrule appellants' second point of error.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

Fox is an appeal of an order granting a sealing order; this case involves review of an order denying a sealing order. The standards *364 for reviewing the denial of a sealing ABUSE OF DISCRETION order differ from those for reviewing the granting of a sealing In their third point of error, appellants contend that the trial order. 7 Therefore, Fox does not apply to this case. court abused its discretion in denying their motion to restrict use of and access to discovery documents. 6 Appellants also note that the court in Fox stated that an unapproved version of rule 76a placed financial information The records requested consist of financial and office on the same level of protection as a sexual assault victim's records including: records of compensation from appellants' identity. Appellants assert that the trial court should have associated hospitals and national medical organizations; ordered the financial records sealed in this case just as the records of compensation from referrals; stock options from court in Fox ordered sealed the plaintiff's identification and the associated hospitals and national medical organizations; the terms of the settlement agreement. However, in Fox, billing records; federal income tax returns for 1993 and 1994; the court held that the trial court did not err in sealing financial statements; accounting documents; and records the records because the plaintiff proved the existence of a showing appellants' income from 1993 through the present. specific, serious, and substantial interest by showing that Appellants assert that they have a specific, serious, and the lack of restrictions on access to the plaintiff's identity substantial interest in these records which outweighs the and the terms of the settlement agreement would cause him presumption of openness and any probable adverse effect that irreparable harm. Id. at 507. In this case, appellants proved sealing will have upon the general public health and safety. that the records were private, but they presented no evidence Appellants assert that no less restrictive means than sealing showing that the lack of restrictions on access to the financial these records will protect their interest in these records. See information would cause them irreparable harm. Thus, Fox TEX.R. CIV. P. 76a(1). does not support appellants' position.

[12] Appellants assert a privacy interest in the financial Appellants also assert for the first time that disclosure of the records. Appellants rely on Fox v. Anonymous, 869 S.W.2d financial records would harm their spouses and children by 499 (Tex.App.—San Antonio 1993, writ denied). In Fox, the disclosing their social security numbers. Nothing in the record minor plaintiff and his guardian ad litem filed a “friendly” suit shows that any of the appellants are married or have children. in district court for the approval, entry, and enforcement of a Thus, this argument lacks merit. settlement agreement of the minor's tort claims resulting from being sexually assaulted while a patient in a mental health Appellants assert that because appellee Moriarty is counsel facility. Id. at 501. The plaintiff moved to have the records for plaintiffs in the suit against appellants in Evangeline sealed so that his identity and the terms of the settlement R., et al. v. National Medical Enterprises, et al. pending agreement would not be disclosed. Id. at 502. The plaintiff in Montgomery County, Moriarty would be likely to use introduced evidence showing that he would be irreparably information discovered in his capacity as a party in this harmed by the disclosure of his identity and the terms of case in his representation of plaintiffs in Evangeline R. in the settlement agreement. Id. The trial court granted the their suit against appellants. Appellants argue that the lack plaintiff's motion and ordered the records sealed. On appeal, of restrictions on the use of the material discovered in this the San Antonio Court of Appeals found that sufficient lawsuit against appellants in the other lawsuit would be evidence existed that the plaintiff had a specific, serious, and improper and cause appellants irreparable harm. Appellants substantial interest in concealing his identity and the terms present no argument or authorities explaining why the use of the settlement agreement because of his severe emotional of the information in the Montgomery County suit would be problems and the risks associated with his rehabilitation and improper. Nor do they explain how the use of the evidence treatment. Id. at 506. The plaintiff met the other requirements in the Montgomery County suit would cause them irreparable of rule 76a(1). Id. at 505–06. The court of appeals affirmed harm. If the evidence is relevant to the Montgomery County the sealing order to the extent that it concealed the plaintiff's suit, then, presumably, the same information is subject identity and the terms of the settlement agreement. Id. at 507. to discovery in that suit. See TEX.R. CIV. P. 166b(2) (a) (“Parties may obtain discovery regarding any matter which is relevant to the subject matter in the pending

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

openness of court records and the action....”). Appellants have not shown that any existing probable adverse effect that sealing orders limiting discovery in the Montgomery County suit will have upon the general public would prevent appellees from obtaining this information health and safety. during the discovery procedures in the Montgomery County suit or that the lack of restrictions on the use of discovery Accordingly, we conclude that the trial court did not abuse its in this case would harm them in their defense of the discretion in denying appellants' motion to restrict use of and Montgomery County suit. Thus, even though appellants access to discovery documents. We overrule appellants' third asserted in their motion that they would be irreparably harmed point of error. by the lack of restrictions on the use of the documents, they presented no evidence in support of this assertion. *365 In their fourth point of error, 8 appellants contend that the trial court erred in failing to analyze or apply the correct Appellants' failure to make any showing that the lack of legal principles in denying appellants' motion to restrict use restrictions on the use of or access to the documents would of and access to discovery. Appellants' argument under this harm them supports the trial court's finding that: point appears to be an attempt to incorporate their arguments the public interest and right to from the first two points of error. Because we have overruled know the contents of Plaintiffs' those points of error, we overrule appellants' fourth point of discovery responses in this lawsuit error. outweigh Plaintiffs' interest in the privacy of such records. Plaintiffs We affirm the trial court's order denying appellants' motion have not shown a specific, serious, to seal. and substantial interest which clearly outweighs the presumption of

