                                ^•^j^s^s^^-g^^^




                                                                                        •,\X


                              (&aurt of Appeals
                      Txitlf Itsirtri of (Jkxas at Dallas

                                      No. 05-95-01727-CV


ANGELA M. WOOD, M.D., ET AL.,                       Appeal from the 101st District Court of
Appellants                                          Dallas County, Texas. (Tr.Ct.No. 95-1685-
                                                    E).
V.
                                                    Opinion delivered by Justice Lagarde,
JAMES R. MORIARTY, a Professional                   Justices Maloney     and   Morris   also
Corporation D/B/A MORIARTY &                        participating.
ASSOCIATES, ET AL., Appellees

                                              JUDGMENT


      In accordance with this Court's opinion of this date, the judgment of the trial court
is AFFIRMED. It is ORDERED that appellees JAMES R. MORIARTY, a Professional
Corporation d/b/a Moriarty & Associates, Kathy L. Buchanan, The Dallas Observer, Toni P.,
Emily P., Deedra F., Michael G., as Next Friend for Michael G., a Minor, Tammy L.,
James O., Gloria W., Gloria W., as Next Friend for Ryan G., a Minor, Kevin P., Frank J.,
Stefani R., Frences B., as Next Friend for Frances B., a Minor, Michael H., Jeff D., Nikisha
C, Curtis M., Debra H., as Next Friend for Hugh H., a Minor, Lela B., Becky R., Norman
K., Steven S., Pertriser K., Christy S., Maria M., Ricky B., Matthew W., Peggy S., Amy L.,
Toni H., Valeria T., Ken F., as Next Friend for Natasha F., a Minor, Jeanne F., Frances
A., Caurlos W., Sue S., Personal Representative of Molly S., Kelly S., William M., Robin
A., Janet F., Lubirda P., Anne V., Angela R., Kristine K., Glenn T., Pam C, Marcie P.,
Sherry S., Marianne N., Angela C, Kim N., as Next Friend for Bill W., a Minor, Kelli C,
John S., Cindi S., as Next Friend for Amy M., a Minor, Troy B., Honey M., John H., Gregg
T., Aimee D., Tiffany H., Michelle A., Sherry C, April R., Linda G., Mary W., Patricia
H., Heather C, Todd W., Danny A., Wanda H., as Next Friend for Amanda H., a Minor,
Jonathan M., Jason B., Wanda S., as Next Friend for Dionte S., a Minor, Russell W., Eva
Renea A., Kelly A., Christopher A., David B., Robert B., Amy C, Christine C, Christina
D., Merry Jane D., Melissa E., Brian F., Reb G., William J., Jennifer L., Michael M., Joy
M., Ransom M., Amy Jordan M., Alton M., Dedra N., Kimberly N., Julie P., Jessie P.,
Lauren P., Traci P., Andrew Q., Matthew R., Jeffrey R., Christopher Brandon S., James
S., Joshua Y., and Monica Y. recover their costs of this appeal from appellants Angela M.
Wood, M.D., Gary Lee Etter, M.D., Grover Lawlis, M.D., William M. Pederson, M.D.,
Leslie H. Secrest, M.D., John M. Zimburean, M.D., Larrie W. Arnold, M.D., Bradford M.
Goff, M.D., Fred L. Griffin, M.D., Ronald Fleischmann, M.D., Dallas Psychiatric
Associates, a Partnership, Angela M. Wood, M.D., P.A., Gary Lee Etter, M.D., P.A.,
Grover Lawlis, M.D., P.A., William M. Pederson, M.D., P.A., Leslie H. Secrest, M.D.,
P.A., John M. Zimburean, M.D., P.A., Larrie W. Arnold, M.D., P.A., Bradford M. Goff,
M.D., P.A., Fred L. Griffin, M.D., P.A., and Ronald Fleischmann, M.D., P.A., and from
Smith & Uloth, P.C. as surety on appellants' cost bond.


Judgment entered February 19, 1997.




                                                 SUEL
                                                 JUST




                                            R-
                       ;w-*i*{lw^L^frjiip.(»jliil^Sl^WW^iS.^^:^jii^j**,*;jii;,;*-^Wri^^~J^^^^^^^^j^^^S!^H^*je?s




AFFIRMED, and Opinion Filed February 19, 1597




                                                                          In The

                                                Qltfurt nf Appeals
                      Jftfily Stsirtrt of Qkxas at Balias
                                                       No. 05-95-01727-CV



                     ANGELA M. WOOD, M.D., et al., Appellants

                                                                                V.


