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

33RD 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

ACCEPTED

03-14-00725-CV

4956355

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/20/2015 3:17:27 PM

JEFFREY D. KYLE

CLERK
-iiIDENTITY 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 
-iiiOther 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
-ivTABLE 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
-vINDEX 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
-viWood 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
-1-

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

33RD 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:
-2-

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. 
-3-

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]
-4-

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. 
-5-

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)
-6-

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. 
-7-

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. 
-8-

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.
-9-

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).
-10-

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.
-11-

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. 
-12-

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.
-13-

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 
-14-

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 
-15-

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-
-16-

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. 
-17-

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. 
-18-

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.
-19-

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. 
-20-

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
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.
-22-

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. 
-23-

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

33RD 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)
-24-

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

759 S.W.2d 160

Court of Appeals of Texas,

Houston (1st Dist.).

Lou W. BURTON and Galleria

Diplomat Association, Inc., Appellants,

v.

Jeffrey M. CRAVEY, et al., Appellees.

No. 01–88–00270–CV. | Aug. 18,

1988. | Rehearing Denied Sept. 8, 1988.

Condominium association appealed an order of the 269th

District Court of Harris County, David West, J., which

granted condominium owners a writ of mandamus to inspect

the association's books and records. The Court of Appeals,

Duggan, J., held that: (1) writ of mandamus was proper

method by which to enforce owners' statutory inspection

rights, and (2) absent proof by association of improper

purpose for inspecting records, owners were entitled to

inspect all pertinent records including those of association's

attorney.

Affirmed.

West Headnotes (3)

[1] Mandamus

Custody of and access to corporate records

and books

Writ of mandamus was proper method to

enforce condominium owners' statutory rights

to view condominium's records; owners were

not required to establish a cause of action

against the condominium or a probable right

and probable injury. V.T.C.A., Property Code §

81.209; Vernon's Ann.Texas Civ.St. art. 1396–

2.23.

2 Cases that cite this headnote

[2] Common Interest Communities

Association records

Absent proof by condominium association

that inspection of records was for improper

purpose, condominium owners were entitled to

inspect “all books and records” of condominium

including records and files of attorney for

association. Vernon's Ann.Texas Civ.St. art.

1396–2.23.

3 Cases that cite this headnote

[3] Common Interest Communities

Association records

In the event that condominium association's

attorney's records, sought by condominium

owners, were subject to attorney-client privilege,

court would weigh association's interest

in nondisclosure of communications against

inspection rights of condominium owners.

V.T.C.A., Property Code § 81.209; Vernon's

Ann.Texas Civ.St. art. 1396–2.23.

3 Cases that cite this headnote

Attorneys and Law Firms

*160 Wade B. Reese, Houston, for appellants.

Lou W. Burton, Houston, pro se.

John K. Grubb, Houston, for appellees.

Before SAM BASS, DUGGAN and LEVY, JJ.

OPINION

DUGGAN, Justice.

This appeal involves the right to inspect records and books of

a condominium association. Appellees, a group of dissident

owners, filed a petition for writs of mandamus and injunction

because of the appellant Galleria Diplomat Association's

board of directors' refusal to allow the inspection of

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

and make these records available for inspection and copying.

The trial court also enjoined appellants from interfering with

appellees' right to inspect these books and records. The
Burton v. Cravey, 759 S.W.2d 160 (1988)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

court further ordered the delay of the annual election by the

Association's members.

All of the points of error attack the ordered production of

records in the possession of appellant Burton, the attorney for

the appellant Association. The trial court entered a finding of

fact that the Association's Board of Directors hired Burton “to

handle numerous matters for the Association and that records

of Lou W. Burton relating to Association matters are part of

the books and records of the Galleria Diplomat Townhomes

Homeowner's Association, Inc. a/k/a the Galleria Diplomat

Association, Inc.” This finding of fact is not challenged by

point of error and is therefore binding on appeal. Wade v.

Anderson, 602 S.W.2d 347, 349 (Tex.Civ.App.—Beaumont

1980, writ ref'd n.r.e.). The court ordered the production of

“all of Lou W. Burton's records and files in any way related

to his representation” of the Association.

In their first of three points of error, appellants contend that

the trial court erred in ordering the production of Burton's

records because the application and proof fail to establish a

cause of action or a probable right and a probable injury.

[1] Appellants mischaracterize the nature of the trial court

proceedings. For example, they argue that appellees have

other adequate remedies under Tex.R.Civ.P. 167, 168 and

737 to pursue inspection. This assertion ignores the fact

that a writ of mandamus is the proper remedy to enforce

the right of inspection. See 20 R. Hamilton, Texas Business

Organizations § 801 (1973). Appellees did not have to

establish an independent cause of action; they merely had to

establish their statutory right to inspect.

Tex.Prop.Code Ann. § 81.209 (Vernon 1984) provides the

following for condominium records:

(a) The administrator or board of administration of a

condominium regime or a person appointed by the bylaws

of the regime shall keep a detailed written account of the

receipts and expenditures related to the building and its

administration that specifies the expenses incurred by the

regime.

(b) The accounts and supporting vouchers of a

condominium regime shall be made available to the

apartment owners for examination on working days at

convenient, established, and publicly announced hours.

(c) The books and records of a condominium regime must

comply with good accounting procedures and must be

audited at least once each year by an auditor who is not

associated with the condominium regime.

(Emphasis added.)

The Texas Non–Profit Corporation Act,

Tex.Rev.Civ.Stat.Ann. art. 1396–2.23 (Vernon 1980),

additionally provides:

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. All books and records of a corporation may be inspected

by any member, or his agent or attorney, for any proper

purpose at any reasonable time.

(Emphasis added.)

In their application for writ of mandamus, appellees were

attempting to enforce their statutory rights as condominium

apartment owners to inspect the “accounts and supporting

vouchers of a condominium regime” under Property Code

§ 81.209, and as corporation members to inspect “all books

and records” of a non-profit corporation under article 1396–

2.23. The trial court did not err in ordering the production of

Burton's records.

Appellants' first point of error is overruled.

*162 Appellants contend in their second point of error that

the trial court erred in ordering production of the records and

files of the attorney for the condominium association because

the order is overly broad, unduly burdensome, and requires

the production of irrelevant information.

Appellees sought the production of records that they were

statutorily entitled to inspect. Appellants' complaints about

the order appear to be an attempt to engraft discovery

notions upon the appellees' statutory right of inspection,

which is independent of any right of discovery in litigation.

See San Antonio Models, Inc. v. Peeples, 686 S.W.2d 666

(Tex.App.—San Antonio 1985, orig. proceeding). The right

to inspect under article 1396–2.23 encompasses “all books

and records.” The trial court found that Burton's files and

records relating to the Association were the “books and
Burton v. Cravey, 759 S.W.2d 160 (1988)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

records” of the Association. This finding is not challenged

on appeal. This right of condominium owners to inspect

the books and records, like the comparable right to inspect

granted shareholders in corporations, is limited by the

requirement that the inspection be for any “proper purpose.”

See R. Hamilton, Texas Business Organizations § 804 (1973);

see also Annotation, What Corporate Documents Are Subject

to Shareholder's Right to Inspection 88 A.L.R.3d 663 (1978).

[2] Once the trial court found that Burton's files and

records relating to the Association were part of the books

and records of the Association, appellees were entitled to

inspect them for any “proper purpose.” Appellants, however,

do not contend that the intended inspection is for an improper

purpose. There was testimony by appellees that they were

concerned about the “substantial” and “inordinate” fees paid

to Burton by the Association. Although the parties have

presented no cases squarely on point, it would appear that it

was the appellant Association's burden of proof to establish

the absence of proper purpose. Uvalde Rock Asphalt Co.

v. Loughridge, 425 S.W.2d 818 (Tex.1968); Moore v. Rock

Creek Oil Corp., 59 S.W.2d 815 (Tex.Comm'n App.1933,

holding approved); see also, 5A Fletcher, Cyclopedia of the

Law of Private Corporations § 2253.1 (1987). The trial

court, however, sustained appellees' objections to appellants'

attempted inquiries about ulterior or vindictive motives for

the inspection of records. Appellants do not complain about

the exclusion of this testimony.

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.

Again, we note that appellants are attempting to engraft

notions borrowed from Texas discovery practice onto a

statutory right to inspect. Article 1396–2.23 contains no

limitations on the member's right to inspect as long as the

books and records are those of the non-profit corporation

and the inspection is for “any proper purpose.” The trial

court found that Burton's records and files relating to

the Association were part of the Association's books and

records, and appellants have not contended that the intended

inspection is for an improper purpose. The only limitation

under article 1396–2.23 is “proper purpose.” Appellants

have failed to prove that the purpose of the inspection was

improper.

[3] Moreover, if the attorney-client privilege did apply,

we would hold that the trial court did not abuse its

discretion in ordering the inspection of Burton's records. The

attorney-client privilege is not absolute; appellants' interest

in the nondisclosure of communications protected by the

privilege would have to be balanced against the inspection

rights of the members of the non-profit corporation. See

In re LTV Securities Litigation, 89 F.R.D. 595, 609–611

(N.D.Tex.1981). Under the facts of this case, the trial court

did not abuse its discretion in ordering the inspection of

Burton's records.

Appellants' third point of error is overruled.

The judgment is affirmed.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

29 Tex. 204

Supreme Court of Texas.

LARKIN G. CLEVELAND

v.

JOHN H. WILLIAMS, ADM'R.

January, 1867.

*204 The court below charged the jury as follows: “If you

find from the evidence that the corn in question, that is, the

hundred bushels of corn, was in a bulk with other corn, and

had not been measured out and separated from the bulk, so

that the same could be identified previous to the death of

Hall, then the sale was incomplete, and you will find for the

plaintiff the value of the corn as proved.” This was error.

By the common law, if a seller make a proposition, and the

buyer accept, and the goods are in the possession of the seller,

and nothing remains to be done to identify them, or in any

way prepare them for delivery, the sale is complete, and the

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

delivery at once on tender of the price, and sue for the goods

as his own, if delivery be refused.

The 17th section of the statute of frauds and perjuries (Charles

II), which requires that delivery by the vendor and acceptance

by the vendee of part of the goods sold, or something given in

earnest or part payment to bind the bargain, or that some note

or memorandum of the bargain, in writing, to be signed by the

parties, etc., in order to give validity to the contract, *205

has never been re-enacted in Texas, and it has not become a

part of our common law. Pas. Dig. art. 978, note 418.

No sale is complete, so as to vest in the vendee an immediate

right of property, so long as anything remains to be done

between the buyer and seller in relation to the goods. The

goods sold must be separated and identified by marks and

numbers, so as to be completely distinguished from all other

goods, or from the bulk or mass with which they happen to

be mixed.

The goods sold must be ascertained, designated, and

separated from the stock or quantity with which they are

mixed, before the property can pass.

Until this be done, it is merely a sale without a subject-matter

in esse, which cannot take effect in presenti.

Where the vendor sold the corn in his crib before his death,

and appointed an agent to measure and deliver it, which

the agent did after the death of the principal, but before it

was known to the parties, the title did not pass, and the

administrator of the deceased had the right to recover the corn.

The only exception is the case where the power or authority

is coupled with an interest in the thing actually vested in the

agent. The reason of this exception is entirely compatible with

the general ground on which the rule is founded: it is, that

the agent, having the legal title to the property in himself, is

capable of transferring it in his own name, notwithstanding

the death of his principal; and the death of his principal,

therefore, has no operation upon his acts.

This was not so by the civil law, but, by the common law,

the death of the principal is an instantaneous and absolute

revocation of the authority of the agent, unless the power be

coupled with an interest.

APPEAL from Polk. The case was tried before Hon.

SAMUEL A. WILSON, one of the district judges.

The petitioner, who sues as the administrator of the estate

of Thomas B. Hall, deceased, alleges that said Hall died

in September, 1860; that on the day of his death he was

possessed, as of his own property, of one hundred bushels

of corn, worth $1.50 per bushel; that after the death of said

Hall the defendant took the said corn, without authority,

and converted the same to his own use, and, therefore, lays

damages at $500.

The defendant plead, 1st, general demurrer; 2d, general

denial; and, 3d, specially, that in the life-time of the said Hall

the respondent loaned to him $200, for which Hall gave to

him his promissory note; that afterwards said Hall sold to

him one hundred bushels of corn, at $1 per *206 bushel,

in part payment of said note, which respondent duly credited

thereon; that said corn, so bought and paid for before the death

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

against said estate, unpaid, etc.

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
Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

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

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.

Hall died, away from home, on his way to Galveston. After

the death of Thomas B. Hall (which was then unknown), C. B.

Hall measured and delivered the corn to Larkin G. Cleveland,

measuring it from a large bulk of corn then in Hall's crib.

C. B. Hall, brother of deceased, testified to the same facts.

By agreement of counsel, it was admitted, as if proved, that

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.

The charge complained of is as follows: “3d. If you find from

the evidence that the corn in question, that is, the one hundred

bushels, was in a bulk with other corn, and had not been

measured out and separated from the bulk, so that the same

could be identified previous to the death of Hall, then the sale

was incomplete, and you will find for the plaintiff the value

of the corn as proved.”

There were a verdict and judgment for plaintiff, from which

the defendant appealed, and assigned for error the mistake in

the charge.

West Headnotes (3)

[1] Frauds, Statute of

Statutory Provisions

The seventeenth section of the statute of frauds

and perjuries (29 Car.II, c. 3) has never been reenacted in this state, and has not become a part

of our common law.

1 Cases that cite this headnote

[2] Principal and Agent

Acts Done in Ignorance of Principal's Death

An agent appointed to complete a sale of

property of his principal, in which the agent

himself has no interest, cannot act after the

principal's death, whether or not he has received

notice thereof.

8 Cases that cite this headnote

[3] Sales

Part of Specific Stock or Mass

Where a certain number of bushels of corn are

sold from a quantity in bulk in the vendor's crib,

the sale is not completed until the amount sold is

separated and measured.

30 Cases that cite this headnote

Attorneys and Law Firms

C. L. Cleveland, for appellant. The measuring of the corn was

merely a formal act, which could be well executed *207 after

the death of Hall, by the party nominated for that purpose.

It is admitted, as a general proposition, that the death of the

principal operates a revocation of an agency. But where an

authority is coupled with an interest, or where it is given

for a valuable consideration, or as security, it is otherwise.

Story, Agency, § 477. The reason of the exception is entirely

compatible with the general ground on which the rule is

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

power given by the principal, under such circumstances, is

rather an assent or agreement that the agent may transfer the

property vested in him, free from any equities of the principal,

than strictly a power to transfer. Story, Agency, § 489. Nice

distinctions are drawn in the law books as to what is necessary

“to complete” a sale, especially so where the question of lien

for price is involved, or the right of a subsequent purchaser, or

of fraud as against creditors. But in this case no such questions

arise.

As between the parties, the right of property passed. 1 Par.

Con. § 5, bot. page 465; and Noy, Max. 88. The corn was

bought and paid for; it only remained to be measured. This

was to be done, not by the vendor, nor the vendee, but by a

third party, acting for both, in his own name. What remained

to be done was to be performed by John S. Cleveland and

C. B. Hall. The former was “to retain” the corn; the latter

to measure it; trusts cognate with the sale, springing out of

the contract of sale, reposed in them, upon consideration paid

attaching at once to the property and in them, to be executed
Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

for the benefit of L. G. Cleveland, which they could and did

execute in their own names; and that is the true test of the

lawfulness of the act. Had the same power been given to the

purchaser by the vendor “to retain” and measure, under like

*208 circumstances, the death of the vendor clearly would

not revoke that power, because it would be coupled with an

interest. Does the rule change when the power is conferred

on a third party to do the same thing? If so, its flexibility is

marvelous. Hunt v. Rousmanier's Adm'r, 8 Wheat. 201; and

Knapp v. Alford, 10 Page, 205. Further, the measuring and

delivery were before the death of T. B. Hall was known. The

act was in good faith, and might well rest on that ground, if

it were simply the execution of a naked power. Cassidy v.

McKenzie, 4 Watts & S. 282. But what shall be said of the

equities of the case? Cleveland's debt, to the amount of the

credit given thereon, is extinguished. Shall the estate of Hall

get the benefit of the judgment besides, or shall Cleveland

be driven to some sort of doubtful remedy to get back the

price paid? Such circuity is not necessary to adjust the equities

arising, and is abhorrent to a sound interpretation of the

principles pervading the authorities.

The attention and inquiry of the jury were limited alone to the

fact, that the measuring of the corn occurred after the death

of T. B. Hall. The assumption that the contract of sale was

incomplete, or that, if incomplete, it could not be completed

after Hall's death, by measuring and delivery, is not well

founded, and for that error the cause should be reversed.

No brief for the appellee has been furnished to the reporter.

Opinion

COKE, J.

The only questions presented by the assignments of error,

necessary to be considered, arise on the third clause in the

charge of the court to the jury, which reads as follows:

“If you find, from the evidence, that the corn in question, that

is, the hundred bushels of corn, was in a bulkwith other corn,

and had not been measured out and sepated *209 from the

bulk, so that the same could be identified, previous to the

death of Hall, then the sale was incomplete, and you will find

for the plaintiff the value of the corn as proved.”

Considering this instruction with reference to the facts of

this case, it involves two propositions: first, that in order to

complete the sale of the corn, and pass the title to Cleveland,

it was necessary that it should have been separated from

other corn and measured, so as to be identified, and capable

of specific delivery to and possession by the vendee; and,

second, that if not so completed in the lifetime of Hall,

the act of his agent, C. B. Hall, in separating, measuring,

and delivering the corn after the death of his principal, was

unauthorized and void, and conferred no right upon Cleveland

to the corn delivered. We are of opinion that the charge on

both propositions is correct.

By the common law, if the seller make a proposition and the

buyer accept, and the goods are in the possession of the seller,

and nothing remains to be done to identify them, or in any

way prepare them for delivery, the sale is complete, and the

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

delivery at once on tender of the price, and sue for the goods

as his own if delivery be refused. 2 Kent, Com. 492; 2 Par.

Con. 320; 1 Par. Con. 441; Story, Sales, § 300.

An innovation upon the principles of the common law on

this subject was made in England by the 17th section of

the statute of frauds and perjuries of Charles II, which has

been substantially re-enacted in nearly all the states of the

Union except Texas. This section requires delivery by the

vendor, and acceptance by the vendee of part of the goods

sold, or something given in earnest or part payment to bind

the bargain, or that some note or memorandum in writing

of the bargain be signed, etc., etc., in order to give validity

to the contract, so that an action for its enforcement may

*210 be maintained. This section of the statute of Charles

has never been enacted or of force in this state, and the

common law, unaffected by its provisions, furnishes the rule

by which the validity of contracts of sale of chattels must be

tried here. Delivery as between the parties is not essential to

the completeness of a sale of a chattel, unless made so by

the terms of the bargain. Story, Sales, § 300; 2 Kent, Com.

39, 492; 1 Par. Con. 441. But it is essential that nothing

shall remain to be done (by the vendor) to the thing sold

to put it into a condition for sale, or to identify it, or to

discriminate it from other things. If anything remains to be

done by the vendor which is material or important before the

vendee can identify or possess the thing sold, or before it

becomes deliverable, the sale is executory and incomplete,

and the property in it does not pass absolutely to the vendee.

Judge Story, in his work on Sales, says: “No sale is complete,

so as to vest in the vendee an immediate right of property,

so long as anything remains to be done between the buyer

and the seller in relation to the goods. The goods sold must

be separated and identified by marks and numbers, so as to
Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

be completely distinguished from all other goods, or from the

bulk or mass with which they happen to be mixed.” Story,

Sales, § 296.

Chancellor Kent, in his Commentaries, vol. 2, p. 496, says:

“If anything remains to be done, as between the seller and

buyer, before the goods are to be delivered, a present right

of property does not attach in the buyer. This is a wellestablished principle in the doctrine of sales. But where

everything is done by the seller, as to a parcel of the quantity

sold, to put the goods in a deliverable state, the property, and

consequently the risk, passes to the buyer; and, as to so much

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

must be ascertained, designated, and separated from the stock

or quantity with which they are mixed, before the property

can pass.”

*211 The same doctrine is asserted with equal emphasis by

Mr. Parsons in his work on Contracts, vol. 1, p. 441, and

in Brown on Sales, p. 44. While these general principles are

recognized and affirmed by an almost unbroken concurrence

of the authorities, there is much apparent conflict in their

practical application in the adjudicated cases. We understand

the reason underlying these principles to be the fundamental

one, that until the property, which is the subject of the sale,

is designated and defined, it is, as it were, a sale without a

subject-matter in esse, which cannot take effect in presenti,

for the want of that necessary ingredient in a sale to act on,

and is, therefore, necessarily executory and incomplete. The

purchaser, in such a sale, cannot maintain an action to recover

specific property, if delivery be refused, because he has no

right in any specific part of the bulk, an undefined portion

of which he has contracted for. In such an action he must

describe and identify, with reasonable certainty, according to

its character, the property he sues for, and this he cannot do,

because his rights are indefinite, and cannot be attached to or

located in any designated part of the mass. He has not that jus

in re which alone entitles him to recover, and without which

his purchase is incomplete. 6 East, 614. This reason does

not exist where the subject-matter of the sale is designated

and defined, as where the whole bulk is sold. It is true, it

may have to be weighed, counted, or measured; but if this

is to be done to enable the parties to make a settlement, and

not for the purpose of completing the sale, the right passes

to and vests in the purchaser. It is certainly correct, as laid

down in the books, that when anything remains to be done by

the seller, such as counting, weighing, or measuring, the title

does not pass, when either of these operations is necessary

in order to separate the goods from a larger mass, of which

they form a part; but when the entire mass is sold and must

be measured, simply with a view to the ascertainment of

its price, *212 for the purpose of a settlement, the better

opinion, on principle and authority, is, that the title passes. By

keeping the distinction between a specific and an indefinite

commodity in view, it is believed that most of the cases

upon this subject can be explained, and their apparent conflict

reconciled. Macomber v. Parker, 13 Pick. 182; Cunningham

v. Ashbrook, 20 Mo. 560; Scott v. Wills, 6 Watts & S. 368;

Riddle v. Varnum, 20 Pick. 283, 284; Crofoot v. Bennett, 2

Comst. 260.

This distinction is forcibly put by Mr. Justice Strong,

delivering the opinion of a majority of the supreme court of

New York, in Crofoot v. Bennett, in which he says: “But if

the goods sold are clearly identified, then, although it may

be necessary to number, weigh, or measure them, in order

to ascertain what would be the price of the whole at a rate

agreed upon between the parties, the title will pass. If a flock

of sheep be sold at so much the head, and it is agreed that they

shall be counted after the sale, in order to determine the entire

price of the whole, the sale is valid and complete. But if a

given number out of the whole are sold, no title is acquired by

the purchaser until they are separated, and their identity thus

ascertained and determined. The distinction in all these cases

does not depend so much upon what is to be done, as upon the

object which is to be effected by it. If that be specification, the

property is not changed; if it be merely to ascertain the total

value at designated rates, the change of title is effected.”

The same doctrine is distinctly maintained by the supreme

court of Massachusetts, in Macomber v. Parker and in

Riddle v. Varnum, and by the supreme court of Missouri, in

Cunningham v. Ashbrook, and is believed to be well sustained

by a great majority of all the adjudicated cases. An application

of these principles to this branch of the charge of the court

fully vindicates its correctness with reference to the facts of

this case.

*213 Passing to the consideration of the remaining

proposition involved in the charge of the court under

discussion, we are of opinion that the setting apart and

designation by measurement of the corn from the bulk of

which it was a part, by C. B. Hall, the agent, after the death

of his principal, cannot aid the rights of the appellant, for the

reason that the death of the principal operated a revocation,

or, it might more properly be said, a destruction of the power

of the agent.
Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

This is an ancient and well-settled doctrine of the common

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

sufficient to take a case out of the operation of this general

rule, where the power is a naked one, not coupled with an

interest.

“The only admitted exception,” says Judge Story, in his work

on Agency, “that properly constitutes an exception to this

general rule, is the case where the power or authority is

coupled with an interest in the thing, actually vested in the

agent. The reason of this exception is entirely compatible with

the general ground on which the rule is founded. It is, that

the agent, having the legal title to the property in himself, is

capable of transferring it in his own name, notwithstanding

the death of his principal, and the death of his principal

therefore has no operation upon his act.” Story, Agency, §

489.

It is said by Chancellor Kent, vol. 2 of his Commentaries, p.

646, that “By the civil law, and the law of those countries

which have adopted the civil law, the acts of an agent, done,

bona fide, after the death of his principal and before notice

of his death, are valid and binding on his representatives. But

this equitable principle does not prevail in the English law,

and the death of the principal is an instantaneous and absolute

revocation of the authority of the agent, unless the power be

coupled with an interest.”

There are some authorities which go far toward maintaining

*214 that the common and civil law on this subject may

be harmonized. So it is understood to have been held in

Pennsylvania, in Cassidy v. McKenzie, 4 Watts & S. 282. In

this case a payment made to an agent, after the death of the

principal, was held binding on the representatives of the latter.

Judge Story, in his work on Agency, inclines to the opinion,

that the difference between the civil and the common law is

more apparent than real, and that where the act must be done

in the name of the principal, the same objection would obtain

to it after the death of the principal in the foreign law as it

does in our law, and that the difference between our law and

the former seems to rest, not so much upon a difference of

principle, as upon the difference in the modes of executing

the authority.

He nevertheless admits the force and binding authority of

the common law principle, while he confesses the greater

liberality and equity of that which obtains in the civil law.

Story, Agency, §§ 495 to 498.

The rule of our law, as to the time when the revocation of an

authority by the act of the principal takes effect, is equally

clear, comprehensive, and just. As to the agent himself, it

takes effect from the time when the revocation is made known

to him; and as to third persons when it is made known to

them, and not before. And this the principal may do by making

the revocation as notorious as the fact of agency was. Until

it is thus made known, the principal is bound by the acts of

his agent, done within the scope of his authority, upon the

familiar principle, that where one of two innocent persons

must suffer, he shall suffer who, by his confidence, or silence,

or conduct, has misled the other. 1 Par. Con. 60; 11 N. H.

397; Story, Agency, § 470. This is in striking contrast with the

other principle, which holds, where the revocation is implied

from the death of the principal, that every act of the agent,

though done in good faith, in pursuance of his authority,

without notice of his principal's *215 death, is unauthorized

and invalid. Harsh and unjust as must be the operation of this

principle in many cases, it is too well settled by the authorities,

English and American, to be departed from.

The leading argument upon which it is sustained in the books

is, that the agent can do only what his principal may do, and

must act in his principal's name, and that as a dead man can

do no act, so a valid act cannot be done in a dead man's

name. Hunt v. Rousmanier's Administrator, 8 Wheat. 174;

Story, Agency, § 488. Accordingly, in apparent consonance

with that course of reasoning, some respectable authorities

seem strongly inclined to maintain the doctrine that, when

the agency can be, and ordinarily is, properly executed in the

name of the agent, without reference to the principal, the acts

of the former, done after the death of the latter, without notice

of the death, are valid and binding; though it must be admitted,

that the cases relied on as illustrating this doctrine are usually

either in fact powers coupled with an interest, or are governed

by like analogies. Story, Agency, §§ 33, 34, 496, 497; Davis

v. Lane, 10 N. H. 413; 1 Par. Con. 62; Dick v. Page, 17 Mo.

234; Russ. Fac. and Brok. 360; Chit. Com. & Mer. 223.

In Robertson v. Paul, 16 Tex. 472, it was held by this court,

that a power to sell, contained in a mortgage or deed of

trust, although not revoked, on general principles, by the

death of the grantor, being a power coupled with an interest,

is inconsistent with our statute respecting the settlement

of estates of deceased persons, and, therefore, cannot be

executed after the death of the grantor. In this case, we have
Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

not deemed it necessary to consider the provisions of our

statute in connection with the question, or to determine what

influence, if any, it might have had if the power had been

such a one as survived the death of the grantor, it being clear,

on general principles, that the authority of the agent was of

a character that was, ipso *216 facto, extinguished by the

death of his principal. C. B. Hall, the agent, had no title or

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

measure the number of bushels contracted to the appellant.

His was a naked power. Having executed it after it had been

revoked by the death of his principal, the representatives of

the latter are not bound by his unauthorized act. The jury were

properly instructed, and their verdict is fully supported by the

testimony.

There is no error in the judgment, and it is

Affirmed.

Parallel Citations

1867 WL 4513 (Tex.), 94 Am.Dec. 274

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2015 WL 535562

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN

RELEASED FOR PUBLICATION IN THE

PERMANENT LAW REPORTS. UNTIL RELEASED,

IT IS SUBJECT TO REVISION OR WITHDRAWAL.

OPINION

Court of Appeals of Texas,

Eastland.

Stephen C. Cole and Robert Strack, Appellants

v.

Michael McWillie, Wanda Juanita

Phillips, and Delvonne Burke, Appellees

No. 11–12–00265–CV |

Opinion filed January 15, 2015

Synopsis

Background: Holder of proceeds from a 35 /640

nonparticipating royalty interest in a tract of land filed

interpleader action to determine the owners of the interest.

Grantees of the interest, pursuant to a deed executed by

the original property owner's attorney-in-fact, filed crossclaim for a declaration that the deed was valid, and original

property owner's heirs and their assignees counterclaimed

for a declaration that the deed was void due to the owner's

incapacity when the deed was executed. The 238th Judicial

District Court, Midland County, awarded partial summary

judgment to heirs and assignees, finding the deed to be

void, and then entered judgment after a bench trial resolving

additional matters. Grantees appealed.

[Holding:] On denial of rehearing, the Court of Appeals, Jim

R. Wright, C.J., held that deed was voidable, rather than void,

and thus any action to disavow the deed was subject to fouryear statute of limitations.

Reversed and remanded.

West Headnotes (18)

[1] Contracts

Effect of invalidity

Because a voidable contract continues in effect

until active steps are taken to disaffirm the

contract and because a void contract is wholly

ineffective from the outset, the distinction is

significant.

Cases that cite this headnote

[2] Contracts

Physical or mental condition of party

The right to disaffirm a contract survives the

death of the incompetent person and descends to

her heirs or her personal representative.

Cases that cite this headnote

[3] Limitation of Actions

Rescission or cancellation

The right to disaffirm a contract is subject to a

four-year statute of limitations. Tex. Civ. Prac.

& Rem. Code Ann. § 16.051.

Cases that cite this headnote

[4] Contracts

Physical or mental condition of party

A contract executed by a person who lacks

mental capacity is voidable, not void.

Cases that cite this headnote

[5] Deeds

Effect of invalidity

Limitation of Actions

Rescission or cancellation

Deed executed by property owner's attorney-infact after owner became mentally incompetent

was voidable, rather than void, and thus any

action to disavow the deed was subject to fouryear statute of limitations, even though the

power of attorney, which was executed before
Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

owner became incompetent, was not a durable

power of attorney; statute authorizing durable

powers of attorney did not make all other powers

terminate upon the principal's incapacity, and

declaring such a deed to be void would deprive

a principal or her heirs of the ability to affirm

an advantageous contract, and would allow a

claimant to seek to invalidate a deed many years

after its execution. Tex. Prob. Code Ann. §

36A(1980); Tex. Civ. Prac. & Rem. Code Ann.

§ 16.051.

Cases that cite this headnote

[6] Principal and Agent

Nature of the relation in general

Agency is a consensual relationship between two

parties where one, the agent, acts on behalf of

the other, the principal, subject to the principal's

control.

Cases that cite this headnote

[7] Principal and Agent

Nature of the relation in general

Principal and Agent

Appointment of Agent

For an agency relationship to exist, there must be

both a meeting of the minds between the parties

and some act constituting the appointment of an

agent.

Cases that cite this headnote

[8] Principal and Agent

Letters or Powers of Attorney Under Seal

The appointment of an attorney-in-fact creates an

agency relationship.

Cases that cite this headnote

[9] Principal and Agent

Nature of the relation in general

Principal and Agent

Deeds

An important principle of agency law is that one

who authorizes another to act for him acts as if

he himself had personally acted; to this extent,

both the principal and the agent are only one

person, and thus, a deed executed by an agent for

and with that authority from his principal is as if

executed by the principal himself.

Cases that cite this headnote

[10] Deeds

Effect of invalidity

Principal and Agent

Construction of letters or powers of

attorney

Principal and Agent

Deeds

An attorney-in-fact who was appointed in a

power of attorney that did not contain the

language making it a durable power of attorney

and who executes a deed on behalf of an

incompetent principal, even when the principal

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

election of the principal or the principal's estate.

Tex. Prob. Code Ann. § 36A(1980).

Cases that cite this headnote

[11] Principal and Agent

Death of Principal

An agent's authority to bind his principal

terminates upon the principal's death.

Cases that cite this headnote

[12] Contracts

Physical or mental condition of party

Contracts

Effect of invalidity

Infants

Capacity to contract in general

Infants

Avoidance and disaffirmance

When a contract is executed on behalf of an

incapacitated person, whether by infancy or

by mental incompetence, the party in danger

of unfair disadvantage in the transaction is
Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

the “incapacitated party,” while the party who

transacts with the incapacitated party suffers no

potential detriment in the bargaining process; the

protections offered by the law should therefore

benefit the incapacitated party by allowing him

to disavow the contract upon his return to

sufficient capacity.

Cases that cite this headnote

[13] Contracts

Estoppel and Ratification

Contracts

Effect of invalidity

The benefit of being able to disavow a contract

made on behalf of an incapacitated principal

extends to the heirs of a deceased principal

or the guardian of a permanently incapacitated

principal; in such a case, the benefited party

can secure the advantage of a good bargain by

ratifying the contract or he can relieve himself

of a bad bargain by electing to disavow the

agreement.

Cases that cite this headnote

[14] Contracts

Physical or mental condition of party

To hold an agreement made on behalf of an

incapacitated principal void as a matter of law

would deprive the disadvantaged party of the

benefit of an advantageous contract.

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

that statute allowing assertion of a timebarred counterclaim or cross-claim precluded

application of the four-year statute of limitations

for actions to disavow a voidable contract to

their counterclaim seeking to disavow a deed

executed by owner's attorney-in-fact after owner

had become mentally incompetent, where heirs

and assignee did not raise the statute in the trial

court, arguing only that the deed was void, rather

than voidable. Tex. Civ. Prac. & Rem. Code Ann.

§§ 16.051, 16.069; Tex. R. Civ. P. 94.

Cases that cite this headnote

[16] Limitation of Actions

Necessity

Limitation of Actions

Replication or reply and subsequent

pleadings

A party seeking to avail itself of a rule in

avoidance of a statute of limitations must

affirmatively plead its theory of avoidance in its

original petition or a supplemental petition. Tex.

R. Civ. P. 94.

Cases that cite this headnote

[17] Judgment

Motion or Other Application

A party seeking summary judgment must include

in its motion the specific grounds on which relief

is requested. Tex. R. Civ. P. 166a(c).

Cases that cite this headnote

[18] Appeal and Error

Grounds for Sustaining Decision Not

Considered

An appellate court may not affirm a summary

judgment on grounds not expressly set out in the

motion for summary judgment. Tex. R. Civ. P.

166a(c).

Cases that cite this headnote

On Appeal from the 238th Judicial District Court,

Midland County, Texas, Trial Court Cause No. CV47686

Attorneys and Law Firms

M. McDonnold Jr., Steven C. Kiser, for Stephen C. Cole and

Robert Strack.

H. Clay Moore, Jill C. Pennington, for Michael McWillie,

Wanda Juanita Phillips, and Delvonne Burke.
Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

OPINION

JIM R. WRIGHT, CHIEF JUSTICE

*1 This court's former opinion and judgment dated August

29, 2014, are withdrawn. This court's opinion and judgment

dated January 15, 2015, are substituted therefor. The motion

for rehearing filed by Stephen C. Cole and Robert Strack

is denied, and the motion for rehearing filed by Michael

McWillie, Wanda Juanita Phillips, and Delvonne Burke is

also denied.

The dispositive issue in this case is whether a deed is void

or voidable when it is executed by an attorney-in-fact who is

acting on behalf of one who was competent at the time of the

execution of the power of attorney, but who was incompetent

at the time of the execution of the deed. The trial court

determined that such a conveyance was void as a matter of

law. We reverse and remand.

This case concerns the ownership of an undivided 35/640

nonparticipating royalty interest (the NPRI) in a tract of

land located in Andrews and Martin Counties. The summary

judgment evidence shows that Rosa Van Huss was the owner

and common source of title to the NPRI. The NPRI is subject

to and covered by an oil and gas lease in which the lessor

reserved a one-fifth (1/5) royalty.

Van Huss executed a power of attorney in favor of her

daughter, Wanda Juanita Phillips, on April 1, 1980. The

parties agree that Van Huss was competent at the time she

executed the power of attorney. The power of attorney was not

durable as provided for in Section 36A of the Texas Probate

Code. Section 36A was in effect at the time of the execution

of the power of attorney. Although Van Huss was never

adjudicated to be incompetent, the parties do not dispute that

she became mentally incompetent in June 1982 and remained

so until her death in 1986.

In 1985, Phillips executed a quitclaim deed with respect to the

NPRI. She executed the conveyance in her capacity as Van

Huss's attorney-in-fact. In that conveyance, Phillips conveyed

all of Van Huss's interest in the NPRI to Stephen C. Cole and

Robert Strack.

Van Huss died on June 11, 1986, leaving a Last Will and

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

Burke (Van Huss's granddaughter), and one-fourth to Sherry

Jackson a/k/a Schiara Reindollar (Van Huss's granddaughter).

Therefore, Phillips, Burke, and Reindollar acquired all of Van

Huss's interest in the NPRI upon her death. They subsequently

executed a number of assignments of the interest to Phillips's

son, Michael McWillie.

Henry Resources, L.L.C. held certain proceeds related to the

NPRI. Because it was uncertain as to the ownership of the

proceeds, Henry Resources filed an interpleader action in

2010. In an agreed partial order, the trial court ordered that

the proceeds held by Henry Resources were to be deposited

into the registry of the court. Henry Resources complied with

the order, and the trial court dismissed it from the lawsuit.

Phillips, Burke, and McWillie (Appellees) later filed a

motion for partial summary judgment in which they sought

a declaration from the trial court that the deed executed

by Phillips in her capacity as Van Huss's attorney-in-fact

was void as a matter of law. Cole and Strack responded

that the deed was voidable, not void, and that the statute of

limitations had expired on any suit to avoid the deed. After a

hearing, the trial court granted the motion for partial summary

judgment and concluded that the deed was void; the trial court

determined that, because Van Huss was incompetent when

Phillips executed the deed, Phillips lacked the authority to

transact business on behalf of Van Huss at that time.

*2 At a bench trial, the parties entered into stipulations of

fact relating to the chain of title and other matters. After

the trial, the trial court entered its final judgment. In that

judgment, the trial court incorporated the previous order

granting partial summary judgment, rendered judgment that

the deed was void and that title was held by Appellees,

awarded the proceeds of production to Appellees, denied the

requests for attorneys' fees, and denied all relief requested by

Cole and Strack. This appeal followed.

We review de novo an order granting summary judgment.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862

(Tex.2010). When reviewing a summary judgment, we take

as true all evidence favorable to the nonmovant, and we

indulge every reasonable inference and resolve any doubts in

the nonmovant's favor. Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex.2003). The party moving
Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

for summary judgment has the burden of showing that there

is no genuine issue of material fact and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); Haase

v. Glazner, 62 S.W.3d 795, 797 (Tex.2001).

[1] [2] [3] The parties agree that the ultimate issue in

this case is whether the deed was void as a matter of law,

or simply voidable. Because a voidable contract continues in

effect until active steps are taken to disaffirm the contract and

because a void contract is wholly ineffective from the outset,

the distinction is significant. Mo. Pac. Ry. Co. v. Brazil,

72 Tex. 233, 10 S.W. 403, 406 (1888); Country Cupboard,

Inc. v. Texstar Corp., 570 S.W.2d 70, 74 (Tex.Civ.App.–

Dallas 1978, writ ref'd n.r.e.). The right to disaffirm a contract

survives the death of the incompetent person and descends

to her heirs or her personal representative. SeeBennett v.

Romos, 151 Tex. 511, 252 S.W.2d 442, 448–49 (1952);

Fuller v. Middleton, 453 S.W.2d 372, 375 (Tex.Civ.App.–

Fort Worth 1970, writ ref'd n.r.e.). Additionally, the right to

disaffirm is subject to a four-year statute of limitations. TEX.

CIV. PRAC. & REM.s Code Ann. § 16.051 (WEST 2008);

SEE ALSO FORD V. EXXON MOBIL CHEM. CO., 235

S.W.3D 615, 618 (TEX.2007); SLAUGHTER V. QUALLS,

139 TEX. 340, 162 S.W.2D 671, 674 (1942). IN THIS CASE,

COLE AND STRACK CLAIM THAT, IF THIS COURT

HOLDS THAT THE DEED WAS VOIDABLE, RATHER

THAN VOID, THE STATUTE OF LIMITATIONS ON

APPELLEES' RIGHT TO DISAFFIRM THE DEED HAS

EXPIRED.

[4] It is settled law in Texas that a contract executed by

a person who lacks mental capacity is voidable, not void.

Williams v. Sapieha, 94 Tex. 430, 61 S.W. 115, 116 (1901);

Neill v. Pure Oil Co., 101 S.W.2d 402, 404 (Tex.Civ.App.–

Dallas 1937, writ ref'd); see alsoIn re Morgan Stanley & Co.,

293 S.W.3d 182, 193 (Tex.2009) (Hecht, J., dissenting) (“The

rule in Texas and most other jurisdictions is that the contract

[of a party who lacked mental capacity] exists and can be

ratified or avoided.”). In Williams, a landowner executed a

power of attorney by which he authorized his attorney-infact to sell land and to execute a deed on the landowner's

behalf. The landowner lacked the mental capacity to manage

his affairs at the time that he executed the power of attorney.

Id. Thereafter, the attorney-in-fact executed a deed to the

property on the incompetent landowner's behalf. The validity

of that deed became the subject of a subsequent lawsuit. Id.

The Williams court likened the deed of an insane person to

that of an infant. It held that the power of attorney executed

by the incompetent landowner, as well as the deed executed

by the incompetent landowner's attorney-in-fact pursuant to

that power of attorney, was not void but, rather, was voidable.

Id. The court reasoned, “We can see no difference in principle

between the act of making a deed which passes the title and

making an instrument which authorizes another person to do

the same thing.” Id.

*3 [5] Cole and Strack, in turn, rely on Williams to

argue that, when a principal becomes incompetent after

having executed a valid power of attorney, any subsequent

action of the attorney-in-fact on the principal's behalf is

voidable as well. Cole and Strack suggest that the subsequent

action amounts to action taken by the incompetent principal.

Therefore, they argue that Williams is controlling in this case

and that the deed executed by Phillips as attorney-in-fact for

Van Huss is not void but, instead, is voidable.

Appellees frame their response under principles of agency

law. They argue that the actions of a purported agent who

lacks authority to bind the principal are void as to the

principal. According to Appellees, an agent has no authority

to bind his principal upon the principal's incapacity unless he

has been authorized to do so pursuant to former Section 36A

of the Probate Code or its progeny. 1 Thus, their argument

goes, when a principal becomes incompetent and his power

of attorney lacks the specific language from Section 36A

that is required to establish a durable power of attorney, any

subsequent action by the agent on the principal's behalf is void

as a matter of law.

[6] [7] Agency is a consensual relationship between two

parties where one, the agent, acts on behalf of the other,

the principal, subject to the principal's control. Bhalli v.

Methodist Hosp., 896 S.W.2d 207, 210 (Tex.App.–Houston

[1st Dist.] 1995, writ denied); Lone Star Partners v.

NationsBank Corp., 893 S.W.2d 593 (Tex.App.–Texarkana

1994, writ denied); Herschbach v. City of Corpus Christi, 883

S.W.2d 720 (Tex.App.–Corpus Christi 1994, writ denied).

For an agency relationship to exist, there must be both a

meeting of the minds between the parties and some act

constituting the appointment of an agent. Lone Star Partners,

893 S.W.2d at 600.

[8] The appointment of an attorney-in-fact creates an agency

relationship. Dernick Res., Inc. v. Wilstein, 312 S.W.3d 864,

877 (Tex.App.–Houston [1st Dist.] 2009, no pet.); Smith v.

Lanier, 998 S.W.2d 324, 334 (Tex.App.–Austin 1999, pet.

denied). Under the common law, the agency authority created

in a power of attorney existed only when the principal was
Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

capable of acting on his or her own behalf and terminated

upon the death or incapacity of the principal. Comerica Bank–

Texas v. Tex. Commerce Bank Nat'l Ass'n, 2 S.W.3d 723, 725

(Tex.App.–Texarkana 1999, pet. denied) (citing Harrington

v. Bailey, 351 S.W.2d 946, 948 (Tex.Civ.App.–Waco 1961,

no writ)).

In 1971, the legislature enacted Section 36A of the Probate

Code, establishing durable powers of attorney. At the time

Van Huss executed the power of attorney, Section 36A

provided in relevant part:

When a principal designates another his attorney in fact

or agent by power of attorney in writing and the writing

contains the words “this power of attorney shall not

terminate on disability of the principal” or similar words

showing the intent of the principal that the power shall not

terminate on his disability, then the powers of the attorney

in fact or agent shall be exercisable by him on behalf of the

principal notwithstanding later disability or incompetence

of the principal.

*4 This was the first codification of a law that gave a

principal the ability to provide specifically that a power

of attorney would not terminate upon the disability of the

principal. SeeComerica Bank–Texas, 2 S.W.3d at 726.