Footnotes 1 Toni P., et al. and Eva Renea A., et al. are 105 individuals who were appellants' patients and have suits pending against appellants in Dallas and Montgomery counties. 2 In their argument under this reply point, appellees cited Tollack v. Allianz of America Corp., No. 05–91–01943–CV, 1993 WL 321458 (Tex.App.—Dallas, Aug.16, 1993, writ denied) (not designated for publication). This Court ordered that the opinion not be published. Rule 90(i) of the rules of appellate procedure provides, “Unpublished opinions shall not be cited as authority by counsel or by a court.” TEX.R.APP. P. 90(i) (emphasis added). Appellees' citation to Tollack as authority in support of their argument is in clear violation of this rule. Appellees and their counsel are cautioned not to violate this rule in the future. 3 Appellants do not challenge this ruling as overbroad. Accordingly, we do not address this issue. We do not consider and we express no opinion on the propriety of the order. 4 On page iv of appellants' brief, this point of error is listed as the fourth point of error. 5 Before bringing this appeal, appellants filed a motion for leave to file a writ of mandamus. That motion was summarily denied. The statement of facts from the hearing on the motion to seal was delivered to the clerk of this Court as an exhibit to the petition for writ of mandamus presented with the motion for leave to file. See TEX.R.APP. P. 121(a)(3), (4). No party to this appeal attempted to make that statement of facts part of the record of this appeal or requested that we take judicial notice of the statement of facts. Accordingly, we do not address the issue of whether the statement of facts is properly part of the records of this Court following the denial of the motion for leave to file the petition for writ of mandamus. 6 This is the point of error as stated on page 17 of appellants' brief immediately preceding the argument on the point of error. On page iv of their brief, appellants state the third point of error as: “The trial court abused its discretion in failing to make a factual determination on the motion to restrict use of and access to discovery pursuant to Texas Rules of Civil Procedure 76a and 166b(5) (c).” Appellants do not argue the point as stated on page iv. Accordingly, we address the point of error as stated on page 17. 7 Rule 76a permits a trial court to seal court records only when the movant makes the showing required by rule 76a. However, rule 76a does not require the trial court to seal the record if the movant makes the 76a(1) showing. See TEX.R. CIV. P. 76a(1) (“court records ... are presumed to be open ... and may be sealed only upon a showing of the [requirements of rule 76a(1)(a) & (b) ]” (emphasis added)). 8 On page iv of appellants' brief, this point of error is listed as the second point of error.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 § 252.010. Books and Records, TX BUS ORG § 252.010

Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Annos) Title 6. Associations (Refs & Annos) Chapter 252. Unincorporated Nonprofit Associations (Refs & Annos)

V.T.C.A., Business Organizations Code § 252.010

§ 252.010. Books and Records

Effective: January 1, 2006 Currentness

(a) A nonprofit association shall keep correct and complete books and records of account for at least three years after the end of each fiscal year and shall make the books and records available on request to members of the association for inspection and copying.

(b) The attorney general may inspect, examine, and make copies of the books, records, and other documents the attorney general considers necessary and may investigate the association to determine if a violation of any law of this state has occurred.

Credits Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.

V. T. C. A., Business Organizations Code § 252.010, TX BUS ORG § 252.010 Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 22.351. Member's Right to Inspect Books and Records, TX BUS ORG § 22.351

Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Annos) Title 2. Corporations (Refs & Annos) Chapter 22. Nonprofit Corporations Subchapter H. Records and Reports

V.T.C.A., Business Organizations Code § 22.351

§ 22.351. Member's Right to Inspect Books and Records

Effective: January 1, 2006 Currentness

A member of a corporation, on written demand stating the purpose of the demand, is entitled to examine and copy at the member's expense, in person or by agent, accountant, or attorney, at any reasonable time and for a proper purpose, the books and records of the corporation relevant to that purpose.

Credits Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.

Notes of Decisions (1)

V. T. C. A., Business Organizations Code § 22.351, TX BUS ORG § 22.351 Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Art. 1396-2.23. Books and Records, TX CIV ST Art. 1396-2.23

Vernon's Texas Statutes and Codes Annotated Civil Statutes (Refs & Annos) Title 32. Corporations Chapter Nine. Non-Profit, Cooperative, Religious and Charitable (Refs & Annos) 1. Texas Non-Profit Corporation Act (Refs & Annos)

This section has been updated. Click here for the updated version.

Vernon's Ann.Texas Civ.St. Art. 1396-2.23

Art. 1396-2.23. Books and Records

Effective: [See Text Amendments] to December 31, 2009

A. Each corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its members, board of directors, and committees having any authority of the board of directors and shall keep at its registered office or principal office in this State a record of the names and addresses of its members entitled to vote.

B. A member of a corporation, on written demand stating the purpose of the demand, has the right to examine and copy, in person or by agent, accountant, or attorney, at any reasonable time, for any proper purpose, the books and records of the corporation relevant to that purpose, at the expense of the member.

Credits Acts 1959, 56th Leg., p. 286, ch. 162, art. 2.23. Amended by Acts 1993, 73rd Leg., ch. 733, § 12, eff. Jan. 1, 1994.

Titles 1 to 8 [part] appear in this volume

Vernon's Ann. Texas Civ. St. Art. 1396-2.23, TX CIV ST Art. 1396-2.23 Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 82.114. Association Records, TX PROPERTY § 82.114

Vernon's Texas Statutes and Codes Annotated Property Code (Refs & Annos) Title 7. Condominiums Chapter 82. Uniform Condominium Act (Refs & Annos) Subchapter C. Condominium Management

V.T.C.A., Property Code § 82.114

§ 82.114. Association Records

Currentness

(a) The association shall keep:

(1) detailed financial records that comply with generally accepted accounting principles and that are sufficiently detailed to enable the association to prepare a resale certificate under Section 82.157;

(2) the plans and specifications used to construct the condominium except for buildings originally constructed before January 1, 1994;

(3) the condominium information statement prepared under Section 82.152 and any amendments;

(4) the name and mailing address of each unit owner;

(5) voting records, proxies, and correspondence relating to amendments to the declaration; and

(6) minutes of meetings of the association and board.

(b) All financial and other records of the association shall be reasonably available at its registered office or its principal office in this state for examination by a unit owner and the owner's agents. An attorney's files and records relating to the association are not records of the association and are not subject to inspection by unit owners or production in a legal proceeding.