          JAMES R. MORIARTY, P.C., d/b/a MORIARTY & ASSOCIATES,
                    KATHY L. BUCHANAN, DALLAS OBSERVER,
                 TONI P., et al., and EVA RENEA A., et al., Appellees


                    On Appeal from the 101st Judicial District Court
                                          Dallas County, Texas
                                    Trial Court Cause No. 95-1685-E


                                                            OPINION

                      Before Justices Lagarde, Maloney, and Morris
                                              Opinion By Justice Lagarde

      Angela M. Wood, M.D., et al. appeal the trial court's order denying their motion to
restrict access to discovery pursuant to rule 76a. See Tex. R. Civ. P. 76a. Appellants bring
four points of error contending that the trial court abused its discretion in denying
appellants' motion to restrict discovery (i) in failing to determine whether the discovery
documents were court records, (ii) in failing to analyze or apply correct legal principles, and
(iii) because no evidence or insufficient evidence supports the trial court's ruling. We

overrule the points and affirm the trial court's order.

                                          FACTUAL BACKGROUND


        Appellants are ten psychiatrists and their professional corporations operating as a

partnership, Dallas Psychiatric Associates. From 1987 to 1991, these doctors practiced at

Brookhaven Psychiatric Pavilion, which was owned by National Medical Enterprises. James

Moriarty is an attorneywho placed allegedly libelous advertisements in newspapers and on

radio stating that appellantshad received kickbacks, had overcharged patients, had charged

patients for services not performed, and had physically and mentally abused patients.

Moriarty represents about six hundred plaintiffs in a lawsuit against appellants filed in

Montgomery County. After Moriarty filed the Montgomery County suit, appellants brought

this suit against him and Kathy Buchanan alleging libel and slander. Appellants asserted as

damages, inter alia, loss ofincome and patients. During discovery, Moriarty requested that

appellants turn over certain personal and business financial records. Appellants filed a

motion asking the trial court to limit the scope of discovery under rule of civil procedure

166b or to restrict public access to the records under rule 76a. The Dallas Observer, Toni

P., et al., and Eva Renea A., et al.,1 intervened in the suit for purposes of the motion to

seal under rule 76a(4). Appellants did not tender the documents to the trial court for in

camera review. Following a hearing, the trial court denied appellants' request to seal.

   1Toni 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-
Pursuant to rule 76a(8), appellants brought this appeal from the trial court's order denying

the rule 76a motion. See Tex. R. Civ. P. 76a(8).

                                        RULE 76a


       Rule 76a of the rules of civil procedure provides that "court records . . . are

presumed to be open to the general public          " Tex. R. Civ. P. 76a(l). "Court records"

are defined in the rule as, among other things, "discovery, not filed of record, concerning

matters that have a probable adverse effect upon the general public health or safety." Tex.

R. Crv. P. 76a(2)(c). Rule 76a provides:

              [C]ourt records, as defined in this rule, are presumed to be
              open to the general public and may be sealed only upon a
              showing of all of the following:

              (a)    a specific, serious and substantial interest which clearly
                     outweighs:

                     (1)    this presumption of openness;

                     (2)    any probable adverse effect that sealing will have
                            upon the general public health or safety;

              (b)    no less restrictive means than sealing records will
                     adequately and effectively protect the specific interest
                     asserted.


Tex. R. Civ. P. 76a(l). The party seeking to seal the court records must prove the
elements of rule 76a(l) by a preponderance of the evidence. Upjohn Co. v. Freeman, 906
S.W.2d 92, 96 (Tex. App.-Dallas 1995, no writ); Eli Lilly &Co. v. Biffle, 868 S.W.2d 806,
809 (Tex. App.-Dallas 1993, no writ).