However, we disagree with Appellees' assertion that a power

of attorney automatically terminates upon the disability of

the principal in the absence of a durable power of attorney

executed in accordance with Section 36A. To the contrary,

we interpret Section 36A to merely provide a method for

a principal to enable his attorney-in-fact to continue to

act on the principal's behalf subsequent to the incapacity

of the principal, regardless of whether that incapacity is

temporary or permanent. We do not interpret Section 36A

to establish that, in the absence of the durable-power-ofattorney language, any deed executed by an attorney-in-fact

subsequent to the principal's incapacitation is rendered void

as a matter of law. SeeCampbell v. U.S., 657 F.2d 1174, 1177–

78 (Ct.Cl.1981) (interpreting former TEX. PROB.CODE §

36A as providing a method for a principal to enable a

durable power of attorney rather than providing that, without

such language, the power immediately terminates upon the

incapacity of the principal).

In the cases relied upon by Appellees, the courts address

an agent's authority to act on behalf of an incapacitated

principal, but those courts did not address the specific

issue in this case and stopped short of holding that a deed

executed by an attorney-in-fact on behalf of an incompetent

principal is void as a matter of law. SeeComerica Bank–

Texas, 2 S.W.3d at 725–26 (addressing validity of power

of attorney that contained Section 36A language); Jensen

v. Kisro, 547 S.W.2d 65, 66–67 (Tex.Civ.App.–Houston

[1st Dist.] 1977, no writ) (addressing effect of temporary

incapacity on agency relationship); Harrington v. Bailey,

351 S.W.2d 946, 948 (Tex.Civ.App.–Waco 1961, no writ)

(addressing effect of gift by agent following legal declaration

of principal's incapacitation); Scroggins v. Meredith, 131

S.W.2d 195, 195 (Tex.Civ.App.–Beaumont 1939, no writ)

(deed—executed by attorney-in-fact after power of attorney

had been revoked by marriage—considered void); Wall v.

Lubbock, 52 Tex.Civ.App. 405, 118 S.W. 886, 888 (Austin

1908, writ ref'd) (deed—executed by agent after principal's

death—considered void).

We believe that Williams is controlling in this case. As we

stated above, Williams provides the settled rule that a deed

executed by a person who lacks the capacity to do so is

voidable as a matter of law, not void. SeeWilliams, 61 S.W.

at 116.

[9] [10] An important principle of agency law is that one

who authorizes another to act for him acts as if he himself

had personally acted. “To this extent, both the principal and

the agent are only one person; thus, a [deed] executed by an

agent for and with that authority from his principal is as if

executed by the principal himself.” Lucas v. Whiteley, 550

S.W.2d 767, 769 (Tex.Civ.App.–Amarillo 1977, writ ref'd

n.r.e.) (citing Julian Petroleum Corp. v. Egger, 15 S.W.2d 36,

39 (Tex.Civ.App.–Fort Worth 1928, writ ref'd)). Given this

relationship between an agent and principal, we believe that

the proper approach in this case is to import the principal's

lack of capacity to the agent who acts on the principal's

behalf. Thus, an attorney-in-fact who was appointed in a

power of attorney that did not contain the language of Section

36A and who executes a deed on behalf of an incompetent

principal, even when the principal 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 election of

the principal or the principal's estate.

*5 [11] [12] [13] [14] Appellees' argument likens a

principal's incapacity to a principal's death; the law is clear

that an agent's authority to bind his principal terminates

upon the principal's death. SeeCleveland 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.). But this
Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

approach is contrary to the approach in Williams, where the

Texas Supreme Court analogized the incapacity of a principal

to the incapacity of a minor. SeeWilliams, 61 S.W. at 116–

17. When a contract is executed on behalf of an incapacitated

person—whether by infancy or by mental incompetence—

the party in danger of unfair disadvantage in the transaction

is, in fact, the incapacitated party. The party who transacts

with the incapacitated party suffers no potential detriment in

the bargaining process. The protections offered by our laws

should benefit the incapacitated party by allowing him to

disavow the contract upon his return to sufficient capacity.

This benefit extends to the heirs of a deceased principal or the

guardian of a permanently incapacitated principal. In such a

case, the benefitted party can secure the advantage of a good

bargain by ratifying the contract or he can relieve himself

of a bad bargain by electing to disavow the agreement. To

hold such an agreement void as a matter of law would deprive

the disadvantaged party of the benefit of an advantageous

contract.

Furthermore, our conclusion best comports with the need

to facilitate the resolution of title disputes in a reasonable

amount of time. If deeds executed by attorneys-in-fact on

behalf of incompetent principals were considered void as a

matter of law, a claimant could seek to invalidate a deed

many years after its execution. Such is the case here, where

Appellees have sought to invalidate the deed approximately

twenty-five years after its execution. To the contrary, a

claim against a voidable deed is subject to a statute of

limitations. SeeCIV. PRAC. & REM. § 16.051; see alsoFord,

235 S.W.3d at 618. Given these considerations, in addition to

the precedent set forth in Williams, we hold that the deed at

issue in this case was voidable at the option of the incompetent

principal, rather than void as a matter of law.

[15] Appellees argue that, even if we hold that the deed at

issue was voidable, the statute of limitations does not operate

to bar the counterclaims made by Appellees. To support this

contention, Appellees rely on Section 16.069 of the Texas

Civil Practice and Remedies Code. CIV. PRAC. & REM. §

16.069 (West 2008). Cole and Strack respond that Section

16.069 cannot be used to revive Appellees' claim to disaffirm

the deed. Cole and Strack also claim that Appellees have

waived this argument on appeal because Appellees did not

specifically plead Section 16.069 as grounds for avoiding

the affirmative defense of statute of limitations and because

Appellees did not assert Section 16.069 as an alternative

ground in their motion for summary judgment.

Section 16.069(a) provides: “If a counterclaim or cross claim

arises out of the same transaction or occurrence that is

the basis of an action, a party to the action may file the

counterclaim or cross claim even though as a separate action

it would be barred by limitation on the date the party's answer

is required.” In such a case, “[t]he counterclaim or cross claim

must be filed not later than the 30th day after the date on which

the party's answer is required.” Id. § 16.069(b).

[16] [17] [18] However, a party seeking to avail itself of a

rule in avoidance of a statute of limitations must affirmatively

plead its theory of avoidance in its original petition or a

supplemental petition. TEX.R. CIV. P. 94; Woods v. William

M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988); see

alsoProctor v. White, 172 S.W.3d 649, 652 (Tex.App.–

Eastland 2005, no pet.). Moreover, a party seeking summary

judgment must include in its motion the specific grounds

on which relief is requested. SeeTEX.R. CIV. P. 166a(c).

An appellate court may not affirm a summary judgment on

grounds not expressly set out in the motion for summary

judgment. State Farm Lloyds v. Page, 315 S.W.3d 525, 532

(Tex.2010); Stiles v. Resolution Trust Corp., 867 S.W.2d 24,

26 (Tex.1993).

*6 After the interpleader was filed in this case, Cole and

Strack filed their original cross-claim against Appellees on

January 6, 2011. In that cross-claim, they sought a declaration

from the trial court regarding title to the NPRI based on the

legal determination of the viability of the deed. They also

asserted the affirmative defense of the four-year statute of

limitations. Appellees timely filed a counterclaim in which

they requested that the trial court declare the deed void

and confirm their title to the NPRI. We have found no

instance in the trial court in which Appellees asserted Section

16.069 as grounds for avoiding Cole and Strack's affirmative

defense of statute of limitations. All of Appellees' claims

rested on the trial court's determination that the deed was

void. Accordingly, Appellees did not preserve for appeal their

argument that Section 16.069 precludes the application of the

statute of limitations.

Having determined that the deed was voidable, rather than

void, and that the period of limitations to disaffirm the deed

has elapsed, we hold that the trial court erred when it entered

summary judgment in favor of Appellees. Cole and Strack's

first issue on appeal is sustained.

In their second issue, Cole and Strack essentially ask us to

hold, as a matter of law, that Appellees' claims are barred
Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

by limitations. However, the trial court held that the deed

was void and did not reach the statute of limitations issue;

therefore, we are not able to address it in this appeal. In

addition to the reasons previously stated in this opinion,

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.

We reverse the judgment of the trial court, and we remand

to the trial court for proceedings consistent with this opinion,

including a determination of the effect, if any, of the statute

of limitations upon Appellees' claims.

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.
Crawford v. Morris, 228 S.W.2d 364 (1950)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

228 S.W.2d 364

Court of Civil Appeals of Texas, Eastland.

CRAWFORD et al.

v.

MORRIS et al.

No. 2775. | Feb. 3, 1950. | On

Motions for Rehearing March 17, 1950.

| Rehearing Denied April 7, 1950.

W. E. Morris, and another, sued Catie Daniels Crawford, and

others, in trespass to try title to an interest in land, and for

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.

The Court of Civil Appeals, Grissom, C. J., held that power

of attorney authorizing executrix of estate of a testator to sell

land belonging to estate was terminated by death of a principal

to power.

Judgment affirmed as reformed.

West Headnotes (3)

[1] Trespass to Try Title

Weight and Sufficiency

In action in trespass to try title to land, evidence

established that executrix who conveyed land to

plaintiff by general warranty deed conveyed all

interest in the land that executrix had power to

convey.

Cases that cite this headnote

[2] Principal and Agent

Death of Principal

Where power of attorney to sell land belonging

to estate of testator was executed to executrix

of estate jointly and not severally, death of a

principal to power terminated the power.

2 Cases that cite this headnote

[3] Estoppel

Weight and Sufficiency of Evidence

In action in trespass to try title, evidence was

insufficient to sustain finding that some devisees

of testator did not knowingly receive their part of

purchase price of land belonging to estate which

was sold by executrix of estate, so as to estop

them from asserting incapacity of executrix to

convey their interests in the land under power of

attorney executed by them which was terminated

by death of a principal to power of attorney.

1 Cases that cite this headnote

Attorneys and Law Firms

*364 T. M. Collie, Eastland, for appellants.

Jack W. Frost, Eastland, for appellees.

Opinion

GRISSOM, Chief Justice.

On May 8, 1942, C. J. Daniels, who owned the 8.6 acres

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

administration on the estate of C. J. Daniels. In August, 1944,

G. W. Daniels died. He left a will in which he devised his

interest in said land to his surviving children, Catie Daniels

Crawford, Mabel U. Daniels, Grace Daniels Shelton, Irvin

Van Daniels and Vanita Daniels Tunnell, the brother and

sisters of C. J. Daniels, deceased. Mabel U. Daniels was

appointed independent executrix of G. W. Daniel's estate and

qualified as such. Thereafter, in December, 1944, Mabel U.

Daniels executed a general warranty deed to said 8.6 acres

to W. E. Morris. Morris paid the market value for said tract,

which was $80.00. The deed was signed ‘Mabel U. Daniels

For myself and as administratrix of the estate of C. J. Daniels,

deceased.’ Morris executed a deed purporting to convey onehalf of the minerals in said tract to L. H. McCrea.

On July 29, 1948, Grace Daniels Shelton and Vanita Daniels

Tunnell, joined by *365 their husbands, and Catherine

Daniels Crawford and Irvin Van Daniels, executed an oil and

gas lease to Alsabrook and Kemp for which they were paid
Crawford v. Morris, 228 S.W.2d 364 (1950)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

a cash bonus of $5,160.00. W. E. Morris and L. H. McCrea

joined said parties in the execution of said lease.

In August, 1948, Morris and McCrea filed this suit against

Catie Daniels Crawford, Mabel U. Daniels (Keefer) and

husband, Vanita Daniels Tunnell and husband, Grace Daniels

Shelton and husband and Irvin Van Daniels in trespass to try

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

been conveyed to the plaintiffs by her deed heretofore referred

to.

Plaintiffs also alleged that defendants executed said oil and

gas lease and wrongfully received $5,160.00 as a bonus for

their execution of said lease; that said bonus was the property

of plaintiffs but was received and appropriated by defendants

and, therefore, plaintiffs were entitled to judgment against

defendants for said amount. As an alternative plea to that

in trespass to try title, plaintiffs alleged that in the event

they were denied relief in their action to try title they were

entitled to judgment against Mabel U. Daniels Keefer because

of her execution of the warranty deed to plaintiffs. Plaintiffs

alleged that Mabel U. Daniels was never administratrix of

the estate of C. J. Daniels but that she conveyed to Morris

the fee simple title to said tract. Plaintiffs alleged they were

entitled to recover damages for loss of said title in the sum

of $5,240.00, for which they ask judgment against Mabel U.

Daniels Keefer. Defendants excepted to said petition, among

other things, because of a failure to allege facts showing that

defendants were not entitled to receive the bonus for said oil

and gas lease. Defendants answered by pleas of not guilty and

general denial.

On January 19, 1949, plaintiffs filed an amended petition

which contained the same allegations with reference to

trespass to try title and the allegations that the defendants,

except Mabel U. Daniels Keefer and husband, wrongfully

received $5,160.00 as a bonus for said lease. They also

alleged, as they had in their original petition, the execution

of the deed to Morris by Mabel U. Daniels (now Keefer) and

that she thereby conveyed to Morris title to said tract; that

she was never administratrix of the estate of C. J. Daniels;

that she was independent executrix of the estate of G. W.

Daniels; that she was qualified and acting in such capacity

when she executed the deed to Morris. Plaintiffs alleged that

the execution of said deed by Mabel U. Daniels to Morris in

the manner heretofore shown, was the result of a mistake on

her part, or the person who drafted the deed for her signature,

or others unknown to plaintiffs, but that it was intended by

the execution of said deed to convey the interest of Mabel

U. Daniels individually and of the estate of G. W. Daniels,

deceased; that the deed should be reformed to speak the

truth and convey the interests intended. Plaintiffs alleged that

Morris paid the full agreed consideration to Mabel U. Daniels,

individually and as independent executrix of the estate of G.

W. Daniels, and that said estate had received and appropriated

its part of the purchase price.

Plaintiffs further alleged that when Mabel U. Daniels

executed the deed to Morris, in December, 1944, she was

the attorney in fact for the other defendants, her brother

and sisters, by virtue of a power of attorney exceuted in

1942, whereby said brother and sisters and her father, G. W.

Daniels, authorized her to sell the land in controversy, which

they inherited from C. J. Daniels. Plaintiffs allege that it was

the purpose of Mabel U. Daniels in executing the deed to

convey all of said land and all of the interests therein owned

by defendants, and that she executed the same individually

as independent executrix of the estate of G. W. Daniels,

deceased, and as attorney in fact for the other defendants and

that said deed should be so reformed.

Trial was to the court. The court rendered judgment awarding

title to plaintiffs but denying them all other relief. Defendants

have appealed. Plaintiffs have cross assigned error to the

refusal of the *366 court to render judgment for the bonus

collected by defendants.

[1] The evidence was sufficient to show that Mabel U.

Daniels intended to and did convey the interest owned by her

individually, and the interests she had the power to convey

as independent executrix of the estate of G. W. Daniels. She

had qualified in that capacity. The estate owed debts that had

not been paid. She executed a general warranty deed that

purported to convey all interests in the land and she collected

the market value of same. The face of the instrument showed

she intended to convey in some additional capacity than as

an individual. These and other circumstances shown were

sufficient to support a conclusion that she intended to and

did convey all the interest in the land that she had power

to convey. See Hill v. Conrad, 91 Tex. 341, 43 S.W. 789;

Morgan et al. v. White et al., Tex.Civ.App., 20 S.W.2d 366;

Arnold v. Southern Pine Lumber Co., 58 Tex.Civ.App. 186,

123 S.W. 1162; McGraw v. Merchants' & Planters' Nat. Bank,

Tex.Civ.App., 34 S.W.2d 633, 634; Texas Pac. Coal & Oil

Co. et al. v. Norton, Tex.Civ.App., 238 S.W. 273, 275, 91

A.L.R. 434, 462.

[2] Appellants' contention that the power of attorney

executed to Mabel U. Daniels by her father and the surviving

brother and sisters of C. J. Daniels was terminated by the
Crawford v. Morris, 228 S.W.2d 364 (1950)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

death of one of the principals, to-wit: G. W. Daniels, must

be sustained. Where the power is created by two or more

principals jointly and not severally, as here, and one dies the

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.

Ed., page 86 and 39 Words and Phrases, Perm. Ed., page 64.

[3] It follows that the portion of the judgment which

rests upon a finding of a conveyance under said power of

attorney cannot be sustained. A finding of a conveyance by

Mabel U. Daniels of any greater interest than that owned

by her individually and that which she had power to sell

as independent executrix of the estate of G. W. Daniels,

deceased, cannot be sustained. Therefore, a judgment

awarding plaintiffs any greater interest in the land cannot be

upheld, unless defendants (appellants here) are estopped to

assert the incapacity of Mabel U. Daniels to convey under said

power of attorney the interests inherited by her brother and

sisters from C. J. Daniels, deceased. Apparently, the estoppel

asserted is based upon the theory that her brother and sisters

knowingly received their part of the purchase price of such

interest. See 31 C.J.S., Estoppel, s 70, page 264; Williams v.

Texas Employers Ins. Ass'n, Tex.Civ.App., 135 S.W.2d 262,

264, writ ref., and 17 tex.Jur. 138. The evidence ref., and 17

Tex.Jur. 138. The evidence knowingly received same.

The judgment is reversed and the cause remanded.

On Motions for Rehearing.

On February 3, 1950, judgment of the trial court was reversed

and the cause remanded. Both appellees and appellants have

filed motions for rehearing. All parties have also filed an

agreement that the facts were fully developed on all issues

on the former trial and request rendition of a final judgment

on the record now before this court. In accord with said

agreement and motions that final judgment be rendered, said

motions for rehearing are to that extent granted and in all other

respects overruled.

The judgment of the trial court is reformed so as to award

to appellants a 4/10ths undivided interest in the land in

controversy. In all other respects the judgment is affirmed.

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

701 S.W.2d 238

Supreme Court of Texas.

Ida E. DOWNER, Petitioner,

v.

AQUAMARINE OPERATORS, INC., Respondent.

No. C–4141. | Dec. 4, 1985.

| Rehearing Denied Jan. 15, 1986.

Wife of deceased seaman brought action for damages

against shipowner. Trial court struck shipowner's answer as

discovery abuse sanction and signed interlocutory default

judgment as to liability. Jury trial on issue of damages was had

in the 334th District Court, Harris County, Ken Harrison, J.

Shipowner appealed. The Court of Appeals, 689 S.W.2d 472,

reversed judgment of trial court. Wife appealed. The Supreme

Court, Wallace, J., held that: (1) trial court had authority under

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)

trial court correctly refused to admit evidence of contributory

negligence.

Judgment of Court of Appeals reversed and judgment of trial

court affirmed.

West Headnotes (8)

[1] Pretrial Procedure

Corporate officers, agents, and employees

President of company which was party to action

was a “party” within meaning of Rule 215a(c)

regarding failure of party to appear at oral

deposition, where president testified he was

in complete charge of all operations of the

company. Vernon's Ann.Texas Rules Civ.Proc.,

Rule 215a(c) (Repealed).

27 Cases that cite this headnote

[2] Pretrial Procedure

Amendment or modification

Trial court's plenary jurisdiction gives it not only

authority but responsibility to review any pretrial

order upon proper motion, and in doing so, it

is presumed that court is familiar with entire

record of case up to and including motion to be

considered.

8 Cases that cite this headnote

[3] Pretrial Procedure

Striking pleadings

Pretrial Procedure

Dismissal or default judgment

In refusing to grant new trial and reinstate

party's answer which had been struck at prior

hearing on Motion for Sanctions as discovery

sanction, trial court could consider evidence

introduced subsequent to original sanctions

hearing. Vernon's Ann.Texas Rules Civ.Proc.,

Rule 215a(c) (Repealed).

33 Cases that cite this headnote

[4] Appeal and Error

Abuse of discretion

Test for whether trial court abused its discretion

is whether court acted without reference to any

guiding rules and principles, i.e., whether the

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

not demonstrate that an abuse of discretion has

occurred.

3406 Cases that cite this headnote

[5] Pretrial Procedure

Striking pleadings

Pretrial Procedure

Dismissal or default judgment

Trial court correctly imposed discovery sanction

of striking defendant's answer and signing

interlocutory default judgment as to liability

under Rule 215a(c)(Repealed) regarding failure

of party to appear at oral deposition, where

shipowner voluntarily sent crew to sea rather

than producing them for depositions as agreed

on two occasions, attorney for wife of deceased

seaman stated shipowner's attorney waited until

one hour past deposition time to advise wife's
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (1985)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

attorney that wife's attorney would have to fly

to another city to take depositions on following

day, and shipowner failed to produce president

of shipowner and immediate supervisor of

captain for deposition and did not explain this

failure. Vernon's Ann.Texas Rules Civ.Proc.,

Rule 215a(c) (Repealed).

17 Cases that cite this headnote

[6] Appeal and Error

Sustaining challenge or excusing juror

Alleged error of trial court in refusing to strike

a juror for cause did not result in harm, where

challenged juror was a spare.

1 Cases that cite this headnote

[7] Damages

Scope of issues and questions considered

Trial court correctly refused to admit evidence

of contributory negligence in trial to determine

damages, where defendant's answer had been

struck and default judgment rendered as to

liability and defendant had no pleading to

support contributory negligence.

14 Cases that cite this headnote

[8] Appeal and Error

Amount of recovery or extent of relief

Alleged error of trial court in awarding

prejudgment interest was not presented to trial

court and was thus waived on appeal.

4 Cases that cite this headnote

Attorneys and Law Firms

*239 John O'Quinn, Frank M. Staggs, Jr., O'Quinn &

Hagans, Houston, for petitioner.

Terry P. Ayre and Thomas A. Brown, Brown, Sims, Wise &

White, Houston, for respondent.

Opinion

WALLACE, Justice.

This is an appeal from a judgment for damages in a suit

brought under the Jones Act and under admiralty law. The

trial dealt only with damages because the trial court struck the

defendant's answer as a discovery abuse sanction and signed

an interlocutory default judgment as to liability. The court

of appeals reversed the trial court judgment, holding that the

action of *240 that court was an error of law and an abuse of

discretion. 689 S.W.2d 472. We reverse the judgment of the

court of appeals and affirm the judgment of the trial court.

The issues before us are whether TEX.R.CIV.P. 215a(c), as

it existed prior to the amendment effective August 1, 1984,

authorized the trial court to strike defendant's answer, and, if

so, whether the exercise of that authority constituted an abuse

of discretion.

Edward P. Downer was a seaman aboard the vessel Four Point

IV. He drowned while attempting to free a line that had fouled

the vessel's propeller. Ida E. Downer, his widow, brought

this action against Aquamarine Operators, Inc., the owner and

operator of the vessel. The case was filed in the 151st District

Court of Harris County. Both Downer and Aquamarine are

residents of Harris County, Texas.

Downer filed Notice of Intent to Take the Depositions of

All Members of The Crew on June 1. The notice identified

each crew member, including the captain, Chester P. Dalfrey,

by name only. Downer also requested depositions of the

immediate supervisor of Chester Dalfrey and the custodian

of Edward Downer's personnel file. On June 1, Aquamarine

notified Downer that the crew was at sea and would not

appear. Aquamarine at that time agreed to produce the

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.

Downer filed written Notice of Intent to Take Depositions of

the same individuals for July 5. On that date, the requested

deponents did not appear, whereupon Downer filed a Motion

for Sanctions. A hearing on the Motion for Sanctions was

set for August 22. Aquamarine made no appearance at the

hearing; the trial court granted the Motion for Sanctions and

signed an Order Striking Aquamarine's Answer.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (1985)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Downer filed a Motion for Interlocutory Default Judgment

to which Aquamarine responded. The response contained

Aquamarine's reasons for not producing the requested

individuals for depositions and its failure to appear at the

sanctions hearing.

The reason offered for the first two occasions was that work

for the FOUR POINT IV was scarce and, when work was

available, it was necessary to send the vessel and crew to

sea rather than produce them for depositions. On the third

occasion, the vessel was in port at New Iberia, Louisiana,

but Coast Guard regulations required a skeleton crew to be

kept aboard at all times. Aquamarine's attorney stated that

he notified Downer's attorney on July 1 of the necessity to

take the depositions in New Iberia. Downer's attorney stated

that he first learned that the individuals would not appear as

noticed when Aquamarine's attorney called him an hour after

the depositions were scheduled to commence. Both agreed

that Aquamarine requested that the depositions be taken in

New Iberia on July 6. However, Downer's attorney stated that

he could not do so because he was preferentially set for trial

in Houston starting at 9:00 a.m. on July 6.

The reason given by Aquamarine for not appearing at the

sanctions hearing was that Hurricane Alicia had struck La

Porte, the residence of Mr. Ayres, Aquamarine's lead counsel,

four days previously. Mr. Ayres was involved in cleaning up

after the hurricane and mitigating the damages to his home.

Also, he had a hearing set in federal court in Beaumont on the

following day and was directing all of his available attention

to that matter.

To his Motion to Reconsider the Sanctions, Mr. Ayres

attached an affidavit from his secretary, which stated that she

had called the clerk of the court on July 7, and had advised

her that Mr. Ayres had to make a docket call in Angleton on

August 22. She understood the clerk to say that the sanctions

hearing would be reset for September 6. In response to this

motion, Downer's attorney advised the court by letter of his

version of the circumstances leading up to the non-appearance

on July 5, and the time when he was first advised *241

that the named individuals would not appear. Attached to this

letter to the court was a copy of a letter dated July 28, written

by Mr. Bales, an associate of Mr. Ayres, which confirmed that

the sanctions hearing was set for August 22.

With the above information before it, the trial court overruled

Aquamarine's Motion to Reconsider the Sanctions and to

reinstate its answer. The court signed an order granting an

interlocutory default judgment as to liability. Aquamarine

filed a Motion to Set Aside the Default Judgment. The

motion contained practically the same information as the

Motion to Reconsider Sanctions set out above. The trial court

considered this motion and overruled it. On April 16, 1984,

the case was preferentially set for trial for June 4, and the

trial court refused to consider Aquamarine's Second Motion

to Set Aside the Interlocutory Default Judgment and Reinstate

Defendant's Pleadings.

A jury trial was had in a different court, the 334th District,

on the issue of damages. At the trial, Chester Dalfrey testified

that he was captain of the FOUR POINT IV and as such he

was in complete charge of the vessel with authority over all of

its operations. Mr. Clark Ivans testified that he was president

of Aquamarine at all times pertinent to this case, and that as

such, he was the immediate supervisor of Chester Dalfrey.

[1] We now address the issue of whether the trial court had

authority under Rule 215a(c) to strike Aquamarine's answer.

That rule stated in pertinent part:

If a party or an officer or managing

agent of a party, except for good

cause shown, fails to appear before

the officer who is to take his oral

deposition ... the court in which the

action is pending on motion and notice

may strike out all or any part of

the pleading of that party or dismiss

the action or proceeding or any part

thereof....

As noted above, Ivans testified that as president of

Aquamarine he was in complete charge of all operations of

the company. Thus he was a party as contemplated by Rule

215a(c).

[2] [3] The next question is whether the trial court, in

refusing to grant a new trial and reinstate Aquamarine's

answer, could consider the evidence introduced subsequent

to the original sanctions hearing. Aquamarine contends that

the trial court, in imposing sanctions, could consider only

the evidence before it at the time of the sanctions hearing,

and not any evidence subsequently produced. A trial court's

plenary jurisdiction gives it not only the authority but the

responsibility to review any pre-trial order upon proper

motion. In doing so, it is presumed that the court is familiar

with the entire record of the case up to and including the

motion to be considered. The plenary jurisdiction of the
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (1985)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

trial court in this case continued through the final judgment

and overruling of Aquamarine's motion for new trial. When

considering the motion for new trial, the court had before it

the reasons advanced by Aquamarine for not appearing for

depositions or the sanctions hearing; Downer's response to

Aquamarine's motions; and the evidence produced at the trial

on damages. Thus, the court of appeals erred in holding that

the trial court did not have authority under Rule 215a(c) to

strike Aquamarine's answer.

We now turn to the court of appeals holding that the trial

court abused its discretion in striking Aquamarine's answer.

The court of appeals concluded its review of the abuse of

discretion issue by stating: “The facts of the case simply do

not, in our opinion, show this to be an appropriate case to

impose the ultimate sanctions of striking the pleadings and

entering default judgment.” We interpret that statement to

mean that the court of appeals disagreed with the decision of

the two trial judges who reviewed the matter.

[4] The test for abuse of discretion is not whether, in

the opinion of the reviewing court, the facts present an

appropriate case for the trial court's action. Rather, it is

a question of whether the court acted without reference

to any guiding rules and *242 principles. Craddock v.

Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126

(Tex.Comm.App.—1939, opinion adopted). Another way

of stating the test is whether the act was arbitrary or

unreasonable. Smithson v. Cessna Aircraft Co., 665 S.W.2d

439, 443 (Tex.1984); Landry v. Travelers Insurance Co.,

458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial

judge may decide a matter within his discretionary authority

in a different manner than an appellate judge in a similar

circumstance does not demonstrate that an abuse of discretion

has occurred. Southwestern Bell Telephone Co. v. Johnson,

389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159

Tex. 421, 321 S.W.2d 290, 295 (Tex.1959).

To determine the trial judge's guiding rules and principles

in imposing sanctions for discovery abuse, we must look

to the Texas Rules of Civil Procedure as promulgated

and amended by this Court as well as the decisions of

appellate courts of this State and of the United States. The

Texas Rules of Civil Procedure pertaining to discovery and

sanctions for noncompliance have been amended several

times, culminating in Rule 215a as it existed at the time of this

case, and now embodied in Rule 215. The use of sanctions

by trial courts to prevent discovery abuse has developed

steadily over the past several years. These changes reflect the

continuing pattern both to broaden the discovery process and

to encourage sanctions for failure to comply.

The United States Supreme Court in National Hockey League

v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct.

2778, 49 L.Ed.2d 747 (1976) approved the use of sanctions

not only to assure compliance with the discovery process but

also to deter those who might be tempted to abuse discovery

in the absence of a deterrent.

This court and various courts of appeals have also followed

this progression. See, e.g., Dyson v. Olin Corp., 692 S.W.2d

456 (Tex.1985), (Kilgarlin, J., concurring) (unnamed witness

not permitted to testify); Jarrett v. Warhola, 695 S.W.2d 8

(Tex.App.—Houston [14th Dist.] 1985, writ ref'd), (plaintiff's

cause of action dismissed); City of Houston v. Arney,

680 S.W.2d 867 (Tex.App.—Houston [1st Dist.] 1984,

no writ) (defendant's answer struck for failure to answer

interrogatories); Southern Pacific Transportation v. Evans,

590 S.W.2d 515 (Tex.Civ.App.—Houston [1st Dist.] 1979,

writ ref'd n.r.e.) (defendant's answer struck and interlocutory

default judgment rendered as to liability), cert. denied, 449

U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980).

In various speeches and law review articles, different

members of this court have encouraged trial judges to use

sanctions to the degree necessary to assure compliance with

discovery procedures and deter abuse of the process. Barrow

and Henderson, 1984 Amendments to the Texas Rules of Civil

Procedure Affecting Discovery, 15 ST. MARY'S L.J. 713

(1984) (presented to the Texas College of the Judiciary Nov.

29, 1984); Kilgarlin and Jackson, Sanctions for Discovery

Abuse Under New Rule 215, 15 ST. MARY'S L.J. 767 (1984);

Pope and McConnico, Practicing Law With the 1981 Texas

Rules, 32 BAYLOR L.REV. 457 (1981); Spears, The Rules

of Civil Procedure: 1981 Changes In Pretrial Discovery, 12

ST. MARY'S L.J. 633 (1981).

The trial court in this case was free to examine the factors

before it to determine whether to levy sanctions. Among these

were the following: (1) whether voluntarily sending the crew

to sea rather than producing them for depositions as agreed on

two occasions was in conscious disregard of this court's rules;

(2) whether the contradictory statements of both attorneys

indicated that Aquamarine's attorney did in fact wait until one

hour past the scheduled time for depositions on July 5, to

advise Downer's attorney that he would have to fly to New

Iberia and take depositions on the following day; (3) whether

Aquamarine's attorney consciously disregarded the sanctions
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (1985)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

hearing in preference to his personal needs and the federal

court case set the following day; (4) whether the information

contained in the secretary's affidavit as to the date of the

sanctions hearing conflicted with the letter from an attorney

*243 in that law firm confirming that the hearing was set on

August 22; and (5) the unexplained failure of Aquamarine to

produce for depositions on any of the occasions in question

Clark Ivans, the immediate supervisor of Chester Dalfrey and

the president of Aquamarine.

[5] The record contains no indication that the trial court

was capricious, arbitrary, or unreasonable. Thus, the court

of appeals erred in holding that the trial court abused its

discretion.

In determining whether to reverse and render this cause or

to remand it to the court of appeals, we must look to the

four points of error raised by Aquamarine before the court of

appeals but not addressed by that court. If those points raise

questions of law, as opposed to questions of fact, they can be

addressed by this court.

The first point was that Downer's First Amended Original

Petition was insufficient to support the judgment. The

contention is that the facts supporting the cause of action

were not pleaded. TEX.R.CIV.P. 47 requires that a petition

contain a short statement of the cause of action sufficient to

give fair notice of the claim involved. Our rules do not require

pleadings to contain evidence or factual detail. That point is

overruled.

[6] The second point was that the trial court improperly

refused to strike a juror for cause. After the court had ruled on

challenges for cause, there were 26 names left on the jury list.

Each party was given six jury strikes, so, after making those

strikes, 14 names remained on the list. The challenged juror

was Number 14 and was thus a spare. There was no harm in

refusing to dismiss him for cause.

[7] The third point was that the trial court improperly refused

to admit evidence of Downer's contributory negligence.

Contributory negligence is an affirmative defense which must

be pleaded. Aquamarine's answer had been struck and default

judgment rendered as to liability. Thus, defendant had no

pleading to support contributory negligence, so the court did

not err in refusing to admit the requested evidence.

[8] Aquamarine's remaining point before the court of

appeals was that the trial court erred in awarding prejudgment

interest in a Jones Act case tried to a jury. This point was not

presented to the trial court and was thus waived.

Aquamarine's points of error presented to the court of appeals

but not considered by that court concerned questions of law

over which we have jurisdiction. There is no merit to these

points so it is not necessary for this cause to be remanded to

the court of appeals.

The judgment of the court of appeals is reversed and the

judgment of the trial court is affirmed.

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

349 S.W.3d 679

Court of Appeals of Texas,

Houston (14th Dist.).

Alphonsus O. EZEOKE, Appellant,

v.

Cynthia TRACY, Appellee.

No. 14–10–00153–CV. | Aug. 4, 2011.

Synopsis

Background: Husband's attorney sought sanctions in form

of attorney's fees and expenses against wife's attorney,

alleging that wife's attorney failed to serve copy of motion

as represented in certificate of service and filed motion for

continuance for improper purposes. The 245th District Court,

Harris County, Annette Kuntz, J., awarded sanctions. Wife's

attorney appealed.

Holdings: The Court of Appeals, William J. Boyce, J., held

that:

[1] evidence was insufficient to support imposition of

sanctions absent findings that conduct significantly interfered

with court's legitimate exercise of core functions;

[2] no nexus existed between amount of attorney's fees and

expenses awarded and targeted conduct, as would be required

to support sanctions order; and

[3] attorney did not have reasonable opportunity to respond

to allegations.

Reversed and remanded.

West Headnotes (11)

[1] Costs

Nature and Grounds of Right

Trial courts have inherent power to impose

sanctions for bad faith abuse of the judicial

process even when the targeted conduct is not

expressly covered by a rule or statute.

3 Cases that cite this headnote

[2] Appeal and Error

Costs and Allowances

The exercise of the trial court's inherent power

to award sanctions is reviewed for abuse of

discretion.

3 Cases that cite this headnote

[3] Costs

Nature and Grounds of Right

The scope of a trial court's discretion to impose

sanctions under its inherent power is limited by

the recognition that this power exists to the extent

necessary to deter, alleviate, and counteract bad

faith abuse of the judicial process, such as any

significant interference with the traditional core

functions of state courts.

2 Cases that cite this headnote

[4] Costs

Nature and Grounds of Right

For a trial court's inherent power to award

sanctions to apply, there must be some evidence

and factual findings that the conduct complained

of significantly interfered with the court's

legitimate exercise of one of these powers.

2 Cases that cite this headnote

[5] Appeal and Error

Costs and Allowances

Imposition of sanctions under Chapter 10 of

the Civil Practices and Remedies Code, for

submission of pleading of improper purposes,

is reviewed on appeal for abuse of discretion.

V.T.C.A., Civil Practice & Remedies Code §§

10.001-10.006.

Cases that cite this headnote

[6] Appeal and Error

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

To determine if sanctions were appropriate or

just, the appellate court must ensure there is

a direct nexus between the improper conduct

and the sanction imposed; the nexus requirement

ensures that the sanction is directed against

the abuse and toward remedying the prejudice

caused to the innocent party.

Cases that cite this headnote

[7] Costs

Nature and Grounds of Right

The two-prong inquiry into whether a nexus

exists and whether the sanction is excessive

applies to sanctions imposed under rule

providing for penalties for failure to serve

pleadings. Vernon's Ann.Texas Rules Civ.Proc.,

Rules 21b, 215.2(b).

Cases that cite this headnote

[8] Attorney and Client

Liability for costs; sanctions

Evidence was insufficient to support trial court's

imposition of sanctions on attorney, pursuant to

court's inherent power, for failing to comply with

local rules requiring attendance at mediation

before trial, failure to appear at mediation, and

oral misrepresentations to court about having

a vacation letter on file, where order imposing

sanctions made no findings that attorney's

conduct significantly interfered with court's

legitimate exercise of core functions such as

hearing evidence, deciding issues of fact raised

by the pleadings, deciding questions of law,

entering final judgment, or enforcing a judgment.

3 Cases that cite this headnote

[9] Attorney and Client

Liability for costs; sanctions

No nexus existed between amount of attorney's

fees and expenses awarded and targeted conduct,

as would be required to support sanctions order

arising out of attorney's conduct in divorce

proceedings in which attorney allegedly failed to

serve copy of motion on other attorney; none of

the fees or expenses detailed by other attorney

during sanctions hearing were attributed to this

conduct. Vernon's Ann.Texas Rules Civ.Proc.,

Rules 21b, 215.2(b).

Cases that cite this headnote

[10] Attorney and Client

Liability for costs; sanctions

Even if attorney had notice of motion for

sanctions against him and notice of sanctions

hearing, attorney did not have reasonable

opportunity to respond to allegations, as would

support award of sanctions, where attorney

had given prior notice of his absence from

the country during time period when sanctions

hearing was held, attorney was in fact out

of country, attorney returned to country as

scheduled shortly after hearing was held, and

there was no indication attorney purposefully

evaded hearing. V.T.C.A., Civil Practice &

Remedies Code § 10.003.

1 Cases that cite this headnote

[11] Attorney and Client

Liability for costs; sanctions

A reasonable opportunity for an attorney 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.

Cases that cite this headnote

Attorneys and Law Firms

*680 Alphonsus O. Ezeoke, Stafford, pro se.

*681 Cynthia Brown Tracy, Houston, pro se.

Panel consists of Justices BROWN, BOYCE, and JAMISON.

OPINION

WILLIAM J. BOYCE, Justice.
Ezeoke v. Tracy, 349 S.W.3d 679 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Alphonsus O. Ezeoke appeals from an order awarding

attorney's fees and expenses as sanctions against him and in

favor of Cynthia Tracy. We reverse and remand.

BACKGROUND

This appeal arises from litigation in which attorney Ezeoke

represented Jossie Herrera and attorney Tracy represented

Natanael Herrera.

Jossie and Natanael Herrera were divorced on April 2, 2008.

Acting on Natanael Herrera's behalf, Tracy filed a Motion

to Modify the Parent–Child Relationship and a Motion to

Confirm Child Support Arrears on April 8, 2009. Acting on

Jossie Herrera's behalf, Ezeoke filed an Amended Motion

to Deny Relief in Suit Affecting Parent–Child Relationship

on May 14, 2009. Tracy contends that Ezeoke did not serve

this pleading on her or her client on the day reflected in the

certificate of service.

The attorneys exchanged numerous communications between

May and December 2009. An unsuccessful mediation was

held on May 27, 2009. The trial court issued a scheduling

order on June 23, 2009, which included notice of a January 11,

2010 trial setting. The scheduling order also included a notice

requiring mediation to be completed before the final trial on

the merits scheduled for January 11, 2010. Tracy contends

that she attempted without success on multiple occasions in

November and December 2009 to communicate with Ezeoke

to schedule mediation. On December 7, 2009, Tracy filed an

Opposed Motion to Compel Mediation and set the motion for

hearing on January 6, 2010.

Ezeoke filed a motion on December 18, 2009 seeking a

continuance of (1) the hearing on Tracy's motion to compel

mediation set for January 6, 2010; and (2) the January 11,

2010 trial setting. Ezeoke filed a supporting affidavit in which

he stated, “This case is scheduled for mediation and trial

because of the attitude of Cynthia Tracy and her office and the

continued unprofessional and megalomaniacal [sic] attitude

of Ms. Tracy towards me. This case should not even be at

this stage but for the attitude of Ms. Tracy.” He further stated,

“[T]he only way to stop the nonsense and the egos involved

in this case is for the Court to intervene and settle this case

for the parties without the attorneys' egos as impediment.”

Ezeoke's affidavit in support of the motion for continuance

also stated that he would be leaving the United States on

December 19, 2009 and traveling to Nigeria to fulfill certain

obligations in his home town. Ezeoke's affidavit stated that he

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.

Tracy filed a First Amended Motion for Sanctions Including

For Failure to Serve and Response to Motion for Continuance

on January 4, 2010, in which she invoked the trial court's

authority to impose sanctions based on (1) the trial court's

inherent power; (2) Chapter 10 of the Civil Practice and

Remedies Code relating to signing of pleadings and motions;

and (3) Texas Rule of Civil Procedure 21b relating to

sanctions for failure to serve copies of pleadings, which

incorporates by reference the *682 sanctions available under

Rule 215.2(b).

1

 Tracy did not invoke Rule 13 in her January

4, 2010 sanctions motion, and on appeal she disclaims any

reliance upon Rule 13. The motion includes a certificate of

service in which Tracy certified that “a true copy of the above

was served on each attorney of record or party in accordance

with the Texas Rules of Civil Procedure on January 4, 2010.”

The motion also includes a notice of hearing on the first

amended motion for sanctions at 10:00 a.m. on January 11,

2010.

The trial court conducted a hearing on Ezeoke's motion for

continuance on January 6, 2010. An attorney hired by Ezeoke

appeared at this hearing; Ezeoke did not. The trial court

denied the continuance on that date, and also signed an order

directing the parties to attend mediation on January 7, 2010.

The attorney hired by Ezeoke signed the mediation order

“approved as to form only” on behalf of Ezeoke. Neither

Ezeoke nor his client Jossie Herrera appeared at the mediation

on January 7, 2010.

Tracy's January 4, 2010 sanctions motion asserted that

Ezeoke (1) failed to serve a copy of the Amended Motion to

Deny Relief in Suit to Modify the Parent–Child Relationship

when it was filed on May 14, 2009, as represented in the

certificate of service; and (2) filed a Motion for Continuance

on December 18, 2009, which contained personal attacks on

Tracy, for improper purposes including harassment, delay,

and increasing the cost of litigation. Among other things,

Tracy asked the trial court to award “reasonable attorney's

fees in the amount of at least $1,500 ....”

The trial court conducted a hearing on the sanctions motion

on January 11, 2010. Tracy was present at the hearing, along
Ezeoke v. Tracy, 349 S.W.3d 679 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

with Jossie Herrera. Ezeoke was not present, and no attorney

appeared on his behalf.

At the January 11, 2010 hearing, Tracy summarized her

contentions regarding the conduct prompting her request

for sanctions. Tracy asserted that this conduct involved “an

ongoing pattern of misrepresentation and misciting the facts

to the Court....” She summarized her contentions regarding

the two matters raised in her January 4, 2010 motion—

namely, Ezeoke's conduct in connection with failing to serve

the Amended Motion to Deny Relief in Suit to Modify the

Parent–Child Relationship on May 14, 2009, and the filing of

the Motion for Continuance on December 18, 2009.

Tracy raised two additional complaints at the January 11,

2010 sanctions hearing regarding Ezeoke's conduct in (1)

failing to appear at mediation on January 7, 2010; and (2)

causing Tracy to wait in court for an hour in June 2009

while Ezeoke attempted to demonstrate to the court that he

had a valid vacation letter on file. The trial court admitted

all exhibits proffered by Tracy and took judicial notice of

the entirety of the court's file during the hearing. *683

Jossie Herrera testified that she had not been notified of the

mediation scheduled for January 7, 2010.