(c) The association shall, as a common expense, annually obtain an independent audit of the records. Copies of the audit must be made available to the unit owners. An audit required by this subsection shall be performed by a certified public accountant if required by the bylaws or a vote of the board of directors or a majority vote of the members of the association voting at a meeting of the association.

(d) A declarant shall furnish copies to the association of the information required by Subsection (a) on the date the first unit is sold.

(e) Not later than the 30th day after the date of acquiring an interest in a unit, the unit owner shall provide the association with:

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 82.114. Association Records, TX PROPERTY § 82.114

(1) the unit owner's mailing address, telephone number, and driver's license number, if any;

(2) the name and address of the holder of any lien against the unit, and any loan number;

(3) the name and telephone number of any person occupying the unit other than the unit owner; and

(4) the name, address, and telephone number of any person managing the unit as agent of the unit owner.

(f) A unit owner shall notify the association not later than the 30th day after the date the owner has notice of a change in any information required by Subsection (e), and shall provide the information on request by the association from time to time.

Credits Added by Acts 1993, 73rd Leg., ch. 244, § 1, eff. Jan. 1, 1994.

V. T. C. A., Property Code § 82.114, TX PROPERTY § 82.114 Current through the end of the 2013 Third Called Session of the 83rd Legislature

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 42.3. Involuntary Dismissal in Civil Cases, TX R APP Rule 42.3

Vernon's Texas Rules Annotated Texas Rules of Appellate Procedure Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos) Rule 42. Dismissal (Refs & Annos)

TX Rules App.Proc., Rule 42.3

42.3. Involuntary Dismissal in Civil Cases

Currentness

Under the following circumstances, on any party's motion--or on its own initiative after giving ten days' notice to all parties-- the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:

(a) for want of jurisdiction;

(b) for want of prosecution; or

(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.

Credits Eff. Sept. 1, 1997.

Notes of Decisions (26)

Rules App. Proc., Rule 42.3, TX R APP Rule 42.3 Current with amendments received through August 15, 2014

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 190.5. Modification of Discovery Control Plan, TX R RCP Rule 190.5

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos) B. Discovery Rule 190. Discovery Limitations (Refs & Annos)

TX Rules of Civil Procedure, Rule 190.5

190.5. Modification of Discovery Control Plan

Currentness

The court may modify a discovery control plan at any time and must do so when the interest of justice requires. Unless a suit is governed by the expedited actions process in Rule 169, the court must allow additional discovery:

(a) related to new, amended or supplemental pleadings, or new information disclosed in a discovery response or in an amended or supplemental response, if:

(1) the pleadings or responses were made after the deadline for completion of discovery or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and

(2) the adverse party would be unfairly prejudiced without such additional discovery;

(b) regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends.

Credits Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999. Amended by order of Feb. 12, 2013, eff. March 1, 2013.

Editors' Notes

COMMENT--2013

Rule 190 is amended to implement section 22.004(h) of the Texas Government Code, which calls for rules to promote the prompt, efficient, and cost-effective resolution of civil actions when the amount in controversy does not exceed $100,000. Rule 190.2 now applies to expedited actions, as defined by Rule 169. Rule 190.2 continues to apply to divorces not involving children in which the value of the marital estate is not more than $50,000, which are otherwise exempt from the expedited actions process. Amended Rule 190.2(b) ends the discovery period 180 days after the date the first discovery request is served; imposes a fifteen limit maximum on interrogatories, requests for production, and requests for admission; and allows for additional disclosures. Although expedited actions are not subject to mandatory additional discovery under amended Rule 190.5, the court may still allow additional discovery if the conditions of Rule 190.5(a) are met.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 190.5. Modification of Discovery Control Plan, TX R RCP Rule 190.5

Vernon's Ann. Texas Rules Civ. Proc., Rule 190.5, TX R RCP Rule 190.5 Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 191.1. Modification of Procedures, TX R RCP Rule 191.1

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos) B. Discovery Rule 191. Modifying Discovery Procedures and Limitations; Conference Requirement; Signing Disclosures, Discovery Requests, Responses, and Objections; Filing Requirements

TX Rules of Civil Procedure, Rule 191.1

191.1. Modification of Procedures

Currentness

Except where specifically prohibited, the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit by the agreement of the parties or by court order for good cause. An agreement of the parties is enforceable if it complies with Rule 11 or, as it affects an oral deposition, if it is made a part of the record of the deposition.

Credits Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (8)

Vernon's Ann. Texas Rules Civ. Proc., Rule 191.1, TX R RCP Rule 191.1 Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 191.3. Signing of Disclosures, Discovery Requests, Notices,..., TX R RCP Rule 191.3

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos) B. Discovery Rule 191. Modifying Discovery Procedures and Limitations; Conference Requirement; Signing Disclosures, Discovery Requests, Responses, and Objections; Filing Requirements

TX Rules of Civil Procedure, Rule 191.3

191.3. Signing of Disclosures, Discovery Requests, Notices, Responses, and Objections

Currentness

(a) Signature Required. Every disclosure, discovery request, notice, response, and objection must be signed:

(1) by an attorney, if the party is represented by an attorney, and must show the attorney's State Bar of Texas identification number, address, telephone number, and fax number, if any; or

(2) by the party, if the party is not represented by an attorney, and must show the party's address, telephone number, and fax number, if any.

(b) Effect of Signature on Disclosure. The signature of an attorney or party on a disclosure constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.

(c) Effect of Signature on Discovery Request, Notice, Response, or Objection. The signature of an attorney or party on a discovery request, notice, response, or objection constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, notice, response, or objection:

(1) is consistent with the rules of civil procedure and these discovery rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;

(2) has a good faith factual basis;

(3) is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and

(4) is not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

(d) Effect of Failure to Sign. If a request, notice, response, or objection is not signed, it must be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, notice, response, or objection. A party is not required to take any action with respect to a request or notice that is not signed.