       A trial court may not presume a particular document or group of documents


                                             -3-
                                            ^S'v^H**^**^^




constitutes court records if a party in a rule 76a motion raises the issue of whether the

discovery in question constitutes court records as defined in the rule. Upjohn, 906 S.W.2d

at 95-96; EliLilly, 868 S.W.2d at 808. When the issue is raised, the trial court must make

a factual determination ofwhether a specific document or category ofdocuments constitutes

court records. Upjohn, 906 S.W.2d at 96; Eli Lilly, 868 S.W.2d at 808.

       We review the trial court's ruling on the rule 76a motion under an abuse of discretion

standard. Upjohn, 906 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

principles, or acted in an arbitrary or unreasonable manner.        Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert, denied, 476 U.S. 1159 (1986);

Upjohn, 906 S.W.2d at 95. Rule 76a provides the guiding rules and principles for sealing

court records. Upjohn, 906 S.W.2d at 95; Dunshie v. General Motors Corp., 822 S.W.2d 345,

347 (Tex. App.—Beaumont 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.


       When we review matters committed to the trial court's discretion, we may not

substitute our judgment for 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 court's decision unless it is

arbitrary and unreasonable. Id. In a nonjury trial or hearing, the trial judge is the sole


                                             -4-
judge of the witnesses' credibility and the weight given their testimony.                                         Id.; Tate v.

Commodore County Mut. Ins. Co., 161 S.W.2d 219, 224 (Tex. App.-Dallas 1989, writ

denied).

                                                     JURISDICTION


         In their first "reply point," appellees assert that this Court lacks jurisdiction over the

appeal because appellants contend in their first point of error that the trial court did not

determine that the discovery documents were court records. If the documents are not court

records, then rule 76a is not applicable. See Dunshie, 822 S.W.2d at 348; see also Tex. R.

Crv. P. 76a(8). Appellants' argument under the point is that the trial court appeared to

presume that the records were court records without making a factual determination.

Courts of appeals do have jurisdiction to review this complaint. See Upjohn, 906 S.W.2d at

96; Eli Lilly, 868 S.W.2d at 808. We conclude that we have jurisdiction over the appeal.

We overrule appellees' first reply point.2

         All of appellants' points of error assert that the trial court erred in denying their

motion to restrict use of and access to the discovery documents pursuant to rules 76a and

166b(5)(c) of the Texas Rules of Civil Procedure. This Court has jurisdiction over the

appeal insofar as it concerns the denial of relief under rule 76a. This Court has no

jurisdiction over the appeal insofar as it concerns the denial ofrelief under rule 166b. See

   2In their argument under this reply point, appellees cited Tollack v. Allianz of America Corp., No. 05-91-01943-CV (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
acourt." Tex. R. App. P. 90(i) (emphasis added). Appellees' citation toTollack as authority in support of their argument isin
clear violation of this rule. Appellees and their counsel are cautioned not to violate this rule in the future.




                                                                -5-
Dunshie, 822 S.W.2d at 348. Accordingly, we dismiss appellants' points of error to the

extent they do not involve denial of relief under rule 76a.

                                                   COURT RECORDS


         In their first point of error, appellants contend that the trial court abused its

discretion in failing to determine that the documents sought to be sealed were court records.

The record shows that the trial court did determine that the documents were court records.


In the order granting the Dallas Observer's plea in intervention, the trial court ruled, "All

documents filed with the clerk of this Court in this action and all unfiled discovery constitute

'court records' as that term is defined and interpreted for purposes of application of Tex.

R. Civ. P. 76a."3 Therefore, we overrule appellants' first point of error.

         In their second point of error,4 appellants contend that no evidence or insufficient

evidence supports the trial court's order denying appellants' motion to restrict use of and

access to discovery. Under this point, appellants argue that no evidence or insufficient

evidence supports the trial court's 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 the pleadings, the evidence submitted, and the argument of

counsel. The briefs refer to a statement of facts from the hearing on the motion to seal, but




   3Appellants 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.

   4On page iv of appellants' brief, this point of error is listed as the fourth point of error.




                                                                -6-
                                    ^r^^mW0r^^^^»i^^mm^;m>a(i




no statement of facts has been filed in this case.5 The briefs note that certain exhibits,

which are not included in the record before this Court, were submitted to the trial court and

admitted into evidence.


         Appellants had the responsibility to ensure that the statement of facts was filed. Tex.