Tracy requested an award of $3,081.58 in attorney's fees

and expenses at the sanctions hearing, and submitted a

supporting spreadsheet as an exhibit. This amount consists

of (1) $2,074.34 attributed to correspondence, a motion, a

proposed order, a hearing, and a no-show fee related to

the mediation scheduled for January 7, 2010; (2) $757.24

attributed to preparation and presentation of the January 4,

2010 motion for sanctions, and preparation of the sanctions

order; and (3) $250 attributed to time lost due to Ezeoke's

“misrepresentation on vacation letter” in June 2009. 2

The trial court signed an order on January 11, 2010 in which

it assessed sanctions against Ezeoke individually and directed

him to pay $3,081.58 in attorney's fees and expenses as

requested to “Cynthia B. Tracy, Attorney at Law, P.C.” The

trial court found good cause to sanction Ezeoke because he

• failed to “comply with the Local Rules of Harris County

requiring the parties to attend mediation prior to trial set

for January 11, 2010,” which necessitated a motion to

compel mediation, and failed to appear at mediation on

January 7, 2010;

• made “misrepresentations on June 5, 2009 to the court

about having a vacation letter on file for a time period he

stated he was unavailable, causing an additional delay in

the proceedings when he had no vacation letter in Harris

County on file for that time period;”

• failed to serve a copy of the Amended Motion to Deny

Relief in Suit to Modify the Parent–Child Relationship

on May 14, 2009; and

• filed a motion for continuance on December 18, 2009 that

included “unfounded accusations, misrepresentations,

and name-calling of opposing counsel,” and that was

“without merit since Alphonsus Ezeoke had failed to

file a vacation letter with Harris County for that time

period and had knowledge of the trial setting since July

7, 2009.”

The trial court also made three specific findings in support

of its sanctions award: (1) the motion for continuance was

“signed in violation of Texas Civil Practice & Remedies Code

Section 10.001 and contrary to the principles set for[th] in

the Texas Lawyer's Creed;” (2) the motion for continuance

was “brought for an improper purpose, including harassment,

delay, and/or has increased the costs of this litigation;” and (3)

“[t]here is a direct relationship between the sanctions imposed

and the offensive conduct.”

The trial court also signed an Agreed Order in Suit to Modify

Parent–Child Relationship on January 11, 2010. The agreed

order states that Jossie Herrera “appeared in person, and

released her attorney of record, Alphonsus O. Ezeoke, as

her attorney who did not appear for trial after being duly

notified.”

On January 28, 2010, Ezeoke filed a Motion for New Hearing

on Attorney Cynthia Tracy's Motion for Sanctions and a

notarized affidavit signed by Ezeoke. The motion contains

a “verification” signed by Ezeoke, but the “verification” is

not notarized. *684 Among other things, Ezeoke's affidavit

states that he bought tickets for travel from Houston to

Nigeria to attend to certain obligations in his home town.

Ezeoke attached a copy of an itinerary from Emirates Airline

indicating that Ezeoke left Houston for Nigeria on December

21, 2009 and returned to Houston on January 17, 2010.

Ezeoke contended that sanctions were not warranted because

• Tracy failed to establish that the standards for awarding

sanctions were met;

• “the Court and Ms. Tracy were aware that Mr. Ezeoke

was out of the country” when the January 4, 2010 motion
Ezeoke v. Tracy, 349 S.W.3d 679 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

for sanctions was filed and when it was heard on January

11, 2010;

• the motion for continuance was not brought for an

improper purpose;

• Ezeoke's statements in the motion for continuance

criticizing Tracy “are factually correct” and “completely

true” because Tracy “has been a complete impediment

to the settlement of this case” and her “unprofessional

attitude is unquestionable;”

• Ezeoke did not make misrepresentations to the trial court

on June 5, 2009 about having a vacation letter on file for

a time period during which he said he was unavailable;

• 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

27, 2009, who in turn handed it to Tracy;

• the previous mediation on May 27, 2009 was

unsuccessful;

• Ezeoke and his client Jossie Herrera did not receive

sufficient notice of the January 7, 2010 mediation and

did not have enough time to attend because the order

compelling mediation on January 7, 2010 was signed on

January 6, 2010, while Ezeoke was out of the country;

• the January 4, 2010 motion for sanctions did not include

failure to mediate as one of the grounds for seeking

sanctions;

• the amount awarded for attorney's fees and expenses is

excessive;

• “[t]he Sanction was filed after the Petitioner was sure that

the Respondent's attorney was out of the country and was

sure that the motion for sanctions would be granted by

default;” and

• Ezeoke received insufficient notice of the hearing on the

motion for sanctions.

A hearing on the motion for rehearing was held on February

4, 2010 before a judge other than the one who signed the

January 11, 2010 sanctions order. Ezeoke and Tracy both

were present; no transcript of that hearing has been included

in the record on appeal. An order denying the motion for

reconsideration was signed on February 4, 2010. Ezeoke

timely appealed.

Ezeoke challenges the January 11, 2010 sanctions order

in four issues on appeal. Ezeoke contends that the trial

court erred in sanctioning him because (1) sanctions are not

warranted, the applicable standards have not been satisfied,

insufficient notice was provided, and the amount of sanctions

is excessive; (2) sanctions are not appropriate based on his

statements about opposing counsel because those statements

are a truthful personal opinion; (3) the trial court erred in

finding that Ezeoke failed to serve the Amended Motion to

Deny Relief in Suit to Modify Parent–Child Relationship; and

(4) a failure to mediate does not justify sanctions because

Tracy did not complain of that conduct in *685 her sanctions

motion. 3

ANALYSIS

I. Sanctions Standards

The trial court's imposition of sanctions rests on its invocation

of (1) its inherent authority to impose sanctions; (2)

Chapter 10 of the Civil Practice and Remedies Code,

which authorizes sanctions against an attorney who signs

a pleading and submits it for improper purposes such as

harassment, unnecessary delay, or needless increase in the

cost of litigation; and (3) Rule 21b relating to failure

to serve pleadings, which incorporates by reference the

penalties available under Rule 215.2(b). See Tex. Civ. Prac. &

Rem.Code Ann. §§ 10.001–.006 (Vernon 2002); Tex.R. Civ.

P. 21b; 215.2(b).

[1] [2] [3] [4] Trial courts have inherent power to

impose sanctions for bad faith abuse of the judicial process

even when the targeted conduct is not expressly covered by

a rule or statute. See, e.g., Eichelberger v. Eichelberger, 582

S.W.2d 395, 398–99 (Tex.1979). The exercise of this inherent

power is reviewed for abuse of discretion. McWhorter v.

Sheller, 993 S.W.2d 781, 788–89 (Tex.App.-Houston [14th

Dist.] 1999, pet. denied). The scope of a trial court's

discretion in this context is limited by the recognition that

this power “exists to the extent necessary to deter, alleviate,

and counteract bad faith abuse of the judicial process, such

as any significant interference with the traditional core

functions of Texas courts.” Id. at 789 (citing Kutch v. Del

Mar College, 831 S.W.2d 506, 509–10 (Tex.App.-Corpus

Christi 1992, no writ)). “Accordingly, for inherent power to

apply, there must be some evidence and factual findings that

the conduct complained of significantly interfered with the

court's legitimate exercise of one of these powers.” Id. The
Ezeoke v. Tracy, 349 S.W.3d 679 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

core functions of Texas courts subject to protection by the

inherent power to sanction encompass “ ‘hearing evidence,

deciding issues of fact raised by the pleadings, [and] deciding

questions of law....’ ” Trevino v. Ortega, 969 S.W.2d 950,

958 (Tex.1998) (Baker, J., concurring) (quoting Kutch, 831

S.W.2d at 510);see also Kutch, 831 S.W.2d at 510 (additional

core functions of the judiciary include entering final judgment

and enforcing judgment).

[5] [6] [7] Imposition of sanctions under Chapter 10

also is reviewed for abuse of discretion. Low v. Henry, 221

S.W.3d 609, 614 (Tex.2007). “To determine if the sanctions

were appropriate or just, the appellate court must ensure

there is a direct nexus between the improper conduct and the

sanction imposed.” Id. (citing Spohn Hosp. v. Mayer, 104

S.W.3d 878, 882 (Tex.2003), and TransAmerican Natural

Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991)).

The nexus requirement ensures that the sanction is “directed

against the abuse and toward remedying the prejudice caused

[to] the innocent party.” TransAmerican, 811 S.W.2d at 917.

Additionally, the sanction must not be excessive. Id. The twoprong inquiry into whether a nexus *686 exists and whether

the sanction is excessive applies as well to sanctions imposed

under Rule 215.2(b). Spohn Hosp., 104 S.W.3d at 882.

II. Application of Standards

A. Inherent Power to Impose Sanctions

[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

misrepresentations to the court in June 2009 about having

a vacation letter on file for a time period he stated he was

unavailable. Chapter 10, Rule 21b, and Rule 215.2(b) do not

apply to this conduct because it does not pertain to signing or

filing pleadings; serving pleadings; or discovery. Therefore,

inherent power is the only permissible basis invoked by the

trial court for sanctioning Ezeoke for this conduct.

The January 11, 2010 order does not meet the requirements

for imposing sanctions pursuant to the trial court's inherent

power because the order makes no findings that Ezeoke's

conduct significantly interfered with the court's legitimate

exercise of core functions such as hearing evidence, deciding

issues of fact raised by the pleadings, deciding questions

of law, entering final judgment, or enforcing a judgment.

See McWhorter, 993 S.W.2d at 789 (reversing imposition of

sanctions pursuant to inherent power when “no such finding

was made” addressing core functions). Without such findings,

the January 11, 2010 order cannot be affirmed based on

the trial court's invocation of its inherent power to impose

sanctions.

B. Rule 215.2(b)

[9] The trial court relied on Rule 21b and Rule 215.2(b) in

sanctioning Ezeoke for failing to serve a copy of the Amended

Motion to Deny Relief in Suit to Modify the Parent–Child

Relationship on May 14, 2009. However, there is no nexus

between this conduct and any amount encompassed by

the trial court's award of $3,081.58 in attorney's fees and

expenses. None of the fees or expenses detailed in the

spreadsheet admitted into evidence as Exhibit 38 during

the January 11, 2010 sanctions hearing are attributed to

this conduct. The January 11, 2010 sanctions order awards

only attorney's fees and expenses; it does not award any

amounts purely as a penalty. And unlike Chapter 10, no

provision in Rule 21b or Rule 215.2(b) references an award of

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

the amount awarded and this targeted conduct, the failure to

effect timely service of this pleading does not support the trial

court's January 11, 2010 sanctions order. See Spohn Hosp.,

104 S.W.3d at 882.

C. Civil Practice and Remedies Code Chapter 10

[10] The trial court invoked Chapter 10 in sanctioning

Ezeoke for filing a motion for continuance on

December 18, 2009 that included “unfounded accusations,

misrepresentations, and name-calling of opposing counsel,”

and that was “without merit since Alphonsus Ezeoke had

failed to file a vacation letter with Harris County for that

time period and had knowledge of the trial setting since

July 7, 2009.” The trial court specifically found that (1)

the motion for continuance was “signed in violation of

Texas Civil Practice & Remedies Code Section 10.001 and

contrary to the principles set for[th] in the Texas Lawyer's

Creed;” (2) the motion for continuance was “brought for an

improper purpose, *687 including harassment, delay, and/

or has increased the costs of this litigation;” and (3) “[t]here
Ezeoke v. Tracy, 349 S.W.3d 679 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

is a direct relationship between the sanctions imposed and the

offensive conduct.”

Ezeoke contends, among other things, that he did not

receive the notice required under section 10.003 because

the motion for sanctions was served and the sanctions

hearing was held while he was out of the country. See

Tex. Civ. Prac. & Rem.Code Ann. § 10.003 (“The court

shall provide a party who is the subject of a motion for

sanctions under Section 10.002 notice of the allegations and

a reasonable opportunity to respond to the allegations.”).

Tracy contends that Ezeoke has not rebutted the prima facie

evidence of service established by her certificate of service

on the sanctions motion because (1) the denial of notice in

Ezeoke's unverified motion for rehearing is ineffective, and

(2) Ezeoke's affidavit in support of his motion for rehearing

does not deny notice or receipt of service.

We need not choose between these positions because the

January 11, 2010 sanctions order does not satisfy section

10.003 even if it is assumed that Ezeoke had notice of the

January 4, 2010 motion for sanctions and the January 11, 2010

sanctions hearing. Section 10.003 requires not just notice, but

also a “reasonable opportunity to respond to the allegations.”

The uncontroverted record establishes that Ezeoke (1) had

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

United States as scheduled shortly after the hearing was held.

There is no indication in the record that Ezeoke purposefully

evaded the sanctions hearing, which was noticed after his

announced departure for a date before his scheduled return.

These circumstances do not demonstrate that a “reasonable

opportunity to respond to the allegations” was provided

before sanctions were imposed.

[11] We express no opinion about the legitimacy of the

reasons Ezeoke gave to explain his absence and justify his

departure for Nigeria without first having obtained a ruling on

his motion for continuance. Depending on the circumstances,

a lawyer's purposeful absence despite a known court setting

may or may not warrant sanctions. A lawyer who gambles

by requesting a continuance and then leaving the country

before the request has been ruled on reasonably can anticipate

adverse consequences. But if sanctions are requested and

considered, and if the record discloses no reason why the

absent lawyer cannot be afforded a reasonable opportunity

to respond and to participate in a sanctions hearing upon his

scheduled return, then the imposition of sanctions in absentia

is as much a cause for concern as the unexcused absence itself.

Cf. Low, 221 S.W.3d at 618 (absent attorney was represented

by counsel at sanctions hearing). 4

Because Ezeoke was not afforded the “reasonable opportunity

to respond” required by section 10.003, the January 11,

2010 sanctions order cannot be upheld based on the trial

court's invocation of Chapter 10. A remand for proceedings

in conformity with section 10.003 is warranted. 5

*688 CONCLUSION

The trial court's January 11, 2010 sanctions order is reversed,

and the matter is remanded for further proceedings consistent

with this opinion.

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

351 S.W.3d 408

Court of Appeals of Texas,

Fort Worth.

Paula GAUGHAN and Dean Sanders, Appellants,

v.

NATIONAL CUTTING HORSE

ASSOCIATION, Appellee.

No. 02–09–00450–CV. | July 28,

2011. | Rehearing Overruled Oct. 6, 2011.

Synopsis

Background: Member of nonprofit corporation filed action

against corporation for declaratory judgment that books and

records of the corporation that he sought to inspect were

not confidential and were therefore available to general

public. On cross-motions for summary judgment, the 67th

District Court, Tarrant County, Donald J. Cosby, J., granted

summary judgment to corporation, awarded attorney fees to

corporation, and incorporated a previously-entered protective

order against member into final judgment. Member appealed.

Holdings: The Court of Appeals, Anne Gardner, J., held that:

[1] former statutory provisions did not provide a right of

the public to inspect all books and records of a nonprofit

corporation;

[2] former statute allowed nonprofit corporation to require a

pledge or order of nondisclosure in order for a member to be

able to inspect and copy its records;

[3] trial court did not err by entering protective order

prohibiting member from disclosing documents designated as

confidential by corporation;

[4] records designated as confidential by corporation were

entitled to confidential treatment without an in camera

examination; and

[5] summary judgment affidavit by lead counsel for

corporation was sufficient to support attorney fee award of

$75,000.

Affirmed.

West Headnotes (13)

[1] Declaratory Judgment

Appeal and Error

The Court of Appeals would not address three

judicial declarations that plaintiff sought via

summary judgment, where plaintiff did not assert

on appeal that the trial court erred by denying her

motion for summary judgment on those grounds.

Cases that cite this headnote

[2] Corporations and Business Organizations

Inspection of corporate books and records

Former statutory provisions did not provide a

right of the public to inspect all books and

records of a nonprofit corporation; not all records

were financial records available to the public

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.

Vernon's Ann.Texas Civ.St. arts. 1396–2.23(B),

1396–2.23A (Expired).

1 Cases that cite this headnote

[3] Statutes

Similar or related statutes

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.

Cases that cite this headnote

[4] Corporations and Business Organizations

Inspection of corporate books and records

Although amounts received from or paid to

vendors, sponsors, or employees may have

constituted financial records of a nonprofit

corporation that were available for public

inspection under former statutory provision,

the underlying contracts themselves, or the
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

employees' addresses and social security

numbers, were not “financial records” that

the public was entitled to inspect. Vernon's

Ann.Texas Civ.St. art. 1396–2.23A (Expired).

Cases that cite this headnote

[5] Corporations and Business Organizations

Inspection of corporate books and records

Former statute, providing for the inspection

rights of a member of nonprofit corporation,

allowed nonprofit corporation to require a

pledge or order of nondisclosure in order for

a member to be able to inspect and copy its

records. Vernon's Ann.Texas Civ.St. art. 1396–

2.23 (Expired).

Cases that cite this headnote

[6] Corporations and Business Organizations

Inspection of corporate books and records

Trial court did not err, in action by member of

nonprofit corporation for declaratory judgment

that books and records of the corporation that

she sought to inspect were not confidential,

by entering a protective order prohibiting

member from disclosing documents designated

as confidential by the corporation, or by

declaring that corporation fully complied with all

legal requirements relating to member's requests

to review its records; member received records

from corporation that public did not have the

right to inspect, and her right to inspect and

copy those documents was subject to protection

from further disclosure as confidential. Vernon's

Ann.Texas Civ.St. art. 1396–2.23(B) (Expired).

Cases that cite this headnote

[7] Corporations and Business Organizations

Inspection of corporate books and records

Under former statute, a nonprofit corporation

member's own right to inspect and copy books

and records of corporation did not trump

privileges or other rights to confidentiality

provided for by Texas law. Vernon's Ann.Texas

Civ.St. art. 1396–2.23(B) (Expired).

Cases that cite this headnote

[8] Corporations and Business Organizations

Inspection of corporate books and records

Even members of a nonprofit corporation do

not have unfettered access to the nonprofit's

corporate records. Vernon's Ann.Texas Civ.St.

arts. 1396–2.23(B).

Cases that cite this headnote

[9] Corporations and Business Organizations

Inspection of corporate books and records

By accepting and renewing her membership each

year in nonprofit corporation, member agreed to

abide by the rules, policies, and agreements made

by the corporation, including policies for treating

employee and third party business information as

confidential.

Cases that cite this headnote

[10] Corporations and Business Organizations

Inspection of corporate books and records

There was no evidence in declaratory judgment

action by member of nonprofit corporation that

member took any action pursuant to terms

of a protective order to contest corporation's

designation of certain records disclosed to

member as “confidential,” and therefore those

records were entitled to confidential treatment

under the law without an in camera examination,

where protective order provided means by

which member could challenge corporation's

designation of confidentiality.

Cases that cite this headnote

[11] Judgment

Attorneys

Summary judgment affidavit by lead counsel

for nonprofit corporation was sufficient to

support attorney fee award of $75,000 in

unsuccessful action by corporation member for

declaratory judgment that certain corporation

records disclosed to him were not confidential

and thus were available to general public;
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

counsel outlined work performed, opined that

reasonable and necessary fees were $84,243, and

testified that he had been involved in numerous

such cases in Tarrant County, that he was

familiar with usual and customary fees in such

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.

Cases that cite this headnote

[12] Judgment

Attorneys

While reasonableness of an attorney's fee award

often presents a question of fact, an affidavit

filed by the movant's attorney that sets forth his

qualifications, his opinion regarding reasonable

attorney's fees, and the basis for his opinion will

be sufficient to support summary judgment, if

uncontroverted.

8 Cases that cite this headnote

[13] Costs

Declaratory judgment

Given that certain records disclosed to

member of nonprofit corporation were entitled

to confidential treatment, services rendered

by corporation's lead counsel in reviewing,

designating, and producing those records in

response to member's request were reasonable

and necessary, for purposes of calculating

attorney fee award in member's unsuccessful

action for declaratory judgment that no records

disclosed to him were entitled to confidential

treatment. Vernon's Ann.Texas Civ.St. art.

1396–2.23(B) (Expired).

Cases that cite this headnote

Attorneys and Law Firms

*410 James W. Walker, Dan Gus, Walker Sewell LLP,

Dallas, for Appellants.

James W. Morris, Goins Underkofler Crawford & Langdon

LLP, for Appellee.

PANEL: GARDNER and McCOY, JJ.; and WILLIAM

BRIGHAM (Senior Justice, Retired, Sitting by Assignment).

OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellants Paula Gaughan and Dean Sanders (collectively,

Gaughan) and Appellee National Cutting Horse Association

(the NCHA) filed cross-motions for summary judgment in

Gaughan's suit against the NCHA for a declaratory judgment

that the NCHA's books and records that Gaughan sought

to inspect and copy are not confidential. The trial court

initially entered a protective order in favor of the NCHA

that prohibited Gaughan from disseminating the NCHA's

books and records to others. Later, the trial court granted

*411 the NCHA's motion for summary judgment, denied

Gaughan's motion for summary judgment, and incorporated

the protective order into the final judgment. Gaughan

contends in three issues that the trial court erred by

entering the protective order and thereby prohibiting her

from disclosing documents designated as confidential by the

NCHA, by granting summary judgment for the NCHA on the

ground that the NCHA's records are entitled to confidential

treatment under the law, by denying her motion, and by ruling

that there are no genuine issues of material fact concerning the

reasonableness and necessity of the NCHA's attorney's fees.

We affirm.

II. Factual and Procedural Background

The NCHA is a non-profit corporation organized and existing

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

financial records of the NCHA.” 2 Gaughan requested

six categories of documents from the NCHA—including

employment contracts, bank statements, payroll records, and

payments to vendors—for the stated purpose that Gaughan

was “genuinely interested in fostering increased participation
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

in NCHA events by lowering the costs associated with that

participation and making sure that the membership dues and

other monies received by the NCHA are being spent with the

best interests of the NCHA membership in mind.” The NCHA

responded to Gaughan's letter on April 28, 2008, enclosing

audited financial statements for the years 2004 through 2007,

but it requested that Gaughan clarify her stated purpose, pay

for staff and professional time necessary to respond to the

request, and agree to maintain the confidentiality of certain

information relating to third parties (such as employees and

vendors) before the NCHA would produce the remaining

requested records.

Gaughan responded to the NCHA on May 9, 2008,

disagreeing that her stated purpose was inadequate but

also clarifying that she wished to review the financial

records to confirm that the “NCHA is not guilty of

waste or mismanagement in its financial affairs and in the

administration of the NCHA's business.” Gaughan declined

to enter into a confidentiality agreement and objected to

paying for staff or professional fees associated with the

NCHA's compliance with her inspection request. Gaughan

also requested that all responsive documents be produced

within one week.

The NCHA responded on May 13, 2008, again asserting the

confidentiality of some of its records, specifically records

relating to its employees, third-party vendors, and sponsors.

The NCHA stated that the confidentiality of its records “does

not mean that you cannot have access to some or all of the

information you desire[,] but it does mean that any access you

may have must be in accordance with procedures which are

in the best interest of [the NCHA] and include fulfilling [the

NCHA]'s obligation of confidentiality.”

Gaughan filed suit against the NCHA on May 20, 2008,

seeking a judicial declaration *412 that she is entitled to

inspect and photocopy each of the categories of records

identified in her April 21, 2008 letter. Gaughan also sought

and obtained a temporary restraining order to prevent the

NCHA from destroying or altering the records she sought

to inspect and copy. The NCHA filed a motion to dissolve

the temporary restraining order and offered to disclose all

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

the NCHA's motion, the trial court dissolved the temporary

restraining order and granted the NCHA's request for entry of

a protective order.

The trial court then signed a protective order permitting

the NCHA to designate certain documents that it had

agreed to produce to Gaughan as confidential (by stamping

“Confidential” in a conspicuous manner on each page to be

so designated) and prohibiting Gaughan from reproducing,

disclosing, or disseminating those documents to anyone

other than her counsel except upon order of the trial court.

The order stated that it was entered solely to facilitate

review and provided that at any time after delivery of

documents designated as confidential, counsel for Gaughan

could challenge the designation by written notice to the

NCHA and a motion to challenge the confidential nature of

all or a portion of the information, in which event the NCHA

would have the opportunity to establish that the disputed

documents were entitled to confidential treatment.

After entry of the protective order, the NCHA produced

89,214 pages of documents to Gaughan but designated 36,556

of those pages as confidential as permitted by the protective

order. It is undisputed that Gaughan reviewed and copied

all documents she requested from the NCHA, including

the documents designated as confidential. The NCHA also

counterclaimed against Gaughan, seeking recovery of its

attorney's fees and a judicial declaration that it had “acted

reasonably and in accordance with the law in responding to

[Gaughan's] requests to review the NCHA documents.”

[1] Gaughan and the NCHA eventually filed cross-motions

for summary judgment. In her motion, Gaughan requested,

among other things, a judicial declaration that “NCHA may

not prevent [her] from disclosing to her fellow NCHA

members or to other third parties the substance and form

of all records reflecting the NCHA's financial activity.” 3

Gaughan argued that articles 1396–2.23 and 1396–2.23A

of the non-profit corporation act required the NCHA to

make its books and records available to members and the

general public alike, that the NCHA is therefore precluded

from designating any of its financial records as confidential,

and that the trial court should withdraw the protective

order because it contravenes articles 1396–2.23 and 1396–

2.23A. In addition, Gaughan's motion for summary judgment

included the following alternative request for relief:

Strictly in the alternative, and only because [the trial

court's] Protective Order *413 otherwise requires it

and remains in force until it is withdrawn as requested

hereinabove, Gaughan moves the Court to conduct an in
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

camera inspection of the 36,556 pages of NCHA books and

records that the NCHA has classified as confidential and,

upon inspection of same, declare that they are not properly

classified as confidential documents given the statutory

mandate that they be made available to the NCHA members

and the general public alike. [Emphasis added.]

The NCHA's motion sought summary judgment on its claims

for a judicial declaration and attorney's fees. Within the

motion, the NCHA argued that Gaughan did not need to

file the lawsuit to obtain the requested documents; that

Texas law supports the trial court's entry of the protective

order; that the protective order provided a mechanism

for Gaughan to challenge the NCHA's designation of any

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

of the documents for months—but instead claimed that no

information contained in the documents requested under

art. 1396–2.23 could be treated as confidential and that

the protective order regarding the documents requested was

contrary to law.

In its final judgment granting the NCHA's motion for

summary judgment and denying that of Gaughan, the trial

court declared that the NCHA had fully complied with

all of Gaughan's requests to review documents of the

association and all legal requirements, that the NCHA had

designated documents as confidential in accordance with

the protective order, that Gaughan had taken no action to

contest the designations, and that the documents designated as

confidential by the NCHA were thus entitled to confidential

treatment as a matter of law. The trial court further ordered

Gaughan to return all records marked as “Confidential” to the

NCHA and to not disclose, disseminate, or reveal any of the

“Confidential” records or their contents to any third parties.

This appeal followed.

III. Standard of Review

We review a summary judgment de novo. Travelers Ins. Co.

v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). We consider

the evidence presented in the light most favorable to the

nonmovant, crediting evidence favorable to the nonmovant if

reasonable jurors could, and disregarding evidence contrary

to the nonmovant unless reasonable jurors could not. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex.2009). We indulge every reasonable inference

and resolve any doubts in the nonmovant's favor. 20801, Inc.

v. Parker, 249 S.W.3d 392, 399 (Tex.2008). A defendant who

conclusively negates at least one essential element of a cause

of action is entitled to summary judgment on that claim. Frost

Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010);

see Tex.R. Civ. P. 166a(b), (c). When both parties move

for summary judgment and the trial court grants one motion

and denies the other, the reviewing court should review

both parties' summary judgment evidence and determine all

questions presented. Mann Frankfort, 289 S.W.3d at 848; see

Myrad Props., Inc. v. LaSalle Bank Nat'l Ass'n, 300 S.W.3d

746, 753 (Tex.2009). The reviewing court should render the

judgment that the trial court should have rendered. Mann

Frankfort, 289 S.W.3d at 848.

IV. Discussion

A. The Protective Order

Gaughan contends in her first issue that the trial court

erred by entering the protective *414 order and declaring

by summary judgment that any of the NCHA's records

regarding its business transactions with sponsors, vendors,

and employees are entitled to confidential treatment under

the law. She contends the trial court's orders are contrary

to the Texas statutes that require non-profit corporations to

make their financial records open and available for inspection

and copying by the general public. Specifically, Gaughan

argues that because the NCHA is a non-profit corporation

obligated by article 1396–2.23A to make its records, books,

and annual reports available to the public for inspection and

copying, it cannot shield those records behind a claim of

confidentiality. The NCHA responds that a member of a nonprofit corporation may inspect “a much broader spectrum of

records” under article 1396–2.23 than the public is entitled to

inspect under article 1396–2.23A and that protective orders

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.

1. Articles 1396–2.23 and 1396–2.23A

Article 1396–2.23 of the Texas Non–Profit Corporation Act

provides:

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

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.

Tex.Rev.Civ. Stat. Ann. art. 1396–2.23 (expired Jan. 2010).

Similarly, but not identically, article 1396–2.23A provides, in

relevant part:

A. A corporation shall maintain current true and accurate

financial records with full and correct entries made with

respect to all financial transactions of the corporation,

including all income and expenditures, in accordance with

generally accepted accounting practices.

B. Based on these records, the board of directors shall

annually prepare or approve a report of the financial

activity of the corporation for the preceding year....

C. All records, books, and annual reports of the financial

activity of the corporation shall be kept at the registered

office or principal office of the corporation in this state for

at least three years after the closing of each fiscal year and

shall be available to the public for inspection and copying

there during normal business hours. The corporation may

charge for the reasonable expense of preparing a copy of

a record or report.

Id. art. 1396–2.23A (expired Jan. 2010) (emphasis added).

2. Scope and Purpose of article 1396–2.23A (public's

right to inspect)

[2] Gaughan argues that, because article 1396–2.23A

mandates public access to the financial records of a non-profit

corporation, the protective order allowing the NCHA to shield

its financial records from public disclosure by designating

them as confidential is contrary to Texas law. However,

Gaughan's argument is premised on the incorrect assumption

that all of the records of a non-profit corporation that a

member is entitled to inspect and copy are *415 financial

records available to the public generally. As is clear from

article 1396–2.23(B), a member of a non-profit corporation

may, following written demand stating a proper purpose,

examine “the books and records of [that] corporation relevant

to that purpose.” Id. art. 1396–2.23(B). Under article 1396–

2.23A, however, a member of the public may only inspect the

“records, books, and annual reports of the financial activity of

the corporation.” See id. art. 1396–2.23A (emphasis added).

Thus, the NCHA argues, a member of the public may only

inspect financial records of a non-profit corporation while a

member of the corporation may inspect all records of that

corporation. See id. arts. 1396–2.23, 1396–2.23A.

The records Gaughan received from the NCHA include both

financial records available for inspection by the public and

non-financial records not available for inspection by the

public. For example, Gaughan received vendor, sponsorship,

and employment contracts and documents containing the

addresses and Social Security Numbers of the NCHA's

employees. Article 1396–2.23A, addressing the public's right

of inspection, does not provide that the public has the right to

inspect records that are not financial records.

[3] Moreover, article 1396–2.23, addressing the right of

a member to inspect a broader spectrum of records than

is allowed for the public, provides for neither a right of

inspection by the public of such records nor a right by a

member to publish such information to the public. 4 Thus, the

NCHA argues, and we agree, that Gaughan's theory that she is

entitled to disseminate or share with the public all documents

she received would engraft a right of inspection by the public

onto article 1396–2.23, which speaks only to the right of

inspection by members. If the legislature had intended that a

member would have the right to disclose all books and records

of a non-profit corporation to the public, there would have

been no need for two separate statutes and no need to require a

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

of the public to inspect all books and records of a non-profit

corporation, including records only available to members.

The Texas Supreme Court has held that the phrase “financial

records” in article 1396–2.23A “does not include the names of

contributors or members” and that article 1396–2.23A “does

not require the blanket disclosure of contributors' names for

public inspection.” In re Bay Area Citizens Against Lawsuit

Abuse, 982 S.W.2d 371, 381–82 (Tex.1998) (hereinafter

BACALA ). In so holding, the BACALA court looked to the

legislative intent of that statute, observing that it appeared

“that article 1396–2.23A was intended to remedy a specific

problem: the lack of accountability regarding a non-profit

corporation's use of funds solicited from the public.” Id. at

381 (citing Texas Appellate Practice & Educ. Resource Ctr. v.
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

Patterson, 902 S.W.2d 686, 689 (Tex.App.-Austin 1995, writ

denied)). In that regard, the court quoted relevant background

information from the bill analysis regarding article 1396–

2.23A's purpose:

*416 During the last interim, the

author attempted to conduct a study

of a non-profit drug rehabilitation

program in Houston. This program had

been soliciting funds from the public

and portrayed itself as a charitable

endeavor. However, there were rumors

that its funds were being used for

investments in such businesses as

nightclubs. During the six month

investigation, the author of this bill

was unable to determine how the

program's funds were being used

because the records were inadequate. A

major recommendation from the study

was that Texas law should be amended

to require non-profit organizations

soliciting funds from the public to keep

adequate records showing how the

funds were actually being used.

Id. at 381 (quoting Senate Comm. on Bus. & Indus. Bill

Analysis, Tex. S.B. 857, 65th Leg., R.S. (1977)). Thus,

the BACALA court concluded the purpose of the legislation

was not to force non-profit corporations to identify the

exact sources of their income but was instead designed “to

expose the nature of the expenditures of that money once

received from the public and to make non-profit organizations

accountable to their contributors for those expenditures.” Id.

The court continued, “[T]he seemingly broad scope of the

statute's language is not matched by the legislative intent

behind the statute.” Id.; see also Patterson, 902 S.W.2d at

688–89 (concluding legislature designed art. 1396–2.23A as

a mechanism for making non-profit corporations accountable

for donations solicited from the public).

[4] It follows that, although amounts received from or

paid to vendors, sponsors, or employees may constitute

“financial records,” the underlying contracts themselves (or

the employees' addresses and social security numbers) are

not financial records that the public is entitled to inspect.

See BACALA, 982 S.W.2d at 381–82. Thus, even assuming

that the public is entitled by art. 1396–2.23A to inspect

all financial documents of a non-profit corporation without

regard to confidentiality, a question we are not called upon to

decide, we must still determine whether documents Gaughan

may inspect under art. 1396–2.23 (and which are not available

to the public) may be subject to protection from disclosure to

others because of confidentiality considerations. 5

3. Scope and Purpose of article 1396–2.23 (member's

right to inspect)

[5] [6] Gaughan asserts that the scope of article 1396–2.23,

which provides for the inspection rights of a member of a nonprofit corporation, is absolute in prohibiting any record from

being treated as confidential and does not allow a non-profit

corporation to require a pledge or order of non-disclosure in

order to inspect and copy its records. We disagree for reasons

urged by the NCHA.

Decisions under article 1396–2.23 recognize that the statute

is not absolute in its disclosure requirements for members and

that orders to protect confidential information are proper in

requests made under that statute. In Citizens Ass'n for Sound

Energy (CASE) v. Boltz, 886 S.W.2d 283, 285–86 (Tex.App.-

Amarillo 1994, writ denied), cert. denied, 516 U.S. 1029,

116 S.Ct. 675, 133 L.Ed.2d 524 (1995), a member of CASE,

a non-profit association, sought review of CASE's records

under article 1396–2.23. CASE opposed the production of

certain documents and challenged the constitutionality of

the statute. Id. at 286. *417 The trial court entered a

protective order addressing the confidential nature of the

requested documents and ordered CASE to produce such

documents under that protective order. Id. at 287. On appeal

by CASE, the court of appeals affirmed, holding that in view

of the protective order which prohibited the member from

disclosing the confidential information contained in such

documents, CASE's challenges to the statute were without

merit. Id.

In Professional Microfilming, Inc. v. Houston, 661 S.W.2d

767, 768 (Tex.App.-Fort Worth 1983, orig. proceeding), a

case in which mismanagement of Professional Microfilming,

Inc. (PMI) was alleged, this court considered a financial

records request by a shareholder and former director of PMI.

On mandamus, PMI complained of a discovery order by the

trial court that would have allowed the shareholder, who had

become a competitor of PMI, to review records containing

PMI's sensitive customer, cost, and pricing information

pursuant to a request made under business corporations act

article 2.44.

6

Id. at 768–69. PMI asserted that any such

review of PMI's confidential information by the shareholder

would be damaging to PMI. Id. The trial court required PMI
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

to produce the information but entered an order prohibiting

the shareholder and former director from disclosing any of

the contents of those records to third parties. Id. at 769. In

denying mandamus relief sought by PMI, this Court stated:

We also hold that Judge Houston's discovery order

adequately considered the sensitivity of the requested data,

and the potential for misuse of that data by Hightower and

Eikon. Judge Houston's order enjoined Hightower from

disclosing the information or using it for purposes other

than those connected with the litigation. The order also

provided that the documents requested to be produced

be sealed in envelopes and filed with the court, to be

opened only by order of the court. Judge Houston thus

set up a procedure which would allow him to examine

each document before disclosing it to Hightower, and

impose even greater restrictions than the initial injunction

if necessary.

Id. at 770 (emphasis added). Thus, we acknowledged

in PMI that the need to protect certain confidential

information from dissemination to others may exist even

when a statutory right to inspection by the shareholder

is invoked. Id.; see also Lewis v. Pa. Bar Ass'n, 549

Pa. 471, 701 A.2d 551, 555 (1997) (holding documents

otherwise accessible to members may be protected from

disclosure to third parties by considerations of privacy,

such as references to employee's health records; privilege,

such as records protected by attorney-client privilege

or work product doctrine; or confidentiality where both

corporate purpose and public's interest are served by

keeping information confidential); Stroud v. Grace, 606

A.2d 75, 89 (Del.1992) (holding corporation's refusal

to provide certain financial information to shareholder

without confidentiality agreement signed by shareholders

did not violate corporation's duty of disclosure); *418

Pershing Square, L.P. v. Ceridian Corp., 923 A.2d

810, 819–20 (Del.Ch.2007) (holding publication to

others by shareholder may be limited where information

is confidential and release would harm company);

Disney v. The Walt Disney Co., 857 A.2d 444, 446

(Del.Ch.2004) (holding that shareholder could not use

right of inspection to publicly disseminate otherwise

confidential records and that production was properly

conditioned upon confidentiality agreement, subject to

challenge of company's designation in court if parties could

not resolve disagreements).

Gaughan relies upon Sharyland Water Supply Corp. v. Block,

755 F.2d 397 (5th Cir.1985), as the single case to support her

position. Gaughan cites a statement from the opinion in that

case for the proposition that article 1396–2.23 neither forbids

a member from disclosing books and records provided to him

by a non-profit corporation nor requires the member to pledge

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

can be placed on an article 1396–2.23 request by a member

of a non-profit corporation. That case did not deal with the

right to inspect books and records under article 1396–2.23;

rather, it involved a Freedom of Information Act request

made to a third party to whom the corporation had provided

information as part of a loan application. Id. Moreover,

Sharyland is distinguishable because it involved audited

financial statements that a member of the public is entitled

to inspect under article 1396–2.23A. Id. at 399. The NCHA

does not dispute that its audited financial reports are subject

to disclosure under the Freedom of Information Act.

[7] [8] In addition, a member's own right to inspect and

copy books and records under article 1396–2.23 does not

trump privileges or other rights to confidentiality provided for

by Texas law. In Huie v. DeShazo, 922 S.W.2d 920, 923–

25 (Tex.1996), the supreme court held that a trustee's duty

of disclosure does not override the attorney-client privilege

and expressly rejected a claim that the provisions of article

1396–2.23 overrode a claim of attorney-client privilege. In

analyzing an argument similar to the one made by Gaughan

in this case, the Texas Supreme Court held as follows:

[Real party in interest] Chenault relies on Burton v.

Cravey, 759 S.W.2d 160 (Tex.App.-Houston [1st Dist.]

1988, no writ), for the proposition that the attorneyclient privilege does not apply where a party has a right

to information independently of the rules of discovery.

In Burton, condominium owners filed a trial court

mandamus action against the condominium association to

enforce their statutory right to inspect the association's

books and records. See Tex. Prop.Code Ann. § 81.209;

Tex.Rev.Civ. Stat. Ann. art. 1396–2.23. The trial court

allowed inspection of the records, including those in

the possession of the association's attorney, finding as a

factual matter that the attorney's records constituted part

of the association's records. The court of appeals affirmed,

holding that the attorney-client privilege did not apply in

light of the owners' unqualified right of inspection. 759

S.W.2d at 162.

It is unclear whether the records at issue in Burton were

merely records of the association in the possession of the

attorney, or whether they contained separate confidential
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

attorney-client communications. To the extent that they

consisted of the former, we agree that they were not

protected. See [Nat'l Tank Co. v.] Brotherton, 851 S.W.2d

[193,] 199 [ (Tex.1993) ]. However, to the extent that

the court held that the owners' *419 statutory right of

inspection somehow trumped the privilege for confidential

attorney-client communications, we disapprove of its

holding, for the reasons previously discussed. We also

disapprove of the court's dicta that the trial court could, in

its discretion decline to apply the attorney-client privilege

even if all the elements of Rule 503 were met. See 759

S.W.2d at 162.

Id. at 924 (emphasis added). Other jurisdictions agree.

See Schein v. N. Rio Arriba Elec. Coop., Inc., 122

N.M. 800, 806, 932 P.2d 490 (N.M.1997) (holding

corporate documents subject to attorney-client privilege

may be withheld from shareholders but upholding denial

of protection for information examined by trial court in

camera and found not to contain indicia of confidentiality);

Nat'l Football League Props., Inc. v. Superior Court, 65

Cal.App.4th 100, 75 Cal.Rptr.2d 893, 898 (1998) (holding

shareholder status does not in and of itself entitle an individual

to unfettered access to corporate confidences); Riser v.

Genuine Parts Co., 150 Ga.App. 502, 504, 258 S.E.2d

184 (Ga.Ct.App.1979) (holding trial court did not err by

denying corporate information to shareholder that contained

confidential management information, legal opinions, and

personnel evaluation in absence of compelling reason);

Morton v. Rogers, 20 Ariz.App. 581, 586, 514 P.2d 752

(Ariz.Ct.App.1973) (holding right of director and shareholder

to examine books and records does not extend to trade

secrets); see also In re LTV Secs. Litig., 89 F.R.D. 595, 604

(N.D.Tex.1981) (applying federal law in securities fraud suit

and recognizing shareholder's statutory or common law right

to inspection could not overcome otherwise valid assertion

of attorney-client privilege); 5A FLETCHER CYCLOPEDIA

OF THE LAW OF CORPORATIONS § 2239.10 (2011)

(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

corporation or value of stock). 7

[9] Moreover, by accepting and renewing her membership

each year in the NCHA, Gaughan has agreed to abide by the

rules, policies, and agreements made by the NCHA. Gaughan

has not disputed that those rules include the Employee

Handbook and the Financial Disclosure Policy and Procedure

adopted by the executive committee of the NCHA in 2004,

which contain the association's policies for treating employee

and third party business information as confidential. By

its Employee Handbook and the Disclosure Policy, the

NCHA makes representations to its employees, vendors,

sponsors, and other persons with whom it does business that

it will maintain certain information as confidential. Gaughan

disputes that any employment contract or business agreement

with vendors or sponsors produced to her by the NCHA

contain confidentiality agreements, but the documents in

question have not been made a part of the record on appeal. In

any event, the Disclosure Policy limits the right of the NCHA

and its members to further disseminate such information to

others because the NCHA has an obligation to protect the

information *420 as confidential. Gaughan has not argued or

cited any authority to the effect that she cannot contractually

agree not to disseminate to the public or the press any

confidential information provided to her as a member.

That Gaughan may be entitled to review the requested records

under the applicable statute as a member of the corporation

does not mean that she can do so without maintaining the

confidentiality of information contained in those documents

as agreed by her and as ordered by the trial court. The

above-referenced cases recognize that fact. The same type

of prophylactic protective order afforded in both CASE and

PMI was properly afforded by the trial court in this case;

that is, Gaughan's receipt, inspection, and copying of the

books and records of the NCHA was subject to the procedure

outlined in the order prohibiting her from sharing with others

the documents designated “Confidential” by the NCHA

unless she challenged the confidential designation of specific

documents or categories of documents, providing the NCHA

the opportunity to furnish proof to support its designation

of confidentiality. We agree with the NCHA that this is the

only way to balance and reconcile Gaughan's statutory right

to review such documents and the NCHA's duty to maintain

as confidential third party business information contained in

those documents.

4. Confidentiality as to other members of the NCHA

On appeal, Gaughan has argued that she only wishes to

share the documents in question with her fellow members

of the NCHA, not the general public, in order to enable the

membership to make informed decisions as to their votes for

officers and directors as well as to participate in governance

by determining the most reasonable and prudent course for

the future of the association. But we note that Gaughan

requested in both the trial court and in this court that the

protective order be set aside in its entirety, which would
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

enable her to publish all of the information to the press and

public as well as her fellow members. Moreover, the NCHA

is a national organization with over 20,000 members. The

NCHA acknowledges that other members have a right to

review its records upon written request for a proper purpose

stated. However, the Texas statutes make the NCHA the

repository of its books and records. If other members request

inspection, the NCHA is entitled to require those members

to agree to abide by its disclosure policy or to enforce that

policy as to confidential information just as it did as to

Gaughan. If Gaughan is allowed to disseminate those records

to other members, the NCHA will be unable to track the

dissemination or to require that those other members abide by

its Disclosure Policy as to confidential information to ensure

that the confidential information is protected.

Because Gaughan received records from the NCHA that

the public does not have the right to inspect under article

1396–2.23A, and because her right to inspect and copy

those documents was subject to protection from further

disclosure as confidential, the trial court did not err by

entering the protective order or by declaring that the records

produced to Gaughan were subject to confidential treatment

prohibiting her from further disseminating them to others.

Moreover, because it is undisputed that the NCHA produced

to Gaughan all records that she requested, the trial court did

not err by declaring that the NCHA “fully complied with all

legal requirements relating to [Gaughan's] requests to review

records of the association.” We therefore overrule Gaughan's

first issue. 8

*421 B. Designation of Documents as Confidential

Under Protective Order

[10] Gaughan argues in her second issue that the trial court

erred by declaring that the NCHA's financial records are

entitled to confidential treatment under the law because it did

not examine the records in camera to determine whether the

assertion of confidentiality was valid. The NCHA responds

that Gaughan did not follow the terms of the protective order

to challenge the designation of any records as confidential.