(e) Sanctions. If the certification is false without substantial justification, the court may, upon motion or its own initiative, impose on the person who made the certification, or the party on whose behalf the request, notice, response, or objection was made, or both, an appropriate sanction as for a frivolous pleading or motion under Chapter 10 of the Civil Practice and Remedies Code.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 191.3. Signing of Disclosures, Discovery Requests, Notices,..., TX R RCP Rule 191.3

Credits Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999.

Vernon's Ann. Texas Rules Civ. Proc., Rule 191.3, TX R RCP Rule 191.3 Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 191.3. Signing of Disclosures, Discovery Requests, Notices,..., TX R RCP Rule 191.3

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos) B. Discovery Rule 191. Modifying Discovery Procedures and Limitations; Conference Requirement; Signing Disclosures, Discovery Requests, Responses, and Objections; Filing Requirements

TX Rules of Civil Procedure, Rule 191.3

191.3. Signing of Disclosures, Discovery Requests, Notices, Responses, and Objections

Currentness

(a) Signature Required. Every disclosure, discovery request, notice, response, and objection must be signed:

(1) by an attorney, if the party is represented by an attorney, and must show the attorney's State Bar of Texas identification number, address, telephone number, and fax number, if any; or

(2) by the party, if the party is not represented by an attorney, and must show the party's address, telephone number, and fax number, if any.

(b) Effect of Signature on Disclosure. The signature of an attorney or party on a disclosure constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.

(c) Effect of Signature on Discovery Request, Notice, Response, or Objection. The signature of an attorney or party on a discovery request, notice, response, or objection constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, notice, response, or objection:

(1) is consistent with the rules of civil procedure and these discovery rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;

(2) has a good faith factual basis;

(3) is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and

(4) is not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

(d) Effect of Failure to Sign. If a request, notice, response, or objection is not signed, it must be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, notice, response, or objection. A party is not required to take any action with respect to a request or notice that is not signed.

(e) Sanctions. If the certification is false without substantial justification, the court may, upon motion or its own initiative, impose on the person who made the certification, or the party on whose behalf the request, notice, response, or objection was made, or both, an appropriate sanction as for a frivolous pleading or motion under Chapter 10 of the Civil Practice and Remedies Code.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 191.3. Signing of Disclosures, Discovery Requests, Notices,..., TX R RCP Rule 191.3

Credits Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999.

Vernon's Ann. Texas Rules Civ. Proc., Rule 191.3, TX R RCP Rule 191.3 Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 192.4. Limitations on Scope of Discovery, TX R RCP Rule 192.4

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos) B. Discovery Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions (Refs & Annos)

TX Rules of Civil Procedure, Rule 192.4

192.4. Limitations on Scope of Discovery

Currentness

The discovery methods permitted by these rules should be limited by the court if it determines, on motion or on its own initiative and on reasonable notice, that:

(a) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or

(b) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

Credits Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (37)

Vernon's Ann. Texas Rules Civ. Proc., Rule 192.4, TX R RCP Rule 192.4 Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 192.6. Protective Orders, TX R RCP Rule 192.6

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos) B. Discovery Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions (Refs & Annos)

TX Rules of Civil Procedure, Rule 192.6

192.6. Protective Orders

Currentness

(a) Motion. A person from whom discovery is sought, and any other person affected by the discovery request, may move within the time permitted for response to the discovery request for an order protecting that person from the discovery sought. A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion does not waive the objection or assertion of privilege. If a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply. A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion.

(b) Order. To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, the court may make any order in the interest of justice and may--among other things--order that:

(1) the requested discovery not be sought in whole or in part;

(2) the extent or subject matter of discovery be limited;

(3) the discovery not be undertaken at the time or place specified;

(4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court;

(5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.

Credits Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (28)

Vernon's Ann. Texas Rules Civ. Proc., Rule 192.6, TX R RCP Rule 192.6 Current with amendments received through 3/15/2015

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 192.6. Protective Orders, TX R RCP Rule 192.6

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos) B. Discovery Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions (Refs & Annos)

TX Rules of Civil Procedure, Rule 192.6

192.6. Protective Orders

Currentness

(a) Motion. A person from whom discovery is sought, and any other person affected by the discovery request, may move within the time permitted for response to the discovery request for an order protecting that person from the discovery sought. A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion does not waive the objection or assertion of privilege. If a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply. A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion.

(b) Order. To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, the court may make any order in the interest of justice and may--among other things--order that:

(1) the requested discovery not be sought in whole or in part;

(2) the extent or subject matter of discovery be limited;

(3) the discovery not be undertaken at the time or place specified;

(4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court;

(5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.

Credits Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (28)

Vernon's Ann. Texas Rules Civ. Proc., Rule 192.6, TX R RCP Rule 192.6 Current with amendments received through 3/15/2015

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 192.6. Protective Orders, TX R RCP Rule 192.6

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos) B. Discovery Rule 192. Permissible Discovery: Forms and Scope; Work Product; Protective Orders; Definitions (Refs & Annos)

TX Rules of Civil Procedure, Rule 192.6

192.6. Protective Orders

Currentness

(a) Motion. A person from whom discovery is sought, and any other person affected by the discovery request, may move within the time permitted for response to the discovery request for an order protecting that person from the discovery sought. A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion does not waive the objection or assertion of privilege. If a person seeks protection regarding the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply. A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstances to do so before obtaining a ruling on the motion.

(b) Order. To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, the court may make any order in the interest of justice and may--among other things--order that:

(1) the requested discovery not be sought in whole or in part;

(2) the extent or subject matter of discovery be limited;

(3) the discovery not be undertaken at the time or place specified;

(4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court;

(5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.