R. App. P. 53(k); Smith v. Grace, 919 S.W.2d 673, 676 (Tex. App.-Dallas 1996, writ

denied), petition for cert, filed, 65 U.S.L.W. 3489 (U.S. Jan. 2,1997) (No. 96-1057); see also

Tex. R. App. P. 50(d). The requirement of a statement of facts applies to issues that

require reference to the evidence. Smith, 919 S.W.2d at 677. In the absence of a statement

of facts, we must presume that sufficient evidence was introduced in the trial court to

support the trial court's decision. Id.; Northeast Wholesale Lumber, Inc. v. Leader Lumber,

Inc., 785 S.W.2d 402, 405 (Tex. App.-Dallas 1989, no writ).

         Appellees state that the trial court admitted defendants' exhibits one through three

at the hearing. Appellees state these exhibits were certified copies of criminal judgments

against National Medical Enterprises and Peter Alexis. The other evidence considered by

the trial judge was contained 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 appear to be part of the record before this Court. Because

the parties allege that the trial court received evidence at the hearing not before this Court

   5Before 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 ofmandamus 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 offacts part ofthe record of this appeal or requested that we take judicial notice
ofthestatement offacts. Accordingly, we donot address the issue ofwhether thestatement offacts isproperly partoftherecords
of this Courtfollowing the denial of the motion for leave to file the petition for writ of mandamus.




                                                                -7-
in the transcript, review of the sufficiency of the evidence in this case requires review of the

statement of facts. Appellants failed in their duty to file the statement of facts in this case.

Accordingly, we must presume that some evidence and sufficient evidence supports the trial

court's finding that the documents were courtrecords. We overrule appellants' secondpoint

of error.


                                             ABUSE OF DISCRETION


         In their third point of error, appellants contend that the trial court abused its

discretion in denying their motion to restrict use of and access to discovery documents.6

         The records requested consist of financial and office records including: records of

compensation from appellants' associated hospitals and national medical organizations;

records of compensation from referrals; stock options from the associated hospitals and

national medicalorganizations; billing records; federal income tax returns for 1993 and 1994;

financial statements; accounting documents; and records showing appellants' income from

1993 through the present. Appellants assert that they have a specific, serious, and

substantial interest in these records which outweighs the presumption of openness and any

probable adverse effect that sealing will have upon the general public health and safety.

Appellants assert that no less restrictive means than sealing these records will protect their

interest in these records. See Tex. R. Civ. P. 76a(l).


   6This isthe point oferror asstated onpage 17 ofappellants' brief immediately preceding the argument on the point oferror.
On page iv of their brief, appellants state the third point of error as: "The trial court abused its discretion infailing to make a
factual determination on the motionto restrict use of and access to discovery pursuant to TexasRules of Civil Procedure76a and
166b(5)(c)." Appellants do not argue the point as stated on page iv. Accordingly, we address the point oferror as stated on page
17.




                                                               -8-
                ^**^*l*M£^**$fti^^




         Appellants assert a privacy interest in the financial records. Appellants rely on Fox

v. Anonymous, 869 S.W.2d 499 (Tex. App.-San Antonio 1993, writ denied). In Fox, the

minor plaintiff and his guardian ad litem filed a "friendly" suit in district court for the

approval, entry, and enforcement of a settlement agreement of the minor's tort claims

resulting from being sexually assaulted while a patient in a mental health facility. Id. at 501.

The plaintiff moved to have the records sealed so that his identity and the terms of the

settlement agreement would not be disclosed. Id. at 502. The plaintiff introduced evidence

showing that he would be irreparably harmed by the disclosure of his identity and the terms

of the settlement agreement. Id. The trial court granted the plaintiffs motion and ordered

the records sealed. On appeal, the San Antonio Court of Appeals found that sufficient

evidence existed that the plaintiff had a specific, serious, and substantial interest in

concealing his identity and the terms of the settlement agreement because of his severe

emotional problems and the risks associated with his rehabilitation and treatment. Id. at

506. The plaintiff met the other requirements of rule 76a(l). Id. at 505-06. The court of

appeals affirmed the sealing order to the extent that it concealed the plaintiffs identity and

the terms of the settlement agreement. Id. at 507.