After the trial court entered the protective order, the

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

of Confidential Information, counsel for [Gaughan] may

challenge the Confidential designation of all or any portion

thereof by providing written notice thereof to counsel for

the NCHA” and that if the parties could not reach an

agreement, Gaughan could “file a motion with the Court

to challenge the confidential nature of all or a portion of

the Confidential Information.” The trial court's judgment

includes a declaration that Gaughan “took no action pursuant

to the terms of the [Protective] Order to contest the

‘Confidential’ designation of records and, therefore, the

documents designated as ‘Confidential’ by the NCHA are

therefore entitled to confidential treatment under the law.”

Gaughan argues that the trial court erred by making this

declaration because she gave written notice to the NCHA's

counsel on March 18, 2009, and included within her motion

for summary judgment a global request for in camera review

of the 36,556 pages of confidential documents. However, the

March 18 letter is not in the summary judgment record. While

the NCHA's March 23 letter responding to the March 18

letter is in the summary judgment record, the March 23 letter

from the NCHA's counsel only mentions a general assertion

by Gaughan that she “has the right to keep and disseminate

all information produced by the NCHA in this matter.” The

March 23 letter does not mention or refute any contentions as

to why all or part of the documents designated as confidential

by the NCHA should not be designated as confidential, nor

does it suggest that Gaughan sent the March 18 letter for

the purpose of complying with the protective order. Thus,

contrary to Gaughan's contention, the summary judgment

record does not contradict the trial court's declaration that

Gaughan “took no action pursuant to the terms of the

[Protective] Order to contest the ‘Confidential’ designation

of records.” And because Gaughan did not present summary

judgment evidence that she complied with the protective

order, the trial court did not err by declaring that “the

documents designated as ‘Confidential’ by the NCHA are

therefore entitled to confidential treatment under the law.”

Under the unique facts and procedural posture of this case, we

hold that the trial court did not err by declaring that Gaughan

“took no action pursuant to the terms of the [Protective]

Order to contest the ‘Confidential’ designation of records”

and *422 that “the documents designated as ‘Confidential’

by the NCHA are therefore entitled to confidential treatment

under the law.” We overrule Gaughan's second issue. 9

C. Attorney's Fees

[11] Gaughan contends in her third issue that the trial

court erred by granting summary judgment for the NCHA's
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

attorney's fees because fact issues remain as to whether the

fees were reasonable and necessary.

[12] “While reasonableness of an attorney's fee award

often presents a question of fact, an ‘affidavit filed by

the movant's attorney that sets forth his qualifications,

his opinion regarding reasonable attorney's fees, and the

basis for his opinion will be sufficient to support summary

judgment, if uncontroverted.’ ” Cammack the Cook, L.L.C. v.

Eastburn, 296 S.W.3d 884, 894 (Tex.App.-Texarkana 2009,

pet. denied) (quoting In re Estate of Tyner, 292 S.W.3d

179, 184 (Tex.App.-Tyler 2009, no pet.)); see Bocquet v.

Herring, 972 S.W.2d 19, 21 (Tex.1998) (“In general, ‘[t]he

reasonableness of attorney's fees ... is a question of fact for

the jury's determination.’ ”) (quoting Trevino v. Am. Nat'l Ins.

Co., 140 Tex. 500, 168 S.W.2d 656, 660 (1943)). Texas courts

consider eight factors when determining the reasonableness

of attorney's fees:

(1) the time and labor required, the novelty and difficulty

of the questions involved, and the skill required to perform

the legal service properly;

(2) the likelihood ... that the acceptance of the particular

employment will preclude other employment by the

lawyer;

(3) the fee customarily charged in the locality for similar

legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the

circumstances;

(6) the nature and length of the professional relationship

with the client;

(7) the experience, reputation, and ability of the lawyer or

lawyers performing the services; and

(8) whether the fee is fixed or contingent on results

obtained or uncertainty of collection before the legal

services have been rendered.

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d

812, 818 (Tex.1997) (citing Tex. Disciplinary R. Prof.

Conduct 1.04, reprinted in Tex. Gov't Code, tit. 2, subtit. G

app. (State Bar Rules, art. X, § 9) (West 2005)).

The NCHA offered an affidavit by its lead counsel as

summary judgment evidence of the reasonableness and

necessity of its attorney's fees. 10 In the affidavit, the NCHA's

counsel outlined the work performed for the NCHA in the

case and, among other things, testified (1) that he had been

“practicing law for over twenty *423 two years in the State

of Texas”; (2) that he had been involved in “numerous cases

like this one in Tarrant County, Texas”; (3) that he was

“familiar with the usual and customary fees for the work

done on cases of this type in Tarrant County, Texas”; (4) that

the fees charged by his firm ranged from $100 to $300 per

hour “depending upon the person performing these services

and their level of experience”; (5) that the hourly rates were

reasonable and necessary for the services performed; and (6)

that “based on the work done in the case, the amount of time

spent, the nature of the tasks performed[,] and the amount

in controversy,” it was his opinion that “the reasonable

and necessary attorneys' fees incurred by the NCHA” were

$84,243. Gaughan did not file any controverting summary

judgment evidence. Thus, NCHA presented uncontroverted

summary judgment evidence of four of the Arthur Andersen

factors. See id.

Gaughan argues that the trial court erred by granting summary

judgment for the NCHA because the issues of reasonableness

and necessity are questions of fact and because the fees that

the NCHA's counsel testified were reasonable and necessary

included $5,800 in fees charged before the lawsuit was

filed, over $3,200 for services by an attorney not listed on

the pleadings in the case for “attention to file on pending

issues,” and “tens of thousands of dollars in attorneys' fees for

the review and provision of the NCHA's financial records.”

Gaughan argues that these charges “represented fact issues

that precluded the entry of summary judgment.”

[13] First, while the reasonableness and necessity of

attorney's fees is generally a question of fact, “[a]n attorney's

affidavit can sufficiently establish the reasonableness of

attorney's fees for purposes of summary judgment.” Basin

Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373

(Tex.App.-San Antonio 1999, pet. denied); see Cammack the

Cook, 296 S.W.3d at 894; see also Bocquet, 972 S.W.2d at

21 (stating that “in general,” reasonableness of attorney's fees

is a question of fact). Second, the NCHA sought more than

$84,000 in attorney's fees, but the trial court awarded the

NCHA $75,000 in attorney's fees. It therefore appears that the

trial court did not award the NCHA the $5,800 in fees charged

before the lawsuit or the approximately $3,200 for services by

the attorney for “attention to file on pending issues.” Even if

it did, the applicable statute does not prohibit recovery of fees

incurred before the lawsuit is filed or billed by an attorney not
Gaughan v. National Cutting Horse Ass'n, 351 S.W.3d 408 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

listed on the pleadings. See Tex. Civ. Prac. & Rem.Code Ann.

§ 37.009 (West 2008) (“In any proceeding under this chapter,

the court may award costs and reasonable and necessary

attorney's fees as are equitable and just.”). Finally, we held

above that, given the unique factual and procedural context

of this case, the NCHA's records are entitled to confidential

treatment. Therefore, the services performed by the NCHA's

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.

The NCHA's summary judgment established its entitlement

to summary judgment as to the amount of attorney's fees,

and Gaughan's arguments are mere criticisms of the amount

sought without contradicting evidence. See Basin Credit

Consultants, 2 S.W.3d at 373, 374 (holding that opposing

affidavit did not create fact issue for summary judgment

purposes because it only criticized the amount of fees sought

as excessive and did not “set forth the affiant's qualifications

or the basis for his opinion as to what a reasonable fee *424

would be”). We hold that the trial court did not err by granting

summary judgment to the NCHA for $75,000 in attorney's

fees, and we overrule Gaughan's third issue.

V. Conclusion

Having overruled each of Gaughan's three issues, we affirm

the trial court's judgment.

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13

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.
Gilmer v. Veatch, 56 Tex.Civ.App. 511 (1909)

121 S.W. 545

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

56 Tex.Civ.App. 511

Court of Civil Appeals of Texas.

GILMER et al.

v.

VEATCH et al.

June 24, 1909. | Rehearing

Denied June 30, 1909.

Error from District Court, Orange County; W. B. Powell,

Judge.

Action by May Veatch and others against A. Gilmer and

others. Judgment in part for plaintiffs, and defendants bring

error. Reformed and affirmed.

See, also, 117 S. W. 430.

West Headnotes (6)

[1] Appeal and Error

Propositions and Statements Accompanying

Assignment of Errors

Assignments of error, not followed or supported

by such statements as is required by the rules of

the appellate court, will not be considered.

3 Cases that cite this headnote

[2] Principal and Agent

What Law Governs

Where a power of attorney not coupled with

an interest was given in California with nothing

in its terms to indicate where it was to be

executed, and in an attempt to carry out the

powers conferred land in Texas is sought to be

sold, the law of Texas will control.

Cases that cite this headnote

[3] Principal and Agent

Agency Coupled with Interest

A power of attorney given by joint owners of

land to another joint owner of the same land

to sell and convey it, which conveys to the

attorney no interest in the land to be sold, is not a

“power coupled with an interest”-(citing Words

and Phrases, vol. 6, pp. 5478-5480; vol. 8, p.

7758).

1 Cases that cite this headnote

[4] Principal and Agent

Disability of Principal

Where a woman, after executing a power of

attorney to sell her interest in land and before

a sale was made by the agent, married, the

marriage revoked the power.

1 Cases that cite this headnote

[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.

Cases that cite this headnote

[6] Vendor and Purchaser

Relation of Vendor to Former Owner

Two persons who had inherited an undivided

interest in land which was the community

property of their grandparents executed a power

of attorney to an agent, authorizing him to “sell

and transfer our interest in the estate of” the

grandfather. The agent sold their entire interest

in the land by deed conveying all the interest they

had as heirs at law in the land. Held, that the

purchaser who took in good faith, for value, and

with no notice that the land had been community

land, other than the deed, took the heirs' interest

in the land inherited from their grandmother as

well as their grandfather; the deed not giving

notice that the land may have been community

property.

1 Cases that cite this headnote

**545 The sale of land under the power of attorney referred

to was by deed conveying all the interest that J. Allen Veatch
Gilmer v. Veatch, 56 Tex.Civ.App. 511 (1909)

121 S.W. 545

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

and May Veatch had as heirs at law in the land in question.

The purchaser took in good faith for value, and without notice

other than the deed that the property had been the community

property of the heirs' grandparents.

Attorneys and Law Firms

*512 Geo. E. Holland, for plaintiffs in error. *513 W. D.

Gordon, for defendants in error.

Opinion

MCMEANS, J.

Suit by John Alfred Veatch and others, heirs of John A.

Veatch, deceased, against A. Gilmer and others, of trespass

to try title to a part of the Kennard league of land, in Sabine

and Newton counties. A trial in the court below resulted in

a judgment against defendants for the title and possession of

an undivided interest amounting to 762 acres of the land in

controversy. From this judgment John Alfred Veatch alone

appealed, and the judgment of the lower court was affirmed

by the Court of Civil Appeals of the Fourth District (111 S. W.

746). A petition for a writ of error was granted by the Supreme

Court, and that court on a cross-assignment of error reformed

the judgment of the trial court and Court of Civil Appeals, and

the judgment, as reformed, was affirmed (117 S. W. 430). A

sufficiently full statement of the issues will be found in the

opinions referred to, and need not be repeated here.

The appellees on that appeal filed and presented crossassignments of error, only two of which were passed upon by

the Court of Civil Appeals, that court holding that, defendants

nor any of appellant's coplaintiffs having perfected an appeal,

the cross-assignments of error, which had no reference to

appellant, or that portion of the judgment appealed from, were

not entitled to consideration. This appeal is by writ of error

sued out by defendants in the court below against all the

plaintiffs except John Alfred Veatch, and the assignments

of error here presented are identical with the assignments

presented on cross-appeal.

Plaintiff in error's fifth assignment assails the trial court's

eighth conclusion of law, which is as follows: “I find that

the power of attorney from J. Allen Veatch and May Veatch

is valid, but only authorizes the conveyance of their interest

in their grandfather's, John A. Veatch's, estate, and did not

authorize the conveyance of the mother's interest or the part

inherited by them from their grandmother, and that they are

entitled to recover an undivided 111 acres of the land in suit.”

John A. Veatch during his lifetime became the owner of the

south half and of an undivided one-eighth of the north half of

the Kennard league. He sold 1,427 acres, and died possessed

of 1,349 acres. This was the community property of John A.

Veatch and his wife, who died in 1845. John A. Veatch died

in 1870. J. Allen Veatch and **546 May Veatch are their

grandchildren, and are entitled to an undivided 222 acres of

the 1,349 acres, unless their title was divested by a sale made

by S. H. Veatch under a written power of attorney executed

by them to him authorizing him to “sell and transfer our

interest in the estate of John A. Veatch, deceased.” Acting

under this power, S. H. Veatch sold the entire interest of J.

Allen Veatch and May Veatch in the Kennard league. The

trial court held that this power of attorney only authorized S.

H. Veatch to sell the interest of the land that was inherited

by his principals from John A. Veatch, deceased, and not the

interest inherited by them from their deceased grandmother,

who was *514 the wife of John A. Veatch, and awarded to

May and John Allen Veatch 111 acres, which was one-half

of the amount shown to have passed to them by descent from

their grandparents. Following the opinion of the Supreme

Court on the appeal of John Alfred Veatch, before referred

to, and adopting the reasons therein given, we hold that the

assignment is well taken, and that under the agreed facts the

defendants in the court below, plaintiffs in error here, are

entitled to the share of J. Allen Veatch and May Veatch of

222 acres, instead of the one-half thereof as awarded by the

judgment of the lower court.

Plaintiff in error's first assignment of error is: “The trial

court erred in his fourth conclusion of law in holding that

the powers of attorney were naked powers, and not coupled

with an interest.” Under this assignment, the proposition is

advanced that, “when an interest in the property to be dealt

with under the agency is at the same time in the same person

with a power to dispose of it, this constitutes a power coupled

with an interest.” The question here presented is whether a

power of attorney, given by one joint owner of land to another

joint owner to sell and convey it, is a power “coupled with

an interest” within the legal meaning of that term. Plaintiffs

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

with the power; that the power is one thing, and the interest

is another; and that when the power to sell is in the same

person who has an interest in the thing to be sold, however that

interest is acquired, the power becomes one coupled with an

interest, and irrevocable. The powers of attorney in question

were given by persons who owned an undivided interest in

the same land. No interest or estate in the land to be sold

was conferred by the instruments upon the agent, but merely

authorized him to sell and convey their land. We do not think
Gilmer v. Veatch, 56 Tex.Civ.App. 511 (1909)

121 S.W. 545

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

the contention is sound. See Words and Phrases, tit. “Power

Coupled with an Interest.” The assignment is overruled.

The second assignment complains that the trial court erred

in its fourth and fifth conclusions of law in holding that the

power of attorney from Gitchell and wife was governed by

the laws of Texas, and was revoked at the death of the makers.

This instrument was a general power of attorney, and was

executed in the state of California. There was nothing in its

terms to indicate where or in what state it was to be executed.

It was, in fact, attempted to be executed by the sale of lands in

Texas after the death of the makers. The statute of California

provides that “agency is terminated by notice to the agent of

the death of the employer.” The power of attorney conferred

upon the agent no interest or estate in the property to be sold;

in other words, the power was not “coupled with an interest.”

We think that, when in an attempt to carry out the powers

conferred land in this state was attempted to be sold, the law

as recognized and applied by the courts of this state must

control, and the mere fact that the instruments were signed

and delivered in California would not alter this rule. That the

sale of lands in this state under a naked power of attorney after

the death of the principal cannot be upheld seems to be well

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

(Tex. Civ. App.) 30 S. W. 85; Cox v. Bray, 28 Tex. 263. The

assignment is overruled.

Fannie Veatch, after the execution of her power of attorney,

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

her marriage revoked the power. This conclusion is assailed

by the third assignment of error. We find no error in the court's

conclusion. Judson v. Sierra, 22 Tex. 371; Henderson v. Ford,

46 Tex. 627.

The fourth assignment is not followed by a statement

sufficient to explain it, as required by rule 31 (31 S. W. vii),

and will not, therefore, be considered.

The sixth assignment was disposed of by the Supreme Court,

and the seventh by the Court of Civil Appeals in the opinions

above referred to, and for that reason will not be here

discussed.

We are of the opinion that, instead of recovering of J. Allen

Veatch and May Veatch 111 acres of the land, the plaintiffs

in error should have recovered 222 acres; and accordingly the

judgment will in that respect be reformed, and in all other

respects affirmed.

Reformed and affirmed.

Parallel Citations

121 S.W. 545

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Huie v. DeShazo, 922 S.W.2d 920 (1996)

64 USLW 2540, 39 Tex. Sup. Ct. J. 288

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

922 S.W.2d 920

Supreme Court of Texas.

Harvey K. HUIE, Jr., Individually, as

Independent Executor of the Estate of

Adeline M. Huie, Deceased, and as Trustee

of the Melissa Huie Chenault Trust, Relator

v.

The Honorable Nikki

DeSHAZO, Judge, Respondent.

No. 95–0873. | Argued Nov. 30,

1995. | Decided Feb. 9, 1996. |

Rehearing Overruled June 28, 1996.

Trust beneficiary sought to compel discovery, from an

attorney, of communications by a trustee to the attorney

relating to trust administration, in a suit by beneficiary

alleging that trustee breached his fiduciary duty. The trial

court ordered the attorney to disclose communications made

before suit was filed. The Court of Appeals denied relief and

the trustee petitioned for writ of mandamus. The Supreme

Court, Phillips, C.J., held that: (1) attorney-client privilege

applied, notwithstanding trustee's fiduciary duties to fully

disclose all material facts; (2) privilege did not affect

trustee's duty to disclose and provide full trust accounting;

(3) attorney-client relationship existed between trustee and

attorney; (4) trust was not client; (5) crime-fraud exception

to attorney-client privilege did not apply; (6) compensation

of attorney with trust funds did not preclude attorney-workproduct privilege; and (7) whether disputed documents were

prepared in anticipation of litigation was to be considered on

remand.

Writ conditionally granted.

West Headnotes (15)

[1] Privileged Communications and

Confidentiality

Fiduciary exception

Privileged Communications and

Confidentiality

Trustees, guardians, and administrators; 

 pension plans

Attorney-client privilege protected confidential

communications between trustee and attorney

from discovery by trust beneficiary,

notwithstanding trustee's fiduciary duty to fully

disclose material facts regarding administration

of trust; trustee, rather than trust beneficiary, is

client. V.T.C.A., Property Code § 113.151(a);

Rules of Civ.Evid., Rule 503(b).

39 Cases that cite this headnote

[2] Trusts

Representation of cestui que trust by trustee

Trustee's fiduciary duty toward trust beneficiary,

to fully disclose all material facts, exists

independently of rules of discovery and applies

even if no litigious dispute exists between trustee

and beneficiaries. V.T.C.A., Property Code §

113.151(a).

10 Cases that cite this headnote

[3] Trusts

Representation of cestui que trust by trustee

Trustee's duty of full disclosure extends to all

material facts affecting beneficiaries' rights and

is not limited by any communications by trustee

with attorney that may be protected by attorneyclient privilege. V.T.C.A., Property Code §

113.151(a); Rules of Civ.Evid., Rule 503(b).

11 Cases that cite this headnote

[4] Privileged Communications and

Confidentiality

Elements in general; definition

Attorney-client privilege protects confidential

communications between client and attorney

made for purpose of facilitating rendition of

professional legal services to client. Rules of

Civ.Evid., Rule 503(b).

25 Cases that cite this headnote

[5] Privileged Communications and

Confidentiality
Huie v. DeShazo, 922 S.W.2d 920 (1996)

64 USLW 2540, 39 Tex. Sup. Ct. J. 288

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Factual information; independent

knowledge; observations and mental

impressions

While attorney-client privilege extends to entire

communication, including facts contained in that

communication, client cannot cloak material fact

with privilege merely by communicating it to an

attorney. Rules of Civ.Evid., Rule 503(b).

9 Cases that cite this headnote

[6] Privileged Communications and

Confidentiality

Trustees, guardians, and administrators; 

 pension plans

While trustee must fully disclose material facts

regarding administration of trust, attorney-client

privilege protects confidential communications

between trustee and his or her attorney.

V.T.C.A., Property Code § 113.151(a); Rules of

Civ.Evid., Rule 503(b).

3 Cases that cite this headnote

[7] Privileged Communications and

Confidentiality

Trustees, guardians, and administrators; 

 pension plans

Trustee which retains attorney for advice

in administering trust is real client, rather

than trust beneficiaries, when determining

whether attorney-client privilege applies. Rules

of Civ.Evid., Rule 503(a)(1).

10 Cases that cite this headnote

[8] Privileged Communications and

Confidentiality

Trustees, guardians, and administrators; 

 pension plans

Neither trust beneficiary nor trust itself was

client of attorney retained by trustee and, thus,

attorney-client privilege applied to confidential

communication by trustee to attorney concerning

administration of trust. Rules of Civ.Evid., Rule

503(a)(1).

6 Cases that cite this headnote

[9] Privileged Communications and

Confidentiality

Criminal or other wrongful act or

transaction; crime-fraud exception

Crime-fraud exception to attorney-client

privilege did not apply to confidential

communications concerning trust administration

from trustee to attorney given that trustee's

invocation of attorney-client privilege did not

violate duty of full disclosure and, thus,

attorney could not be compelled to testify

about communications. Rules of Civ.Evid., Rule

503(d)(1).

8 Cases that cite this headnote

[10] Privileged Communications and

Confidentiality

Presumptions and burden of proof

Party resisting discovery bears burden of proving

any applicable privilege.

10 Cases that cite this headnote

[11] Pretrial Procedure

Work-product privilege

Attorney work-product privilege applied to

prelitigation communications which trustee

prepared in anticipation of litigation.

1 Cases that cite this headnote

[12] Pretrial Procedure

Work-product privilege

Whether attorney retained by trustee was

compensated from trust funds, rather than

trustee personally, was not determinative

of whether attorney work-product privilege

protected communications made to trustee; any

impropriety in compensating attorney from

trust funds would not abrogate work-product

privilege.

Cases that cite this headnote
Huie v. DeShazo, 922 S.W.2d 920 (1996)

64 USLW 2540, 39 Tex. Sup. Ct. J. 288

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

[13] Pretrial Procedure

Work-product privilege

Determinative factor for application of attorney

work-product privilege is whether litigation was

anticipated.

Cases that cite this headnote

[14] Mandamus

Matters of discretion

Trial court's erroneous legal conclusion, even

in an unsettled area of law, is an abuse of

discretion for purposes of determining whether

mandamus relief is inappropriate; trial court has

no discretion when determining what law is or

applying law to facts.

87 Cases that cite this headnote

[15] Mandamus

Proceedings in civil actions in general

Mandamus relief was appropriate from order

erroneously compelling disclosure of potentially

privileged information by attorney retained

by trustee, given that trustee lacked adequate

remedy by appeal.

11 Cases that cite this headnote

*921 On petition for writ of mandamus.

Attorneys and Law Firms

G. David Ringer, Timothy D. Zeiger, Michael D. McKinley,

Dallas, Douglas W. Alexander, Austin, Dwight M. Francis,

Dallas, for Relator.

Donovan Campbell, Jr., T. Wesley Holmes, James J. Hartnett,

Jr., James J. Hartnett, Sr., Jack M. Kinnebrew, Gary E.

Clayton, and Kim Kelly Lewis, Dallas, for Respondent.

Jay J. Madrid, R. Gregory Brooks, Madrid, Corallo & Brooks,

P.C., Dallas, for J. Peter Kline, Robert L. Miars, John

A. Beckert, Richard N. Beckert, Edward J. Rohling, Jack

Craycroft and Harvey Hotel Corp.

Opinion

Chief Justice PHILLIPS delivered the opinion of the Court,

in which all Justices join.

The issue presented in this original mandamus

proceeding is whether the attorney-client privilege protects

communications between a trustee and his or her attorney

relating to trust administration from discovery by a trust

beneficiary. We hold that, notwithstanding the trustee's

fiduciary duty to the beneficiary, only the trustee, not the

trust beneficiary, is the client of the trustee's attorney.

The beneficiary therefore may not discover communications

between the trustee and attorney otherwise protected under

Texas Rule of Civil Evidence 503. Because the trial court

ruled otherwise, we conditionally grant writ of mandamus.

I

Harvey K. Huie, the relator, is the executor of the estate

of his deceased wife, who died in 1980. Huie is also the

trustee of *922 three separate testamentary trusts created

under his wife's will for the primary benefit of the Huies' three

daughters. One of the daughters, Melissa Huie Chenault, filed

the underlying suit against Huie in February 1993 for breach

of fiduciary duties relating to her trust. 1 Chenault claims that

Huie mismanaged the trust, engaged in self-dealing, diverted

business opportunities from the trust, and commingled and

converted trust property. Huie's other two daughters have not

joined in the lawsuit.

Chenault noticed the deposition of Huie's lawyer, David

Ringer, who has represented Huie in his capacity as

executor and trustee since Mrs. Huie's death. Ringer has also

represented Huie in many other matters unrelated to the trusts

and estate during that period. Before Chenault filed suit,

Ringer was compensated from trust and estate funds for his

fiduciary representation. Since the suit, however, Huie has

personally compensated Ringer for all work.

Although Ringer appeared for deposition, he refused to

answer questions about the management and business

dealings of the trust, claiming the attorney-client and

attorney-work-product privileges. Chenault subsequently

moved to compel responses, and Huie moved for a protective

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
Huie v. DeShazo, 922 S.W.2d 920 (1996)

64 USLW 2540, 39 Tex. Sup. Ct. J. 288

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Huie and Ringer relating to the trust. The court's order, signed

July 19, 1995, does not cite to any of the exceptions under

Texas Rule of Civil Evidence 503 or otherwise disclose

the court's rationale. 2 The court held that the attorneyclient privilege protected only communications made under

the following circumstances: 1) a litigious dispute existed

between Chenault and Huie; 2) Huie obtained legal advice

to protect himself against charges of misconduct; and 3)

Huie paid for the legal counsel without reimbursement from

the estate or trust. The court accordingly ordered Ringer to

answer questions relating to events before February 1993,

when suit was filed and Huie began personally compensating

Ringer. The court also held that the attorney-work-product

privilege did not apply to communications made before

Chenault filed suit, again without stating its reasoning.

The court of appeals, after granting Huie's motion for leave to

file petition for writ of mandamus, subsequently vacated that

order as improvidently granted, denying relief. After Huie

sought mandamus relief from this Court, we stayed Ringer's

deposition pending our consideration of the merits.

II

[1] The attorney-client privilege protects from disclosure

confidential communications between a client and his

or her attorney “made for the purpose of facilitating

the rendition of professional legal services to the

client....” TEX.R.CIV.EVID. 503(b). This privilege allows

“unrestrained communication and contact between an

attorney and client in all matters in which the attorney's

professional advice or services are sought, without fear

that these confidential communications will be disclosed

by the attorney, voluntarily or involuntarily, in any legal

proceeding.” West v. Solito, 563 S.W.2d 240, 245 (Tex.1978).

The privilege thus “promote[s] effective legal services,”

which “in turn promotes the broader societal interest of

the effective administration of justice.” Republic Ins. Co. v.

Davis, 856 S.W.2d 158, 160 (Tex.1993).

The Texas Trust Code provides that “[a] trustee may employ

attorneys ... reasonably necessary in the administration of the

trust estate.” TEX.PROP.CODE § 113.018. Chenault *923

does not dispute that Huie employed Ringer to assist Huie

in the administration of the Chenault trust. Indeed, Chenault

does not seriously dispute that an attorney-client relationship

existed between Huie and Ringer about trust matters. 3

Further, Rule 503 contains no exception to the privilege for

fiduciaries and their counsel. Chenault nonetheless contends

that communications between Huie and Ringer regarding

trust matters cannot be privileged as to Chenault, a trust

beneficiary, even if the elements of Rule 503 are otherwise

met. Chenault's primary argument is that Huie's fiduciary

duty of disclosure overrides any attorney-client privilege that

might otherwise apply.

[2] Trustees and executors owe beneficiaries “a fiduciary

duty of full disclosure of all material facts known to them

that might affect [the beneficiaries'] rights.” Montgomery

v. Kennedy, 669 S.W.2d 309, 313 (Tex.1984). See also

TEX.PROP.CODE § 113.151(a) (requiring trustee to account

to beneficiaries for all trust transactions). This duty exists

independently of the rules of discovery, applying even if no

litigious dispute exists between the trustee and beneficiaries.

Chenault argues that the trustee's duty of disclosure extends

to any communications between the trustee and the trustee's

attorney. The fiduciary's affairs are the beneficiaries' affairs,

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.

[3] [4] [5] The trustee's duty of full disclosure extends to

all material facts affecting the beneficiaries' rights. Applying

the attorney-client privilege does not limit this duty. In

Texas, the attorney-client privilege protects confidential

communications between a client and attorney made for

the purpose of facilitating the rendition of professional

legal services to the client. See TEX.R.CIV.EVID. 503(b).

While the privilege extends to the entire communication,

including facts contained therein, see GAF Corp. v. Caldwell,

839 S.W.2d 149, 151 (Tex.App.—Houston [14th Dist.]

1992, orig. proceeding); 1 STEVEN GOODE ET. AL,

TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF

EVIDENCE: CIVIL AND CRIMINAL, § 503.5 n. 15 (1993),

a person cannot cloak a material fact with the privilege merely

by communicating it to an attorney. See, e.g., National Tank

Co. v. Brotherton, 851 S.W.2d 193, 199 (Tex.1993).

This distinction may be illustrated by the following

hypothetical example: Assume that a trustee who has

misappropriated money from a trust confidentially reveals

this fact to his or her attorney for the purpose of obtaining

legal advice. The trustee, when asked at trial whether he

or she misappropriated money, cannot claim the attorneyclient privilege. The act of misappropriation is a material

fact of which the trustee has knowledge independently of
Huie v. DeShazo, 922 S.W.2d 920 (1996)

64 USLW 2540, 39 Tex. Sup. Ct. J. 288

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

the communication. The trustee must therefore disclose the

fact (assuming no other privilege applies), even though

the trustee confidentially conveyed the fact to the attorney.

However, because the attorney's only knowledge of the

misappropriation is through the confidential communication,

the attorney cannot be called on to reveal this information.

Our holding, therefore, in no way affects Huie's duty

to disclose all material facts and to provide a full trust

accounting to Chenault, even as to information conveyed to

Ringer. In the underlying litigation, Chenault may depose

Huie and question him fully regarding his handling of

trust property and other factual matters involving the trust.

Moreover, the attorney-client privilege does not bar Ringer

from testifying about factual matters involving the trust, as

long as he is not called on to reveal confidential attorneyclient communications.

The communications between Ringer and Huie made

confidentially and for the purpose *924 of facilitating legal

services are protected. The attorney-client privilege serves the

same important purpose in the trustee-attorney relationship

as it does in other attorney-client relationships. A trustee

must be able to consult freely with his or her attorney to

obtain the best possible legal guidance. Without the privilege,

trustees might be inclined to forsake legal advice, thus

adversely affecting the trust, as disappointed beneficiaries

could later pore over the attorney-client communications in

second-guessing the trustee's actions. Alternatively, trustees

might feel compelled to blindly follow counsel's advice,

ignoring their own judgment and experience. See In re

Prudence–Bonds Corp., 76 F.Supp. 643, 647 (E.D.N.Y.1948)

(concluding that, without the privilege, “the experience in

management and best judgment by [the trustee] is put aside ...

which, in the end may result in harm to the [beneficiaries]”).

Chenault relies on Burton v. Cravey, 759 S.W.2d 160

(Tex.App.—Houston [1st Dist.] 1988, no writ), for the

proposition that the attorney-client privilege does not apply

where a party has a right to information independently of

the rules of discovery. In Burton, condominium owners filed

a trial court mandamus action against the condominium

association to enforce their statutory right to inspect the

association's books and records. See TEX.PROP.CODE §

81.209; TEX.REV.CIV.STAT.ANN. art. 1396–2.23. The

trial court allowed inspection of the records, including those

in the possession of the association's attorney, finding as a

factual matter that the attorney's records constituted part of the

association's records. The court of appeals affirmed, holding

that the attorney-client privilege did not apply in light of the

owners' unqualified right of inspection. 759 S.W.2d at 162.

It is unclear whether the records at issue in Burton were

merely records of the association in the possession of the

attorney, or whether they contained separate confidential

attorney-client communications. To the extent that they

consisted of the former, we agree that they were not protected.

See Brotherton, 851 S.W.2d at 199. However, to the extent

that the court held that the owners' statutory right of inspection

somehow trumped the privilege for confidential attorneyclient communications, we disapprove of its holding, for

the reasons previously discussed. We also disapprove of the

court's dicta that the trial court could, in its discretion, decline

to apply the attorney-client privilege even if all the elements

of Rule 503 were met. See 759 S.W.2d at 162.

Chenault also relies on a study by the Section of Real

Property, Probate and Trust Law of the American Bar

Association, entitled Report of the Special Study Committee

on Professional Responsibility—Counselling the Fiduciary.

See 28 REAL PROP., PROB. & TR.J. 823 (1994). This

study concludes that, while counsel retained by a fiduciary

ordinarily represents only the fiduciary, the counsel should be

allowed to disclose confidential communications relating to

trust administration to the beneficiaries. Id. at 849–850. The

study reasoned as follows:

The fiduciary's duty is to administer

the estate or trust for the benefit

of the beneficiaries. A lawyer whose

assignment is to provide assistance

to the fiduciary during administration

is also working, in tandem with

the fiduciary, for the benefit of

the beneficiaries, and the lawyer

has the discretion to reveal such

information to the beneficiaries, if

necessary to protect the trust estate.

The interests of the beneficiaries

should not be compromised by a

barrier of confidentiality.

Id. Several English common-law cases, and treatises citing

those cases, also support this view. See, e.g., In re Mason,

22 Ch.D. 609 (1883); Talbot v. Marshfield, 2 Dr. & Sm. 549

(1865); Wynne v. Humbertson, 27 Beav. 421 (1858). See also

BOGART, THE LAW OF TRUSTS AND TRUSTEES, § 961

(2nd. ed. 1983); SCOTT, THE LAW OF TRUSTS, § 173 (3rd

ed. 1967).
Huie v. DeShazo, 922 S.W.2d 920 (1996)

64 USLW 2540, 39 Tex. Sup. Ct. J. 288

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

We decline to adopt this approach. We find the countervailing

arguments supporting application of the privilege, discussed

previously, more persuasive. Moreover, Rule 503 contains no

exception applicable to fiduciaries *925 and their attorneys.

If the special role of a fiduciary does justify such an

exception, it should be instituted as an amendment to Rule

503 through the rulemaking process. Ringer testified that he

had the “fullest expectation” that his communications with

Huie would be privileged. This expectation was justified

considering the express language of Rule 503 protecting

confidential attorney-client communications. We should

not thwart such legitimate expectations by retroactively

amending the rule through judicial decision.

[6] We thus hold that, while a trustee must fully

disclose material facts regarding the administration of

the trust, the attorney-client privilege protects confidential

communications between the trustee and his or her attorney

under Rule 503. 4

III

A

[7] We also reject the notion that the attorney-client

privilege does not apply because there was no true

attorney-client relationship between Huie and Ringer. This

argument finds support in some other jurisdictions, where

courts have held that an attorney advising a trustee in

connection with the trustee's fiduciary duties in fact represents

the trust beneficiaries. Accordingly, the trustee has no

privilege to withhold confidential communications from the

beneficiaries. See, e.g., Wildbur v. ARCO Chemical Co., 974

F.2d 631 (5th Cir.1992); United States v. Evans, 796 F.2d

264 (9th Cir.1986); In the Matter of Torian, 263 Ark. 304,

564 S.W.2d 521 (1978); Riggs Nat'l Bank of Washington v.

Zimmer, 355 A.2d 709 (Del.Ch.1976); In re Hoehl's Estate,

181 Wis. 190, 193 N.W. 514 (1923). The court in Riggs

reasoned as follows:

As a representative for the

beneficiaries of the trust which

he is administering, the trustee is

not the real client in the sense

that he is personally being served.

And, the beneficiaries are not

simply incidental beneficiaries who

chance to gain from the professional

services rendered. The very intention

of the communication is to aid

the beneficiaries.... In effect, the

beneficiaries were the clients of [the

trustees' attorney] as much as the

trustees were, and perhaps more so.

355 A.2d at 713–14.

[8] We conclude that, under Texas law at least, the trustee

who retains an attorney to advise him or her in administering

the trust is the real client, not the trust beneficiaries. See

Thompson v. Vinson & Elkins, 859 S.W.2d 617 (Tex.App.

—Houston [1st Dist.] 1993, writ denied) (beneficiary lacked

standing to sue trustee's attorney for malpractice, as no

attorney-client relationship existed between them). “Client”

is defined under Rule 503 as

a person, public officer, or

corporation, association, or other

organization or entity, either public or

private, who is rendered professional

legal services by a lawyer, or who

consults a lawyer with a view to

obtaining professional legal services

from him.

TEX.R.CIV.EVID. 503(a)(1). It is the trustee who is

empowered to hire and consult with the attorney and to act

on the attorney's advice. While Huie owes fiduciary duties to

Chenault as her trustee, he did not retain Ringer to represent

Chenault, but to represent himself in carrying out his fiduciary

duties. Ringer testified, for example, that he has “never given

any legal advice to Mrs. Chenault,” and in fact had only seen

her on a few isolated occasions. It would strain reality to

hold that a trust beneficiary, who has no direct professional

relationship with the trustee's attorney, is the real client. See In

re Prudence–Bonds Corp., 76 F.Supp. 643 (E.D.N.Y.1948);

*926 Shannon v. Superior Court, 217 Cal.App.3d 986, 266

Cal.Rptr. 242, 246 (1990). We thus hold that Huie, rather than

Chenault, was Ringer's client for purposes of the attorneyclient privilege.

B

Chenault also advances an argument on post-submission brief

to this Court that the trust itself was Ringer's real client. This

approach, however, is inconsistent with the law of trusts. Mrs.
Huie v. DeShazo, 922 S.W.2d 920 (1996)

64 USLW 2540, 39 Tex. Sup. Ct. J. 288

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

Huie created the testamentary trusts by devising property

to Huie as trustee. See TEX.PROP.CODE § 112.001(3).

It is Huie that holds the trust property for the benefit of

Chenault, and it is Huie that is authorized to hire counsel. See

TEX.PROP.CODE § 113.018. The term “trust” refers not to

a separate legal entity but rather to the fiduciary relationship

governing the trustee with respect to the trust property. See

TEX.PROP.CODE § 111.004. Ringer thus represented Huie

in his capacity as trustee, not the “trust” as an entity.

IV

[9] Chenault also argues that communications between

Ringer and Huie should be disclosed under the crimefraud exception to the attorney-client privilege. See

TEX.R.CIV.EVID. 503(d)(1). Chenault does not argue that

the alleged breaches of trust for which she is suing are crimes

or fraud within this exception; rather, she contends that the

failure to disclose communications in and of itself is fraud.

Because we have held that the trustee's invocation of the

attorney-client privilege does not violate his or her duty of

full disclosure, we find Chenault's crime-fraud argument to

be without merit.

V

A

[10] The party resisting discovery bears the burden of

proving any applicable privilege. See State v. Lowry, 802

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

this case.

Ringer, who was allowed to give testimony in narrative form,

testified in part as follows:

The questions that were propounded

to me during my deposition by

[Chenault's counsel] I believe were

argumentative, and they sought to

go at the very core of things I

understood, things that I knew, or

even questions that related to whether

something occurred or not, would

go to the essence of the advice

and communication. I have always

handled my work with Mr. Huie

with the fullest expectation that my

correspondence with him and my

communications with him and his

correspondence with me and his

communication with me would be

privileged.... I also have Mr. Huie's

instruction and expectation that his

communications be confidential....

Ringer did not specifically address any of the numerous

certified questions before the court, and thus there is no

testimony about whether or why each particular question calls

for the disclosure of confidential communications. Chenault

thus contends that Huie did not prove “what particular

deposition testimony would entrench upon the alleged

attorney-client privilege....” Huie responds that many of the

questions on their face call for privileged communications,

but at the same time concedes that other questions “arguably

present a close question as to whether confidential attorneyclient communications ... would be compromised.”

The trial court's ruling is based on its conclusion that the

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

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

claimed, on Huie's behalf, the attorney-client privilege. The

court may, in its discretion, receive further evidence from the

parties.

B

Chenault further argues that many of the certified questions

relate to federal tax returns *927 filed by the estate. Relying

on cases interpreting the federal attorney-client privilege, she

contends that the privilege does not apply when an attorney is

employed to prepare tax returns, as the attorney is primarily

performing accounting, rather than legal, services. See, e.g.,

In re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th

Cir.1987); United States v. Davis, 636 F.2d 1028, 1043 (5th

Cir.1981); Canaday v. United States, 354 F.2d 849, 857 (8th

Cir.1966). But see Colton v. United States, 306 F.2d 633, 637

(2d Cir.1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9

L.Ed.2d 499 (1963).
Huie v. DeShazo, 922 S.W.2d 920 (1996)

64 USLW 2540, 39 Tex. Sup. Ct. J. 288

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

The attorney-client privilege embodied in Rule 503 requires

that the communication be “made for the purpose of

facilitating the rendition of professional legal services to the

client....” The trial court, in considering whether Huie has met

his evidentiary burden, should in the first instance determine

whether this element is satisfied as to each of the certified

questions.

VI

[11] The trial court also overruled Huie's attorney-workproduct objections as to communications made before the

date Chenault filed suit. Huie contends that the work-product

privilege protects communications made after 1988, the time

when he contends that he anticipated litigation.

An attorney's “work product” refers to “specific documents,

reports, communications, memoranda, mental impressions,

conclusions, opinions, or legal theories, prepared and

assembled in actual anticipation of litigation or for trial.”

National Tank Co. v. Brotherton, 851 S.W.2d 193, 200

(Tex.1993). The trial court did not rule on Huie's claims

of work-product privilege independently of his claims

of attorney-client privilege; rather, the court summarily

overruled both of these claims as to all pre-litigation

communications. It thus appears that the trial court concluded,

as it did for the attorney-client privilege, that the workproduct privilege simply does not apply in the fiduciaryattorney relationship prior to the time suit is actually filed.

[12] [13] We disagree with this conclusion. The policy

reasons supporting the attorney-client privilege in the context

of the fiduciary-attorney relationship support even more

strongly the work-product privilege, as the latter protects

the confidentiality of work prepared in anticipation of

litigation. There can be little dispute that a fiduciary must

be allowed some measure of confidentiality in defending

against an anticipated suit for breach of fiduciary duty.

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

factor for the work-product privilege is instead whether

litigation was anticipated. While we express no opinion on

whether it was proper for Ringer to be compensated from trust

funds for any work that may have been done in anticipation

of litigation, we hold that any such impropriety would not

abrogate the work-product privilege. See Lasky, Haas, Cohler

& Munter v. Superior Court, 172 Cal.App.3d 264, 218

Cal.Rptr. 205 (1985) (public policy underlying full disclosure

by trustee does not overcome work-product privilege, even

where attorney is compensated from trust corpus).

Because the trial court concluded that the work-product

privilege did not apply to materials or communications

generated prior to the time suit was filed and Huie began

personally compensating Ringer, it appears that the court

never reached the issue of when Huie anticipated litigation.

The court should therefore reconsider Huie's work-product

objections in accordance with this opinion.

VII

[14] [15] Chenault argues that because the legal question

confronting the trial court was an issue of first impression

in Texas, the court could not have “abused its discretion”

in resolving the issue, and thus mandamus relief is

inappropriate. We disagree. “A trial court has no ‘discretion’

in determining what the law is or applying the law to the

facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Consequently, the trial court's erroneous legal conclusion,

even in an *928 unsettled area of law, is an abuse

of discretion. See Lunsford v. Morris, 746 S.W.2d 471

(Tex.1988). Moreover, because the trial court's order compels

the disclosure of potentially privileged information, Huie

lacks an adequate remedy by appeal. See Walker, 827 S.W.2d

at 843.

We therefore conditionally grant the writ of mandamus

and direct the trial court to vacate its July 19, 1995,

discovery order. The trial court shall reconsider Huie's claims

of attorney-client and attorney-work-product privilege in

accordance with this opinion. The court may in its discretion

receive additional evidence from the parties.

Parallel Citations

64 USLW 2540, 39 Tex. Sup. Ct. J. 288

Footnotes
Huie v. DeShazo, 922 S.W.2d 920 (1996)

64 USLW 2540, 39 Tex. Sup. Ct. J. 288

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

982 S.W.2d 371

Supreme Court of Texas.

In re BAY AREA CITIZENS AGAINST

LAWSUIT ABUSE, Relator.

No. 97–0812. | Argued Feb. 3,

1998. | Decided Dec. 10, 1998.

Citizens and taxpayers brought action against city and

nonprofit organizations, claiming improper use of property

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

contributors. The Corpus Christi Court of Appeals denied

nonprofit organization's motion for leave to file writ of

mandamus, and organization petitioned for mandamus relief

from the Supreme Court. The Supreme Court, Abbott, J., held

that: (1) appeal would provide adequate remedy with regard

to plea to jurisdiction; (2) requiring disclosure of donor lists

would violate First Amendment; (3) requiring disclosure of

only corporate contributors would violate First Amendment;

and (4) Texas Non–Profit Corporation Act did not require

disclosure of donor lists.