Credits Aug. 5, 1998 and Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (28)

Vernon's Ann. Texas Rules Civ. Proc., Rule 192.6, TX R RCP Rule 192.6 Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 215.3. Abuse of Discovery Process in Seeking, Making, or..., TX R RCP Rule 215.3

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 9. Evidence and Discovery (Refs & Annos) B. Discovery Rule 215. Abuse of Discovery; Sanctions (Refs & Annos)

TX Rules of Civil Procedure, Rule 215.3

215.3. Abuse of Discovery Process in Seeking, Making, or Resisting Discovery

Currentness

If the court finds a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for purposes of delay, then the court in which the action is pending may, after notice and hearing, impose any appropriate sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8) of Rule 215.2(b). Such order of sanction shall be subject to review on appeal from the final judgment.

Credits Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999.

Notes of Decisions (74)

Vernon's Ann. Texas Rules Civ. Proc., Rule 215.3, TX R RCP Rule 215.3 Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Rule 301. Judgments, TX R RCP Rule 301

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 11. Trial of Causes H. Judgments

TX Rules of Civil Procedure, Rule 301

Rule 301. Judgments

Currentness

The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence. Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law. Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or intervenors.

Credits Oct. 29, 1940, eff. Sept. 1, 1941. Amended by order of July 15, 1987, eff. Jan. 1, 1988.

Editors' Notes

OPINIONS OF SUBCOMMITTEE ON INTERPRETATION OF RULES Applicability of rule

This rule was not properly cited as authority in the opinion in the case of Starr et al. v. Ferguson, 166 S.W.2d 131, for the reason that the case was tried before the new rules became effective and the Supreme Court has since stricken the reference from the opinion. 6 Texas B.J. 77 (1943); 8 Texas B.J. 33 (1945).

Notes of Decisions (2972)

Vernon's Ann. Texas Rules Civ. Proc., Rule 301, TX R RCP Rule 301 Current with amendments received through August 15, 2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

Vernon's Texas Rules Annotated Texas Rules of Civil Procedure Part II. Rules of Practice in District and County Courts Section 11. Trial of Causes J. New Trials

TX Rules of Civil Procedure, Rule 329b

Rule 329b. Time for Filing Motions

Currentness

The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments (other than motions to correct the record under Rule 316) in all district and county courts:

(a) A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.

(b) One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within thirty days after the judgment or other order complained of is signed.

(c) In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.

(d) The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.

(e) If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until thirty days after all such timely- filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.

(f) On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court's plenary power had expired.

(g) A motion to modify, correct, or reform a judgment (as distinguished from motion to correct the record of a judgment under Rule 316), if filed, shall be filed and determined within the time prescribed by this rule for a motion for new trial and shall extend the trial court's plenary power and the time for perfecting an appeal in the same manner as a motion for new trial. Each such motion shall be in writing and signed by the party or his attorney and shall specify the respects in which the judgment should be modified, corrected, or reformed. The overruling of such a motion shall not preclude the filing of a motion for new trial, nor shall the overruling of a motion for new trial preclude the filing of a motion to modify, correct, or reform.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

(h) If a judgment is modified, corrected or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed, but if a correction is made pursuant to Rule 316 after expiration of the period of plenary power provided by this rule, no complaint shall be heard on appeal that could have been presented in an appeal from the original judgment.

Credits July 20, 1954, eff. Jan. 1, 1955. Amended by orders of July 26, 1960, eff. Jan. 1, 1961; July 20, 1966, eff. Jan. 1, 1967; Oct. 3, 1972, eff. Feb. 1, 1973; July 11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; Dec. 5, 1983, eff. April 1, 1984; July 15, 1987, eff. Jan. 1, 1988.

Editors' Notes

COMMENT--1988

Amended to conform with repeal of Rule 317.

GENERAL COMMENTARY--1966 Outmoded court terms

Old style inflexible terms of court with intervening vacation periods had, prior to 1955, been outmoded in the district courts for some time. This had resulted from a number of causes, including the press of ever-increasing judicial business and crowded court dockets, particularly in the more populous counties, and recognition of the fact that traditional terms of court impeded the administration of justice by unnecessary delays and waste of time for the courts, the litigants and the attorneys. In courts where rigid terms for holding court existed, the expiration of a term usually meant that trials and judicial proceedings in progress came to an end, and that uncompleted trials and proceedings had to be begun anew at a subsequent term. Motions for new trial had to be filed and considered, if at all, at the term at which the case was tried; and on expiration of the term pending motions were overruled automatically by operation of law, and if there was not enough time before the end of the term, the judgment was final without motion for new trial; after the term had expired, the court had no control over judgments rendered during the term, and thereafter it could not revise or set aside its judgments. 1 The underlying principle was that a court is without power to function except during term time. During vacation, according to the traditional view, a court could engage only in corrective and incidental proceedings, perform administrative functions and issue writs in extraordinary or ancillary proceedings such as injunctions, mandamus, sequestration, garnishment and supersedeas as expressly authorized by statute. Under this system, uncontested litigation and settlements could not be disposed of during vacation, the court being without power to exercise judicial authority. Also, if terms of court were of several months duration, judgments rendered during the early part of a term are a long time in becoming final since trial courts customarily retained jurisdiction to revise or to set aside their judgments until the end of the term.

