In Re: Kutlay Mescioglu v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 27, 2024
• Docket: 05-24-01096-CV
• Status: Published

Opinion

DENIED and Opinion Filed September 27, 2024

S In the Court of Appeals Fifth District of Texas at Dallas No. 05-24-01096-CV

IN RE KUTLAY MESCIOGLU, Relator

Original Proceeding from the 254th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-24-00182

MEMORANDUM OPINION Before Justices Molberg, Carlyle, and Breedlove Opinion by Justice Carlyle Before the Court is relator’s September 18, 2024 petition for writ of

mandamus. Relator asks this Court to compel the trial court to vacate an August 6,

2024 memorandum ruling whereby the district judge affirmed two associate judge

reports dated June 28, 2024, in the underlying divorce proceeding.

The associate judge denied relator’s application for a protective order against

real party in interest, granted real party’s application for a protective order against

relator as to real party, and ordered relator to pay $5,000 in attorney’s fees for real

party’s prosecution of her protective-order application. With respect to temporary

orders, the associate judge ruled, among other things, that real party was appointed temporary sole managing conservator; relator was granted two hours of supervised

visitation with the children on the Saturdays following the first, third, and fifth

Fridays of each month; relator was ordered to pay monthly child support in the

amount of $4,300; and relator was ordered to pay mother’s attorneys $12,425.00 in

interim attorney’s fees.

A relator bears the burden of providing the Court with a record that is

sufficient to show he is entitled to mandamus relief. Walker v. Packer, 827 S.W.2d

833, 837 (Tex. 1992) (orig. proceeding). To meet that burden, a relator’s petition

must contain, among other things, a certification stating that the person filing the

petition “has reviewed the petition and concluded that every factual statement in the

petition is supported by competent evidence included in the appendix or record.”

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

Here, relator’s attorney signed a certification stating: “I certify that I have

thoroughly reviewed the Court’s file in this matter. I have personal knowledge of the

facts stated herein, and such matters are true and correct.” This is not a proper rule

52.3(j) certification. See TEX. R. APP. P. 52.3(j); In re Stewart, No. 05-19-01338-CV,

2020 WL 401764, at *1 (Tex. App.—Dallas Jan. 24, 2020, orig. proceeding) (mem.

op.) (“To comply with prior opinions of this Court that interpret the mandamus rules,

a relator should use the exact words of rule 52.3(j) without deviation in their

certification.”). This defect alone provides grounds for denying relator’s mandamus

petition. See In re Integrity Mktg. Grp., LLC, No. 05-24-00922-CV, 2024 WL

–2– 3770377, at *1 (Tex. App.—Dallas Aug. 13, 2024, orig. proceeding) (mem. op.)

(denying mandamus relief based solely on lack of rule 52.3(j) certification).

A relator is also required to file with his petition an appendix that contains “a

certified or sworn copy of any order complained of, or any other document showing

the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A). A relator is further

required to file with his petition (1) “a certified or sworn copy of every document

that is material to the relator’s claim for relief and that was filed in any underlying

proceeding” and (2) “a properly authenticated transcript of any relevant testimony

from any underlying proceeding, including any exhibits offered into evidence, or a

statement that no testimony was adduced in connection with the matter complained.”

TEX. R. APP. P. 52.7(a). Because the parties in an original proceeding assemble their

own record, this Court strictly enforces the requirements of rule 52 to ensure the

integrity of the mandamus record. In re Vasquez, No. 05-15-00592-CV, 2015 WL

2375504, at *1 (Tex. App.—Dallas May 18, 2015, orig. proceeding) (mem. op.).

Relator’s record does not comply with these rules in at least three ways.

First, although relator provided a certified copy of the reporter’s record of the

August 2, 2024 de novo hearing before the district judge, relator failed to provide

sworn or certified copies of the other documents that he included in his mandamus

record. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1). Relator’s attorney signed a

certification attempting to certify the record, but the attorney’s certification did not

invoke penalty of perjury and is thus insufficient. See In re Lancaster, No. 05-23-

–3– 00381-CV, 2023 WL 3267865, at *1 (Tex. App.—Dallas May 5, 2023, orig.

proceeding) (mem. op.) (holding attorney’s unsworn declaration wherein she

declared the facts stated in the declaration were true and correct was insufficient

because it did not invoke penalty of perjury). Thus, the record properly before the

Court consists of only the reporter’s record from the de novo hearing.

Second, relator failed to provide the Court with all relevant exhibits admitted

into evidence at the de novo hearing. See TEX. R. APP. P. 52.7(a)(2). The record

before the Court entirely omits three of the exhibits admitted into evidence at the

hearing (Exhibits H-4, W-7, and W-10). Although it is unclear whether Exhibit W-10

is relevant to this proceeding, we conclude based on the testimony presented at the

hearing and the issues and arguments raised in relator’s mandamus petition that

Exhibits H-4 and W-7 are relevant and material to relator’s requested relief. Further,

relator included documents marked as Exhibits H-2, W-5, W-8, and W-9 in his

record. But the documents in the record do not match the testimony presented at the

hearing authenticating and describing those exhibits. Relator does not explain these

discrepancies. Although it is unclear whether Exhibit W-9 is relevant to this

proceeding, we conclude that Exhibits H-2, W-5, and W-8 are relevant and material

to relator’s requested relief but appear to be omitted from the record.

Finally, relator failed to provide the Court with every document that is

material to relator’s claim for relief and that was filed in the underlying proceeding.

See TEX. R. APP. P. 52.7(a)(1). For example, relator did not provide the Court with

–4– the parties’ respective applications for protective order, relator’s request for a de

novo hearing, or all pleadings filed by real party in interest wherein she may have

pleaded for attorney’s fees.

Because relator’s record is incomplete and because relator’s rule 52.3(j)

certification does not comply with the rules, we conclude relator failed to meet his

burden to provide a record that is sufficient for mandamus review. See In re Butler,

270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig. proceeding) (denying

mandamus relief based on lack of rule 52.3(j) certification and lack of sworn or

certified record). Accordingly, for each of the foregoing independent reasons, we

deny relator’s petition.

Additionally, based on our review, relator’s petition and its attached appendix

contain unredacted sensitive data, including the minors’ names and birthdates, in

violation of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.9.

Accordingly, we strike relator’s petition and its attached appendix.

/Cory L. Carlyle/ CORY L. CARLYLE 241096F.P05 JUSTICE

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