Petition denied in part and conditionally granted in part.

West Headnotes (18)

[1] Mandamus

Rulings as to pleadings

Nonprofit organization challenging denial of

plea to jurisdiction could not obtain relief by

way of writ of mandamus, in action by city

taxpayers alleging improper use of property and

public funds, in absence of any showing that

situation was extraordinary one in which remedy

by appeal was inadequate.

8 Cases that cite this headnote

[2] Mandamus

Remedy by Appeal or Writ of Error

A party seeking mandamus relief must establish

that it has no adequate remedy by appeal.

13 Cases that cite this headnote

[3] Mandamus

Modification or vacation of judgment or

order

When a discovery order violates First

Amendment rights, the party seeking mandamus

generally has no adequate remedy by appeal.

U.S.C.A. Const.Amend. 1.

13 Cases that cite this headnote

[4] Constitutional Law

Freedom of Association

Freedom of association for the purpose of

advancing ideas and airing grievances is a

fundamental liberty guaranteed by the First

Amendment. U.S.C.A. Const.Amend. 1.

1 Cases that cite this headnote

[5] Constitutional Law

Freedom of Association

Because compelled disclosure of the identities

of an organization's members or contributors

may have a chilling effect on the organization's

contributors as well as on the organization's

own activity, the First Amendment requires that

a compelling state interest be shown before a

court may order disclosure of membership in

an organization engaged in the advocacy of

particular beliefs. U.S.C.A. Const.Amend. 1.

1 Cases that cite this headnote

[6] Constitutional Law

Freedom of Association

Constitutional Law

Political Rights and Discrimination

It is immaterial to scope of First Amendment

protection whether the beliefs sought to be

advanced by association pertain to political,

economic, religious or cultural matters. U.S.C.A.

Const.Amend. 1.

Cases that cite this headnote
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

[7] Constitutional Law

Freedom of Association

State action which may have the effect of

curtailing the freedom to associate is subject to

the closest scrutiny. U.S.C.A. Const.Amend. 1.

Cases that cite this headnote

[8] Constitutional Law

Freedom of Association

To secure an order preventing the disclosure

of its donor lists, organization bears the initial

burden to make a prima facie showing that

disclosure orders will burden First Amendment

rights. U.S.C.A. Const.Amend. 1.

Cases that cite this headnote

[9] Constitutional Law

Freedom of Association

Showing of harm to First Amendment rights

that is required to protect organization's donor

lists from disclosure is light; evidence offered

need show only a reasonable probability that

the compelled disclosure will subject donors

to threats, harassment, or reprisals from either

government officials or private parties. U.S.C.A.

Const.Amend. 1.

3 Cases that cite this headnote

[10] Constitutional Law

Discovery requests and subpoenas

Privileged Communications and

Confidentiality

Constitutional privileges in general

Evidence of past boycott threats made against

businesses that supported nonprofit organization

satisfied organization's initial burden to make

a prima facie showing that discovery orders

requiring disclosure of donor lists would

burden First Amendment rights, thus requiring

compelling state interest to justify such orders.

U.S.C.A. Const.Amend. 1.

2 Cases that cite this headnote

[11] Constitutional Law

Particular Issues and Applications

When a litigant seeks, through the power of

the courts, to discover information protected

by the First Amendment, the litigant must

make a showing of need beyond its mere

relevance; litigant seeking such information

must demonstrate that it is substantially related

to a compelling government interest. U.S.C.A.

Const.Amend. 1.

Cases that cite this headnote

[12] Constitutional Law

Discovery requests and subpoenas

Privileged Communications and

Confidentiality

Constitutional privileges in general

Nonprofit organization's donor lists did not have

a sufficient nexus to the taxpayers' interest in

proving wrongful use of property and public

funds to be subject to discovery, consistent with

First Amendment, in suit by taxpayers; identity

of private contributors was not required to show

improper use of public funds or use of property

in violation of conditions in deed. U.S.C.A.

Const.Amend. 1.

Cases that cite this headnote

[13] Constitutional Law

Discovery requests and subpoenas

Pretrial Procedure

Order

Discovery orders requiring disclosure of

nonprofit organization's donor lists would

burden First Amendment, due to threats

of political and economic reprisals, even

if disclosure were limited to corporate

contributors, thus precluding discovery in

absence of compelling state interest; besides

discouraging corporations from donating

to organization, disclosure of corporate

contributors' names would burden organization's

and its individual contributors' rights of

association. U.S.C.A. Const.Amend. 1.
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

1 Cases that cite this headnote

[14] Corporations and Business Organizations

Books and records

Nonprofit organization's obligation under Texas

Non–Profit Corporation Act to prepare and

disclose “financial records” did not require

disclosure of donor lists. Vernon's Ann.Texas

Civ.St. art. 1396–2.23A.

3 Cases that cite this headnote

[15] Constitutional Law

Avoidance of constitutional questions

Court should, if possible, interpret statute in a

manner that avoids constitutional infirmities.

4 Cases that cite this headnote

[16] Statutes

Language

When interpreting a statute, court begins with the

words of the statute itself.

10 Cases that cite this headnote

[17] Statutes

Intent

Courts look to legislative intent when construing

a statute.

8 Cases that cite this headnote

[18] Statutes

Language and intent, will, purpose, or

policy

Statutes

Legislative History

Statutes

Construction in View of Effects,

Consequences, or Results

To determine legislative intent, courts may

consider the language of the statute, the

legislative history, the nature and object to

be obtained, and the consequences that would

follow from alternate constructions.

18 Cases that cite this headnote

Attorneys and Law Firms

*372 William W. Pierson, Myra K. Morris, Corpus Christi,

Chester J. Makowski, Houston, for Relator.

Darrell L. Barger, Patricia ann Shackelford, Gonzalo Joseph

Barrientos, Corpus Christi, David W. Holman, Houston,

David L. Perry, Corpus Christi, for Respondent.

Opinion

ABBOTT, Justice, delivered the opinion for a unanimous

Court.

In this mandamus proceeding, Bay Area Citizens Against

Lawsuit Abuse (“BACALA”) complains of two discovery

orders requiring BACALA to produce certain documents and

answer certain deposition questions concerning the identities

of its contributors. BACALA further complains that the trial

court improperly denied its plea to the jurisdiction. We find

that BACALA has failed to show that it lacks an adequate

remedy by appeal from the trial court's denial of the plea to

the jurisdiction; however, we conditionally grant mandamus

relief with respect to those portions of the discovery orders

requiring BACALA to disclose its contributors' identities.

*373 I

Background

In 1950, the City of Corpus Christi deeded property located

at 1201 N. Shoreline to the Corpus Christi Chamber of

Commerce. The deed provided that the Chamber would:

(a) ... erect upon the property herein conveyed a permanent

building ... to house said Chamber ...;

(b) ... maintain ... a permanent all-year Tourist Information

Bureau in said Building, and provide such literature as

is customarily employed ... extolling the benefits and

advantages of the City of Corpus Christi;

(c) ... provide in said building such space ..., for

the displaying of exhibits, depicting the commercial,
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

industrial, agricultural, mineral and maritime assets of the

City....

The deed also contained the following reversion clause:

[I]n the event said grantee shall ...

permit the use of said land or premises,

or any part thereof, for any purpose

other than herein provided without

the written permission of the grantor,

the property conveyed hereby together

with all improvements thereon shall

revert to the City of Corpus Christi....

In accordance with the deed, the Chamber built and has

maintained a building on the property.

In response to the business community's support for tort

reform, the Chamber created a lawsuit abuse committee. In

1994, the Chamber entered a joint venture agreement merging

its lawsuit abuse committee with BACALA.

BACALA is a non-profit corporation organized under Texas

law and qualifying under section 501(c)(6) of the Internal

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

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.”

BACALA has a board of trustees, but does not have members.

It does, however, have contributors.

Soon after the BACALA/Chamber joint venture, the

Chamber merged into the Greater Corpus Christi Business

Alliance (“the Alliance”). The Alliance is a private, non-profit

Texas corporation comprising the Chamber, the Convention

and Visitors Bureau, and the Economic Development

Corporation. Pursuant to a consulting agreement with the

City, the Alliance took responsibility for tourist promotion,

began receiving substantial tax monies from the City to

promote convention and tourism, 1 and moved into the

Chamber building on the Shoreline property.

Although BACALA maintained a separate identity from the

Alliance, the Alliance allowed BACALA to use rent-free

office space on the Shoreline property from July 1994 to April

1997. During this time, BACALA used an Alliance telephone

extension and other utilities, reimbursing the Alliance for

long distance and postage. The building was divided such that

departments funded by public tax monies were located on one

side of the building while privately funded entities, including

BACALA, were on the other. Other entities that have

occupied the Shoreline building include Beautify Corpus

Christi, SCORE, and the Minority Business Opportunity

Commission.

A few citizens and taxpayers of Corpus Christi (collectively

“taxpayers”), sued the Alliance, BACALA, and the City of

Corpus Christi seeking to restrain and enjoin BACALA's

and the Alliance's allegedly improper use of the Shoreline

property and public tax revenues “for private special

interests.” The taxpayers allege that the City's transfer

of public funds to the Alliance and its authorizing the

Alliance's and BACALA's use of the Shoreline property

constitute “the granting of public monies and other things

of value to the Defendant corporations for special private

purposes” in violation of Article III, Section 52 of the Texas

Constitution.

2

 The *374 taxpayers also seek to recover all

allegedly illegal and unauthorized payments previously made

by the City to the Alliance and BACALA, and to determine

whether the Shoreline property has reverted to the City under

the terms of the deed.

II

Procedural History

BACALA filed a plea to the jurisdiction, arguing that

the taxpayers lacked standing to sue BACALA. BACALA

argued that because the taxpayers could not properly sue for

the recovery of past expenditures and because BACALA had

already vacated the Shoreline property, the trial court lacked

subject matter jurisdiction. The trial court denied BACALA's

plea.

During discovery, the taxpayers noticed the deposition of

Kim Keef, BACALA's executive director and designated

representative, and attached a subpoena duces tecum. In

response, BACALA filed a motion to quash and for

protective order, arguing that the taxpayers' claim for illegal

expenditures of monies by the Alliance did not directly

involve BACALA, and therefore BACALA should not be

subject to harassing and burdensome discovery requests. The

trial court ordered BACALA to produce Keef for deposition

and to preserve all objections at that time. The court also ruled

that disputes concerning the production of documents should
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

be deferred until after the deposition. The deposition went

forward as ordered; however, BACALA's counsel objected

to approximately thirty questions on the basis that they

violated BACALA's constitutional rights. The taxpayers filed

a motion to compel answers to the deposition questions,

arguing that the information sought concerning, among other

things, BACALA's sources of funding and contributions was

necessary “to determine the propriety of the use of public

funds and public property.”

The taxpayers also served a deposition on written questions

on BACALA's custodian of records, requesting a broad range

of BACALA's financial documents. BACALA produced

some of the requested documents; however, it filed a motion

for protective order asserting that some of the discovery

requests violated the United States and Texas Constitutions,

were overly broad, unduly burdensome, not calculated to lead

to the discovery of admissible evidence, not relevant, and

exceeded the scope of permissible discovery. In response,

the taxpayers filed a motion to compel production of all

documents and things sought in the subpoena duces tecum

and the deposition on written questions. The motion to

compel included BACALA's contributor lists.

The trial court ordered Keef to answer certain questions

concerning BACALA's mailing and contributor lists, the

creative sources and funding for BACALA's advertisements,

any affiliation with other Citizens Against Lawsuit Abuse

organizations, any use of out-of-state phone banks, and any

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

for this litigation.

BACALA filed a motion for leave to file a writ of

mandamus with the Thirteenth Court of Appeals. The court

of appeals granted an emergency stay and requested briefing,

but subsequently denied the motion. BACALA then filed

a petition for writ of mandamus with this Court. In its

petition, BACALA complains of (1) the trial court's order

denying BACALA's plea to the jurisdiction, (2) the order

that BACALA produce a list of donors and their donation

amounts, and (3) the order that Keef answer deposition

questions concerning BACALA's donor list.

III

Plea to the Jurisdiction

[1] BACALA asserts that the taxpayers do not have standing

to bring suit against BACALA and therefore the trial court

abused its discretion by denying its plea to the jurisdiction.

We hold that BACALA is not entitled to mandamus relief

for the trial *375 court's denial of its plea to the jurisdiction

because BACALA has failed to show that it lacks an adequate

remedy by appeal.

[2] A party seeking relief must establish that it has no

adequate remedy by appeal. See Walker v. Packer, 827

S.W.2d 833, 840 (Tex.1992). Generally, “appeal is an

adequate remedy to address a trial court's denial of a plea

to the jurisdiction, and therefore a writ of mandamus will

not issue to correct it.” Canadian Helicopters Ltd. v. Wittig,

876 S.W.2d 304, 306, 308–09 (Tex.1994); see also Bell

Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955

(Tex.1990) (quoting Abor v. Black, 695 S.W.2d 564, 566–

67 (Tex.1985)). Although there may be some extraordinary

situations in which remedy by appeal is inadequate and

mandamus relief is justified, BACALA has made no showing

that this case involves such a situation. Bell Helicopter, 787

S.W.2d at 955. Because BACALA has failed to show that it

lacks an adequate remedy by appeal for the trial court's denial

of its plea to the jurisdiction, we need not address whether

the trial court abused its discretion in denying the plea. See

Canadian Helicopters, 876 S.W.2d at 310.

IV

Discovery Orders

BACALA complains of the trial court's discovery orders

requiring BACALA to provide deposition testimony and

produce documents disclosing the names of BACALA's

contributors. 3 BACALA argues that the names of its

contributors are not relevant to the litigation and are

protected by the associational rights guaranteed by the First

Amendment of the United States Constitution. 4

[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,

958 (Tex.1994) (citing Walker, 827 S.W.2d at 843). Because

the portions of the trial court's orders directing BACALA to
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

disclose its contributors' names violate the First Amendment,

we conditionally grant mandamus relief.

A

Freedom of Association

[4] [5] [6] [7] BACALA asserts that the trial court's

orders compelling disclosure of its contributors' names

impermissibly burden both its own and its contributors' First

Amendment rights. Freedom of association for the purpose of

advancing ideas and airing grievances is a fundamental liberty

guaranteed by the First Amendment. 5 NAACP v. Alabama,

357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

Compelled disclosure of the identities of an organization's

members or contributors may have a chilling effect on the

organization's contributors as well as on the organization's

own activity. See Buckley v. Valeo, 424 U.S. 1, 66–68, 96

S.Ct. 612, 46 L.Ed.2d 659 (1976). For this reason, the First

Amendment requires that a compelling state interest be shown

before a court may order disclosure of membership in an

organization engaged in the advocacy of particular beliefs.

Tilton, 869 S.W.2d at 956 (citing NAACP, 357 U.S. at 462–

63, 78 S.Ct. 1163). “ ‘[I]t is immaterial whether the beliefs

sought to be advanced by association pertain to political,

economic, religious or cultural matters, and state action which

may have the *376 effect of curtailing the freedom to

associate is subject to the closest scrutiny.’ ” Id. (quoting

NAACP, 357 U.S. at 460–61, 78 S.Ct. 1163).

B

Burden on Right of Association

[8] [9] To secure an order preventing the disclosure of

its donor lists, BACALA bears the initial burden to make a

prima facie showing that the trial court's orders will burden

First Amendment rights. See Buckley, 424 U.S. at 74, 96

S.Ct. 612; New York State Nat'l Org. for Women v. Terry,

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.

Local 375, Plumbers Int'l Union, 860 F.2d 346, 349–50

(9th Cir.1988). Many courts have grappled with the question

of what constitutes a sufficient showing of harm to First

Amendment rights. Brock, 860 F.2d at 350 n. 1 (listing cases).

In order to guarantee protection of a party's First Amendment

rights, however, the burden must be light. Terry, 886 F.2d at

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

the proof of injury to assure a fair consideration of [its]

claim.” Buckley, 424 U.S. at 74, 96 S.Ct. 612. “The evidence

offered need show only a reasonable probability that the

compelled disclosure of a party's contributors' names will

subject them to threats, harassment, or reprisals from either

Government officials or private parties.” Id. The proof may

include “specific evidence of past or present harassment of

members due to their associational ties, or of harassment

directed against the organization itself.” Id.

[10] At the hearing on the taxpayers' motion to compel and

BACALA's motion for protective order, BACALA submitted

several letters as evidence that its supporters had been

subject to boycott threats. The first letter was a law firm's

resignation from the Chamber because of the Chamber's

position concerning tort reform. A second letter prevailed

upon local lawyers to urge their clients not to do business with

BACALA supporters, listing Chamber members who voted

to support BACALA and major contributors to BACALA.

This letter stated that BACALA “is basically about limiting

and destroying our right to trial by jury.” Another letter, from

a lawyer to a local district judge, explained that the lawyer

would not be contributing to a judicial conference because

the conference would be held at a barbecue restaurant owned

by a BACALA supporter. This letter referred to BACALA as

“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

“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

of the U.S. Lexington Museum on the Bay, stated that the

lawyer would not support the association because its deputy

executive director was BACALA's treasurer. BACALA also

offered testimonial evidence that many contributors donate

money on an anonymous basis and that some fear an adverse

impact on their businesses if they are identified as BACALA

supporters.

The taxpayers respond that they introduced evidence to

show that disclosure would result in no such reprisals. For

example, one of the taxpayers' lawyers, the author of the

letter concerning the barbecue restaurant, testified that he had

recently eaten at the barbecue restaurant and that he and the
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

restaurant owner were long-time friends. The taxpayers do

not dispute, however, that the threats were made or that they

were intended when made; they merely claim that the threats

should no longer be taken seriously.

The taxpayers further argue that BACALA's evidence of

retaliation is too speculative to satisfy its burden of proof.

See Buckley, 424 U.S. at 70, 96 S.Ct. 612. In Buckley, the

Court concluded that the appellants' evidence of retaliation

was “highly speculative” and therefore NAACP v. Alabama

was inapposite. Id. at 69–73, 96 S.Ct. 612. The Buckley

appellants relied primarily on the “clearly articulated fears of

individuals, well experienced *377 in the political process”

and testimonial evidence that “one or two persons refused to

make contributions because of the possibility of disclosure.”

Id. at 71–72, 96 S.Ct. 612. The appellants offered no stronger

evidence of threats or harassment. Id. at 72 n. 88, 96 S.Ct. 612.

BACALA's evidence is stronger than that offered by the

appellants in Buckley. As opposed to mere subjective

fears and testimony that some donors would refuse to

donate, BACALA's evidence demonstrates that individuals

opposed to BACALA's agenda had boycotted the business

establishments of persons affiliated with BACALA and

encouraged others to do the same. This is the type of “specific

evidence of past or present harassment of members due to

their associational ties” and “harassment directed against the

organization” recognized by the Court in Buckley. Buckley,

424 U.S. at 74, 96 S.Ct. 612. The evidence shows actual,

non-speculative hostility and demonstrates a reasonable

probability of economic reprisals against contributors that

may burden First Amendment rights. Cf. NAACP, 357 U.S.

at 462, 78 S.Ct. 1163. Under such circumstances, compelled

disclosure of BACALA's contributor lists may dissuade

contributors and hinder BACALA's and its contributors'

ability to pursue collective advocacy of their beliefs. See id.

at 462–63, 78 S.Ct. 1163.

The taxpayers also argue that the alleged harm falls short

of the type of retaliation shown by parties in other cases

such as Brown v. Socialist Workers '74 Campaign Comm.,

459 U.S. 87, 99, 103 S.Ct. 416, 74 L.Ed.2d 250 (1982), and

NAACP v. Alabama, in which courts protected associations

from disclosing supporters' names. In Brown, for example,

the campaign committee introduced evidence of harassment

including threatening phone calls, hate mail, destruction

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.

However, such a factual record of violent past harassment

is not the only situation in which courts have recognized a

potential infringement on an association's First Amendment

rights. Local 1814, Int'l Longshoremen's Assoc. v. Waterfront

Comm'n of New York Harbor, 667 F.2d 267, 271 (2d

Cir.1981); see also Community–Service Broadcasting of

Mid–America, Inc. v. Federal Communications Comm'n,

593 F.2d 1102, 1118 (D.C.Cir.1978) (“The absence of

such concrete evidence [of harassment], however, does not

mandate dismissal of the claim out of hand; rather it is

the task of the court to evaluate the likelihood of any

chilling effect....”). In Local 1814, the court found it sufficient

that longshoremen contributors would perceive a connection

between contributing to a political fund and being called

before the Waterfront Commission and would therefore

discontinue their contributions. Local 1814, 667 F.2d at 272;

see also Tilton, 869 S.W.2d at 956 (holding trial court's order

of production of ministry's contributor lists unconstitutional

when requests were aimed at persons sharing particular

beliefs and the harm alleged was that contributors could be

subpoenaed for questioning). And in Pollard v. Roberts, the

Supreme Court affirmed the district court's recognition of the

potential infringement on First Amendment rights that could

result from political and economic reprisals, even though no

factual showing of such reprisals had been made:

While there is no evidence of record in this case that

any individuals have as yet been subjected to reprisals

on account of the contributions in question, it would be

naive not to recognize that the disclosure of the identities

of contributors ... would subject at least some of them to

potential economic or political reprisals of greater or lesser

severity....

... Disclosure or threat of disclosure well may tend

to discourage both membership and contributions thus

producing financial and political injury to the party

affected.

Pollard v. Roberts, 283 F.Supp. 248, 258 (E.D.Ark.), aff'd.

per curiam, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968)

(emphasis added).

In sum, BACALA has offered factual, non-speculative

evidence of economic and political reprisals against itself

and its contributors. This evidence is sufficient to satisfy its

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

*378 C

Compelling State Interest

[11] [12] The taxpayers argue that the information covered

by the trial court's orders is relevant to their case and

thus discoverable. When a litigant seeks, through the power

of the courts, to discover information protected by the

First Amendment, the litigant must make a showing of

need beyond its mere relevance. See, e.g., Federal Election

Comm'n v. Larouche Campaign, 817 F.2d 233, 234–35 (2d

Cir.1987); Tilton, 869 S.W.2d at 956. The litigant seeking

information must demonstrate that the information required

to be disclosed is substantially related to a compelling

government interest. See Buckley, 424 U.S. at 64, 96 S.Ct.

612; Gibson v. Florida Legislative Investigation Comm., 372

U.S. 539, 546, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); Ex parte

Lowe, 887 S.W.2d 1, 3 (Tex.1994).

The taxpayers admit that their interest in BACALA's

donor information “is based solely on the relevance such

information has to the disputed issues in this lawsuit—the

proper use of public funds and the nature of the use being

made of public property.” We hold that the taxpayers have

failed to show a substantial relation between the identity of

BACALA's contributors and the taxpayers' goal of exposing

and preventing the alleged misuse of the property and public

funds.

The taxpayers assert that BACALA's donor information is

necessary to determine whether public monies and property

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.

In their motion to compel, the taxpayers argued that they

sought the financial records of BACALA and “the member

entities of the Alliance” to “reconstruct the path of public,

tax payer money through the various accounts held by the

Alliance and its member entities for the years 1994, 1995 and

1996.” However, the names of BACALA's contributors other

than the Alliance are not relevant to such a determination,

especially in light of the heightened relevance standard

required by the Constitution. See Pollard, 283 F.Supp. at 257

(“Even if it be conceded that defendant's investigation might

be advanced if he knew that certain individuals had made

contributions ..., we do not think that that fact would make

relevant the disclosure of all of the contributors....”). Further,

the Alliance has already provided records of any monies it has

given to BACALA.

Concerning the use of the property, the taxpayers assert

that if the source of BACALA's funding was not the local

citizenry of Corpus Christi, but instead was large, out-oftown corporations anticipating litigation in the area and

attempting to influence the public and the local jury pool,

that would be “highly relevant to the issue of whether public

property and funds are being misused.” They also argue that

the list of contributors is relevant to debunk BACALA's

position that its activities benefit local business and industry.

Assuming that the taxpayers' claims are tenable, disclosure of

the contributors' names is still not justified. The location of

BACALA's contributors does not help to determine whether

public property and funds are being misused: where the

money comes from sheds no light on how it is used. Nor do

the location and identity of BACALA's contributors bear a

substantial relation to a determination of whether the Alliance

has violated the deed, causing the property to revert to the

City. Moreover, the remedy sought for the alleged misuse

of the property is to prevent BACALA's further use of the

building. BACALA has already vacated the property. Thus,

disclosure of BACALA's contributors' names simply does

not have a sufficient nexus to the taxpayers' interest in

proving BACALA's and the Alliance's alleged wrongful use

of the property and public funds. See Pollard, 283 F.Supp. at

258 (“[I]n order to overcome the prohibitions of [the First]

Amendment the defendant was required to make a far greater

showing of relevancy and public interest in the disclosure

than has been made here.”). Accordingly, we hold that the

trial court abused its discretion by ordering disclosure of

BACALA's *379 donor lists. 6

D

Corporate Donors

[13] The taxpayers alternatively contend that even if the

donor lists in general are protected from disclosure, the

names of BACALA's corporate donors may still be disclosed

because corporations do not have First Amendment rights.

The taxpayers argue that there is “no freedom of association

claim for corporate donors” because “a corporation, being

a creature of State, has no ‘personal’ constitutional rights

that can be asserted on its behalf.” To support their position,

the taxpayers cite Super X Drugs of Texas, Inc. v. State,
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

505 S.W.2d 333, 337 (Tex.Civ.App.—Houston [14th Dist.]

1974, no writ), in which the court held that a corporation has

no Fifth Amendment right against self-incrimination because

that right is a personal right that belongs to individuals,

not corporations. Thus, the taxpayers conclude, “BACALA

cannot assert ‘freedom of association’ claims on behalf of

its corporate donors and mandamus cannot extend to those

donors.”

The Supreme Court's decision in First National Bank of

Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d

707 (1978), undermines the taxpayers' argument. In Bellotti,

the Supreme Court rejected the argument that corporations,

as creatures of the state, have only those rights granted

them by the state, noting that “such an extreme position

could not be reconciled either with the many decisions

holding state laws invalid under the Fourteenth Amendment

when they infringe protected speech by corporate bodies,

or with decisions affording corporations the protection of

constitutional guarantees other than the First Amendment.”

Id. at 778 n. 14, 98 S.Ct. 1407 (citations omitted). The

Court further recognized that “[c]orporate identity has been

determinative in several decisions denying corporations

certain constitutional rights, such as the privilege against

compulsory self-incrimination, ... but this is not because the

States are free to define the rights of their creatures without

constitutional limit.” Id. at 779 n. 14, 98 S.Ct. 1407.

The taxpayers' argument is further undermined by the

Supreme Court's holding that “[t]he proper question ... is

not whether corporations ‘have’ First Amendment rights and,

if so, whether they are coextensive with those of natural

persons. Instead, the question must be whether the [state

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

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

protect.” Id.

When considering whether disclosure will burden First

Amendment rights, the focus should be broader than the

rights of the corporate contributors alone. Cf. Bellotti,

435 U.S. at 776, 98 S.Ct. 1407 (“The Constitution often

protects interests broader than those of the party seeking

their vindication.”). Besides discouraging corporations

from donating to BACALA, disclosure of the corporate

contributors' names would also burden BACALA's and its

individual contributors' rights of association. BACALA's

evidence of political and economic reprisals against its

supporters is sufficient to indicate a reasonable probability

that disclosure of its corporate contributors' names would

decrease the number of contributions made to BACALA

by those corporations. See Pollard, *380 283 F.Supp.

at 258 (“Disclosure or threat of disclosure well may

tend to discourage both membership and contributions

thus producing financial and political injury to the party

affected.”); United States Servicemen's Fund v. Eastland,

488 F.2d 1252, 1265–68 (D.C.Cir.1973) (when disclosure

results in a drop in contributions, that disclosure violates

a corporation's First Amendment rights of association and

assembly), rev'd on other grounds, 421 U.S. 491, 95 S.Ct.

1813, 44 L.Ed.2d 324 (1975). Cf. NAACP, 357 U.S. at

459–60, 78 S.Ct. 1163 (“The reasonable likelihood that

the Association itself through diminished financial support

and membership may be adversely affected if production is

compelled is a further factor pointing towards our holding

that petitioner has standing to complain of the production

order on behalf of its members.”). This, in turn, would

burden the rights of individuals who were not dissuaded from

contributing. See Medrano v. Allee, 347 F.Supp. 605, 619

(S.D.Tex.1972) (the right to assemble is in part a collective

right, and abridgment of that right by dissuading others from

exercising it effectively curtails its exercise by those who are

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).

As we stated previously, the taxpayers have failed to show

a substantial relation between the identity of BACALA's

contributors, corporate or otherwise, and the alleged misuse

of the property to justify this burden on First Amendment

rights.

E

The Texas Non–Profit Corporation Act

[14] The taxpayers also argue that article 1396–2.23A of

the Texas Non–Profit Corporation Act 7 requires BACALA

to disclose all of its financial information, including the

identities of its contributors. The taxpayers further argue

that since BACALA voluntarily incorporated as a nonprofit

corporation, it waived any constitutional rights it might have

in protecting the identity of its contributors.
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

BACALA agrees that some financial records, such as

financial statements and tax returns, are subject to disclosure

under article 1396–2.23A. BACALA has produced those

records to the taxpayers. However, BACALA and amici argue

that article 1396–2.23A is unconstitutional if it also requires

disclosure of BACALA's contributors. 8

[15] We should, if possible, interpret the statute in a manner

that avoids constitutional infirmities. Barshop v. Medina

County Underground Water Conservation Dist., 925 S.W.2d

618, 629 (Tex.1996). We must thus determine whether the

interpretation of article 1396–2.23A urged by the taxpayers

would render the statute unconstitutional.

[16] [17] [18] When interpreting a statute we begin

with the words of the statute itself. Smith v. Clary Corp.,

917 S.W.2d 796, 799 (Tex.1996). When interpreting civil

statutes, we give words their ordinary meaning. TEX. GOV'T

CODE § 312.002. Courts also look to legislative intent when

construing a statute. Union Bankers Ins. Co. v. Shelton,

889 S.W.2d 278, 280 (Tex.1994). To determine legislative

intent, courts may consider the language of the statute, the

legislative history, the nature and object to be obtained,

and the consequences that would follow from alternate

constructions. Id.; see also TEX. GOV'T CODE § 312.005

(“In interpreting a statute, a court shall ... consider at all times

the old law, the evil, and the remedy.”).

Article 1396–2.23A is entitled “Financial Records and

Annual Reports.” It states that non-profit corporations

“shall maintain current true and accurate financial records

with full and correct entries made with respect to all

financial transactions of the corporation, including all income

and expenditures, in accordance with generally accepted

accounting practices.” TEX.REV.CIV. STAT. ANN.. art.

1396–2.23A(A). Based on these records, a board of directors

must annually prepare or *381 approve a report of the

financial activity of the corporation for the preceding year. Id.

art. 1396–2.23A(B). In addition, article 1396–2.23A requires

that “[a]ll records, books, and annual reports of the financial

activity of the corporation shall be kept at the registered office

or principal office of the corporation ... and shall be available

to the public for inspection and copying there during normal

business hours.” Id. art. 1396–2.23A(C).

The statute's directive that non-profit corporations maintain

“financial records with full and correct entries made with

respect to all financial transactions of the corporation,

including all income and expenditures,” suggests that more

than just the amount received must be maintained. Id. art.

1396–2.23A(A). However, the statute does not expressly

require that contributors' identities be made available to the

public.

Looking to legislative intent, it appears that article 1396–

2.23A was intended to remedy a specific problem: the lack

of accountability regarding a non-profit corporation's use of

funds solicited from the public. Texas Appellate Practice

& Educ. Resource Ctr. v. Patterson, 902 S.W.2d 686, 689

(Tex.App.—Austin 1995, writ denied). The bill analysis

provides relevant background information regarding article

1396–2.23A's purpose:

During the last interim, the author

attempted to conduct a study of a

non-profit drug rehabilitation program

in Houston. This program had been

soliciting funds from the public

and portrayed itself as a charitable

endeavor. However, there were rumors

that its funds were being used for

investments in such businesses as

nightclubs. During the six month

investigation, the author of this bill

was unable to determine how the

program's funds were being used

because the records were inadequate. A

major recommendation from the study

was that Texas law should be amended

to require non-profit organizations

soliciting funds from the public to keep

adequate records showing how the

funds were actually being used.

SENATE COMM. ON BUS. & INDUS., BILL ANALYSIS,

Tex. S.B. 857, 65 th Leg., R.S. (1977) (emphasis added).

Thus, the purpose of the legislation was not to force non-profit

corporations to identify the exact sources of their income;

rather, it was to expose the nature of the expenditures of

that money once received from the public and to make nonprofit organizations accountable to their contributors for those

expenditures. Thus, the seemingly broad scope of the statute's

language is not matched by the legislative intent behind the

statute.

The statute's uncertainty as to whether it requires disclosure

of contributors leads us to conclude that it does not. The

statute can be upheld as constitutional when interpreted as

not requiring disclosure of contributors' names. If, however,
In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371 (1998)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

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

in those circumstances. 9 In BACALA's case, compulsory

disclosure would encroach on freedom of association.

BACALA and amici are correct that the statute cannot

constitutionally be applied to BACALA because there is

no substantial relation between the information sought by

the taxpayers (BACALA's contributors' identities) and a

compelling state interest. 10 Because we must construe

the Act to avoid such constitutional infirmities, Barshop,

925 S.W.2d at 629, we hold that the phrase “financial

records” does not include the names of contributors or

members. Therefore, article 1396–2.23A does not require

*382 the blanket disclosure of contributors' names for public

inspection.

* * * * *

In sum, we deny BACALA's request for mandamus relief

from the trial court's denial of its plea to the jurisdiction

because BACALA has failed to show that it lacks an adequate

remedy by appeal. However, the trial court's orders requiring

BACALA to produce the names of its donors violates the

First Amendment and BACALA has no adequate remedy

by appeal. Therefore, we conditionally grant BACALA's

petition for writ of mandamus in part. We direct the trial

court to vacate those portions of its discovery orders requiring

BACALA to disclose the identities of its donors. We are

confident that the district court will comply; only if its fails

to promptly do so will the writ issue.

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

106 S.W.3d 788 (Mem)

Court of Appeals of Texas,

Texarkana.

In re Catrena Roberts CAMPBELL.

No. 06–03–00060–CV. | Submitted

May 12, 2003. | Decided May 13, 2003.

Original Habeas Corpus Proceeding.

Attorneys and Law Firms

Melvyn Carson Bruder, Dallas, for relator.

David M. Stagner, Stagner & Corley, Sherman, Ed T. Smith,

Bonham, for real party in interest.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Catrena Roberts Campbell filed a petition with this Court

seeking issuance of a writ of habeas corpus. Her petition was

based on an order of contempt entered in connection with a

child custody proceeding. The order found her in contempt

for twenty-eight violations and sentenced her to thirty days

on each act of contempt, but then suspended the imposition

of those sentences if Campbell cooperated with a therapist.

The portion of the order holding Campbell in contempt and

imposing punishment has now been vacated by the trial court.

Accordingly, the order about which this original proceeding

complains no longer exists, and the petition is moot.

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.
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (1985)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

700 S.W.2d 916

Supreme Court of Texas.

Sue JOHNSON, Relator,

v.

The Honorable FOURTH COURT

OF APPEALS, Respondent.

No. C–4100. | Dec. 11, 1985.

Rape victim sued guard and agency providing security for

apartment complex for negligence. The jury found guard and

agency negligent, and that guard's conduct was proximate

cause of assault but that security agency's was not. Jury

did not answer damage issue and court granted plaintiff's

motion for mistrial. Security agency sought mandamus in

Court of Appeals. The San Antonio Court of Appeals, Fourth

Supreme Judicial District, Antonio G. Cantu, J., conditionally

granted mandamus, in response to which trial court rendered

judgment that plaintiff take nothing. Trial court granted

plaintiff's timely motion for new trial, and security agency

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

of mandamus ordering trial court to rescind grant of new trial

was improper.

So ordered.

West Headnotes (3)

[1] Mandamus

Nature and Scope of Remedy in General

Mandamus issues only to correct clear abuse

of discretion or violation of duty imposed by

law when there is no other adequate remedy

by law, and Court of Appeals acts in excess of

its writ power when it grants mandamus relief

absent these circumstances, under V.T.C.A.,

Government Code § 22.221(b).

612 Cases that cite this headnote

[2] Mandamus

Matters of Discretion

Mandamus will not issue to control action

of lower court in matter involving discretion,

therefore relator, attacking ruling of trial court as

abuse of discretion must establish that facts and

law permit trial court to make but one decision.

372 Cases that cite this headnote

[3] Mandamus

Motions and Orders in General

Mandamus

Scope of Inquiry and Powers of Court

Supreme Court had to make independent inquiry

as to whether trial court's order was so arbitrary,

unreasonable or based upon so gross and

prejudicial an error of law as to establish abuse

of discretion when reviewing Court of Appeals'

decision on mandamus, and writ of mandamus

would issue only to correct clear abuse of

discretion.

634 Cases that cite this headnote

Attorneys and Law Firms

*916 Law offices of Pat Maloney, Janice Maloney, San

Antonio, for relator.

House & House, C.G. House, San Antonio, for respondent.

ORIGINAL MANDAMUS

McGEE, Justice.

The question in this mandamus proceeding is whether a trial

court has discretion to grant a new trial in the interest of

justice. We hold that the granting of a new trial for that reason

is within the trial court's discretion and conditionally order the

court of appeals to vacate its previous judgment.

Relator, Sue Johnson, was raped and brutally beaten in her

apartment. She sued the security guard on duty the night of

the incident and the security agency providing security for

the apartment complex. The cause was tried to a jury which

found the guard negligent and his conduct a proximate cause

of the assault. The security agency was found negligent but

its negligence was not found to be a proximate cause. The
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (1985)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

damage issue was conditionally submitted and so the jury

did not answer it. Johnson objected to the incomplete verdict

before the jury was discharged and asked for a mistrial. The

mistrial was granted.

The security agency sought mandamus in the court of appeals,

arguing that the mistrial was erroneously granted. The *917

court of appeals conditionally granted the mandamus in

an unpublished opinion, holding that (1) there was no

irreconcilable conflict in the jury's answers and (2) Johnson

waived her right to a jury trial on damages by failing to object

to the conditional submission of the damages special issue.

In response to the mandamus, the trial court rendered

judgment that Johnson take nothing from defendants.

Johnson, thereafter, timely filed a motion for new trial which

was granted.

The security agency again sought mandamus relief and, in

an unpublished opinion, the court of appeals again granted

it, this time overturning the trial court's order of new trial

because it was “granted for the same reasons the mistrial

was erroneously granted.” Johnson, by mandamus action to

this court, seeks to compel the court of appeals to rescind its

judgment.

Since June 19, 1983, the courts of appeals have exercised

concurrent mandamus jurisdiction with the Supreme Court

over district judges of this state. Government Code, ch. 480,

§§ 22.002 and 22.221, 1985 Tex.Sess.Law Serv. 3367, 3369,

3386 (to be codified at TEX.GOV'T CODE §§ 22.002(a)

and 22.221(b) (Vernon)). As a result of this expansion of

jurisdiction, we have increasingly been asked to decide

whether a court of appeals has abused its discretion in

granting mandamus relief. This issue typically arises when

the court of appeals grants mandamus relief to a party based

upon an abuse of discretion in the trial court. The party

adversely affected by the mandamus judgment seeks review

by mandamus in this Court, arguing that the court of appeals

abused its discretion in holding that the trial court abused its

discretion. The use of the phrase, “abuse of discretion,” to

describe the alleged misfeasance of both the trial court and

the court of appeals is unfortunate because its meaning in

each context is not the same. The discretion exercised by a

trial court when ruling on an interlocutory matter is ordinarily

quite broad, whereas the discretion exercised by an appellate

court possessing mandamus power is much more confined.

[1] Although the writ of mandamus is a discretionary

remedy, its use is subject to certain conditions. See Appellate

Procedure in Texas, § 1.2(1)(b) (2d ed. 1979). Namely, the

court of appeals may issue writs of mandamus “agreeable

to the principles of law regulating those writs.” TEX.GOV'T

CODE § 22.221(b). Mandamus issues only to correct a clear

abuse of discretion or the violation of a duty imposed by

law when there is no other adequate remedy by law. State

v. Walker, 679 S.W.2d 484, 485 (Tex.1984). The court of

appeals, therefore, acts in excess of its writ power (abuses

its discretion) when it grants mandamus relief absent these

circumstances. See Peeples v. Fourth Court of Appeals, –––

S.W.2d –––– (Tex.1985); Ginsberg v. Fifth Court of Appeals,

686 S.W.2d 105 (Tex.1985).

[2] A trial court, on the other hand, abuses its discretion

when it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law. King v. Guerra,

1 S.W.2d 373, 376 (Tex.Civ.App.—San Antonio 1927, writ

ref'd); Bush v. Vela, 535 S.W.2d 803, 805 (Tex.Civ.App.—

Corpus Christi 1976, mand. overr.). A relator who attacks

the ruling of a trial court as an abuse of discretion labors

under a heavy burden. Lutheran Social Services, Inc. v.

Meyers, 460 S.W.2d 887, 889 (Tex.1970). The relator must

establish, under the circumstances of the case, that the facts

and law permit the trial court to make but one decision. This

determination is essential because mandamus will not issue

to control the action of a lower court in a matter involving

discretion. Pat Walker & Company, Inc. v. Johnson, 623

S.W.2d 306, 308 (Tex.1981). As we wrote in Jones v.

Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959):

When it is once decided that a

trial judge exercising a “discretionary”

authority has but one course to

follow and one way to decide then

the discretionary power is effectually

destroyed and the rule which *918

purports to grant such power is

effectively repealed.

In order to find an abuse of discretion, the reviewing court

must conclude that the facts and circumstances of the case

extinguish any discretion in the matter.

[3] We apply these principles in mandamus proceedings.

Our focus remains on the trial court's order regardless of

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
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (1985)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

prejudicial an error of law as to establish abuse of discretion.

A mere error in judgment is not an abuse of discretion.

Although we may believe that the court of appeals has

exercised better judgment than the trial court in the matter, we

must nevertheless grant the mandamus and direct the court

of appeals to vacate its judgment if there is some basis in

reason and law for the order of the trial court. If the matter is

truly one requiring the exercise of discretion, such discretion

lies with the trial court. An appellate court may not substitute

its discretion for that of the trial court. Davis v. Huey, 571

S.W.2d 859, 863 (Tex.1978); Jones v. Strayhorn, 159 Tex.

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

discretion. See Crane v. Tunks, 160 Tex. 182, 328 S.W.2d

434 (1959); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677

(1956).

Trial courts have always had broad discretion in the granting

of new trials. Johnson v. Court of Civil Appeals for the

Seventh Supreme Judicial Dist. of Texas, 162 Tex. 613, 350

S.W.2d 330 (1961); Wright v. Swayne, 104 Tex. 440, 140

S.W. 221 (1911). In Johnson, we recognized two instances

when a Texas appellate court has overturned the trial court's

grant of a new trial. These instances are:

1. When the trial court's order was wholly void as where it

was not rendered in the term in which the trial was had;

and

2. Where the trial court has granted a new trial specifying in

the written order the sole ground that the jury's answers

to special issues were conflicting.

Johnson, 350 S.W.2d at 331.

Neither of the above instances are present in this case. The

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.

The security agency argues that Johnson's motion for new

trial was premised on the same grounds asserted in its motion

for mistrial (that is, waiver of damages and irreconcilable

conflict in the jury's answers), which were rejected by the

court of appeals. Therefore, the agency urges that the trial

court abused its discretion by granting the new trial on those

identical grounds. Johnson's motion for new trial did include a

ground previously presented in her motion for mistrial, that is,

no waiver of damages. However, Johnson additionally prayed

that the trial court grant her motion for new trial “in the

interest of justice and fairness.” The court's order stated that:

After reading said motion for new trial

and hearing argument of counsel on

said motion for new trial, [the trial

court] finds that said motion is good

and that a new trial should be granted.

The order does not state the grounds on which the trial court

granted Johnson's motion for new trial. Upon inquiry by the

security agency, Judge Haberman stated:

In total fairness of the entire case, the

court is granting a new trial.

The record does not disclose that the new trial was granted

on the same grounds previously overruled by the court of

appeals. We hold that the trial court granted the new trial “in

the interest of justice and fairness.” This was not an abuse of

discretion. Accordingly, the trial court's judgment should not

have been disturbed.

We conditionally grant Johnson's petition for writ of

mandamus. The writ will issue only if the court of appeals

does not vacate its mandamus judgment.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

39 S.W.3d 191

Supreme Court of Texas.

Douglas LEHMANN and

Virginia Lehmann, Petitioners,

v.

HAR–CON CORPORATION, Respondent.

Melvin G. Harris and Helena M. Harris, Petitioners,

v.

Harbour Title Company, Respondent.

Nos. 99–0406, 99–0461. | Argued

Jan. 26, 2000. | Decided Feb. 1, 2001.

In personal injury action, the 129th District Court, Harris

County, granted summary judgment in favor of one

defendant. Plaintiffs appealed. In unrelated action for tort and

breach of contract, the 281st District Court, Harris County,

granted summary judgment for one defendant. Plaintiffs

appealed. The Houston Court of Appeals, Fourteenth District,

1998 WL 429853 and 1999 WL 211859, dismissed appeals

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

clause does not indicate that a judgment rendered without a

conventional trial is final for purposes of appeal, overruling

Mafrige, 866 S.W.2d 590, and (2) orders from which

plaintiffs had appealed were not final, appealable judgments.