Relaxation of district court terms

The elimination of the rigid term concept as to district courts was brought about in a variety of ways by a series of legislative enactments and rule changes extending over a period of many years. First, beginning with the authorization given by the Constitution of 1876 2 to regulate terms of district courts the Legislature began to establish so called “continuous terms” for district courts in the more populous counties, and this trend continued, with impetus by the amendment of the Constitution of 1949, so that by 1952 the terms of most district courts had been made continuous.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

The effect of these enactments was to require the district courts to which they applied to be in continuous session throughout the year without any intervening vacation periods between terms, simply by providing for the beginning of a new term immediately upon termination of the previous one. Then, from 1905 on district judges were given the authority to avoid the inflexibility of conventional statutory terms by calling special terms for the purpose of disposing of pending cases. 3 Likewise, after 1909 district courts had the authority to extend their statutory terms as to pending cases where the trial was not completed before the end of the term, including disposition of the motion for new trial, as well as conclusion of the trial on the merits; 4 and also, by consent of the parties, to try civil cases without a jury in vacation and enter final judgments therein. 5

The Special Practice Act; Continuous Term Courts

In 1923 the Legislature passed the Special Practice Act, 6 which was first applicable in counties having two or more civil district courts, and later by the 1939 amendment, in counties having five or more civil or criminal district courts. This Act was the forerunner of Rule 330 and present practice under Rules 329a and 329b. Among other things the Special Practice Act provided that a motion for new trial filed during one term of court could be heard and acted on at the next, and that a case or other matter on trial or in process of hearing when the term of court expired, could be proceeded with at the next term. It expressly stated that no motion for new trial or other motion or plea would be considered waived or overruled because not passed on at the term at which it was filed, and that such matter could be acted on at the succeeding term or at any time fixed by the judge or to which it may have been postponed by agreement. Motions for new trial were required to be presented within 30 days and determined within 45 days unless decision was postponed by agreement. Motions for new trial were required to be filed within 10 days after judgment, and judgments were made final after the expiration of 30 days from rendition or overruling of motion for new trial “as if the terms of court has expired”. These familiar provisions are readily recognized as the source of the procedural rules above mentioned. Thus, under the Special Practice Act the end of the term was not fraught with all of the age- old problems previously referred to, the ripening of completed cases into final judgment was placed on a reasonable basis, and litigation which was in progress would automatically carry over into the next term, including the filing and disposition of motions for new trial, without the necessity for extending the term under existing statutes.

In 1942 when the Rules of Civil Procedure became effective, there were 203 counties in the State in which district courts did not have continuous terms. 7 The Rules were intended to broaden the application of the Special Practice Act, and Rule 330 states that it applies in all district courts in counties where such courts have “successive terms throughout the year, without more than two days intervening”. By 1952, as a result of successive legislative enactments converting more district courts into continuous term courts, district by district, the Special Practice Act applied in approximately eighty-five percent of the counties. 8

The 1955 amendments

The 1955 revision of Rules 320 and 330 and the adoption of new Rules 329-a and 329-b, effective January 1, sought to achieve uniformity of practice in all district courts with respect to motions for new trial. Except as modified by the new rules, Rules 320 and 330 did not contain any new matter; there was no change of substance in the matter that was retained in those rules. The portions that were eliminated were covered by the newly adopted Rules 329-a and 329-b.

Rule 329a

Rule 329-a as promulgated applied only to County Courts, including County Courts at Law. The former practice with respect to the filing and disposition of motions for new trial in those courts was unchanged.

Rule 329b

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

Under Rule 329-b the provisions of the former Special Practice Act were made applicable to all District Courts, including those with non-continuous terms. The confusing variation with respect to the time for filing and determining original and amended motions for new trial in District Courts having continuous terms and those whose terms were limited by law, in such manner that there was an appreciable interval of time between terms, was abolished. With some modification, the former provisions of sub-division (j) of Rule 330 were made applicable to all District Courts. An original motion for new trial may be filed within ten days after the judgment or other order complained of is rendered. [Subd. 1.] The 1961 amendment permits more than one postponement but none beyond 90 days after the original or amended motion for new trial is filed; and by the concluding sentence of Section 4, also added by the amendment, a postponed motion or amended motion is overruled by operation of law on expiration of 90 days after it was filed or after the date to which it was postponed, whichever occurs first.

Amendment

With leave of court, the original motion for new trial may be amended within twenty days and only one amended motion for new trial will be permitted. [Subd. 2.]

Continuous term courts

The former practice of hearing motions for new trial at a succeeding term in District Courts having continuous terms is continued. [Subd. 6.] It is not necessary to secure an order extending a term of court for the purpose of hearing and determining a motion for new trial in courts which do not have continuous terms because provision is made for automatic extensions.

Presentation

One change of significance was made with respect to the presenting and determining of original and amended motions for new trial. Under Rule 330, as previously worded, such motion had to be presented within thirty days after it was filed. A number of District Judges throughout the State found that this arbitrary time limitation in some cases worked a hardship on the Court, which might be engaged in an extended trial for several days prior to the expiration of such time. In order to provide some flexibility, the District Judges were given discretion to permit the presenting of a motion for new trial within an additional period of fifteen days. [Subd. 4.] It should be specifically noted that the granting of this discretion did not extend the time for the determination of an original or an amended motion for new trial beyond the period of forty-five days after its filing. Hence it will be seen that the new provision gave the Court discretion to permit the presenting and to hear the motion within a period of an additional fifteen days and no more.

Postponement of hearing on motion

As was formerly the practice under Rule 330, the determination of the motion could be had after the forty-five day period only by written agreement of the parties postponing the decision to “a later date”. [Subd. 3.]

Under the rule as amended in 1961, the agreement must specify the day to which decision is postponed, which may not be more than 90 days after filing.

The 1961 amendment was intended to eliminate postponements to “a date convenient to the court” and similar indefinite agreements. See Holland v. Foley Bros. Dry Goods Co., Inc., 324 S.W.2d 430, writ ref.

District courts with non-continuous terms

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

In subd. 7, it was provided that as to judgments rendered in non-continuous term courts within 30 days of the end of the term, there is an automatic extension of the term so as to permit filing and disposition of motions and amended motions for new trial within the time periods prescribed for continuous term courts, and that such judgments become final at the end of 30 days from date of rendition or order overruling motion for new trial. Finally, Article 1919 was amended, effective January 1, 1956, to provide that the terms of all district courts shall be continuous “notwithstanding the provision of any law”. 9 This amendment rendered obsolete Section 7 of Rule 329b having application in district courts without continuous terms since the terms of all district courts were now made continuous. The net effect of these changes is that all civil actions in district courts in all counties are governed by the provisions of the Special Practice Act as now written into Rules 329b and 330, and that terms of court no longer have any real significance in the disposition of litigation in the district courts. The 1961 amendments deleted subd. 7 as it was originally promulgated, and inserted a new subd. 7 extending the application of subd. 6 to county courts with non-continuous terms.