         Fox is an appeal of an order granting a sealing order; this case involves review of an

order denying a sealing order. The standards for reviewing the denial of a sealing order

differ from those for reviewing the granting of a sealing order.7 Therefore, Fox does not

   7Rule 76a permits a trial court toseal 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(l) showing. See Tex. R. Crv. P. 76a(l)
                                                                                                                 (continued...)




                                                             -9-
             ':'-.;?-i'^^?^W^^-K'«^




apply to this case.

         Appellants also note that the court in Fox stated that an unapproved version of rule

76a placed financial information on the same level of protection as a sexual assault victim's

identity. Appellants assert that the trial court should have ordered the financial records

sealed in this case just as the court in Fox ordered sealed the plaintiffs identification and

the terms of the settlement agreement. However, in Fox, the court held that the trial court

did not err in sealing the records because the plaintiff proved the existence of a specific,

serious, and substantial interest by showing that the lack of restrictions on access to the

plaintiffs identity and the terms of the settlement agreement would cause him irreparable

harm. Id. at 507. In this case, appellants proved that the records were private, but they

presented no evidence showing that the lack of restrictions on access to the financial

information would cause them irreparable harm. Thus, Fox does not support appellants'

position.

         Appellants also assert for the first time that disclosure ofthe financial records would

harm their spouses and children by disclosing their social security numbers. Nothing in the

record shows that any of the appellants are married or have children. Thus, this argument

lacks merit.


         Appellants assert that because appellee Moriarty is counsel for plaintiffs in the suit

against appellants in Evangeline R., et al. v. National Medical Enterprises, et al. pending in

   7(...continued)
("court records ... are presumed to be open ... and may be sealed only upon ashowing of the [requirements of rule 76a(l)(a)
& (b)]" (emphasis added)).




                                                           •10-
                      •j*!(;im^*S^^*«lVsssns^.^i« ^^»^^<p.^a$^^   s^^^*^^.?^^^




Montgomery County, Moriarty would be likely to use information discovered ;n his capacity

as a party in this case in his representation of plaintiffs in Evangeline R. in their suit against

appellants.   Appellants argue that the lack of restrictions on the use of the material

discovered in this lawsuit against appellants in the other lawsuit would be improper and

cause appellants irreparable harm. Appellants present no argument or authorities explaining

why the use of the information in the Montgomery County suit would be improper. Nor do

they explain how the use of the evidence in the Montgomery County suit would cause them

irreparable harm.     If the evidence is relevant to the Montgomery County suit, then,

presumably, the same information is subject 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 action ...."). Appellants have not shown that any existing

orders limiting discovery in the Montgomery County suit would prevent appellees from

obtaining this information during the discovery procedures in the Montgomery County suit

or that the lack of restrictions on the use of discovery in this case would harm them in their

defense of the Montgomery County suit. Thus, even though appellants asserted in their

motion that they would be irreparably harmed by the lack of restrictions on the use of the

documents, they presented no evidence in support of this assertion.

       Appellants' failure to make any showing that the lack ofrestrictions on the use of or

access to the documents would harm them supports the trial court's finding that:

               the public interest and right to know the contents of Plaintiffs'
               discovery responses in this lawsuit outweigh Plaintiffs' interest
               in the privacy of such records. Plaintiffs have not shown a


                                                                  -11-
                               *^W^ipsi*®9««i^




                   specific, serious, and substantial interestwhich clearly outweighs
                   the presumption of openness of court records and the probable
                   adverse effect that sealing will have upon the general public
                   health and safety.

Accordingly, we conclude that the trial court did not abuse its discretion in denying

appellants' motion to restrict use of and access to discovery documents. We overrule

appellants' third point of error.

        In their fourth point of error,8 appellants contend that the trial court erred in failing

to analyze or apply the correct legal principles in denying appellants' motion to restrict use

of and access to discovery. Appellants' argument under this point appears to be an attempt

to incorporate their arguments from the first two points of error.                                 Because we have

overruled those points of error, we overrule appellants' fourth point of error.




   1On page iv of appellants' brief, this point of error is listed as the second point of error.




                                                              -12-
      tf>*s*s*¥fe?i!^<ffl^^    &K*iS#^tts^^^




      We affirm the trial court's order denying appellants' motion to seal.



                                                                       'aSjUs
                                                      SUE^GARD
                                                        TCE
Publish
Tex. R. App. P. 90
951727F.P05




                                               •13-