Reversed and remanded.

Baker, J., filed concurring opinion in which Enoch and

Hankinson, JJ., joined in part.

West Headnotes (12)

[1] Appeal and Error

Necessity of final determination

As a general rule, an appeal may be taken only

from a final judgment.

320 Cases that cite this headnote

[2] Appeal and Error

Final Judgments or Decrees

Whether a judicial decree is a final, appealable

judgment must be determined from its language

and the record in the case.

34 Cases that cite this headnote

[3] Judgment

Final judgment

A judgment that finally disposes of all remaining

parties and claims, based on the record in the

case, is final, regardless of its language.

112 Cases that cite this headnote

[4] Judgment

Final judgment

A judgment that actually disposes of every

remaining issue in a case is not interlocutory

merely because it recites that it is partial or refers

to only some of the parties or claims.

11 Cases that cite this headnote

[5] Judgment

Final judgment

If a court has dismissed all of the claims in a case

but one, an order determining the last claim is

final.

16 Cases that cite this headnote

[6] Appeal and Error

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,

even though the record does not provide an

adequate basis for rendition of judgment.

62 Cases that cite this headnote

[7] Appeal and Error

Nature and Scope of Decision

Inclusion of a Mother Hubbard clause—which is

the statement, “all relief not granted is denied,”

or essentially those words—does not indicate

that a judgment rendered without a conventional
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

trial is final for purposes of appeal; overruling

Mafrige v. Ross, 866 S.W.2d 590.

109 Cases that cite this headnote

[8] Appeal and Error

Nature of remedy by dismissal

Right to appeal should not be lost by an overly

technical application of the law.

5 Cases that cite this headnote

[9] Appeal and Error

Final Judgments or Decrees

In cases in which only one final and appealable

judgment can be rendered, when there has not

been a conventional trial on the merits, an order

or judgment is not final for purposes of appeal

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.

626 Cases that cite this headnote

[10] Appeal and Error

Finality as to All Parties

Appeal and Error

Determination of part of controversy

An order does not dispose of all claims and

all parties, for purposes of appealability, merely

because it is entitled “final,” or because the

word “final” appears elsewhere in the order, or

even because it awards costs, nor does an order

completely dispose of a case merely because it

states that it is appealable; rather, there must be

some other clear indication that the trial court

intended the order to completely dispose of the

entire case.

236 Cases that cite this headnote

[11] Appeal and Error

Finality as to All Parties

Appeal and Error

Determination of part of controversy

Order that did not indicate that it was a final

judgment and did not dispose of all pending

claims and parties was not a final, appealable

judgment.

330 Cases that cite this headnote

[12] Appeal and Error

Finality as to All Parties

Appeal and Error

Determination of part of controversy

Order stating that plaintiffs took nothing as

to “one of the defendants” was not a final,

appealable judgment; language did not suggest

that all of plaintiffs' claims were denied, and

defendant named in order was not the only

defendant remaining in the case.

100 Cases that cite this headnote

Attorneys and Law Firms

*192 Howard R. King, Hill Angel & King, Houston, for

Petitioner in No. 99-0406.

James E. Simmons, Simmons & Lawrence, John H.

Thomisee, Jr., Henry S. Platts, Chalker Bair, Houston, for

Respondent in No. 99-0406.

James F. Tyson, Houston, Jerry D. Conner, Conner & Dreyer,

Houston, for Petitioner in No. 99-0461.

Ben A. Baring, Paul J. McConnell, III, DeLange Hudspeth

McConnell & Tibbetts, Houston for Respondent in No,

99-0461.

Opinion

Justice HECHT delivered the opinion of the Court, in which

Chief Justice PHILLIPS, Justice OWEN, Justice ABBOTT,

and Justice O'NEILL joined.

In these two consolidated cases we revisit the persistent

problem of determining when a judgment rendered without a

conventional trial on the merits is final for purposes of appeal.

We consider only cases in which one final and appealable

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

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

discrete issues. 1 And we consider a judgment's finality only

for purposes of appeal and not for other purposes, such as

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

one example of such language what we have called a “Mother

Hubbard” clause 4—a recitation that all relief not expressly

granted is denied. 5 Since then, the routine inclusion of this

general statement in otherwise plainly interlocutory orders

and its ambiguity in many contexts have rendered it inapt for

determining finality when there has not been a conventional

trial. We no longer believe that a Mother Hubbard clause in an

order or in a judgment issued without a full trial can be taken

to indicate finality. We therefore hold that in cases in which

only one final and appealable judgment can be rendered,

a judgment issued without a conventional trial is final for

purposes of appeal if and only if either it actually disposes of

all claims and parties then before the court, regardless of its

language, or it states with unmistakable clarity that it is a final

judgment *193 as to all claims and all parties. In the two

cases before us, the court of appeals concluded that judgments

that do not meet this test were final and dismissed the appeals

as having been untimely perfected. 6 We reverse and remand

for consideration of the merits of the appeals.

I

Lehmann v. Har–Con Corp.

Douglas and Virginia Lehmann sued the University of St.

Thomas and Har–Con Corp. in the district court in Harris

County to recover damages for injuries Douglas suffered in a

construction accident. The University cross-claimed against

Har–Con for indemnity. The Lehmanns settled with Har–Con

and executed a release, agreeing in part to indemnify Har–Con

against certain claims which had been or could be asserted

by or through them. Virginia then filed an amended petition

on behalf of her minor son against both defendants, claiming

damages for loss of parental consortium because of his

father's injuries. In response, Har–Con filed a counterclaim

against Virginia and a third-party petition against Douglas,

seeking indemnity from them under the terms of their prior

release.

The Lehmanns and Har–Con all moved for summary

judgment on Har–Con's indemnity claims. The district court

denied the Lehmanns' motion and granted Har–Con's motion.

The court's order granting Har Con's motion stated in full:

[caption]

ORDER

On this 12 day of March, 1998 came on to be

considered the Motion for Summary Judgment of HAR–

CON CORPORATION. After considering the motion,

the response, the summary judgment evidence and the

argument of counsel, the Court is of the opinion that the

motion should be in all things granted. It is therefore,

ORDERED, ADJUDGED AND DECREED that

the Motion for Summary Judgment by HAR–CON

CORPORATION be and it is hereby GRANTED.

All relief not expressly granted herein is denied.

Signed this the 12 day of March, 1998

s/__________

JUDGE PRESIDING

[s/ Attorneys for Har–Con Corporation]

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

would effectively bar recovery for Virginia's son. The order

also did not reference Virginia's son's claims against the

University, which would not appear to be affected by Har–

Con's summary judgment. The order contained a “Mother

Hubbard” clause stating that “[a]ll relief not expressly

granted herein is denied.”

The district clerk advised the Lehmanns by postcard that an

interlocutory summary judgment order had issued. The record

does not reflect whether the parties received a copy of the

actual order after it was signed. The Lehmanns tell us that

the practice of the district clerk in Harris County is not to

send copies of orders to the parties but to give parties notice

by postcard when orders are signed. The notice does not

completely describe the content of the order.

The Lehmanns appear to have believed that the summary

judgment order was interlocutory because they moved to

sever it and Har–Con's claims into a separate action,

ostensibly to make the summary judgment final. The court
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

granted the motion to sever on the twenty-fifth day after the

summary judgment order was signed. Twenty-eight days after

the severance *194 order was signed, the Lehmanns noticed

their appeal from the summary judgment order.

If the summary judgment was not final until the severance

order was signed, then the Lehmanns' appeal was timely. But

the court of appeals held that the summary judgment order

was final when it issued because of the Mother Hubbard

clause and that the order was not modified by the severance

so as to restart the time for perfecting appeal. 7 Because the

Lehmanns did not perfect appeal within thirty days of the

signing of the order as prescribed by the rules of appellate

procedure, 8 the court dismissed the appeal for want of

jurisdiction. In holding that the summary judgment order was

final, the court followed our decision in Mafrige, although

the court expressed concerns that the inclusion of a Mother

Hubbard clause in an otherwise plainly interlocutory order

should not make the order final.

We granted the Lehmanns' petition for review and

consolidated it for argument and decision with Harris v.

Harbour Title Co. 9

Harris v. Harbour Title Co.

Melvin and Helena Harris sued five defendants—Greenfield

Financial Corp. and Larry J. Greenfield (“the Greenfield

defendants”), Tim Rice and Rice Development, Inc. (“the

Rice defendants”), and Harbour Title Co.—in the district

court in Harris County on breach-of-contract and tort claims

arising from a conveyance of real property. The court granted

an interlocutory default judgment against Tim Rice on

liability only, leaving for later a determination of the damages

to be assessed against him. The Harrises nonsuited their

claims against the Greenfield defendants. The fifth defendant,

Harbour Title Co., moved for summary judgment, which the

court granted with the following order:

[caption]

Order Granting Harbour Title Company's

Motion for Summary Judgment

On August 28, 1998, came on to be heard the Motion for

Summary Judgment of one of the defendants, Harbour Title

Company, and the Court having considered the Motion,

together with any response, and the supplemental briefing

filed by the parties to date is of the opinion that said Motion

is with merit and should be granted. It is therefore

ORDERED that defendant Harbour Title Company's

Motion for Summary Judgment is in all things granted;

it is further

ORDERED that the Plaintiffs, Melvin G. Harris and

Helena M. Harris take nothing as to any of their claims

against Harbour Title Company.

All relief requested and not herein granted is denied.

SIGNED this 15 day of October 1998.

s/__________

JUDGE PRESIDING

APPROVED AND ENTRY REQUESTED:

[s/ Attorneys for Harbour Title Company]

Although the order did not reference the Harrises'

pending claims against the Rice defendants, it nevertheless

contained a Mother Hubbard clause stating that “[a]ll relief

requested and not herein granted is denied.”

The Harrises assert that they received notice of the order

by a postcard that described the order as an interlocutory

summary judgment, but the postcard is not in our record. The

record does not reflect whether the parties obtained a copy

of the order after it was signed. It appears that the district

clerk followed her usual procedure of notifying the parties by

*195 postcard in lieu of providing copies of the order.

The district court apparently did not consider the summary

judgment order to be final; forty-six days after it was signed,

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

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

their appeal from Harbour Title's summary judgment.

If Harbour Title's summary judgment did not dispose of the

Harrises' claims against the Rice defendants, and the default
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

judgment against those defendants was the final order in the

case, then the Harrises' appeal was timely. But following

Mafrige, as it had done in Lehmann, the court of appeals

concluded that the summary judgment order was final and

therefore dismissed the appeal as not having been timely

perfected. We granted the Harrises' petition for review and

consolidated it with Lehmann for argument and decision. 10

II

A

[1] [2] Though its origins are obscure and its rationale

has varied over time, 11 the general rule, with a few mostly

statutory exceptions, is that an appeal may be taken only

from a final judgment. 12 A judgment is final for purposes

of appeal if it disposes of all pending parties and claims in

the record, except as necessary to carry out the decree. 13

(An order that does not dispose of all pending parties and

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

those cases from consideration here. Nor do we consider

when a judgment may be final for purposes other than appeal,

such as claim and issue preclusion. 16 ) Because the law

does not require that a final judgment be in any particular

form, whether a judicial decree is a final judgment must be

determined from its language and the record in the case.

Since timely perfecting appeal (as well as filing certain postjudgment motions and requests) hangs on a party's making

this determination correctly, certainty is crucial.

From the beginning, however, certainty in determining

whether a judgment is final has proved elusive. What has

vexed courts in this State and elsewhere is this: must a final

judgment dispose of all parties and claims specifically, or

may it do so by general language or even by inference? If a

specific disposition of each party and *196 claim is strictly

required, a judgment apparently intended by the parties and

the trial court to be final and appealable may not be. An appeal

from such a judgment must be dismissed or at least abated,

resulting in delay and a waste of the courts' and the parties'

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

and appeal years later. On the other hand, if a judgment

may dispose of all parties and claims by general language or

inference, a party or trial court may think that a judgment is

interlocutory, only to be told later by the appellate court after

the time for appeal has passed that the judgment was final. A

party who is uncertain whether a judgment is final must err

on the side of appealing or risk losing the right to appeal.

In 1881, after struggling with these problems for many

years, 17 we attempted to resolve them in the case of Linn

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.

The results of this rule were predictable. Appellate courts

frequently declared shabbily drafted judgments interlocutory

even though the trial courts and the parties had obviously

intended for them to be final. 20 Confused parties were

spending time and money attempting to appeal from possibly

final judgments, only to have the appellate courts dismiss

the appeals for want of jurisdiction. 21 As this Court later

reflected on Arambould 's intrinsic-disposition requirement

for finality:

By its application most judgments easily became black or

white—final or interlocutory; but all too often judgments

which were obviously intended to be final were being

held interlocutory because of careless draftsmanship. The

rule had to be changed to accommodate oversight or

carelessness. 22

In 1896 we altered course. In Rackley v. Fowlkes, 23 the

plaintiff had, in a prior suit, sued for title to real property and

for rent for the four years the property was in the defendant's

possession, but at trial he offered no evidence of the amount

of rent due until after the evidence was closed, and because

the offer was late the court refused to hear it. The court in

that suit rendered judgment awarding title to the plaintiff

without mentioning his claim for rent. When the plaintiff filed

a second suit for the rent, the defendant asserted res judicata

in defense. The trial court rendered judgment for the plaintiff,

concluding that the rent claim had not been adjudicated in

the prior suit, and the court of civil appeals affirmed. We

reversed the judgments of the lower courts, not because the

rent claim should have been adjudicated *197 in the first

suit, but because it was adjudicated:

The proposition seems to be sound in principle and

well supported by authority that where the pleadings and
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

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

a recovery upon one, but is silent as to the other, such

judgment is prima facie an adjudication that he was not

entitled to recover upon such other cause. This liberal

construction of the judgment against the party who sought

to recover therein is supported by the presumption that

the court performed the duty devolved upon it upon the

submission of the cause by disposing of every issue

presented by the pleadings so as to render its judgment

final and conclusive of the litigation, and by the further fact

that the policy of the law favors the speedy settlement of

litigation and opposes the harassing of the defendant with

two suits for the same cause. 24

Three years later we used the rule stated for purposes of res

judicata in Rackley to determine whether a judgment was final

for purposes of appeal. In Davies v. Thomson, 25 the plaintiffs

sued for money and an interest in real property as their share

of a joint venture. The trial court rendered judgment on a jury

verdict awarding the plaintiffs money without mentioning

the claim for an interest in real property. We held that the

judgment disposed of both claims was therefore final and

appealable. 26

Neither Rackley nor Davies mentioned Arambould or

attempted to reconcile their results with the rule in that

case, thereby generating confusion in the appellate courts

over how to determine finality in cases involving crossclaims and counterclaims. Some courts treated judgments that

merely implicitly disposed of all claims as final, while other

courts required that final judgments expressly adjudicate

each claim. 27 In 1913, the Court resolved the conflict in

Trammell v. Rosen, 28 rejecting the rule stated in Arambould.

The plaintiff in Trammell sued on a promissory note secured

by property that the defendant and his wife claimed was

their homestead. The couple counterclaimed to establish their

homestead claim and for damages for wrongful sequestration.

The trial court instructed a verdict for the plaintiff on his

claim and against the defendants on their counterclaim.

The judgment recited the verdict and awarded damages

to the plaintiff but did not mention the counterclaim. 29

Citing Rackley, the Court concluded that the judgment was

final, reasoning that by granting the plaintiff's claim the

trial court implicitly but necessarily denied the defendants'

counterclaim. 30 Still, the Court strongly encouraged courts

to expressly address each claim and party in final judgments

to avoid further confusion:

We feel constrained to hold that the judgment of the trial

court, although irregular and imperfect in form, is sufficient

to support the appeal. However, we feel impelled to say,

also, that we think that, as a matter of practice, and to avoid

confusion, every final judgment should plainly, explicitly,

and specifically dispose of each and every party to the

cause, and of each and every issue therein presented by the

pleadings. 31

*198 Two cases decided after Trammell suggest that the

entire record should be considered in determining whether

a post-trial judgment is final. In Hargrove v. Insurance

Investment Corp., we held that a judgment for the plaintiff

was final when “considered as a whole in the light of the entire

record”. 32 Similarly, in Ferguson v. Ferguson, we held that

a judgment awarding the plaintiff recovery on some of her

claims while silent as to others was final, stating that “[i]n

arriving at whether or not a judgment is final, the pleadings

and evidence must also be taken into consideration”. 33

Neither case should be read to deviate from the presumptive

rule of Trammell. We did not hold in either case that the

record could be used to show that a post-trial judgment final

on its face was really not final. In two other cases during the

same time period we did not mention the record in applying

Trammell. 34

In 1966, we reaffirmed Rackley, Davies, and Trammell in

North East Independent School District v. Aldridge. 35 The

school district sued Aldridge for breach of contract, and he

asserted in his defense that he had contracted only as an agent

for his principal. He also brought a third-party action against

his principal, alleging that the principal was responsible for

any damages to which the school district might be entitled.

The trial court granted a partial summary judgment holding

Aldridge personally liable to the district and directed that the

case proceed to trial to determine the amount of damages

to be awarded. The parties then stipulated to the amount of

damages, and the trial court rendered judgment for the district

against Aldridge based on the stipulation. The judgment

did not mention Aldridge's third-party action against his

principal. The court of civil appeals dismissed Aldridge's

appeal, holding that the trial court's judgment was not final. 36

We held that the judgment against Aldridge disposed of the

third-party action and was final for purposes of appeal. After

reviewing the courts' historical difficulties in making finality

determinations, we stated the following rule
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

for determining, in most instances, whether judgments in

which parties and issues made by the pleadings are not

disposed of in express language are, nevertheless, final

for appeal purposes. When a judgment, not intrinsically

interlocutory in character, is rendered and entered in a case

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

to, and did, dispose of all parties legally before it and of all

issues made by the pleadings between such parties. 37

We added: “Of course, the problem [of determining whether

judgments are final] can be eliminated entirely by a careful

drafting of judgments to conform to the pleadings or by

inclusion in judgments of a simple statement that all relief

not expressly granted is denied.” 38 Inclusion of a catch-all

statement—which we later denominated a “Mother Hubbard”

clause 39—would make clear that a post-trial judgment on the

merits, presumed to have disposed of all claims, did indeed

do so.

*199 B

The presumption that a judgment rendered after a

conventional trial on the merits is final and appealable has

proved fairly workable for nearly a century, but we have

never thought that it could be applied in other circumstances,

as we first explained nearly sixty years ago. In Davis v.

McCray Refrigerator Sales Corp., 40 the plaintiff sued for the

unpaid balance of the purchase price of a refrigerator, and

the defendant counterclaimed for cancellation of the debt and

for damages for payments already made and lost merchandise

due to improper refrigeration. The defendant also filed a plea

in abatement on the grounds that the plaintiff was a foreign

corporation not licensed to do business in Texas and therefore

not entitled to sue in state court. The trial court deferred

ruling on the defendant's plea until after the case was tried

on the merits. After the jury returned a verdict, the trial court

rendered judgment both that the plaintiff's claim be dismissed

and that the plaintiff take nothing. 41 The only basis the trial

court had for dismissal was the defendant's plea in abatement,

while the only basis for rendering a take-nothing judgment

was plaintiff's failure of proof at trial. The judgment did

not mention the defendant's counterclaim. The court of civil

appeals rejected the defendant's argument that the judgment

was interlocutory and reversed and rendered judgment for the

plaintiff. 42 This Court reversed and dismissed the appeal.

Citing Trammell, the Court acknowledged that while a final

judgment need not expressly dispose of each issue so long

as other provisions of the judgment necessarily imply that

the unmentioned issues have been disposed of, a dismissal of

the plaintiff's suit did not necessarily imply a disposal of the

defendant's cross-action . 43 The Court explained:

[I]f the court had intended to merely sustain the

plea in abatement and dismiss plaintiff's suit, and had

intended to retain the defendant's cross-action for further

consideration, it would have entered the very judgment that

was entered in this case. The mere failure of the judgment

to refer to defendant's cross-action was not sufficient in

itself to raise an inference that it was thereby intended to

dispose of the cross-action. 44

Although the judgment did not “merely” sustain the plea in

abatement but also decreed that the plaintiff take nothing, the

inclusion of the dismissal in the judgment as the first basis

for decision was enough to make Trammell 's presumptive

finality rule inapplicable.

Davis may have departed too far from Trammell. The trial

court's decree following a jury trial on the merits that the

plaintiff take nothing without mention of the defendant's

counterclaim should perhaps have been presumed to deny

all relief, despite the alternative ruling that the plaintiff's

claim should be dismissed. But regardless of Davis 's unusual

circumstances, the case makes the point, which we expressly

acknowledged in Aldridge, that “[i]t will not be presumed that

a judgment dismissing a plaintiff's suit on nonsuit, plea to the

jurisdiction, plea in abatement, for want of prosecution, etc.,

also disposed of the issues in an independent cross-action.” 45

We have since held that “etc.” includes default judgments

and summary judgments. 46 The reason for not applying a

presumption in any of these circumstances *200 is that the

ordinary expectation that supports the presumption that a

judgment rendered after a conventional trial on the merits

will comprehend all claims simply does not exist when some

form of judgment is rendered without such a trial. On the

contrary, it is quite possible, perhaps even probable these

days in cases involving multiple parties and claims, that any

judgment rendered prior to a full-blown trial is intended to

dispose of only part of the case. Accordingly, the finality of

the judgment must be determined without the benefit of any

presumption.
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

[3] [4] [5] A judgment that finally disposes of all

remaining parties and claims, based on the record in the case,

is final, regardless of its language. 47 A judgment that actually

disposes of every remaining issue in a case is not interlocutory

merely because it recites that it is partial or refers to only

some of the parties or claims. Thus, if a court has dismissed

all of the claims in a case but one, an order determining the

last claim is final. 48 This is settled law in Texas, and while

there have been proposals to change it by rule, proposals that

are currently pending consideration by this Court's Advisory

Committee, we are not inclined to depart from it here. The

language of an order or judgment cannot make it interlocutory

when, in fact, on the record, it is a final disposition of the case.

[6] But the language of an order or judgment can make it

final, even though it should have been interlocutory, if that

language expressly disposes of all claims and all parties. It

is not enough, of course, that the order or judgment merely

use the word “final”. The intent to finally dispose of the case

must be unequivocally expressed in the words of the order

itself. But if that intent is clear from the order, then the order is

final and appealable, even though the record does not provide

an adequate basis for rendition of judgment. So, for example,

if a defendant moves for summary judgment on only one of

four claims asserted by the plaintiff, but the trial court renders

judgment that the plaintiff take nothing on all claims asserted,

the judgment is final—erroneous, but final. 49 A judgment

that grants more relief than a party is entitled to is subject to

reversal, but it is not, for that reason alone, interlocutory. 50

Texas appellate courts, this Court included, have had

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

a final judgment was presented. In Schlipf v. Exxon Corp., 51

the plaintiffs sued for gas royalties and prejudgment interest,

and moved for summary judgment only on the royalties issue.

Neither the defendant nor an intervenor moved for summary

judgment against the plaintiffs. The trial court granted the

plaintiffs' motion, awarding the royalties claimed, but denied

prejudgment interest. The judgment recited:

the relief herein granted Plaintiffs, ... is in satisfaction of

all of their claims and causes of action ... and all claims

and/or causes of action herein asserted by all parties herein

and not herein granted are hereby in all things denied and

concluded.... 52

*201 We held that this language conclusively disposed of all

parties and issues, as it clearly did, although in reaching this

conclusion, we reiterated our observation in Aldridge that the

finality of a judgment would be made clear “by inclusion ...

of a simple statement that all relief not expressly granted

is denied.” 53 This observation, appropriate in Aldridge in

reference to judgments after a conventional trial on the merits,

was misleading in Schlipf, because the only “relief” properly

under consideration when the order issued was that raised

by the motion for summary judgment 54—the plaintiffs'

entitlement to royalties. After a full trial on the merits, the

statement in a judgment that all relief not requested is denied

signifies finality; there is no expectation that the court tried

only part of the case, absent an order for severance or separate

trials. But after a motion for partial summary judgment, the

same statement in a judgment is ambiguous. It may refer

only to the motion on which the trial court is ruling, not to

all claims of all parties, and not even to other claims of the

movant.

Two years later, in Teer v. Duddlesten, we emphasized

that the Aldridge language—all relief not expressly granted

is denied—which we termed for the first time a “Mother

Hubbard” clause, has no place in partial summary judgments

because, by definition, those proceedings do not address all

of the facts and issues in a case. 55 A Mother Hubbard clause,

we said, could not convert a partial summary judgment into

a final order. 56 Following Teer, most courts of appeals held

that a Mother Hubbard clause could not make final a judgment

rendered without a full trial, 57 although other courts reached

the contrary conclusion. 58

We attempted to clarify matters in Mafrige v. Ross. 59 There,

two plaintiffs sued some twelve defendants for malicious

prosecution, slander, libel, conspiracy, and negligence. 60

No party other than the plaintiffs asserted any claims. The

defendants, some individually and some in groups, filed a

total of eight summary judgment motions, some directed

against one of the plaintiffs and some against both. 61 Only

one motion addressed both of the plaintiffs and all of the

claims asserted; 62 even together, the other seven motions did

not address both plaintiffs and all claims. 63 The trial court

granted all eight motions with eight separate orders, one for

each motion. 64 Each order stated that the *202 plaintiff or

plaintiffs, depending on whether the motion had been directed

at one or both, were to take nothing against the movant or
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

movants. 65 Thus, taken together, the eight orders provided

that both of the plaintiffs were to take nothing against all of

the defendants. On the plaintiffs' appeal, however, the court

of appeals held that there was not a final judgment because

most of the defendants had not moved for summary judgment

on all claims by both plaintiffs and thus were not entitled

to a final judgment, and the “take nothing” language of the

orders did not make them final. 66 The court also held that if

the orders had contained Mother Hubbard clauses they would

have been final under this Court's precedents, although the

court of appeals did not agree that that would have been the

proper result. 67

We reversed, holding that the “take nothing” language in

the eight summary judgment orders disposed of all claims

asserted by both plaintiffs against each of the defendants and

thus constituted a final judgment. We then explained:

If a summary judgment order appears

to be final, as evidenced by the

inclusion of language purporting to

dispose of all claims or parties, the

judgment should be treated as final for

purposes of appeal. If the judgment

grants more relief than requested, it

should be reversed and remanded, but

not dismissed. We think this rule to

be practical in application and effect;

litigants should be able to recognize

a judgment which on its face purports

to be final, and courts should be able

to treat such a judgment as final for

purposes of appeal. 68

As examples of “language purporting to dispose of all claims

or parties,” we gave not only the “take nothing” language

of the orders before us, and the statement that summary

judgment is granted as to all claims asserted, but also the

standard Mother Hubbard clause-that all relief not expressly

granted is denied. 69 In so doing we revived the ambiguity

created in Schlipf that Teer had tried to end.

The ambiguity has persisted in our decisions. In Martinez v.

Humble Sand & Gravel, Inc., 70 we held that the inclusion of

a Mother Hubbard clause in an order did not necessarily make

it final. There, some but not all of the defendants moved for

summary judgment, and the trial court granted the motions,

dismissing the plaintiff's cause of action against “those

Defendants”, but also ordering that summary judgment was

proper “as to all remaining Defendants”, thereby suggesting

that the court intended to render a final summary judgment. 71

However, the trial court subsequently severed the summary

judgment by order inviting other defendants to move on the

same grounds. 72 Although this order contained a Mother

Hubbard clause, we held that judgment had not been rendered

for the non-moving defendants. 73

But in Bandera Electric Cooperative, Inc. v. Gilchrist, 74 we

held that a Mother Hubbard clause in a summary judgment

made it final. There the plaintiff moved for summary

judgment on its claims without mentioning the defendant's

counterclaims. 75 The defendant did not move for summary

judgment. The trial court *203 granted the plaintiff's

motion by order that included a Mother Hubbard clause.

We concluded that the order was final, albeit erroneous. 76

We attempted to explain that our ruling was consistent with

Martinez because the conflict in the orders involved in that

case showed that they were not final even though “a Mother

Hubbard clause ... would have created a final and appealable

judgment”. 77 Besides its obvious inadequacy in explaining

the result in Martinez, this explanation suggested that a

Mother Hubbard clause would by itself make any summary

judgment final, contrary to our holding in Teer.

Determining the significance of omitting a Mother Hubbard

clause in an order has been no easier. In Park Place Hosp.

v. Estate of Milo, we suggested that the absence of a Mother

Hubbard clause indicated that a summary judgment was

intended to be interlocutory. 78 There, the trial court granted

summary judgment for three of five remaining defendants and

later severed the judgment from the case. We concluded that

the judgment did not become final for purposes of appeal

until it was severed, in part based on the omission of a

Mother Hubbard clause. But in two other cases we held

that the omission of a Mother Hubbard clause did not make

a summary judgment interlocutory that otherwise appeared

final. In Continental Airlines, Inc. v. Kiefer, 79 the defendant

moved for summary judgment “on all claims brought by”

the plaintiffs. After the motion was filed, but before it was

heard and decided, the plaintiffs amended their pleadings

to add additional claims. The defendant did not amend its

motion to address these later claims. The trial court granted

what it entitled a “final summary judgment”, dismissing

the plaintiffs' cause of action—“cause”, singular—although
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

multiple causes of action had been asserted. We held that the

judgment was final, explaining as follows:

Finality “must be resolved by a determination of the

intention of the court as gathered from the language of the

decree and the record as a whole, aided on occasion by the

conduct of the parties.” 5 RAY W. MCDONALD, TEXAS

CIVIL PRACTICE § 27:4[a], at 7 (John S. Covell, ed.,

1992 ed.); see Ferguson v. Ferguson, 161 Tex. 184, 338

S.W.2d 945, 947 (1960). In the circumstances described

here, we think the district court intended to render a final,

appealable judgment.... Neither the parties nor the court of

appeals have suggested that the judgment was not final. 80

The judgment did not include a Mother Hubbard clause, but

we did not find its omission significant. We reached a similar

conclusion in Inglish v. Union State Bank. 81

In sum, our opinions have not been entirely consistent on

whether the inclusion or omission of a Mother Hubbard clause

does or does not indicate that a summary judgment is final

for purposes of appeal. This ambivalence has resulted in

considerable confusion in the courts of appeals. 82

III

A

[7] Much confusion can be dispelled by holding, as we now

do, that the inclusion of a Mother Hubbard clause—by which

we mean the statement, “all relief not granted is denied”,

or essentially those words— *204 does not indicate that a

judgment rendered without a conventional trial is final for

purposes of appeal. We overrule Mafrige to the extent it states

otherwise. If there has been a full trial on the merits either to

the bench or before a jury, the language indicates the court's

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

judgment, the language is ambiguous. It may mean only that

the relief requested in the motion—not all the relief requested

by anyone in the case—and not granted by the order is denied.

The clause may also have no intended meaning at all, having

been inserted for no other reason than that it appears in a form

book or resides on a word processor. For whatever reason,

the standard Mother Hubbard clause is used in interlocutory

orders so frequently that it cannot be taken as any indication

of finality.

As we have already explained, an order can be a final

judgment for appeal purposes even though it does not purport

to be if it actually disposes of all claims still pending in the

case. Thus, an order that grants a motion for partial summary

judgment is final if in fact it disposes of the only remaining

issue and party in the case, even if the order does not say that it

is final, indeed, even if it says it is not final. (Again, we do not

consider here the various kinds of cases in which there may be

more than one final judgment for purposes of appeal.) Also,

an order can be final and appealable when it should not be. For

example, an order granting a motion for summary judgment

that addressed all of the plaintiff's claims when it was filed but

did not address claims timely added by amendment after the

motion was filed may state unequivocally that final judgment

is rendered that the plaintiff take nothing by his suit. Granting

more relief than the movant is entitled to makes the order

reversible, but not interlocutory. 83

While the present problems in determining whether an order

is a final judgment should be lessened significantly by

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

final and appealable remains. One solution would be stricter

requirements for the form of a final judgment. Rule 58 of

the Federal Rules of Civil Procedure takes this approach by

requiring that to be final a judgment must “be set forth on a

separate document” and be entered by the clerk on the civil

docket. The separate-document requirement was added to the

rule in 1963 to remove uncertainty over whether a trial judge's

opinion or order constituted a final judgment. 84 Rule 58, with

its dual requirements, “ ‘enhances certainty by insisting on

formality.’ ” 85 The United States Supreme Court has insisted

on strict compliance with the rule, quoting Professor Moore's

observation that the rule

“ ‘would be subject to criticism for its formalism were it

not for the fact that something like this was needed to make

certain when a judgment becomes effective, which has a

most important bearing, inter alia, on the time for appeal

and the making of post-judgment motions that go to the

finality of the judgment *205 for purposes of appeal.’ ” 86

The one recognized exception is a party's failure to object. 87
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

The price of certainty, however, as federal rulemakers

have come to realize, is that in many cases the failure to

comply with Rule 58 means that no final judgment was

ever rendered, and the time for appeal remains open. 88 A

proposed amendment to Rule 58 would provide that if final

judgment is not rendered on a separate document, it is deemed

rendered on the sixtieth day after the clerk's entry on the civil

docket. 89 While this proposal helps ensure that every case

will be closed, it also makes it more likely that a party will

not be aware that the time for appeal is running—the problem

the 1963 amendment to Rule 58 was meant to cure—because

he does not know of the clerk's entry on the civil docket.

There may be other solutions to these dilemmas which could

be implemented by changes in our own rules, and this Court's

Advisory Committee is presently studying the issues. But we

do not write rules by opinion. 90 We must decide what Texas

law requires for finality given the present rules.

[8] [9] [10] In the past we have tried to ensure that the

right to appeal is not lost by an overly technical application

of the law. 91 Fundamentally, this principle should guide

in determining whether an order is final. Simplicity and

certainty in appellate procedure are nowhere more important

than in determining the time for perfecting appeal. From the

cases we have reviewed here, we conclude that when there

has not been a conventional trial on the merits, an order

or judgment is not final for purposes of appeal 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. An order that adjudicates only the

plaintiff's claims against the defendant does not adjudicate

a counterclaim, cross-claim, or third party claim, nor does

an order adjudicating claims like the latter dispose of the

plaintiff's claims. An order that disposes of claims by only one

of multiple plaintiffs or against one of multiple defendants

does not adjudicate claims by or against other parties. An

order does not dispose of all claims and all parties merely

because it is entitled “final”, or because the word “final”

appears elsewhere in the order, or even because it awards

costs. Nor does an order completely dispose of a case merely

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

the plaintiff take nothing by his claims in the case, or that the

case is dismissed, shows finality if there are no other claims

by other parties; but language that “plaintiff take nothing by

his claims against X” when there is more than one defendant

or other parties in the case does not indicate finality.

To determine whether an order disposes of all pending claims

and parties, it may of course be necessary for the appellate

court *206 to look to the record in the case. Thus, in the

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

record reveals the existence of parties or claims not mentioned

in the order, the order is not final. On the other hand, an order

that expressly disposes of the entire case is not interlocutory

merely because the record fails to show an adequate motion

or other legal basis for the disposition. The record may help

illumine whether an order is made final by its own language,

so that an order that all parties appear to have treated as final

may be final despite some vagueness in the order itself, while

an order that some party should not reasonably have regarded

as final may not be final despite language that might indicate

otherwise.

One may argue after Aldridge and Mafrige that it is perilous

to suggest any particular language that will make a judgment

final and appealable because that language can then be

inserted in orders intended to be interlocutory. But to leave

in doubt the degree of clarity required for finality creates

its own problems. The Mother Hubbard clause proved to

give no indication of finality not just because it found its

way into every kind of order, but because it was inherently

ambiguous, as we have explained. A statement like, “This

judgment finally disposes of all parties and all claims and is

appealable”, would leave no doubt about the court's intention.

An order must be read in light of the importance of preserving

a party's right to appeal. If the appellate court is uncertain

about the intent of the order, it can abate the appeal to permit

clarification by the trial court. 92 But if the language of

the order is clear and unequivocal, it must be given effect

despite any other indications that one or more parties did not

intend for the judgment to be final. An express adjudication

of all parties and claims in a case is not interlocutory

merely because the record does not afford a legal basis for

the adjudication. In those circumstances, the order must be

appealed and reversed.

B

[11] [12] Nothing in the order in Lehmann indicates that it

is a final judgment, and it did not dispose of all pending claims

and parties. The order in Harris states that plaintiffs take
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

nothing as to “one of the defendants”, but that language does

not suggest that all of the plaintiffs' claims were denied. As

the order recites and as the record demonstrates, the defendant

named in the order was not the only defendant remaining

in the case. Thus, we conclude that a final and appealable

judgment was not rendered in either case.

We are concerned that in neither case were the non-movants

provided a copy of the court's signed order but were merely

sent notice by postcard that an order had been signed. The

Rules of Civil Procedure do not require clerks to send all

parties copies of all orders, only final orders. 93 Nevertheless,

the practice of courts in some counties is to require that a

party seeking an order provide copies and addressed, postagepaid envelopes for all other parties. The Court's Advisory

Committee should consider whether the rules should require

that all parties be given copies of all orders signed in a case.

IV

We must respond briefly to the concurring opinion. It would

hold that no “type of conclusory finality language can ever

be read to grant more relief than requested by the parties.” 94

This goes too far. The legitimate problem with Mother

Hubbard clauses, which we failed to appreciate in Mafrige,

is that they are ambiguous: one cannot be sure whether the

denial of all relief other than what has been expressly *207

granted is limited to relief requested in a motion or extends to

all relief requested in the litigation. But it is a long way from

the now well-established fact that Mother Hubbard clauses

can understandably be misread to the concurring opinion's

conclusion that clear language should be given no meaning.

We require certainty for finality, but we cannot say that

certainty is impossible.

The concurring opinion claims as authority for its position

pre-Mafrige law, but before Mafrige, this Court repeatedly

held that general language in a summary judgment finally

disposed of the litigation even though no party had requested

final relief. In Schlipf v. Exxon Corp. we held that an order

granting the plaintiffs' motion for summary judgment on

one of its claims and generally denying all other relief was

final, even though no defendant had moved for summary

judgment or requested the denial of any relief. 95 Similarly,

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

moved for summary judgment on only one of the claims. 96

Again in Young v. Hodde, we agreed that a Mother Hubbard

clause in an order granting summary judgment for the plaintiff

disposed of a defendant's counterclaim, even though the

plaintiff's motion had addressed only his own claims and

not the counterclaim. 97 It has simply never been the law

in Texas that a summary judgment generally disposing of

all claims and parties is nevertheless interlocutory merely

because rendition of a final judgment was improper. In

essence, the concurring opinion's position is that a trial court

has no jurisdiction to grant more relief than is requested, and

that if it does so, its action is absolutely void. We do not agree

that a court's power to act, as distinct from the proper exercise

of that power, is defined by a party's request for relief.

The concurring opinion acknowledges that its position may

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

allow trial courts to clarify their orders. What the concurring

opinion ignores is that trial courts and parties will assume

that orders with general dispositive language mean what they

say, only to learn months or years after an appeal should

have been taken that no final judgment was ever rendered.

JUSTICE BAKER would insist that every order granting

summary judgment

specifically identify: (1) the claims

each party brought; (2) the grounds

upon which each party seeks summary

judgment; (3) each ground upon

which the trial court granted summary

judgment; and (4) each ground upon

which the trial court denied summary

judgment.

Any order that failed to meet these requirements would be

interlocutory, according to JUSTICE BAKER, “regardless of

how clearly it states that it is a final judgment disposing of

all parties and issues.” 98 The very real risk of such a rule is

that thousands of judgments intended to be final would remain

interlocutory because they did not comply with all of these

requirements. *208 This is precisely what has happened

in the federal system, as we have already explained, even

though the federal rules impose far fewer requirements on

final judgments than the concurring opinion would.
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13

* * * * *

For the reasons we have explained, the judgments of the

court of appeals in these cases are reversed, and the cases are

remanded to that court for further proceedings.

Justice BAKER filed a concurring opinion in which Justice

ENOCH joined, except for Part IV and the discussion of

Inglish and Bandera, and in which Justice HANKINSON

joined, except Part IV.

The Court granted these petitions in Lehmann and Harris to

solve the Mafrige problems. The Court fails to do so. Thus,

while I concur in the result the Court reaches, I cannot agree

with the reasoning it uses to reach that result.

In March 1993, we granted writ in Mafrige v. Ross to

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

had “been a recurring and nagging problem throughout the

judicial history of this state.” Mafrige, 866 S.W.2d at 590.

Thus, in a major departure from our prior jurisprudence, we

created a new rule providing: “If a summary judgment order

appears to be final, as evidenced by the inclusion of language

purporting to dispose of all claims or parties, the judgment

should be treated as final for purposes of appeal.” Mafrige,

866 S.W.2d at 592.

Despite the certainty we intended this bright-line rule to

provide, the last seven years have proved that the Mafrige

rule has created more problems than it solved—confusing the

lower courts, operating as a trap for unwary litigants, and

consistently bringing about arguably unjust and oftentimes

absurd results. So, in November 1999, we granted the

petitions in these cases to resolve the Mafrige problems.

Inexplicably, the Court begins its opinion by chronicling the

evolution of the rules and presumptions governing finality

of orders following a conventional trial on the merits from

the middle of the last century to the present. 1 Then, with

very little discussion of the problems Mafrige and its progeny

created in determining summary judgment finality, the Court

concludes that the solution is to maintain the principle of the

Mafrige legal fiction—with only slight modification.

However, rather than solve, the Court merely perpetuates

the problems Mafrige created. The cases grappling to apply

Mafrige illustrate that there is but one real solution. We

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

judgment order is not an appealable, final judgment unless it

actually disposes of all parties and issues. 664 S.W.2d 702,

703–04 (Tex.1984).

The Court states: “[W]e do not write rules by opinion.” 39

S.W.3d at 205. The Court is right; we should not establish

rules by judicial fiat. We should not have done so in

Mafrige and we should not have perpetuated the Mafrige

problems with Inglish and Bandera. Any new summary

judgment finality rule should be achieved by this Court's

formally promulgating a new procedure rule. The Court

should recognize this, overrule Mafrige and its progeny,

and await a recommendation by *209 our rules advisory

committee. Because the Court refuses to take this path, I

concur in the judgment only.

I. MAFRIGE AND ITS PROGENY

Before Mafrige, courts determined summary judgment

finality by reviewing the live pleadings, the summary

judgment motion, and the summary judgment order. Harris

County v. Nash, 22 S.W.3d 46, 49–50 (Tex.App.—Houston

[14th Dist.] 2000, pet. filed); Kaigler v. General Elec. Ins.

Mortgage Corp., 961 S.W.2d 273, 275 (Tex.App.—Houston

[1st Dist.] 1997, no pet.). A summary judgment was deemed

final and appealable only if it expressly disposed of all parties

and issues or if it was severed from the remainder of the suit.

Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co.,

159 Tex. 550, 324 S.W.2d 200, 200 (1959) (“[A] summary

judgment which does not dispose of all parties and issues in

the pending suit is interlocutory and not appealable unless

a severance of that phase of the case is ordered by the trial

court.”).

With Mafrige, this Court attempted to simplify this process

by holding that the “magic language” of a Mother

Hubbard or similar finality clause conclusively transforms

an interlocutory summary judgment into a final, appealable

order. Mafrige, 866 S.W.2d at 592. We have twice revisited

Mafrige to clarify its scope. See Inglish v. Union State Bank,

945 S.W.2d 810, 811 (Tex.1997) (holding that the Mafrige

rule applies even when neither party appeals the erroneous

summary judgment); Bandera Elec. Coop., Inc. v. Gilchrist,

946 S.W.2d 336, 337 (Tex.1997) (explaining that when the

Mafrige rule renders a partial summary judgment final for
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14

purposes of appeal, the appellate court should reverse and

remand only the erroneously disposed claims). Unfortunately,

Mafrige did little towards alleviating the lower courts'

confusion—and Inglish and Bandera only compounded it.

The Court's opinion suffers the same problem. Namely, its

slightly-modified Mafrige rule falls far short of remedying

the myriad of problems the Mafrige fiction and its progeny

created.

A. FINALITY LANGUAGE

One source of confusion under Mafrige has been uncertainty

about what language triggers its finality rule. In Mafrige,

we held that a partial summary judgment is treated as

final for appeal purposes when the order contains a Mother

Hubbard clause stating that “all relief not expressly granted

is denied” or other language “purporting to dispose of all

claims or parties.” 866 S.W.2d at 590 & n. 1, 592. We

further clarified that “other” finality language includes “a

statement that the summary judgment is granted as to all

claims asserted by the plaintiff, or a statement that the plaintiff

takes nothing against defendant.” Mafrige, 866 S.W.2d at 590

n. 1.; see also Inglish, 945 S.W.2d at 811 (holding statement

that “[d]efendant is entitled to summary judgment in this

case,” and that plaintiff should “take nothing on account

of his lawsuit” rendered partial summary judgment final

for purposes of appeal); Springer v. Spruiell, 866 S.W.2d

592, 593 (Tex.1993) (holding that summary judgment order

reciting plaintiffs “have and recover nothing” purported to

dispose of all parties and issues).

