                                                                                          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
         33        JUDICIAL DISTRICT COURT OF LLANO COUNTY, TEXAS
                          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
      33        JUDICIAL DISTRICT COURT OF LLANO COUNTY, TEXAS
                       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).

     1.    EXCLUSIVE OF THE EXEMPTED PORTIONS IN TEX. R. APP.
           PRO. 9.4(i)(1), THE BRIEF CONTAINS (select one):

           A.    3524 words, OR

           B.    _____ lines of text in monospaced typeface.

     2.    THE BRIEF HAS BEEN PREPARED (select one):

           A.    in proportionally spaced typeface using:

           X     Software Name and Version: Microsoft Word: Mac 2011 in
                 Times New Roman 14, OR

           B.    in monospaced (nonproportionally spaced) typeface using:

                 Typeface name and number of characters per inch.


                                         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
      33        JUDICIAL DISTRICT COURT OF LLANO COUNTY, TEXAS
                       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.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  4
Cleveland v. Williams, 29 Tex. 204 (1867)
94 Am.Dec. 274

                                                                    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



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 5
Cleveland v. Williams, 29 Tex. 204 (1867)
94 Am.Dec. 274

                                                                         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


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




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Cole v. McWillie, --- S.W.3d ---- (2015)
2015 WL 535562



                   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



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Cole v. McWillie, --- S.W.3d ---- (2015)
2015 WL 535562

        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



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Cole v. McWillie, --- S.W.3d ---- (2015)
2015 WL 535562

        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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Cole v. McWillie, --- S.W.3d ---- (2015)
2015 WL 535562

                                                                  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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Cole v. McWillie, --- S.W.3d ---- (2015)
2015 WL 535562

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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Cole v. McWillie, --- S.W.3d ---- (2015)
2015 WL 535562

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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Cole v. McWillie, --- S.W.3d ---- (2015)
2015 WL 535562

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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Cole v. McWillie, --- S.W.3d ---- (2015)
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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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Crawford v. Morris, 228 S.W.2d 364 (1950)


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


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


                                                                      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.

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
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


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (1985)


       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.




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


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


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


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.



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.                                                 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


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


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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Ezeoke v. Tracy, 349 S.W.3d 679 (2011)


                                                                        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,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         7
Ezeoke v. Tracy, 349 S.W.3d 679 (2011)


      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.


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
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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


       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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


        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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


   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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


  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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


  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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


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



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             11
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


                                                                           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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Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)


      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.


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.                                                       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


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
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



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Huie v. DeShazo, 922 S.W.2d 920 (1996)
64 USLW 2540, 39 Tex. Sup. Ct. J. 288

            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




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


 [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


              © 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

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


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Huie v. DeShazo, 922 S.W.2d 920 (1996)
64 USLW 2540, 39 Tex. Sup. Ct. J. 288

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).


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   5
Huie v. DeShazo, 922 S.W.2d 920 (1996)
64 USLW 2540, 39 Tex. Sup. Ct. J. 288

                                                                                 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.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  6
Huie v. DeShazo, 922 S.W.2d 920 (1996)
64 USLW 2540, 39 Tex. Sup. Ct. J. 288

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


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
Huie v. DeShazo, 922 S.W.2d 920 (1996)
64 USLW 2540, 39 Tex. Sup. Ct. J. 288

                                                                   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




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           8
Huie v. DeShazo, 922 S.W.2d 920 (1996)
64 USLW 2540, 39 Tex. Sup. Ct. J. 288

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.


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.                                                          9
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)




                                                                         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




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)




 [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.




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




        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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In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)


  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


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)


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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In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)


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


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            6
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)


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.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 7
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)


                                                                   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,


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              8
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)


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


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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


                © 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

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



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

  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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

                                                                     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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

 [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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

                                                                  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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

   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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

                                                                      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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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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Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)
44 Tex. Sup. Ct. J. 364

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


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
Nehring v. McMurrain, 45 S.W. 1032 (1898)


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;



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  2
Nehring v. McMurrain, 45 S.W. 1032 (1898)



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

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
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.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594 (1996)
40 Tex. Sup. Ct. J. 198

                                                                     [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


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

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).




                  © 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



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.                                      4
Velez v. DeLara, 905 S.W.2d 43 (1995)


                                                                        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




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Velez v. DeLara, 905 S.W.2d 43 (1995)




 [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,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Velez v. DeLara, 905 S.W.2d 43 (1995)


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


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Velez v. DeLara, 905 S.W.2d 43 (1995)


                                                                        [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.


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.                                                      4
Walker v. Packer, 827 S.W.2d 833 (1992)


                                                                               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


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Walker v. Packer, 827 S.W.2d 833 (1992)


       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



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


        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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Walker v. Packer, 827 S.W.2d 833 (1992)


                                                                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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Walker v. Packer, 827 S.W.2d 833 (1992)


                                                                 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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Walker v. Packer, 827 S.W.2d 833 (1992)


—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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Walker v. Packer, 827 S.W.2d 833 (1992)


 [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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Walker v. Packer, 827 S.W.2d 833 (1992)


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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Walker v. Packer, 827 S.W.2d 833 (1992)


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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Walker v. Packer, 827 S.W.2d 833 (1992)


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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Walker v. Packer, 827 S.W.2d 833 (1992)


             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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Walker v. Packer, 827 S.W.2d 833 (1992)


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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Walker v. Packer, 827 S.W.2d 833 (1992)


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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Walker v. Packer, 827 S.W.2d 833 (1992)


                                                                    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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Walker v. Packer, 827 S.W.2d 833 (1992)


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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Walker v. Packer, 827 S.W.2d 833 (1992)


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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Walker v. Packer, 827 S.W.2d 833 (1992)




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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Walker v. Packer, 827 S.W.2d 833 (1992)


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


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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




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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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Walker v. Packer, 827 S.W.2d 833 (1992)


      (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.


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.                                                        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.



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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



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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


               <This article expires effective Jan. 1, 2010 pursuant to Vernon’s Ann.Civ.St. art. 1396-11.02.>


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

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
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

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
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

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

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

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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    Full Archive



    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-'      '<J
                                                                                  law and, in so doing, handing the incumbent a
                                                                                  major political boost, Roberts made good on his
                                                                                  pledge to referee the game not play it.

                                                                                  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."
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John Roberts, umpire. - The Washington Post                                                                                                                                  2/27/15 4:46 PM


   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
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           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
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   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):
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       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."
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   Roberts made good on that statement today. And, in so doing, may well have changed what history will
   write about him - and the Court.


   Read more on Pos!Potilics:
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                                                                           Former White House                                                                          Buy a link here
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