County court terms and their problems

In county courts, the progression toward doing away with terms of court did not parallel developments in the district courts. This resulted in part from the Constitutional provision giving both the Legislature and the commissioners' courts control of county court terms. 10 Under this provision the authority of the commissioners' courts is in some respects recognized as superior to that of the Legislature and not subject to legislative restriction. 11 Unlike district courts, county courts have not had the authority to extend their terms 12 nor to call special terms; in fact, legislation authorizing the county judge to call special terms is unconstitutional. 13 While under the Constitution continuous terms for the disposition of civil business may be established in the county court by authorization of the commissioners' court, 14 this has been accomplished in some but not in most of the counties. In short, except in probate matters, 15 county courts have always had inflexible terms of court with the result that unfinished business did not carry over beyond the end of the term or to the next term. Motions for new trial always had to be filed, if time permitted, by the end of the term, and if not considered and disposed of by the court during the term such motions were overruled by operation of law. 16 Judgments became final at the end of the term.

In county courts at law 17 the same concepts as to terms of court have prevailed as in the regular county courts, and the motion for new trial practice has been identical. In some of the county courts at law, continuous terms of court have been provided by the legislative enactments creating them, 18 but as in the case of county courts there are no provisions for extension of terms as to uncompleted trials and hearings, or for unfinished matters carrying over into the next term.

Special practice in county courts

The 1961 amendments of Rules 329a and 329b effective January 1, 1961, have made the district court practice with respect to pending and unfinished matters and motions for new trial applicable in county courts in so far as it was possible to do so. These rules in referring to county courts include both the constitutional county courts and county courts at law. Under Rule 329a as now amended unfinished trials and all matters which are in process of hearing when the term ends “may be proceeded with at the next or any subsequent term”, and no pleas or motions will be waived or overruled automatically if not considered by the end of the term. Under Rule 329b original and amended motions for new trial in the county court are to be filed and disposed of within the same time periods as have application in the district court. The same extensions and other conditions for presentation and determination only. County court judgments become final 30 days after judgment or order overruling the motion for new trial, and during this 30 day period the county court retains control over its judgments, as in the district court. [Subd. 5.] The same rules apply in county courts which have, as well as those which do not have continuous terms, except that in noncontinuous term courts time periods ending during vacation are extended to the fifth day of the next term. Rule 329a, Subd. 7.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

Evidently the last mentioned provision is in recognition of the fact that such courts without continuous terms are without power to act judicially in vacation.

Notes of Decisions (2132)

Footnotes 1 See, for example, Rule 320 as originally promulgated, regulating motions for new trial in district courts without continuous terms, and Rule 329a prior to the 1960 amendment, pertaining to motion for new trial in county courts. On this subject generally see McKean v. Ziller, 9 Tex. 58; Eddleman v. McGlaherty, 1889, 74 Tex. 280, 11 E.W. 1100; Aetna Ins. Co. v. Dancer, Com.App.1919, 215 S.W. 962; Green v. Green, Com.App.1927, 288 S.W. 406; British General Ins. Co. v. Ripy, 1937, 130 Tex. 101, 106 S.W.2d 1047; Drane v. Humble Oil & Ref. Co., Waco 1928, 4 S.W.2d 241, writ ref. 2 Article V, Section 7. “The Legislature shall have power by general act to authorize the holding of special terms, when necessary and to provide for the holding of more than two terms of the court in any county for the dispatch of business; * * *.” This was amended in 1891 to permit such terms by “general or special laws”. The wording was changed in 1949 to authorize the Legislature, by general or special law, “to make such provisions concerning terms or sessions of each court as it may deem necessary.” 3 Articles 1920 and 200-a, Sec. 6, Vernon's Ann.Civil Statutes. 4 Article 1923; Stephenson v. Nichols, Com.App.1926, 286 S.W. 197; Curl v. Jeppesen, San Ant.1953, 253 S.W.2d 73. 5 Article 1915, Vernon's Ann.Civ. Statutes. 6 Article 2092, Vernon's Anno.Civ.Statutes. 7 James P. Alexander, “Continuous Terms”, 5 Texas B.J. 43 (1942). 8 A. E. Collier, “The Special Practice Act in Texas”, 6 Southwestern L.J. 193 (1952). 9 Article 1919, Vernon's Anno.Civ.St. “All district courts * * * whenever and however created shall hold at least two (2) terms per year in each county where they sit. Notwithstanding the provision of any law, the terms of all district courts * * * shall be continuous and shall begin on the day now or hereafter fixed by law and shall continue until the day fixed by law for the beginning of the next succeeding term.” 10 Article V, Sec. 29. “The county court shall hold at least four terms for both civil and criminal business annually, as may be provided by the Legislature, or by the Commissioners' Court of the county under authority of law, and such other terms each year as may be fixed by the Commissioners' Court; * * *” 11 Hughes v. Doyle, 1898, 91 Tex. 421, 44 S.W. 64; Moore v. Mettauer, Beaumont 1936, 91 S.W.2d 841, writ dis.; Farrow v. Star Ins. Co. of America, Waco 1925, 273 S.W. 318; Henn v. City of Amarillo, 1928, 157 Tex. 129, 301 S.W. 71. 12 Citizens State Bank v. Miller, Waco 1938, 115 S.W.2d 1183; Denton County v. Lowry, Ft. Worth 1942, 156 S.W.2d 546. 13 Ex parte Reeves, 1907, 100 Tex. 617, 103 S.W. 478; Citizens State Bank v. Miller, Note 12 supra; Stewart v. Kemp, 54 Tex. 248. 14 See McDonald, Texas Civil Practice, Section 1.36, pp. 108-110. 15 Constitution, Article V, Section 29. “* * * said court shall be open at all times for probate business.” 16 See Note 1, supra. 17 County courts at law are created by the Legislature by virtue of Article 1, Section 5 of the Constitution which permits “such other courts as may be provided by law.” W. L. Sterrett v. Morgan, Dallas 1956, 294 S.W.2d 201; and see State v. Gillette's Estate, Com.App.1928, 5 S.W.2d 131; Harris County v. Stewart, 1897, 91 Tex. 133, 41 S.W. 650. 18 See Article 1970, Vernon's Anno.Civ.Statutes, and provisions for particular courts thereunder. Vernon's Ann. Texas Rules Civ. Proc., Rule 329b, TX R RCP Rule 329b Current with amendments received through August 15, 2014