Despite these examples, some lower courts have refused

to hold orders containing this exact language final for

purposes of appeal. E.g., Carey v. Dimidjian, 982 S.W.2d

556, 558 (Tex.App.—Eastland 1998, no pet.) (holding that

order containing Mother Hubbard clause was not final and

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.—

El Paso 1993, no writ) (holding that order containing Mother

Hubbard clause did not render judgment final because it did

not dispose of counterclaim). Other courts have struggled

with what “other” language purports to render a judgment

final—often reaching opposite conclusions about identical

clauses. Compare *210 Postive Feed, Inc. v. Guthmann,

4 S.W.3d 879, 881 (Tex.App.—Houston [1st Dist.] 1999,

no pet.) (holding that order granting defendant's summary

judgment “in all things” purported to be final), with St. Paul

Ins. Co. v. Mefford, No. 05–96–01581–CV, 1998 WL 821537

(Tex.App.—Dallas Nov. 30, 1998, no pet.) (not designated

for publication), 1998 WL 821537, at *2 2 (holding that order

granting defendant's summary judgment “in all things” did

not purport to be final).

While the Court recognizes that the “routine inclusion of [a

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

the obvious problems courts have faced interpreting other

language “purporting to dispose of all claims or parties.”

Mafrige, 866 S.W.2d at 592. In fact, despite the Court's

extensive analysis and discussion, its holding represents but

a minor departure from Mafrige.

Its modified rule has two parts. The first represents no change

in Texas law. It simply reiterates that a summary judgment

order that actually disposes of all parties and issues is final

for purposes of appeal. 39 S.W.3d at 192. The second part

provides that a Mother Hubbard clause is no longer enough

to invoke the fiction that an otherwise interlocutory order is

treated as final for purposes of appeal. Instead, to invoke the

Mafrige fiction, an interlocutory order must now “clearly and

unequivocally state [ ] that it finally disposes of all claims

and all parties.” 39 S.W.3d at 205. The Court further explains

that the statements “plaintiff take nothing by his claims in the

case” and “[t]his judgment finally disposes of all parties and

all claims and is appealable” clearly and unequivocally state

that an order is final. 39 S.W.3d at 205. In essence, the Court's

rule does no more than replace one set of magic language

with another—while ignoring the reality that courts will likely

face the same challenges deciding what language “clearly and

unequivocally states” that an order is final, 39 S.W.3d at 205,

as they did deciding what other language clearly “purport[s]

to dispose of all claims or parties” under Mafrige. 866 S.W.2d

at 592.

B. OMITTED PARTIES

Applying Mafrige to omitted parties, like those in both

Lehmann and Harris, has also troubled the lower courts.

Specifically, they have struggled with deciding when finality

language operates to render a summary judgment final against

omitted parties. This issue often surfaces when both the

summary judgment motion and the resulting order omit any

specific reference to one or more parties. 3 In this situation,

several courts have held that Mafrige applies, reasoning that
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15

issues and parties are co-extensive and thus if “an order

disposes of all issues in a case, then it necessarily disposes of

all parties to a case, and vice versa.” Kaigler, 961 S.W.2d at

276; see also Lehmann v. Har–Con Corp., 988 S.W.2d 415,

416–17 (Tex.App.—Houston [14th Dist.] 1999, pet. granted);

Harper v. Newton, 910 S.W.2d 9, 12 n. 1 (Tex.App.—Waco),

rev'd sub nom. on other grounds, Dallas County v. Harper,

913 S.W.2d 207 (Tex.1995).

In contrast, other courts have interpreted Mafrige more

narrowly, reasoning that an “order that explicitly grants a

summary judgment in favor of less than all the defendants

does not clearly evidence an intent to dispose of all

claims against all defendants, especially those against whom

*211 summary judgment was not sought, regardless of the

inclusion of a Mother Hubbard clause.” Lowe v. Teator, 1

S.W.3d 819, 823–24 (Tex.App.—Dallas 1999, pet. filed); see

also Midkiff v. Hancock E. Tex. Sanitation, Inc., 996 S.W.2d

414, 416 (Tex.App.—Beaumont 1999, no pet.); Vanderwiele

v. Llano Trucks, Inc., 885 S.W.2d 843, 845 (Tex.App.—

Austin 1994, no writ).

Here the Court summarily dismisses this omitted parties

problem:

Nothing in the order in Lehmann

indicates that it is a final judgment,

and it did not dispose of all pending

claims and parties. The order in Harris

states that plaintiff take nothing as

to “one of the defendants”, but that

language does not suggest that all

of the plaintiffs' claims were denied.

As the order recites and as the

record demonstrates, the defendant

named in the order was not the only

defendant remaining in the case. Thus,

we conclude that a final appealable

judgment was not rendered in either

case.

39 S.W.3d at 206. Despite the presence of a Mother Hubbard

clause, the trial court and parties in Lehmann continued

treating the order as interlocutory-even in the face of

this Court's admonishment that a Mother Hubbard clause

indicates finality. 4988 S.W.2d at 416. The Court now holds

that the order did not purport to be final based solely on

its new rule discounting the dispositive effect of Mother

Hubbard clauses.

However, the Court's resolution merely sidesteps the real

problem. What happens in the next case when, on facts

identical to Lehmann, a trial court signs an interlocutory

summary judgment with the Court's new magic language

rather than a Mother Hubbard clause? We are right back

where we started. Substituting one magic phrase for another

leads nowhere.

The reality is simply that omitted parties oftentimes do not

believe that a summary judgment order that they have not

seen, that does not mention them, and that results from

a hearing in which they did not participate will operate

to dispose of them or their claims. But, under the Court's

standard, if these parties do not perfect a timely appeal from

the erroneous judgment, their right to appeal is forever lost.

This result elevates form over substance and hinders parties'

rights to have the merits of their claims considered. See, e.g.,

Rodriguez v. NBC Bank, 5 S.W.3d 756, 763 n. 4 (Tex.App.—

San Antonio 1999, no pet.) (recognizing this Court's “express

goal of reaching the merits of a cause of action, instead of

dismissing actions on procedural technicalities”).

C. OMITTED CROSS–CLAIMS

AND COUNTERCLAIMS

The courts of appeals have also treated omitted cross-claims

and counterclaims inconsistently—despite our holding in

Bandera. In Bandera, the trial court signed an order with a

Mother Hubbard clause that did not mention the defendant's

counterclaims. 946 S.W.2d at 337. This Court explained that

“[b]ecause the order contained a Mother Hubbard clause

denying all other relief, it also purported to dispose of [the

defendant's] counterclaims.” Bandera, 946 S.W.2d at 337.

But several courts have refused to apply Mafrige in this

situation, maintaining that a summary judgment that does

not mention counterclaims or cross-claims cannot purport to

be final-regardless of whether it contains finality language.

E.g., Sommers v. Concepcion, 20 S.W.3d 27, 33 (Tex.App.

—Houston [14th Dist.] 2000, pet. denied); Hervey v. Flores,

975 S.W.2d 21, 25 (Tex.App.—El Paso 1998, pet. denied);

cf. Coleman Cattle Co., Inc. v. Carpentier, 10 S.W.3d

430, 433 n. 2 (Tex.App.—Beaumont 2000, no pet.). Other

courts have followed Bandera 's mandate, holding that

finality language—such as “plaintiff takes nothing” *212

—renders a judgment final for appeal purposes, despite

omission of any reference to defendant's counterclaims. In re

Monroe, No. 05–99–01758–CV, 2000 WL 378519 (Tex.App.

—Dallas Mar.31, 2000, orig. proceeding) (not designated for
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 16

publication), 2000 WL 378519, at *1–2;see also Kaigler, 961

S.W.2d at 275–76.

The Court's rule does not provide a satisfactory remedy for

this situation either. The Court states:

An order that adjudicates only the

plaintiff's claims against the defendant

does not adjudicate a counterclaim,

cross-claim, or third party claim, nor

does an order adjudicating claims like

the latter dispose of the plaintiff's

claims. An order that disposes of

claims by only one of multiple

plaintiffs or against one of multiple

defendants does not adjudicate claims

by or against other parties. An order

does not dispose of all claims and all

parties merely because it is entitled

“final,” or because the word “final”

appears elsewhere in the order, or

even because it awards costs. Nor

does an order completely dispose of

a case merely 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.

39 S.W.3d at 205.

Under its modified finality rule, the lower courts'

disagreement in this area will continue because too many

questions are left unanswered. For example, should a “final”

summary judgment order stating that defendant is granted

summary judgment “in all things” dispose of a cross-claim

by another defendant as well as the claim by the plaintiff

that brought the original claim? In this situation, there is no

doubt that the order is unambiguous. However, it is likewise

clear, but not from the order, that the third party's claim

against the defendant was never considered. Should an order

granting summary judgment for a plaintiff that recites it is

a final and appealable order be final for counterclaims not

mentioned in the motion or order? The order unequivocally

states that it is a final, appealable order. Nonetheless there

is a counterclaim that has not been considered. The Court

states that a summary judgment granted for a plaintiff “does

not adjudicate a counterclaim” and then goes on to say that

to make the order final there must be “some other clear

indication that the trial court intended the order to completely

dispose of the entire case.” 39 S.W.3d at 205. In the example

above, does the additional statement that “this is a final,

appealable order” provide this “other clear indication”? These

very issues are repeatedly raised in the courts of appeals, and

the Court's modified rule simply does not resolve them.

D. TRIAL COURTS' AND PARTIES' INTENT

Differing philosophies about the effect the trial courts' and

parties' intent should have on how Mafrige applies has created

the most confusion and inconsistency. The courts of appeals

have taken three approaches. Some courts apply a bright-line

test, holding that a Mother Hubbard clause or other finality

language always renders an order final for appeal purposes,

regardless of any evidence of contrary intent. E.g., Preston

v. American Eagle Ins. Co., 948 S.W.2d 18, 20–21 & n.

1 (Tex.App.—Dallas 1997, no writ) (holding that summary

judgment purported to be final despite fact it was entitled

“partial summary judgment”); cf. In re Cobos, 994 S.W.2d

313, 315 (Tex.App.—Corpus Christi 1999, orig. proceeding)

(“As Mafrige and Inglish make clear, the intent of the trial

court is not the controlling consideration in determining

whether a judgment is final.”). Other courts modify this

approach, looking only within the four corners of the order

and giving effect to any evidence of contrary intent found

there. E.g., Rodriguez, 5 S.W.3d at 763–64 (Tex.App.—San

Antonio 1999, no pet.) (“Looking within the four corners

of the summary judgment order, the plain language of the

*213 Mother Hubbard clause did not, and could not, purport

to grant or deny any more relief than the relief which [the

defendant] sought.”); Midkiff, 996 S.W.2d at 416 (looking

to order “as a whole” to conclude that summary judgment

order containing Mother Hubbard clause did not purport to

be final).

Finally, despite our holding in Inglish that the trial court's

intent is irrelevant in this context, other courts still refuse to

apply Mafrige if there is evidence of contrary intent anywhere

in the record. This usually occurs when the parties and court

treat an order as interlocutory by continuing with the litigation

rather than appealing the erroneous order. E.g., Lowe, 1

S.W.3d at 823–24 (holding that summary judgment could not

be final where the record reflected that there were parties who

did not participate in the summary judgment proceeding);

Carey, 982 S.W.2d at 558 (relying, in part, on court's and
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 17

parties' treatment of order containing Mother Hubbard clause

as interlocutory to conclude judgment was not final).

The Court's solution to this problem is as confusing as

the rule it seeks to supplant. It appears to reject the

bright-line approach Mafrige espouses and instead adopt a

rule combining the second and third approaches. First, the

Court notes that an order is final for appeal purposes if it

“unequivocally states that it finally disposes of all parties

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

and unequivocal, it must be given effect despite any other

indications that one or more parties did not intend for

the judgment to be final.” 39 S.W.3d at 206. From these

statements, the Court's new rule walks and talks a lot like

a bright-line Mafrige rule, with magic language establishing

finality.

However, the Court also states that “[t]o determine whether

an order disposes of all pending claims and parties, it may

of course be necessary for the appellate court to look to the

record in the case.” 39 S.W.3d at 205. This sounds more like

a pre-Mafrige rule, where a court must look to the record

and the order to determine if an order actually disposes of all

pending parties and issues.

Because of the lower courts' confusion and disagreement

about the role of intent in determining finality, I am convinced

that the Court has not provided a workable rule that clearly

defines that role as it applies to determining summary

judgment finality.

E. APPLYING MAFRIGE TO NON–

SUMMARY JUDGMENT ORDERS

Finally, the question of whether Mafrige applies outside the

summary judgment context has confused the lower courts.

Courts of appeals have applied Mafrige to a plea to the

jurisdiction, Webb v. HCM Mgmt. Corp., No. 07–96–0369–

CV, 1998 WL 16033 (Tex.App.—Amarillo Jan. 12, 1998,

pet. denied) (not designated for publication) 1998 WL 16033,

at *1; an agreed judgment, In re Cobos, 994 S.W.2d at 315–

16; a directed verdict, e.g., Polley v. Odom, 957 S.W.2d

932, 943 (Tex.App.—Waco 1997, judgm't vacated); and a

severance order, Harris County Flood Control Dist. v. Adam,

988 S.W.2d 423, 427 (Tex.App.—Houston [1st Dist.] 1999,

pet. filed). In contrast, at least one court has declined to

apply Mafrige to a dismissal for want of jurisdiction. In

re Tejas, Nos. 01–98–00688–CV, 01–98–00689–CV, 01–

98–00690–CV, 1998 WL 394562 (Tex.App.—Houston [1st

Dist.] July 13, 1998, orig. proceeding) (not designated for

publication), 1998 WL 394562, at *1 n. 1. And another has

expressly refused to extend Mafrige to any order that is

not a summary judgment. Biltmore Swim & Racquet Club

Recreational Ass'n v. McAbee, No. 05–98–00252–CV, 1998

WL 459819 (Tex.App.—Dallas Aug.10, 1998, no pet.) (not

designated for publication), 1998 WL 459819, at *1.

In Aldridge, this Court held that a presumption of finality

exists when an order is signed following a traditional trial

on the *214 merits. Aldridge, 400 S.W.2d at 897–98. But

we specifically noted that such a finality presumption would

not be appropriate in other contexts. Aldridge, 400 S.W.2d at

897. Then in Mafrige we carved out an exception to what we

had said in Aldridge by holding that an irrebuttable finality

presumption applies to summary judgments containing a

Mother Hubbard or similar finality clause. Mafrige, 866

S.W.2d at 592. Here again, just as we had limited Aldridge

to conventional trials on the merits, we expressly limited

Mafrige to summary judgments. Mafrige, 866 S.W.2d at

591 (“[T]he issue is whether ... a summary judgment,

which purports to be final by the inclusion of Mother

Hubbard language or its equivalent, should be treated as final

for purposes of appeal.”). Unfortunately, several courts of

appeals have erroneously applied Mafrige in other contexts,

causing confusion over how to determine finality of various

other types of orders.

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

presumption has “proved a fairly workable” rule, 39 S.W.3d

at 200, or (2) numerous other types of orders, when even

the majority acknowledges that “the ordinary expectation”

supporting a finality presumption “simply does not exist when

some form of judgment is rendered without such a trial”

because “it is quite possible, perhaps even probable these

days ... that any judgment rendered prior to a full-blown trial

is intended to dispose of only part of the case.” 39 S.W.3d at

200.

However, the Court's opinion here implicates finality of all

judgments. This expansion into issues not before the Court

today can only cause mischief in areas already plagued by

confusion. If the Court persists in adhering to Mafrige's
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18

principles, it should at least limit its holding, as we did in

Mafrige, to summary judgments.

II. POLICY CONSIDERATIONS

Not surprisingly, the post-Mafrige era has given rise to

considerable analysis by courts and commentators of both

the competing policies Mafrige implicates and suggestions

for reform. A few have applauded the bright-line rule.

See Kaigler, 961 S.W.2d at 275–76 (recognizing that

the rule provides harsh results, but emphasizing that

uniform enforcement “encourage[s] attentiveness to correct

judgments”); Boyce, Mafrige v. Ross and the Pitfalls of

Presumptions, APPELLATE ADVOCATE, Nov. 1997, at 7

(opining that Mafrige “resolved the confusion created by prior

contradictory language and flatly inconsistent holdings”).

However, praises have been few and far between. Criticism

has been the rule and the comments call for this Court to

reconsider our decision:

What began as a benign growth

allowing review of unripe claims

on appeal, in Mafrige, became a

malignant cancer cutting off causes

of action before trial, in Inglish. If

it were up to me, I would lock

Mother Hubbard in the cupboard and

return to the rule before Aldridge that

a judgment is final and appealable

only if it expressly disposes of all

parties and all claims in the case. That

appellants can even cite authority for

the absurd result they seek, illustrates

how wrong a turn the law has taken in

this area—and how strong the need to

right it.

Harris County Flood Control Dist., 988 S.W.2d at 427–28

(Taft, J., concurring in denial of rehearing en banc); see

also, e.g., Lehmann, 988 S.W.2d at 418 (“Mafrige is not

as clear to litigants as the supreme court believes it is.... In

short, Mafrige has created several problems: 1) it is catching

the parties by surprise ...; 2) it exalts form over substance;

and 3) in more than a few situations, it ignores common

sense.”); Carlson & Dunn, Navigating *215 Procedural

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

this bright-line rule, the reality is that still, after seven years,

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

3 (complaining that the questions Mafrige raises “are just as

elusive” as the questions it sought to resolve).

Strong policies support our practice of adhering to settled

rules of law “unless there exists the strongest reasons for

chang[e].” Benavides v. Garcia, 290 S.W. 739, 740–41 (Tex.

Comm'n App.1927, judgm't adopted). But we have also

recognized the “doctrine of stare decisis does not stand as

an insurmountable bar to overruling precedent.” Gutierrez v.

Collins, 583 S.W.2d 312, 317 (Tex.1979). “Generally, we

adhere to our precedents for reasons of efficiency, fairness,

and legitimacy.” Weiner v. Wasson, 900 S.W.2d 316, 320

(Tex.1995). However, when adherence to a judicially-created

rule of law no longer furthers these interests, and “the general

interest will suffer less by such departure, than from a strict

adherence,” we should not hesitate to depart from a prior

holding. Benavides, 290 S.W. at 740. The lower courts'

application of Mafrige over the last seven years illustrates

undeniably that this is just such a case.

We intended Mafrige, Inglish, and Bandera to provide

certainty to litigants. Instead, they have bred chaos. Most

disturbing is that the casebooks are now replete with

examples of dismissed cases where the parties and courts

clearly intended an order containing finality language to

be interlocutory. 5 E.g., Inglish, 945 S.W.2d at 811; In re

Cobos, 994 S.W.2d at 315–16; Pena v. Valley Sandia, Ltd.,

964 S.W.2d 297, 298–99 (Tex.App.—Corpus Christi 1998,

no pet.); Kaigler, 961 S.W.2d at 275–76. Even the Court

acknowledges:

[T]he ordinary expectation that supports the presumption

that a judgment rendered after a conventional trial on the

merits will comprehend all claims simply does not exist

when some form of judgment is rendered without such a

trial. On the contrary, it is quite possible, perhaps even

probable these days in cases involving multiple parties

and claims, that any judgment rendered prior to a fullblown trial is intended to dispose of only part of the

case. Accordingly, the finality of the judgment must be

determined without the benefit of any presumption.
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19

39 S.W.3d at 200. Because of this reality, it is difficult to

understand why the Court persists in adhering to Mafrige's

principles.

The author of the Court's opinion recently opined: “Appellate

procedure should not be tricky. It should be simple, it should

be certain, it should make sense, and it should facilitate

consideration of the parties' argument on the merits....”

Lane Bank Equip. Co. v. Smith Southern Equip., Inc.,

10 S.W.3d 308, 314 (Tex.2000) (Hecht, J., concurring).

This Court has repeatedly refused to adopt positions which

elevate form over substance. See, e.g., Phillips v. Beaber,

995 S.W.2d 655, 658 (Tex.1999); Nueces Canyon Consol.

Indep. Sch. Dist. v. Central Educ. Agency, 917 S.W.2d

773, 775–76 (Tex.1996). The Court here even recognizes

that “[s]implicity and certainty in appellate procedure are

nowhere more important than in determining the time for

perfecting appeal.” 39 S.W.3d at 205. Unfortunately though,

the Court declines to embrace this opportunity *216 to

effectuate meaningful change and provide certainty for courts

and litigants. Instead the Court leaves them as it found them,

grappling with determining whether summary judgment

orders are fictitiously made final.

III. THE SOLUTION

The Court notes: “[W]e do not write rules by opinion. We

must decide what Texas law requires for finality, given the

present rules .” 39 S.W.3d at 205. Yet, the Mafrige finality

rule this Court created represented such a major departure

from prior Texas law. In fact, but for the judicially-created

Mafrige rule, no one would dispute that “what Texas law

requires for finality” of summary judgments is an order

actually disposing of all parties and issues.

Rather than simply amend the Mafrige finality rule and

perpetuate the problems the unworkable system Mafrige and

its progeny created, the Court should focus on shaping a real

solution—one providing the desired certainty and protecting

parties' right to appellate review. This requires wiping

the slate clean. Mafrige created enough problems with its

fictional finality and its holding that trial courts can use magic

language to create final summary judgments by granting

relief not requested. 866 S.W.2d at 591–92. In Inglish we

compounded the problem by confirming that Mafrige applies

even when the parties continue litigating rather than appealing

a partial summary judgment made final under Mafrige. 945

S.W.2d at 811. We completed the trilogy in Bandera, holding

that when a party appeals a summary judgment granting more

relief than requested, the court of appeals should address

the merits of the appeal, remanding only the part of the

judgment that exceeds the relief requested in the summary

judgment motion. 946 S.W.2d at 337. Undeniably, these rules

were designed to simplify summary judgment finality. But, in

application, these cases only demonstrate that we should have

adhered to our own admonishments that this Court simply

should not make rules by opinion. E.g., Alvarado v. Farah

Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992) (explaining that

we should not revise rules by opinion); see also Verburgt

v. Dorner, 959 S.W.2d 615, 619 (Tex.1997) (Baker, J.,

dissenting) (noting that this Court's jurisprudence forbids rule

amendments by judicial fiat).

Thus, we should overrule Mafrige, Inglish, and Bandera—to

the extent they created new rules by judicial fiat—and instead

tackle the problems of summary judgment finality through

our rulemaking process. Accordingly, we should return to

our prior position that a Mother Hubbard clause (or other

magic language) has no place in any summary judgment

order—final or partial—and that a trial court may not sua

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.

Returning to the law as it was pre-Mafrige requires

determining the state of the law before Mafrige. Mafrige

actually held two things: (1) that “ ‘Mother Hubbard’

language or its equivalent in an order granting summary

judgment makes an otherwise partial summary judgment final

for appeal purposes;” and (2) that if a summary judgment

“grants more relief than requested, it should be reversed and

remanded, but not dismissed.” 866 S.W.2d at 590, 592.

Before Mafrige, this first holding was not the law. In Teer v.

Duddlesten we held that:

There is no presumption in partial summary judgments

that the judgment was intended to make an adjudication

about all parties and issues. The Mother Hubbard clause

that “all relief not expressly granted is denied” has no place

in a partial summary judgment hearing. The concepts of a

partial summary judgment on the one hand, and a judgment

*217 that is presumed to determine all issues and facts on

the other, are inconsistent.

664 S.W.2d at 704. In Mafrige we recognized this earlier

statement in Teer, but rejected it and held that finality
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 20

language could render a partial summary judgment final for

purposes of appeal. 290 S.W.2d at 592.

Mafrige's second holding—that a summary judgment

granting more relief than requested should be reversed

and remanded, but not dismissed—does not appear to be

an entirely new rule. In both Teer and Chessher, another

pre-Mafrige case, we reversed and remanded (rather than

dismissed) summary judgment orders after determining that

they were interlocutory because they granted more relief

than requested. See Teer, 664 S.W.2d at 705; Chessher v.

Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983).

But see Ross v. Arkwright Mut. Ins. Co., 834 S.W.2d 385,

393 (Tex.App.—Houston [14th Dist.] 1992) (opining that

these cases are “in direct contravention of TEX.R. CIV.

P. 166a(c)” and discussing disagreement in the courts over

whether summary judgment orders granting more relief than

requested were interlocutory or appealable, but erroneous,

judgments), rev'd sub. nom. Mafrige, 866 S.W.2d at 590.

Thus, while the courts were not entirely in agreement, it

appears we had already established the rule that a summary

judgment order granting more relief than requested is not

interlocutory—it is simply erroneous. For this reason, I agree

with the Court that if an order actually does dispose of each

claim and every party, it is an appealable judgment, even if

it grants more relief than requested. This is consistent with

the long-standing rule that if an order actually disposes of

all parties and issues, it is final for appeal purposes. E.g.,

Houston Health Clubs, Inc. v. First Court of Appeals, 722

S.W.2d 692, 693 (Tex.1986). However, consistent with my

view that we should overrule Mafrige and its progeny and

recognize no presumption for or against finality, I do not

believe any type of conclusory finality language can ever be

read to grant more relief than requested by the parties. 6

We should determine summary judgment finality by

comparing the live pleadings and the summary judgment

order. A summary judgment order should only be final if it

matches the contents of the pleadings. And, as was the law

before Bandera, a court of appeals should summarily reverse

any summary judgment granting more relief than requested,

without any sua sponte severance of some issues while others

are remanded.

Wiping the slate clean by overruling the rules created in

Mafrige, Inglish, and Bandera while we study the best method

of tackling summary judgment finality through our formal

rule-promulgation process is the better solution for several

reasons. First, this approach strikes a more reasonable balance

between the competing policies of promoting certainty and

preserving parties' rights to appellate review. And, under this

approach, the trial court and the parties drafting summary

judgment orders would have the burden, and the incentive, to

ensure that the pleadings, summary judgment motions, and

the summary judgment orders match. If a premature appeal is

taken, the court of appeals need only compare the pleadings,

motions, and order. If the order does not dispose of parties or

issues raised in the pleadings, then it is interlocutory and the

court must dismiss the appeal. 7 If the order explicitly *218

disposes of issues and parties not raised in the motion, it is

erroneous and the court must reverse the entire order.

Most importantly, this approach alters the consequences of

poorly-drafted orders. Specifically, the consequence flowing

from a poorly drafted order becomes the risk of a premature

appeal rather than an untimely one. This eliminates the

greatest risk Mafrige created—that an interlocutory order,

contrary to the trial court's and (at least one party's) intent,

will be fictitiously made final, starting the appellate and

plenary power timetables even while the litigation continues.

No one would argue that conducting a trial after the trial

court's plenary power has expired is not a waste of judicial

resources. Moreover, because overruling Bandera eliminates

the benefits of a premature appeal, taking such an appeal

would not be a cost-efficient mistake for litigants to make,

increasing the incentive to ensure orders are more clearly

drafted. If a premature appeal is nonetheless taken, it would

not create an onerous burden for the appellate court. The

opposing party need only file a brief pointing out that

the pleadings, motion, and order do not match, leading to

automatic remand or dismissal.

No one disputes that rules governing summary judgment

finality could be helpful to the bench and bar and facilitate

judicial efficiency. But history, as well as our own precedent,

has shown that judicial opinions are not the place to achieve

this. Any attempt to adhere to the Mafrige principle or retain

parts of it while rejecting others can only lead to more

problems. Instead, this Court should overrule Mafrige and its

progeny and start anew. As the Court even notes, our rules

advisory committee is currently studying summary judgment

finality. 39 S.W.3d at 216. Retaining parts of Mafrige, Inglish,

Bandera as modified by the Court's less-than-clear opinion

today—only to follow with promulgation of a concurrent

finality rule—will only lead to more confusion.

I agree that the cases here should be reversed. But, because

the Court refuses to fix the problems its judicial rulemaking
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 21

in Mafrige caused and allow our rulemaking process to work,

I cannot join the Court's opinion.

IV. RECOMMENDATION

I recognize that the Supreme Court of Texas Advisory

Committee on Rules of Civil Procedure has been studying

the problem of summary judgment finality. It has proposed

an amendment to Rule 166a of the Texas Rules of Civil

Procedure:

(j) Statement of Grounds. An order

granting summary judgment must

state the ground or grounds on

which the motion was granted. No

judgment may be affirmed on other

grounds stated in the motion unless

they are asserted by appellee in

the appellate court as alternative

grounds for affirmance.

I do not believe this proposed amendment goes far enough.

First I would suggest to the committee that they consider

requiring each summary judgment order specifically identify:

(1) the claims each party brings; (2) the grounds upon which

each party seeks summary judgment; (3) each ground upon

which the trial court granted summary judgment; and (4) each

ground upon which the trial court denied summary judgment.

This solution is intuitive. In the vast majority of cases,

this formality, rather than including magic language, would

provide notice to parties about what has actually happened. In

practice, this procedure alleviates many problems Mafrige's

finality rule has caused.

Under this approach, a summary judgment is not final unless

the order specifically identifies each claim for relief, the

grounds upon which each party seeks summary judgment, and

the court's disposition *219 of each claim and party. The

appellate court's jurisdiction is determined only by looking at

whether the trial court rendered an order expressly disposing

of all remaining parties and issues. If the trial court errs by

omitting certain claims or parties from the order, as happened

in Lehmann and Harris, it is not a final order for purposes

of appeal. Under this approach a party never loses its right to

appeal based upon the finality of a summary judgment order

that is silent about the party or its claims or that sua sponte

grants relief no party requested without mentioning the parties

or claims—regardless of how clearly it states that it is a final

judgment disposing of all parties and issues.

Most significantly, in practice this would lead to better

drafting and fewer erroneous appeals. Specifically, if required

to expressly list each ground upon which summary judgment

is requested, trial courts are not likely to add grounds to their

order that the summary judgment motion did not raise.

Second, I would suggest the committee consider a rule

requiring that the prevailing party, who is charged with

drafting the court's order, serve copies on all other parties at

least ten days before the trial court is to sign and enter the

order. Consistent with this suggestion, I agree with the Court's

suggestion that the clerk send copies of all the actual signed

orders—rather than just a postcard indicating that the court

has signed an order.

The majority's author criticizes my first recommendation,

asserting that there is a “very real risk” that requiring judges

to be explicit in their summary judgment orders would result

in “thousands of judgments intended to be final ... remain[ing]

interlocutory.” 39 S.W.3d at 196. He contends that “[t]his

is precisely what has happened in the federal system even

though the federal rules impose far fewer requirements on

final judgments than the dissent would.” 39 S.W.3d at 208.

Federal Rule 58, to which he refers, requires that all final

judgments “be set forth on a separate document” and be

entered by the clerk on the docket. FED.R.CIV.P. 58.

This criticism only serves to amplify the real dangers

of straying outside the summary judgment context in

these cases. How finality of different types of judgments

is determined must be governed by the nature of the

judgment. Houston Health Clubs, Inc., 722 S.W.2d at 693

(“In determining whether a judgment is final, different

presumptions apply depending on whether the judgment

follows a conventional trial on the merits or results from

default or a motion for summary judgment.”). Cognizant of

this, my recommendation, unlike Federal Rule 58, is limited

to summary judgment finality.

The live pleadings define the issues in a case. The issues

tried do not always mirror these pleadings. See Vance v.

Wilson, 382 S.W.2d 107, 108 (Tex.1964). Nonetheless, we

have repeatedly recognized that a presumption should exist

that all issues presented by the pleadings are disposed of in

a conventional trial on the merits. See Aldridge, 400 S.W.2d

at 897–98; Vance, 382 S.W.2d at 108. This presumption
Lehmann v. Har-Con Corp., 39 S.W.3d 191 (2001)

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 22

can be rebutted by a contrary showing in the record. See

Richey v. Bolerjack, 589 S.W.2d 957, 959 (Tex.1979). But

absent such a rebuttal, this presumption prevents judgments

from languishing after trial based solely on variations in the

pleadings and judgment. This presumption has saved us from

the types of problems the federal system has experienced.

However, we sensibly limited this presumption to judgments

“not intrinsically interlocutory in character.” Aldridge, 400

S.W.2d at 897. We have also explained that summary

judgments are intrinsically interlocutory and thus they should

not be presumed final. Houston Health Clubs, Inc., 722

S.W.2d at 693. Thus, there is nothing illogical about requiring

that finality language be explicit. And I respectfully disagree

that my recommendation, limited to summary judgments, will

cause such *220 major havoc in the court system. Further,

I believe the additional formality in this context is worth the

certainty and protections such a rule provides.

V. CONCLUSION

In Texas, the test for determining summary judgment finality

has always been whether the judgment disposes of all parties

and all issues raised in the pleadings. In Mafrige we created

a legal fiction to simplify the process of determining finality.

But Mafrige created more problems than it solved. It is

beyond me why the Court insists on struggling through pages

and pages of history about presumptions, magic language,

and Mother Hubbard clauses instead of squarely considering

the problems Mafrige caused and providing a solution. Its

willingness to cling to this legal fiction, while refusing to

recognize that our rulemaking in Mafrige and its progeny was

not the correct solution, will only create more problems.

I concur in the judgment in these cases. But, because the Court

declines to overrule Mafrige, Inglish, and Bandera, and await

our promulgation of a rule governing summary judgment

finality, I do not concur in its reasoning.

Parallel Citations

44 Tex. Sup. Ct. J. 364

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

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 23

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

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 24

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

44 Tex. Sup. Ct. J. 364

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 25

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.

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

45 S.W. 1032

Court of Civil Appeals of Texas.

NEHRING ET AL.

v.

MCMURRAIN ET AL.

June 1, 1898.

Appeal from district court, Travis county; R. E. Brooks,

Judge.

Trespass to try title by Victoria McMurrain and others against

Fritz Nehring and others. From a judgment for plaintiffs,

defendants appeal. Reversed.

West Headnotes (3)

[1] Death

Admissibility of Evidence as to Death

To rebut the presumption of death arising

from a person's disappearance, testimony of a

witness, who saw a person bearing the supposed

deceased's name, as to his appearance, and

conversations had with him in regard to his

family connections, is admissible.

1 Cases that cite this headnote

[2] Principal and Agent

Death of Principal

A power to execute a conveyance of land is

revoked by the death of the principal.

Cases that cite this headnote

[3] Trespass to Try Title

Declaration or Petition

In trespass to try title, where partition is desired,

the interests of the several parties should be

stated in the petition.

1 Cases that cite this headnote

Attorneys and Law Firms

*1032 David H. Hewlett and Geo. F. Pendexter, for

appellants. Hugh L. Davis and Geo. S. Walton, for appellees.

Opinion

FISHER, C. J.

This, in effect, is an action of trespass to try title, brought

June 29, 1896, by the appellees (plaintiffs below) against

the appellants. The case was tried at the December term,

1897, of the district court of Travis county, and judgment

below was rendered in favor of the plaintiffs on the following

verdict: “We, the jury, find for the plaintiffs against all

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

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

in and to 960 acres of land described in plaintiffs' petition, and

that only an undivided one-third interest in said land is at issue

in this case, and that, if plaintiffs are entitled to recover any

part of the land in controversy in this suit, that such interest is

an undivided one-third or one-sixth interest, according to the

finding of the jury as to whether Frank Conrad, or his mother,

Mrs. Smith, died first. That if the jury find Frank Conrad died,

leaving his mother, Mrs. Smith, as his only heir, plaintiffs are

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

land.” From this agreement it is apparent that the important

question in the case is which of the two--Frank Conrad or

his mother, Mrs. Smith--died first. The verdict of the jury, in

effect, determined that Mrs. Smith survived her son, Frank

Conrad. According to the evidence offered by the plaintiffs,

Frank Conrad was born about 1850, and was last seen alive

about the year 1866, and was last heard from when he was

at New Orleans, some time in the year 1868. Mrs. Smith, his

mother, it seems, disappeared about the year 1878, and has

not been seen or heard of since that time. The presumption

of death arising from a continued and unexplained absence

for seven years and over of Frank Conrad was relied upon

by the plaintiffs to establish the proposition that he died

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
Nehring v. McMurrain, 45 S.W. 1032 (1898)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

plaintiffs, these depositions were excluded, and this ruling

is here complained of. The evidence of this witness was

to the effect that in 1889, in Baton Rouge parish, La., he

met with, and became acquainted with, a man by the name

of Frank Conrad. The witness goes on and describes the

appearance of this Frank Conrad, and gives his probable age,

and testifies as to some conversations that he had with Frank

Conrad, in which he gave an account of himself and his

family connections. The issue raised by this evidence was

one of identity, and not pedigree. If the purpose had been

to establish the pedigree by the evidence of this witness, it

would not have been admissible, but here the object was to

identify the Frank *1033 Conrad known to this witness as

the Frank Conrad who the plaintiffs claim had previously

disappeared. The evidence of this witness would have some

bearing upon the question of identity, and in rebutting the

presumption of the death of Frank Conrad, which arose from

his disappearance since 1868. The objections that could be

urged to this evidence would not go to its admissibility, but

could solely affect its credibility; and its effect in this latter

respect was a question for the jury. Similarity of name is some

evidence of identity. 9 Am. & Eng. Enc. Law, 863. And, on

the question of identity, it is admissible to show the name the

person bore, his personal appearance and conversations, and

the account he gave of himself and his family connections and

associations. Id., 866. And the information that is furnished

upon this subject need not come from a source which is related

to, or familiar with the family history of, the person who has

disappeared. What knowledge may be possessed by strangers

upon this subject is admissible. In Wentworth v. Wentworth,

71 Me. 74, the court said: “The rule of law is that upon a

person's leaving his usual home and place of residence for

temporary purposes, and not being heard of, or known to be

living, for the term of seven years, the presumption is that he is

not alive. It must appear that he has not been heard of by those

persons who would naturally have heard from him during

the time that he had been alive. The rule, however, does not

confine the intelligence to any particular class of persons. It

may be to persons in or out of the family. The mere failure to

hear from an absent person for seven years, who was known to

have a fixed place of residence abroad, would not be sufficient

to raise the presumption of his death, unless due inquiry

had been made at such place without getting tidings of him.

Loring v. Steineman, 1 Metc. (Mass.) 211; Flynn v. Coffee,

12 Allen, 133; Doe v. Jesson, 6 East, 80; Doe v. Deakin, 4

Barn. & Ald. 433; Doe v. Andrews, 15 Adol. & E. (N. S.)

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;

Stinchfield v. Emerson, 52 Me. 465. See Scott's Lessee v.

Ratliffe, 5 Pet. 81.” In Flynn v. Coffee, 12 Allen, 133, it was

held “that, in order to rebut the presumption of death arising

from the absence of seven years, evidence is admissible to

show that the person has been heard from, as living within

that time, though by others than the members of his family.”

Mullery v. Hamilton, 71 Ga. 720, was a case where a legacy

had been left to a certain child; and the question was whether

he survived the testatrix, and whether a certain person, who

did survive her, and who claimed to be the legatee, was in

fact so. On the question of identity it was held admissible

to show the name such person bore, his personal appearance

and conversation, and the account he gave of himself and his

family connections and associations. And evidence of these

facts was from witnesses, it seems, who were not connected

with the family, and had no previous knowledge of its history.

Our conclusion is that much of this testimony was admissible,

and the court erred in excluding it.

There was no error of the court in overruling the applications

of the defendants for a severance. They did not hold by

distinct titles, emanating from different sources, but they all

held under common vendors. Therefore it was not a case in

which they could properly sever.

In response to the second assignment of error, it is sufficient

to say that there was no judgment rendered for partition of the

land. Therefore the failure of the plaintiffs, in their petition,

to state the interest of the several parties, could not be held

reversible error. But, in view of another trial, we suggest that,

if a partition is desired, it would be proper for the plaintiffs to

state the interest of the several parties, if it can be done.

There was no error in the ruling of the court in excluding

the deed of partition made by Raymond. The death of Frank

Conrad revoked the power and the authority of Raymond to

execute the deed of partition.

There was no error in the charge of the court as complained of

in the fifth assignment of error, when we consider the effect

of the entire charge.

We express no opinion concerning the facts. This much is

said in response to those assignments of error that complain

of the error in refusing to grant a new trial on account of the

insufficiency of evidence on certain questions.

We find no error in the eighth and ninth assignments of error.
Nehring v. McMurrain, 45 S.W. 1032 (1898)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

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.
Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594 (1996)

40 Tex. Sup. Ct. J. 198

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

940 S.W.2d 594

Supreme Court of Texas.

SCOTT & WHITE MEMORIAL HOSPITAL d/

b/a Scott & White Memorial Hospital, Scott

& 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.,

Thomas Coburn, M.D., et al., Petitioners,

v.

Roy SCHEXNIDER, Christine Schexnider,

and Robert D. Green, Respondents.

No. 95–1242. | Dec. 13, 1996.

Plaintiffs brought medical malpractice action against hospital

and doctors. The 169th District Court, Bell County, J.F.

Clawson, J., granted summary judgment to certain defendants

and granted defendants' motion for sanctions. The Austin

Court of Appeals, Powers, J., 906 S.W.2d 659, reversed. On

defendants' application for writ of error, the Supreme Court

held that trial court had power during its plenary jurisdiction

to grant motion for sanctions even though motion was not

pending when nonsuit was filed, abrogating Hjalmarson, 840

S.W.2d 153.

Writ granted, Court of Appeals' judgment affirmed in part and

reversed in part, and case remanded.

West Headnotes (4)

[1] Costs

Nature and Grounds of Right

Trial court had power during its plenary

jurisdiction to grant motion for sanctions, which

was filed by defendants who were voluntarily

nonsuited, even though motion was not pending

when nonsuit was filed; abrogating Hjalmarson,

840 S.W.2d 153. Vernon's Ann.Texas Rules

Civ.Proc., Rules 13, 162.

63 Cases that cite this headnote

[2] Costs

Nature and Grounds of Right

Trial court's power to decide motion for

sanctions pertaining to matters occurring before

judgment is no different than its power to decide

any other motion during its plenary jurisdiction.

Vernon's Ann.Texas Rules Civ.Proc., Rule 13.

46 Cases that cite this headnote

[3] Costs

Nature and Grounds of Right

Time during which trial court has authority to

impose sanctions on motion is limited to when

it retains plenary jurisdiction and is not limited

by rule governing nonsuits. Vernon's Ann.Texas

Rules Civ.Proc., Rules 13, 162.

49 Cases that cite this headnote

[4] Costs

Nature and Grounds of Right

Courts impose sanctions against parties filing

frivolous claims to deter similar conduct in

the future and to compensate aggrieved party

by reimbursing costs incurred in responding to

baseless pleadings. Vernon's Ann.Texas Rules

Civ.Proc., Rule 13.

12 Cases that cite this headnote

Attorneys and Law Firms

*595 Lisa L. Havens–Cortes, Bob Burleson, Burleson,

Bowmer, Courtney, Burleson, Normand & Moore, Temple,

David McAdams Sibley, Keith C. Cameron, Naman, Howell,

Smith & Lee, Waco, for petitioners.

Jimmy Williamson, Houston, Michael L. Davis, Robert D.

Green, Green, Downey & Black, Houston, for respondents.

OPINION

PER CURIAM.

We overrule Respondents' motion for rehearing. We

withdraw our opinion of August 16, 1996, and substitute the

following in its place.
Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594 (1996)

40 Tex. Sup. Ct. J. 198

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Does the trial court have the power during its plenary

jurisdiction to grant a motion for sanctions under Texas Rule

of Civil Procedure 13 though the motion was not pending

when a nonsuit was filed? We answer that question yes.

On January 7, 1992, Roy and Christine Schexnider filed a

medical malpractice suit against Scott & White Memorial

Hospital, Scott & White Clinic, and eight Scott & White

doctors, including Dr. Nickel. The Schexniders added twentyone other Scott & White doctors as defendants on January 28,

1992. On February 10, 1992, the Schexniders added two more

Scott & White doctors, including Dr. Heriot.

As the case proceeded, the defendants neither requested

discovery from the Schexniders nor challenged the pleadings

or parties. Approximately two and a half years after the

Schexniders filed suit, all defendants moved for summary

judgment. The doctors supported their motions with affidavits

in which they swore that the treatments they rendered met

the applicable standard of care. The doctors signed and swore

to the affidavits approximately a year before they filed their

motion for summary judgment. Shortly after the defendants

moved for summary judgment, but before the trial court ruled

on the motions, the Schexniders nonsuited all the doctors

except Drs. Nickel and Heriot by omitting them from their

Third Amended Original Petition. On November 4, 1994, the

trial court granted a final summary judgment in favor of the

remaining defendants.

Thereafter, all of the defendants, including those who had

been nonsuited, moved for sanctions under Rule 13, alleging

that the Schexniders' suit was “groundless and brought in bad

faith and for the purpose of harassment as to all non-party

movants.” After an evidentiary hearing, the trial court ordered

the Schexniders' attorney, Robert D. Green, to pay $25,000.00

in sanctions to the nonsuited defendants. All of this occurred

while the trial court retained plenary jurisdiction.

The court of appeals reversed both the summary judgment

and the sanctions order, holding that Texas Rule of Civil

Procedure 162, the rule governing nonsuits, deprived the trial

court of jurisdiction to grant the motion for sanctions after the

nonsuit. 906 S.W.2d 659. We agree with the court of appeals'

decision to reverse the summary judgment, but we disagree

with its conclusion that Rule 162 deprived the trial court of

the *596 power to order sanctions while it retained plenary

jurisdiction.

[1] Rule 162 applies only to sanctions motions filed before

the nonsuit takes place and therefore does not apply to this

case. 1 Rule 162 allows a nonsuit “any time before the

plaintiff has introduced all of his evidence other than rebuttal

evidence.” It also provides that “[a] dismissal under this rule

shall have no effect on any motion for sanctions, attorney's

fees or other costs, pending at the time of dismissal, as

determined by the court.” (Emphasis added.) Because Rule

162 speaks only to the effects of a nonsuit on a motion for

sanctions pending at the time of dismissal, the court of appeals

reasoned that a trial court does not have jurisdiction over a

later-filed sanctions motion. We disagree.

