in Re Landry Robert Lloyd, Relator

• Court: Court of Appeals of Texas
• Decided: September 26, 2016
• Docket: 07-16-00340-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-16-00340-CV ________________________

IN RE LANDRY ROBERT LLOYD, RELATOR

Original Proceeding Arising From Proceedings Before the 237th District Court Lubbock County, Texas Trial Court No. 2016-519,987; Honorable Les Hatch, Presiding

September 26, 2016

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Pending before this court is a Motion for Emergency Relief and a Petition for Writ

of Mandamus filed by Relator, Landry Robert Lloyd. These filings are the result of a

pending action in which Relator sued the Real Party in Interest, Kacey Jean Lloyd, for

divorce. Relator seeks to compel the Honorable Les Hatch to vacate his order of

August 1, 2016, denying Relator’s Motion to Disqualify [Kacey’s] Counsel. He also

seeks emergency relief to prohibit Judge Hatch from entering any orders in the

underlying divorce pending resolution of this mandamus proceeding. For reasons expressed herein, Relator’s Petition for Writ of Mandamus is denied.

Because we deny the petition for mandamus relief, Relator’s Motion for Emergency

Relief is dismissed as moot.

BACKGROUND

According to Relator’s petition, he filed for divorce in March 2016 and Kacey filed

an answer and cross-suit. The issue before the trial court is the “wedding ring” and

allegedly “missing earrings.” The case was set for trial on August 1, 2016. At a pretrial

conference held July 29, 2016, Kacey’s counsel, Ronald Sanders, implied he was

unaware of an affair involving Kacey and a third party. On the date of trial, however,

Relator claimed to have evidence that Sanders had personal knowledge of Kacey’s

adultery and fraud on the community estate and would “certainly be called as a witness”

in the underlying divorce action. He sought Sanders’s removal under Rule 3.08(a) of

the Texas Disciplinary Rules of Professional Conduct and Comment 4 thereto.1 The

trial court denied Relator’s motion.

In support of his petition for writ of mandamus, Relator has attached copies of

Facebook photos and postings which he claims demonstrate that Sanders had

knowledge of an affair involving Kacey. He maintains the copies of the photos show

Kacey wearing the “missing earrings.” Relator asserts that Sanders is tagged in posts

and photos from the relevant time periods. Relator concludes with an allegation that he

1 Rule 3.08(a) provides in relevant part that a lawyer shall not accept or continue employment as an advocate before a tribunal . . . if the “lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact . . . .” Tex. Disciplinary Rules Prof’l Conduct R. 3.08(a), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G., app. A (West 2013).

2 will suffer prejudice if Sanders continues as Kacey’s lawyer in the underlying divorce

action.

With the scant record before us, the clerk of this court made an inquiry with the

trial court’s coordinator to determine whether any order had been entered or whether

any hearings were pending. The response was that Relator’s attorney left the final

hearing on August 1, 2016, before it concluded to prepare the pending petition for writ of

mandamus and that, at this time, no other hearings were pending in the trial court and

there was nothing to indicate a final decree of divorce had been approved and signed.

MANDAMUS STANDARD OF REVIEW

Mandamus is an extraordinary remedy granted only when a relator shows that

the trial court abused its discretion and that no adequate appellate remedy exists. In re

H.E.B. Grocery Co., L. P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per

curiam). A relator bears the burden of proving these two requirements. Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). A relator must also show

(1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act.

Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).

Pursuant to Rule 52.3 of the Texas Rules of Appellate Procedure, a relator must

present a sufficient record showing entitlement to relief and fully comply with the

requirements of the rule. Walker, 827 S.W.2d at 837. Essential in availing oneself of

the remedy of mandamus is the requirement of a certified or sworn copy of the

complained-of-order or any other document showing the matter complained of. TEX. R.

3 APP. P. 52.3(k)(1)(A). Relator did not provide this court with a certified or sworn copy of

the trial court’s order denying his Motion to Disqualify Counsel.

Rule 52.7(a) of the Texas Rules of Appellate Procedure entitled Filing by Relator

Required mandates that a relator file not only a copy of the order complained of, but

also “a properly authenticated transcript of any relevant testimony from any underlying

proceeding . . . or a statement that no testimony was adduced . . . .” TEX. R. APP. P.

52.7(a); In re Ahmad, No. 14-16-00620-CR, 2016 Tex. App. LEXIS 101184, at *2 (Tex.

App.—Houston [14th Dist.] Sept. 15, 2016, orig. proceeding). Although

supplementation is permitted by Rule 52.7(b), it presupposes that a record was filed.

Here, the only document included in the appendix to Relator’s petition is a copy

of his Motion to Disqualify Counsel containing copies of what Relator purports to be

relevant evidence consisting of Facebook photos and postings. This court will not

accept unsupported and unauthenticated copies of Facebook photos and postings as

evidence in support of a mandamus petition.

Relator has not provided this court with a sufficient record to establish a clear

abuse of discretion by Judge Hatch and that an appeal is an inadequate remedy.

Consequently, Relator has not established entitlement to relief by extraordinary means,

i.e., a writ of mandamus.

MOTION FOR EMERGENCY RELIEF

Relator also requests that this court grant emergency relief by issuing an order

prohibiting Judge Hatch from entering any final orders in the underlying divorce while

4 his petition for mandamus relief is pending. Because we deny the petition for

mandamus relief, we find the request for emergency relief to be moot.

CONCLUSION

Relator’s Petition for Writ of Mandamus is denied and his Motion for Emergency

Per Curiam