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 John Roberts, umpire. - The Washington Post 2/27/15 4:46 PM

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John Roberts, umpire. Posted by Chris Cilllzza

In John Roberts' o~g statement in his 2005 confirmation hearing before the Senate Judiciary. Committee, he uttered the following famous/infamous lines:

"Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire ... I will remember that it's my job to call balls and strikes and not to pitch or bat."

As the Supreme Court-with Roberts serving as Chief Justice - moved to the ideological right on, most notably, campaign finance reform with its Citizens United ruling, Democrats pointed to that initial "umpire" statement with an eyeroll. {Citzens United allowed corporations and labor unions to

Is Congress abA~ti~ . make unlimited donations in support of express advocacy of candidates.)

Today, in serving as the swing vote in 5-4 ruling that largely upheld President Obama's health care threaten hospit~!~s~~f?? , /;;' /j-' '

The reaction to Roberts role as the pivot point in the most-anticipated {and high stakes) Court decision since Bush v. Gore in 2000 turned traditional partisan patterns on their head.

Liberals praised Roberts for his judgment that while forcing people to buy insurance was unconstitutional under the Commerce Clause, it US Supreme Court Chief Justice John G. Roberts participates in the held up under Congress' right to tax people for not court's official photo session in th ls October 8, 2010 file photo at the buying into the insurance system. Supreme Court in Washington, DC. AFP PHOTO I TIM Latest Tweets SLOAN/FILES Republicans fumed. "This is obviously an extremely disappointing ruling, particularly with Roberts so amazingly rewriting the law in order to uphold it," said Louisiana Republican Sen. David Vitter. With clock licking, Republicans feuding over OHS funding, immigration action wapo.st/1wfl9TD

Added Dean Clancy, vice president of health care policy for FreedomWorks, a tea party aligned group: WaPoSoan "The justification to uphold the individual mandate while simultaneously admitting ii is unconstitutional under the Commerce Clause is baffling," said Dean Clancy. NEW. @JebBush needs to find way to connect with conservatives who haven't joined rush to back hlm. By @costareports wapo.stl1zKp4KG Spin aside, it's seems clear that Roberts had his eye on legacies - both his own and that of the Court- when he threw his lot in with the majority opinion. edatpost

As we have noted in the past, the Court is at its lowest ebb in more than two decades in terms of how it is A searchable index of Clinton Foundation donors. viewed by the public at large. A bare majority - 52 percent - regarded the Court in a favorable light in a wapo.stltAvLAlg recent Pew 12Q!J, a significant tumble from the 80 percent favorable rating the Court scored as recently as Tho Fix 1994.

Along with - or perhaps precipitated by- the Court's diminished regard among the Ame;ican public, has More tweets from The Fix been an increasing willingness by the President to directly criticize or challenge the natlori1s. highest court.

In his 2010 State of the Union Speech- and with many of the Justices in attendance- Obama bashed Post Newsletters & Alerts the Citizens United ruling as having "reversed a century of law to open the floodgates for special interests - including foreign companies- to spend without limit in our elections." Sign-up for e-mail newsletters and alerts and get the

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Then, in the immediate aftermath of oral arguments this spring on the health care law, Obama offered news you need delivered directly to your inbox. something of a warning to the Court, arguing that an overturning of Affordable Care Act would be both ~i Behind the 'Morning Fix '.'.J.mprecedented" and "extraordinary_:. Government Showdown -·1 Politics News & Analysis _;Afternoon Fix 1J Politics News Alerts IWonkbook

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Ffnd us on Facobook View Photo Gallery: The Supreme Court upheld President Obama's health*care Jaw on Thursday. Here are other instances when the high court has dipped into political fights.

VIJhile Roberts - and the rest of the Court - steadfastly maintain that they pay no attention to the back 254,627 people like Washington Post Politics. and forth in the political world regarding what their role is (and should be) in the national debate, it's impossible to believe that someone as intelligent as the Chief Justice would be unaware of how an overturning of Obama's health care Jaw would be perceived by liberal partisans.

That's not. of course, to suggest that Roberts' motivation was political rather than legal. But it is to suggest that what Roberts did-whether intentionally or not- in ruling that Obamacare is, in fact, constitutional, is to remind people of two things: 1) Trying to cover the Supreme Court through the same partisan lens we cover campaigns and congressional politics is inherently flawed and 2) He meant what he said during Facebooksoclar plug1n his confirmation hearing almost seven years ago.

Given that. it's worth revisiting a less mentioned passage from Robert's opening statement way back in 2005. He said (in part): Featured Advertiser Links "Judges have to have the humility to recognize that they operate within a system of precedent. shaped Looking to buy a home? Visit TWP Real Estate section by other judges equally striving to Jive up to the judicial oath. And judges have to have the modesty to for the latest open houses. be open in the decisional process to the considered views of their colleagues on the bench." Wireless Solves Parking Nightmare

Featured Advertiser Links Roberts made good on that statement today. And, in so doing, may well have changed what history will write about him - and the Court.

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Former White House Buy a link here press secretary Jay Carney going to

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