[2] [3] Absent the filing of certain motions not at issue

here, a trial court's plenary power to act in a case does

not expire until thirty days after the court has signed the

judgment. TEX.R.CIV.P. 329b(d), (e). A trial court's power to

decide a motion for sanctions pertaining to matters occurring

before judgment is no different than its power to decide

any other motion during its plenary jurisdiction. Thus, the

time during which the trial court has authority to impose

sanctions on such a motion is limited to when it retains

plenary jurisdiction and is not limited by Rule 162.

2 Rule 162

merely acknowledges that a nonsuit does not affect the trial

court's authority to act on a pending sanctions motion; it does

not purport to limit the trial court's power to act on motions

filed after a nonsuit. In this case, the trial court imposed

sanctions while it retained plenary jurisdiction. Nothing in

Rule 162 or any previous decision of this Court deprives a

trial court of this power.

In reaching a contrary result, the court of appeals relied

primarily upon Hjalmarson v. Langley, 840 S.W.2d 153

(Tex.App.—Waco 1992, orig. proceeding). In Hjalmarson,

the defendant moved for Rule 13 sanctions two weeks after

the trial court signed an order granting the plaintiff's nonsuit.

Although the defendant filed the motion while the trial court

had plenary jurisdiction, the trial court did not sign the

order purporting to grant the motion until after the court's

jurisdiction had expired. The court of appeals held that the

sanctions order was void both because the trial court ruled

on the motion without reinstating the case, and because the

trial court had no power to act after expiration of its plenary

jurisdiction. Id. at 154–55.

Although the court in Hjalmarson correctly concluded that

the trial court could not grant the motion after its plenary

jurisdiction had expired, it incorrectly concluded that the

trial court must reinstate a case before granting a Rule 13
Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594 (1996)

40 Tex. Sup. Ct. J. 198

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

motion filed after a nonsuit. Reinstatement, governed by Rule

165a(3), applies to cases dismissed for want of prosecution,

not to voluntary nonsuits. A trial court need not reinstate a

case in order to exercise its powers under Rule 13.

[4] As we pointed out in Aetna Casualty & Surety Co. v.

Specia, whether a sanction survives a nonsuit depends on the

purpose served by imposing the sanction. 849 S.W.2d 805,

806–07 (Tex.1993). Rule 13 sanctions serve both deterrent

and compensatory purposes. Courts impose sanctions against

parties filing frivolous claims to deter similar conduct in

the future and to compensate the *597 aggrieved party

by reimbursing the costs incurred in responding to baseless

pleadings. Rule 162 would frustrate these purposes if it

allowed a party to escape sanctions by simply nonsuiting

the aggrieved party. The United States Supreme Court has

pointed to a similar rationale in upholding the imposition of

sanctions under Federal Rule of Civil Procedure 11 three and

a half years after voluntary dismissal of a case:

Baseless filing puts the machinery of justice in motion,

burdening courts and individuals alike with needless

expense and delay. Even if the careless litigant quickly

dismisses the action, the harm triggering Rule 11' s

concerns has already occurred. Therefore, a litigant who

violates Rule 11 merits sanctions even after a dismissal.

Moreover, the imposition of such sanctions on abusive

litigants is useful to deter such misconduct. If a litigant

could purge his violation of Rule 11 merely by taking

a dismissal, he would lose all incentive to “stop, think

and investigate more carefully before serving and filing

papers.”

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 398,

110 S.Ct. 2447, 2457, 110 L.Ed.2d 359 (1990) (citation

omitted). 3

While we reject the court of appeals' reason for reversing

the sanctions order, the Schexniders presented two additional

challenges to the sanctions order, neither of which was

addressed by the court of appeals. The Schexniders presented

points of error to the court of appeals challenging the evidence

supporting the sanctions order, including whether the order

was unjust and excessive. They also challenged the failure of

the sanctions order to state the “particulars” supporting the

imposition of sanctions, as Rule 13 requires. As these points

present additional independent bases for the court of appeals'

judgment, we may address them ourselves or direct the court

of appeals to do so on remand. See McKelvy v. Barber, 381

S.W.2d 59, 64 (Tex.1964). We choose the latter.

Accordingly, the Court grants Petitioners' application for writ

of error, and pursuant to Texas Rule of Appellate Procedure

170, without hearing oral argument, reverses the court of

appeals' judgment with respect to Rule 13 sanctions and

remands this case to that court for consideration of the

Schexniders' other points of error attacking the sanctions

order. We affirm the remainder of the court of appeals'

judgment.

Parallel Citations

40 Tex. Sup. Ct. J. 198

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).
Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594 (1996)

40 Tex. Sup. Ct. J. 198

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

905 S.W.2d 43

Court of Appeals of Texas,

San Antonio.

Jose VELEZ and Manuel Munoz, Jr., Appellants,

v.

Jose Garcia DE LARA and Jose Botello, Appellees.

No. 04–93–00369–CV. | July 31, 1995.

Claimants appealed ruling of the 37th District Court of Bexar

County, Andy Mireles, J., that vacated order of sanctions

for discovery violations imposed by a different judge in

same proceeding, denied claimants' motion for contempt, and

declined to impose additional monetary sanctions. The Court

of Appeals, Stone, J., held that: (1) trial court had authority

to set aside sanctions order; (2) trial court had authority to

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.

Affirmed.

West Headnotes (10)

[1] Motions

Authority and jurisdiction of court or judge

Trial courts retain authority to reconsider any

interlocutory order until the judgment becomes

final.

4 Cases that cite this headnote

[2] Appeal and Error

Relating to witnesses, depositions,

evidence, or discovery

Discovery sanctions cannot be the subject of an

interlocutory appeal. Vernon's Ann.Texas Rules

Civ.Proc., Rule 215, subd. 2, par. b.

2 Cases that cite this headnote

[3] Mandamus

Proceedings in civil actions in general

Discovery sanctions are rarely proper subject for

mandamus review.

Cases that cite this headnote

[4] Judges

Judicial powers and functions in general

Jurisdiction to reconsider an interlocutory ruling

is vested in the court rather than the individual

judge, and one district judge may hold court

for another district judge, and thus second judge

in civil proceeding had authority to rule on

motions for sanctions and for contempt brought

for opposing party's failure to comply with first

judge's order of sanctions. Vernon's Ann.Texas

Const. Art. 5, § 11.

3 Cases that cite this headnote

[5] Judges

Judicial powers and functions in general

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.

Cases that cite this headnote

[6] Appeal and Error

Questions of Fact on Motions or Other

Interlocutory or Special Proceedings

A hearing on a motion for sanctions is like a

nonjury trial and the trial judge's order will not

be disturbed if it is supported by any evidence of

probative force.

Cases that cite this headnote

[7] Appeal and Error

Depositions, affidavits, or discovery

In determining whether a trial court abused its

discretion in issuing a sanctions order, appellate

courts should view the evidence in the light most

favorable to the trial court's ruling.

Cases that cite this headnote
Velez v. DeLara, 905 S.W.2d 43 (1995)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

[8] Courts

Abuse of discretion in general

A trial court abuses its discretion when it reaches

a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law.

Cases that cite this headnote

[9] Pretrial Procedure

Failure to Disclose; Sanctions

Trial court in civil proceeding did not abuse its

discretion in its ruling on a motion for sanctions

brought because of opposing party's alleged

failure to comply with earlier judge's monetary

sanctions for discovery violations, where court

did not impose requested monetary sanctions but

ordered moving party to clarify its objections

to the discovery produced by opposing party,

established a deadline for opposing party to

furnish supplemental responses, and ordered

opposing party to submit to second deposition,

and where court heard extensive argument from

both sides before ruling.

Cases that cite this headnote

[10] Contempt

Decisions reviewable

Court of Appeals has no jurisdiction to entertain

an appeal from a refusal to hold a party in

contempt; such refusal is not a final, appealable

judgment.

3 Cases that cite this headnote

*44 Appeal from the 37th District Court of Bexar

County, Trial Court No. 90–CI–09727; Andy Mireles, Judge

Presiding 1.

Attorneys and Law Firms

Armando Lopez, Lopez, Sinderson & Fraga, L.L.P., Houston,

for appellants.

Ricardo G. Cedillo, Susan G. Lozano, Davis, Adami &

Cedillo, Inc., San Antonio, for appellees.

Before CHAPA, C.J., and RICKHOFF and STONE, JJ.

OPINION

STONE, Justice.

This is an appeal from an order entered by one district court

judge setting aside a previous sanctions order entered by a

different district court judge. Appellants contend the second

trial judge was without authority to vacate the sanctions order

because such orders can be reviewed on appeal only after

entry of a final judgment on the merits. We find that the trial

court had authority to set aside the order of sanctions and that

it did not abuse its discretion in ruling on appellants' motions

for additional sanctions. To the extent the trial court's order

was a contempt adjudication, this court has no jurisdiction and

expresses no opinion as to its validity.

Appellees Jose Garcia DeLara and Jose Botello were

the national president and treasurer, respectively, of the

League of United Latin American Citizens (LULAC), which

maintained a bank account with the International Bank

of Commerce (IBC). Appellees also maintained a separate

undisclosed account at another bank under LULAC's name.

At their 1990 annual meeting, the LULAC National Board of

Directors elected appellants Jose Velez and Manuel Munoz

to be the new president and treasurer, respectively, and

authorized them to make signatory changes on all bank

accounts. IBC instituted this suit as an interpleader action.

Appellants filed a cross action on behalf of LULAC against

Appellees for a full accounting and a turnover of all LULAC

funds. IBC was ultimately dismissed from the litigation by

agreement of all parties.

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

filed a motion for sanctions and on February 25, 1991,

the Honorable Judge Antonio Cantu ordered appellees to

each pay a $100.00 fine and an additional $500.00 for each

Friday after March 1, 1991, that they did not produce the

information. Subsequently, appellees accidently produced a

copy of one check from the other account. Appellants again

moved for sanctions citing violations of the court's February

25th order. On August 1, 1991, Judge Cantu signed an order

finding that appellees had violated his earlier order and fined

each $500.00 for each Friday from March 1, 1991 to July

26, 1991, totalling $10,500.00 each, jointly and severally,
Velez v. DeLara, 905 S.W.2d 43 (1995)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

and he reaffirmed the $100.00 penalty against each. The

order specifically recites that a motion for contempt will be

entertained by the court if the parties refuse to abide by the

terms of the order.

Appellees filed motions for reconsideration to have the

sanctions order set aside, but these motions were never

presented to the trial court. Appellants filed a motion for

contempt alleging appellees' failure to comply with the

order of August 1st signed by Judge Cantu. Appellants

also filed motions to compel answers to interrogatories and

for additional sanctions. The motions were heard by the

Honorable Judge Susan Reed, who entered an order on

November 18, 1991 which denied the motion for contempt,

ruled that the previous sanctions granted by Judge Cantu for

contempt were unenforceable as a matter of law, ordered

appellants to clarify their objections to appellees' answers to

interrogatories, ordered appellees to file any supplemental

answers before November 25th, and ordered appellees to

each submit to another deposition. Appellants thereafter nonsuited their claims against appellees and perfected their

appeal to this court complaining of the rulings issued by Judge

Susan Reed.

*45 AUTHORITY OF THE TRIAL COURT

Appellants contend that Judge Cantu's order was not

reviewable by Judge Reed, but was only reviewable on

appeal after final judgment. Appellants rely on TEX.R.CIV.P.

215(2)(b)(8), which states that a sanctions order “shall be

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

that this means of appealing a sanction order is an adequate

remedy. Bodnow Corp. v. City of Hondo, 721 S.W.2d

839, 840 (Tex.1986) (per curiam) (discovery sanctions not

appealable until final judgment is rendered by trial court);

Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801, 802

(Tex.1986) (per curiam) (right to appeal discovery order after

final judgment is adequate remedy). Appellants thus conclude

that Judge Reed was without authority to modify or withdraw

the sanctions orders previously signed by Judge Cantu.

[1] [2] [3] While the legal principles cited by appellants

are generally true, they do not mandate the conclusion reached

by appellants. We recognize that discovery sanctions cannot

be the subject of an interlocutory appeal, and are rarely a

proper subject for mandamus review. Rather, as Rule 215(2)

(b) states, such sanctions can be reviewed on appeal after

entry of a final judgment. Nonetheless, trial courts retain

authority to reconsider any interlocutory order until the

judgment becomes final. See Fruehauf Corp. v. Carrillo, 848

S.W.2d 83, 84 (Tex.1993); Kone v. Security Finance Co., 158

Tex. 445, 313 S.W.2d 281, 286 (1958). The Fort Worth Court

of Appeals has specifically ruled that a subsequent judge can

withdraw a previous sanctions order entered by another judge.

Carrizales v. Wal–Mart Stores, Inc., 794 S.W.2d 129, 130

(Tex.App.—Fort Worth 1990, writ denied) (successor judge

had absolute right to set aside multimillion dollar sanction

order entered by predecessor judge).

[4] Further, the record does not support appellants' claims

that appellees engaged in “judge shopping” until they found

a judge willing to set aside the sanctions order. Our state

constitution provides that district judges may exchange

districts or hold court for one another whenever it is

expedient. TEX. CONST. art. 5, § 11. In Bexar County,

which utilizes a central docket system, the presiding judge

assigns cases to any available judge, including currently

elected judges and visiting judges. See Local Rules of the

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

Reed had authority to rule on the motions for sanctions and for

contempt. That authority was not vested solely in Judge Cantu

as the judge who issued the sanctions order. See Hyundai

Motor America v. O'Neill, 839 S.W.2d 474, 481 (Tex.App.—

Dallas 1992, no writ).

SANCTIONS ORDER

[5] [6] [7] [8] [9] To the extent Judge Reed's order

constituted a review of the interlocutory sanctions order

issued by Judge Cantu, it was an authorized exercise of her

authority. Likewise, Judge Reed had authority to rule on the

motions to compel and for sanctions. 2 We find no abuse of

discretion in her ruling. A hearing on a motion for sanctions

is like a non-jury trial and the trial judge's order will not be

disturbed if it is supported by any evidence of probative force.

Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219,

224 (Tex.App.—Dallas 1989, writ denied). In determining

whether a trial court abused its discretion in issuing a

sanctions order, appellate courts should view the evidence in

the light most favorable to the trial court's ruling. Vaughn

v. Texas Employment Comm'n, 792 S.W.2d 139, 142–43
Velez v. DeLara, 905 S.W.2d 43 (1995)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

(Tex.App.—Houston [1st. Dist.] 1990, no writ); Parks v. U.S.

Home Corp., 652 S.W.2d 479, 485 (Tex.App.—Houston [1st

Dist.] 1983, writ dism'd). A trial court abuses its discretion

when it reaches a decision so arbitrary and unreasonable as

to amount to a clear and prejudicial *46 error of law. See

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241–42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct.

2279, 90 L.Ed.2d 721 (1986); City of Dallas v. Ormsby, et

al., 904 S.W.2d 707, 709 (Tex.App.—Amarillo 1995, n.w.h.).

In the instant case the court heard extensive argument from

all parties, and rather than imposing monetary sanctions,

the court: (1) ordered appellants to clarify their objections

to the discovery produced by appellees; (2) established a

deadline for appellees to furnish supplemental responses; and

(3) ordered both appellees to submit to second depositions.

We find no abuse of discretion in this ruling.

CONTEMPT RULING

[10] In addition to the motion to compel and for sanctions,

appellants presented to Judge Reed their motion for contempt

based upon appellees' alleged failure to comply with the

order of August 1, 1990. That motion was denied by

Judge Reed because she found the prior sanctions order

to be unenforceable as a matter of law. This court has no

jurisdiction to entertain an appeal from a refusal to hold

a party in contempt because it is not a final, appealable

judgment. Norman v. Norman, 692 S.W.2d 655, 655

(Tex.1985) (per curiam); Ex parte Cardwell, 416 S.W.2d 382,

384 (Tex.1967); see also Gawlik v. Gawlik, 707 S.W.2d 256,

257 (Tex.App.—Corpus Christi 1986, no writ).

To the extent appellants complain of the trial court's order

refusing to hold appellees in contempt, this court has no

jurisdiction and renders no opinion. In all other regards the

judgment of the trial court is affirmed.

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

827 S.W.2d 833

Supreme Court of Texas.

Charles F. WALKER and Mary

Jeanette Walker et al., Relators,

v.

The Honorable Anne PACKER, Judge, Respondent.

No. C–9403. | Feb. 19, 1992. | Rehearing

Overruled May 6, 1992. | Dissenting

Opinion by Justice Gammage May 7, 1992.

Parents of child born with brain damage, who had brought

action against obstetrician, hospital where child was born,

and nurse attending at delivery, brought petition for writ of

mandamus arguing that the trial court abused its discretion

by refusing to order hospital to produce documents from

its insurer's files and by ordering that portions of other

responsive documents be stricken. The Supreme Court,

Phillips, C.J., held that: (1) plaintiffs had not presented

sufficient record to demonstrate that trial court clearly abused

its discretion in failing to grant plaintiffs requested discovery

from one of defendants, and (2) plaintiffs had adequate

remedy by way of appeal as to documents they sought from

nonparty for impeachment purposes.

Petition denied.

Gonzalez, J., concurred with opinion.

Doggett, J., dissented with opinion in which Mauzy, J.,

joined.

Gammage, J., dissented with opinion.

West Headnotes (18)

[1] Mandamus

Presumptions and Burden of Proof

Party seeking mandamus relief has burden of

providing Supreme Court with sufficient record

to establish right to mandamus relief.

465 Cases that cite this headnote

[2] Mandamus

Presumptions and Burden of Proof

Party seeking mandamus relief had burden of

providing not only a petition and affidavit, but

also a statement of facts from evidentiary hearing

that had been held. Rules App.Proc., Rule 121(a)

(2)(C, F).

20 Cases that cite this headnote

[3] Mandamus

Presumptions and Burden of Proof

Plaintiffs bringing motion for leave to file

petition for writ of mandamus arguing that trial

court clearly abused its discretion by refusing

to order defendant to produce documents from

insurer's files and by ordering that portions of

other responsive documents be stricken failed to

meet their burden of providing Court of Appeals

with record upon which they could establish

their right to mandamus relief; plaintiffs failed to

provide Supreme Court with statement of facts

from evidentiary hearing. Rules App.Proc., Rule

121(a)(2)(C, F).

824 Cases that cite this headnote

[4] Pretrial Procedure

Request, Notice, or Motion and Response

or Objection

Trial court erred in mechanically applying

Russell decision, which disapproved of global

discovery of documents merely to impeach

potential witness, to deny discovery of

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

hospital's policy restricting faculty's freedom

to testify for plaintiffs, raising the possibility

that the faculty member was biased, and

plaintiffs' request was narrowly tailored.

Vernon's Ann.Texas Rules Civ.Proc., Rule 166b,

subd. 2, par. a; Rules of Civ.Evid., Rule 613(b).

9 Cases that cite this headnote

[5] Mandamus

Scope of Inquiry and Powers of Court
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Trial court clearly abuses its discretion,

for purposes of mandamus, with respect to

resolution of factual issues or matters committed

to trial court's discretion, only if trial court could

reasonably have reached only one decision;

reviewing court may not substitute its judgment

for that of trial court.

781 Cases that cite this headnote

[6] Mandamus

Matters of Discretion

On mandamus review of trial court's

determination of legal principles, clear failure by

trial court to analyze or apply the law correctly

will constitute abuse of discretion, and may

result in appellate reversal by extraordinary writ.

1803 Cases that cite this headnote

[7] Mandamus

Scope of Inquiry and Powers of Court

On mandamus review of trial court's erroneous

denial of requested discovery in medical

malpractice case on sole basis of Russell,

Supreme Court would consider the trial court's

decision as a legal conclusion to be reviewed

with limited deference.

20 Cases that cite this headnote

[8] Mandamus

Proceedings in Civil Actions in General

Trial court's erroneous denial of plaintiffs'

requested discovery in medical malpractice case

to impeach one of defendants' expert witnesses

on sole basis of Russell constituted clear abuse

of discretion, for purposes of mandamus relief.

385 Cases that cite this headnote

[9] Mandamus

Remedy by Appeal or Writ of Error

Requirement that person seeking mandamus

relief establish lack of adequate appellate remedy

is “fundamental tenet” of mandamus practice.

92 Cases that cite this headnote

[10] Mandamus

Remedy by Appeal or Writ of Error

Mandamus will not issue where there is adequate

remedy by appeal.

277 Cases that cite this headnote

[11] Mandamus

Modification or Vacation of Judgment or

Order

Party seeking review of discovery order by

mandamus must demonstrate that the remedy

offered by an ordinary appeal is inadequate.

24 Cases that cite this headnote

[12] Mandamus

Remedy by Appeal or Writ of Error

Appellate remedy is not inadequate, for purposes

of mandamus, merely because it may involve

more expense or delay than obtaining an

extraordinary writ.

135 Cases that cite this headnote

[13] Mandamus

Modification or Vacation of Judgment or

Order

Party will not have adequate remedy by way

of appeal, for purposes of mandamus, when

appellate court would not be able to cure the trial

court's discovery error, which occurs when trial

court erroneously orders disclosure of privileged

information which will materially affect the

rights of the aggrieved party.

176 Cases that cite this headnote

[14] Mandamus

Remedy by Appeal or Writ of Error

Appeal will not be an adequate remedy, for

purposes of mandamus, where the party's ability

to present viable claim or defense at trial is

vitiated or severely compromised by trial court's
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

discovery error, but it is not enough to show

merely the delay, inconvenience or expense of

an appeal, rather, the relator must establish the

effective denial of reasonable opportunity to

develop the merits of his or her case.

389 Cases that cite this headnote

[15] Mandamus

Modification or Vacation of Judgment or

Order

When trial court imposes discovery sanctions

which have effect of precluding decision

on merits of party's claims, party's remedy

by eventual appeal is inadequate, for

purposes of mandamus, unless sanctions are

imposed simultaneously with rendition of final,

appealable judgment.

97 Cases that cite this headnote

[16] Mandamus

Modification or Vacation of Judgment or

Order

Remedy by appeal may be inadequate, for

purposes of mandamus, where trial court

disallows discovery and missing discovery

cannot be made part of appellate record, or trial

court after proper request refuses to make it

part of record, and reviewing court is unable to

evaluate effect of trial court's error on the record

before it.

46 Cases that cite this headnote

[17] Mandamus

Proceedings in Civil Actions in General

If trial court disallows discovery and missing

discovery cannot be made part of appellate

record, or trial court after proper request refuses

to make it part of record, and reviewing court

is unable to evaluate effect of trial court's error

on record before it, court must carefully consider

all relevant circumstances, such as claims and

defenses asserted, type of discovery sought,

what it is intended to prove, and presence or

lack of other discovery, to determine whether

mandamus is appropriate. Vernon's Ann.Texas

Rules Civ.Proc., Rule 166b, subd. 4.

18 Cases that cite this headnote

[18] Mandamus

Modification or Vacation of Judgment or

Order

Medical malpractice plaintiff seeking documents

from defendant hospital to impeach one of

defendant's expert witnesses had adequate

remedy by appeal, and, thus, mandamus was

inappropriate way to compel discovery, where

the information was not privileged, burdensome

or harassing, nor did it vitiate or severely

compromise the plaintiffs' ability to present

a viable claim, the materials were considered

below, and there was no reason why they would

not be available on appeal.

121 Cases that cite this headnote

Attorneys and Law Firms

*835 Les Weisbrod and Michael S. Box, Dallas, for relators.

Philipa Remington, Stephen W. Johnson, James A. Williams,

Kevin J. Keith, Martha L. Strother, Gary W. Sibley, Dallas

and Delmar L. Cain, Austin, for respondent.

OPINION

PHILLIPS, Chief Justice.

This original mandamus action involves two pre-trial

discovery requests sought by *836 relators, plaintiffs in

a medical malpractice lawsuit. The first discovery dispute

involves documents which the plaintiffs seek from one of

the defendants, while the second involves documents which

they seek from a nonparty for impeachment purposes. As to

the first matter, we hold that relators have not presented a

sufficient record to demonstrate that the trial court clearly

abused its discretion in failing to grant them all requested

relief. As to the second, we hold that relators have an adequate

remedy by appeal. Thus, mandamus is inappropriate, and we

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

The St. Paul and Aetna Records

Catherine Johanna Walker sustained brain damage at birth in

January 1983. In January 1985, her parents, Charles F. and

Mary Jeanette Walker, sued Dr. Paul Crider, the obstetrician,

St. Paul Hospital, where Catherine was born, and Iris Jean

White, a nurse attending at the delivery.

In August 1987, the Walkers served on St. Paul their third

request for production of documents pursuant to Tex.R.Civ.P.

167. One request asked for:

Any and all writings, notes,

documents, letters, etc., concerning,

mentioning, alluding to, or making

reference to (either directly or

indirectly), the tape recorded

statement given by Nurse White to

an Aetna adjuster, including but not

limited to any notes or entries in any

Aetna adjuster's file, any attorney's

file, or any file or writing in possession

of any employee, representative or

agent of St. Paul Hospital. This request

is in reference to the tape recorded

statement which you have been unable

to locate, but which was previously

requested....

St. Paul responded as follows:

In an effort to respond to this request,

this Defendant again checked with

all appropriate personnel and files

at St. Paul Hospital and the law

firm of Bailey and Williams. No

such statement or taped recording was

found. For the third time the Aetna

Casualty and Surety Company was

asked to check its records and files and

a partially transcribed statement was

located, a copy of which is attached.

No taped recording was located.

Nearly two years later, the Walkers filed a motion to

compel under Tex.R.Civ.P. 215, asserting that St. Paul

failed to respond completely to the request. 1 The Walkers

complained that “St. Paul Hospital did not even respond

to what was requested in the request for production—that

is, writings, notes, and notations in the adjuster's file or

attorney's file mentioning, alluding to, or making reference

to the tape recorded statement of Nurse White.” At about

the same time, the Walkers also served on Aetna Casualty

and Surety Company, St. Paul's insurer, an “Amended Notice

of Intention to Take Deposition Upon Written Questions

—Duces Tecum,” seeking, among other things, the same

documents. Aetna moved to quash the notice.

The trial judge appointed a special master to review the

Walkers' motion to compel and Aetna's motion to quash.

After an evidentiary hearing on September 5, 1989, the master

prepared findings, which formed the basis for two extensive

orders signed by the trial court on September 20, 1989. In the

first order, the court found that the Walkers were “entitled

to all documentation sought in [the request] from the files

of Defendant St. Paul or its attorney of record, but not from

the files of Aetna Insurance Company, except as they may

appear in the files of St. Paul or the attorneys of record of

St. Paul.” The court also stated that it “has been advised that

St. Paul has supplied all documentation that is responsive to

[the request], but that additional documentation will be made

available *837 to the Court for in camera review.” The court

therefore sustained the Walkers' motion to compel “to the

extent that on Friday, September 8, 1989 the Special Master

will review in the Chambers of the 134th District Court the

relevant portions of the St. Paul files and their attorney [sic]

files, which may be in response to Plaintiff's request....” The

court, however, did not order St. Paul to produce documents

from Aetna's files for in camera inspection. 2

After the master's September 8 in camera inspection, the court

ordered discovery of three additional documents from the

files of St. Paul and its attorneys, which it found “relate to

the matters sought in discovery and should be supplied after

irrelevant portions of such documents are stricken.”

After unsuccessfully seeking relief in the court of appeals,

the Walkers moved for leave to file a petition for writ

of mandamus with this court, arguing that the trial court

clearly abused its discretion by refusing to order St. Paul to

produce the documents from Aetna's files and by ordering that

portions of the other responsive documents be stricken. The

Walkers contend that the order was a clear abuse of discretion

because St. Paul 1) never objected to the Walkers' request for

production, 2) had a superior right to the Walkers to compel

production of the documents in Aetna's possession, and 3)

never asked that any parts of the documents be excised.
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

The record before us does not include the statement of

facts from the evidentiary hearing on the Walkers' motion

to compel production. Without it, we cannot determine on

what basis the trial judge and the special master reached

their conclusions. Since we cannot assess whether or not

the trial court's order was correct, we obviously cannot take

the additional step of determining that the court's order, if

incorrect, constituted a clear abuse of discretion.

[1] [2] [3] As the parties seeking relief, the Walkers had

the burden of providing this Court with a sufficient record to

establish their right to mandamus relief. Since an evidentiary

hearing was held, the Walkers had the burden of providing

us not only a petition and affidavit, see Tex.R.App.P. 121(a)

(2)(C) and (F), but also a statement of facts from the

hearing. See, e.g., Cameron County v. Hinojosa, 760 S.W.2d

742, 744 (Tex.App.—Corpus Christi 1988, orig. proceeding);

Greenstein, Logan & Co. v. Burgess Mktg. Inc., 744 S.W.2d

170, 177 (Tex.App.—Waco 1987, writ denied); see also

Western Casualty & Surety Co. v. Spears, 730 S.W.2d

821, 822 (Tex.App.—San Antonio 1987, orig. proceeding).

3

Having failed to meet this burden, the Walkers have not

provided us with a record upon which they can establish their

right to mandamus relief against St. Paul.

The Obstetrics Faculty Records

[4] The second discovery dispute arises out of the Walkers'

attempt to secure documentary evidence to impeach one

of the defendants' expert witnesses, Dr. Larry Gilstrap, a

faculty member in obstetrics at the University of Texas Health

Science Center at Dallas (“the Center”). Gilstrap testified at

his deposition that expert witness fees earned by obstetrics

faculty members are deposited into a “fund” in the obstetrics

“billing department”; that obstetrics faculty members get paid

“indirectly” from this fund; that the fund is handled by Judy

Wagers, a Center employee; and that he was unaware of any

obstetrics department policy restricting faculty members from

testifying for plaintiffs in medical malpractice cases.

*838 Thereafter, the Walkers noticed Wagers' deposition,

requesting that she provide all documents regarding (1) the

operation of the above-mentioned “fund” from 1985 to 1988;

and (2) limitations placed upon obstetrics faculty members

relating to their testimony in medical malpractice cases. The

Center, on behalf of Wagers, moved to quash the notice,

arguing that the request for documents was “vague and

overly broad” and that production would be “costly and

burdensome.”

Two months later, in an unrelated lawsuit, the Walkers'

counsel deposed Dr. Alvin L. Brekken, another obstetrics

faculty member at the Center. Dr. Brekken testified that

the obstetrics department's official policy, distributed in

writing to all faculty members, requires a doctor to obtain

authorization from other faculty members before testifying

for any plaintiff in a medical malpractice case. Based on this

testimony, the Walkers sought a court order to depose Wagers

and obtain the requested documents.

After reviewing the Gilstrap and Brekken depositions and

pleadings of counsel, the trial court ordered the Center to

produce the documents for in camera review by the special

master. Subsequently, in her September 20, 1989 order, the

trial judge denied the discovery, stating in part:

[S]uch requested discovery is

improper pursuant to the Rulings of

the Supreme Court of Texas in Russell

v. Young [452 S.W.2d 434 (Tex.1970)

], as the potential witness is not a

party to the suit and the records do

not relate to the subject matter of

the suit, but are sought solely for the

purpose of impeachment, according to

the Plaintiffs' pleadings.

Although noting that some of the documents “would be

relevant to this cause of action,” the court nevertheless denied

discovery because “all such documents are controlled by the

Russell decision.”

In Russell, a party sought wholesale discovery of financial

records of a potential medical expert witness who was

not a party to the lawsuit. 4 The documents requested did

not relate directly to the subject matter of the suit, but

were sought solely in an attempt to impeach the potential

witness by showing bias or prejudice. The credibility of the

witness, however, had not yet been put in doubt. Under

these circumstances, we held that the documents were not

discoverable, and we directed the trial court to vacate its order

allowing the requested discovery. 452 S.W.2d at 435. We

reasoned that “[t]here is ... a limit beyond which pre-trial

discovery should not be allowed.” Id. at 437.

The present case is distinguishable. Here, the Walkers

presented to the trial court evidence of a specific circumstance
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

—the Center's policy restricting the faculty's freedom to

testify for plaintiffs—raising the possibility that Dr. Gilstrap

is biased. Thus, the Walkers are not engaged in global

discovery of the type disapproved in Russell; rather, they

narrowly seek information regarding the potential bias

suggested by the witness' own deposition testimony and that

of his professional colleague.

Our rules of civil procedure, and the federal rules upon which

they are based, mandate a flexible approach to discovery. A

party may seek any information which “appears reasonably

calculated to lead to the *839 discovery of admissible

evidence.” Tex.R.Civ.P. 166b(2)(a). Evidence of bias of

a witness is relevant and admissible. See Tex.R.Civ.Evid.

613(b).

5

The trial court erred in failing to apply the foregoing rules to

determine whether the documents were discoverable. Instead,

the trial court simply read Russell as an absolute bar to

discovery, even though the circumstances here are quite

distinguishable. In so doing, the trial court misapplied the

Russell holding. We expressly disapprove such a mechanical

approach to discovery rulings. 6

Having concluded that the trial court erred in denying the

discovery based solely on Russell, we now must determine

whether the appropriate remedy lies by writ of mandamus.

“Mandamus issues only to correct a clear abuse of discretion

or the violation of a duty imposed by law when there is no

other adequate remedy by law.” Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex.1985).

7

 We therefore

examine whether the trial court's error in the present case

constituted a clear abuse of discretion and, if so, whether there

is an adequate remedy by appeal.

1. Clear Abuse of Discretion

Traditionally, the writ of mandamus issued only to compel

the performance of a ministerial act or duty. See Wortham v.

Walker, 133 Tex. 255, 277, 128 S.W.2d 1138, 1150 (1939);

Arberry v. Beavers, 6 Tex. 457 (1851); Helen A. Cassidy,

The Instant Freeze–Dried Guide to Mandamus Procedure in

Texas Courts, 31 S.Tex.L.Rev. 509, 510 (1990); Comment,

The Expanding Use of Mandamus to Review Texas District

Court Discovery Orders: An Immediate Appeal Is Available,

32 Sw.L.J. 1283, 1288 (1979).

Since the 1950's, however, this Court has used the writ to

correct a “clear abuse of discretion” committed by the trial

court. See, e.g., Joachim v. Chambers, 815 S.W.2d 234,

237 (Tex.1991); Jampole v. Touchy, 673 S.W.2d 569, 574

(Tex.1984); West v. Solito, 563 S.W.2d 240, 244 (Tex.1978);

Womack v. Berry, 156 Tex. 44, 50, 291 S.W.2d 677, 682

(1956). See generally, David W. Holman & Byron C.

Keeling, Entering the Thicket? Mandamus Review of Texas

District Court Witness Disclosure Orders, 23 St. Mary's L.J.

365, 390 (1991); Cassidy, 31 S.Tex.L.Rev. at 510; Note, The

Use of Mandamus to Review Discovery Orders in Texas:

An Extraordinary Remedy, 1 Rev.Litig. 325, 326–27 (1981);

Comment, 32 Sw.L.J. at 1290.

A trial court clearly abuses its discretion if “it reaches a

decision so arbitrary and unreasonable as to amount to a clear

and prejudicial error of law.” Johnson v. Fourth Court of

Appeals, 700 S.W.2d at 917. This standard, however, has

different applications in different circumstances.

[5] With respect to resolution of factual issues or matters

committed to the trial court's discretion, for example, the

reviewing court may not substitute its judgment for that of the

trial court. See Flores v. Fourth Court of Appeals, 777 S.W.2d

38, 41–42 (Tex.1989) (holding that determination *840 of

discoverability under Tex.R.Civ.P. 166b(3)(d) was within

discretion of trial court); Johnson, 700 S.W.2d at 918 (holding

that trial court was within discretion in granting a new trial

“in the interest of justice and fairness”). The relator must

establish that the trial court could reasonably have reached

only one decision. Id. at 917. Even if the reviewing court

would have decided the issue differently, it cannot disturb the

trial court's decision unless it is shown to be arbitrary and

unreasonable. Johnson, 700 S.W.2d at 918.

[6] On the other hand, review of a trial court's determination

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,

a clear failure by the trial court to analyze or apply the

law correctly will constitute an abuse of discretion, and

may result in appellate reversal by extraordinary writ. See

Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex.1991)

(trial court abused discretion by misinterpreting Code of

Judicial Conduct); NCNB Texas National Bank v. Coker, 765

S.W.2d 398, 400 (Tex.1989) (trial court abused discretion

by failing to apply proper legal standard to motion to

disqualify counsel); Eanes ISD v. Logue, 712 S.W.2d 741,

742 (Tex.1986) (trial court abused discretion by erroneously

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

[7] [8] In determining whether the trial court abused

its discretion in the present case, we treat the trial court's

erroneous denial of the requested discovery on the sole

basis of Russell as a legal conclusion to be reviewed with

limited deference to the trial court. This is consistent with

our approach in previous mandamus proceedings arising out

of the trial court's interpretation of legal rules. Cf. Axelson,

Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex.1990); Barnes

v. Whittigton, 751 S.W.2d 493, 495–96 (Tex.1988); Terry v.

Lawrence, 700 S.W.2d 912, 913–14 (Tex.1985). Under this

analysis, the trial court's erroneous interpretation of the law

constitutes a clear abuse of discretion.

2. Adequate Remedy by Appeal

In order to determine whether the writ should issue, however,

we must further decide whether the Walkers have an adequate

remedy by appeal.

[9] Mandamus will not issue where there is “a clear and

adequate remedy at law, such as a normal appeal.” State

v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus

is intended to be an extraordinary remedy, available only

in limited circumstances. The writ will issue “only in

situations involving manifest and urgent necessity and not

for grievances that may be addressed by other remedies.”

Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684

(Tex.1989) (quoting James Sales, Original Jurisdiction of

the Supreme Court and the Courts of Civil Appeals of Texas

in Appellate Procedure in Texas, § 1.4[1] [b] at 47 (2d

ed. 1979)). The requirement that persons seeking mandamus

relief establish the lack of an adequate appellate remedy is

a “fundamental tenet” of mandamus practice. Holloway, 767

S.W.2d at 684.

[10] Our requirement that mandamus will not issue where

there is an adequate remedy by appeal is well-settled. 8 On a

few occasions, however, we have not focused *841 on this

requirement when applying mandamus review of discovery

orders. For example, in Barker v. Dunham, 551 S.W.2d 41

(Tex.1977), the trial court refused to compel defendant's

representative to answer certain deposition questions, and the

plaintiff applied to this Court for a writ of mandamus. We

concluded that the trial court had abused its discretion, and

ordered that the writ conditionally issue. We never discussed

the well-settled requirement of inadequate remedy by appeal.

A few months later, in Allen v. Humphreys, 559 S.W.2d 798

(Tex.1977), the Court again conditionally issued a writ of

mandamus to correct a discovery abuse without considering

whether the relator had an adequate remedy by appeal. The

real party in interest in Allen raised this argument, but the

Court avoided the issue by citing Barker. Id. at 801.

Commentators quickly criticized the Barker and Allen

opinions. See James Sales, Pre–Trial Discovery in Texas, 31

Sw.L.J. 1017, 1033 (1977); Comment, The Expanding Use of

Mandamus to Review Texas District Court Discovery Orders:

An Immediate Appeal Is Available, 32 Sw.L.J. 1283, 1300

(1979) (In most cases “forcing a party to await the completion

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

L.Rev. 782 (1978) (mandamus should not be a substitute for

appeal).

In Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984), the

Court again used the extraordinary writ of mandamus to

compel discovery which had been denied by the trial court.

Unlike in Barker and Allen, however, the Court in Jampole

addressed whether relator had an adequate appellate remedy.

The underlying suit in Jampole was a products liability action,

and the disputed discovery materials included alternate design

and assembly documents. The Court held that relator did

not have an adequate remedy by appeal because denial of

this discovery effectively prevented relator from proving

the material allegations of his lawsuit. 673 S.W.2d at 576.

Remedy by appeal in a discovery mandamus is not adequate

where a party is required “to try his lawsuit, debilitated by the

denial of proper discovery, only to have that lawsuit rendered

a certain nullity on appeal....” Id.

Although the Court in Jampole recognized the need to

address whether relator had an adequate remedy by appeal,

it expressly refused to overrule Barker and Allen. Id.

Perhaps because of this, we have on several occasions since

Jampole used mandamus to correct discovery errors without

considering whether the relator had an adequate appellate

remedy. See Loftin v. Martin, 776 S.W.2d 145 (Tex.1989);

Barnes v. Whittington, 751 S.W.2d 493 (Tex.1988); Lunsford

v. Morris, 746 S.W.2d 471 (Tex.1988); Turbodyne Corp. v.

Heard, 720 S.W.2d 802 (Tex.1986); Terry v. Lawrence, 700

S.W.2d 912 (Tex.1985); Lindsay v. O'Neill, 689 S.W.2d 400

(Tex.1985).

On many other occasions, however, we have still required a

showing of inadequate *842 remedy by appeal in mandamus

proceedings involving other types of pre-trial orders, even
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

those involving discovery. See, e.g., TransAmerican Natural

Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991);

Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59–60

(Tex.1991); Bell Helicopter Textron, Inc., v. Walker, 787

S.W.2d 954, 955 (Tex.1990); Stringer v. Eleventh Court of

Appeals, 720 S.W.2d 801, 801–02 (Tex.1986). In Hooks, for

example, we reaffirmed that the “cost or delay of having to

go through trial and the appellate process does not make the

remedy at law inadequate.” 808 S.W.2d at 60.

[11] The requirement that mandamus issue only where

there is no adequate remedy by appeal is sound, and we

reaffirm it today. No mandamus case has ever expressly

rejected this requirement, or offered any explanation as to

why mandamus review of discovery orders should be exempt

from this “fundamental tenet” of mandamus practice. Without

this limitation, appellate courts would “embroil themselves

unnecessarily in incidental pre-trial rulings of the trial courts”

and mandamus “would soon cease to be an extraordinary

writ.” Braden v. Downey, 811 S.W.2d 922, 928 (Tex.1991).

We thus hold that a party seeking review of a discovery order

by mandamus must demonstrate that the remedy offered by

an ordinary appeal is inadequate. We disapprove of Barker,

Allen, and any other authorities to the extent they might be

read as abolishing or relaxing this rule.

[12] We further hold that an appellate remedy is not

inadequate merely because it may involve more expense

or delay than obtaining an extraordinary writ. As we

observed in Iley v. Hughes, the “delay in getting questions

decided through the appellate process ... will not justify

intervention by appellate courts through the extraordinary

writ of mandamus. Interference is justified only when parties

stand to lose their substantial rights.” 158 Tex. at 368, 311

S.W.2d at 652.

On some occasions, this Court has used, or at least mentioned,

the more lenient standard first articulated in Cleveland v.

Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (Tex.1926), that

the remedy by appeal must be “equally convenient, beneficial,

and effective as mandamus.” See, e.g., Jampole v. Touchy,

673 S.W.2d 569, 576 (Tex.1984); Crane v. Tunks, 160 Tex.

182, 190, 328 S.W.2d 434, 439 (Tex.1959). This standard,

literally applied, would justify mandamus review whenever

an appeal would arguably involve more cost or delay than

mandamus. This is unworkable, both for individual cases

and for the system as a whole. Mandamus disrupts the trial

proceedings, forcing the parties to address in an appellate

court issues that otherwise might have been resolved as

discovery progressed and the evidence was developed at trial.

Moreover, the delays and expense of mandamus proceedings

may be substantial. This proceeding, for example, involving

rulings on collateral discovery matters, has delayed the trial

on the merits for over two years. The impact on the appellate

courts must also be considered. We stated in Braden that

“[t]he judicial system cannot afford immediate review of

every discovery sanction.” 811 S.W.2d 922, 928. It follows

that the system cannot afford immediate review of every

discovery order in general. 9 We therefore disapprove of

Cleveland, Crane, Jampole and any other authorities to the

extent that they imply that a remedy by appeal is inadequate

merely because it might involve more delay or cost than

mandamus.

Justice Doggett's dissent argues that because discovery errors

often constitute harmless errors under Tex.R.App.P. 81(b)

(1), parties denied mandamus relief will be deprived of

any remedy since the *843 error will not provide a

basis for appellate reversal. This is nothing more than a

thinly disguised attack on the harmless error rule. Avoiding

interlocutory appellate review of errors that, in the final

analysis, will prove to be harmless, is one of the principal

reasons that mandamus should be restricted.

Justice Doggett's dissent also suggests that we will be

unable to develop a coherent body of discovery law without

unrestricted mandamus review. We do not think, however,

that losing parties will be reluctant to raise perceived

discovery errors on appeal, nor will an appellate court be

foreclosed from writing on discovery issues, even when

the error may be harmless. See, e.g., Lovelace v. Sabine

Consolidated, Inc., 733 S.W.2d 648, 652–53 (Tex.App.—

Houston [14th Dist.] 1987, writ denied).

Nor are we impressed with the dissenters' claim that strict

adherence to traditional mandamus standards will signal an

end to effective interlocutory review for some parties or

classes of litigants. There are many situations where a party

will not have an adequate appellate remedy from a clearly

erroneous ruling, and appellate courts will continue to issue

the extraordinary writ. In the discovery context alone, at least

three come to mind.

[13] First, a party will not have an adequate remedy by

appeal when the appellate court would not be able to cure the

trial court's discovery error. This occurs when the trial court

erroneously orders the disclosure of privileged information

which will materially affect the rights of the aggrieved party,
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

such as documents covered by the attorney-client privilege,

West v. Solito, 563 S.W.2d 240 (Tex.1978), or trade secrets

without adequate protections to maintain the confidentiality

of the information. Automatic Drilling Machines v. Miller,

515 S.W.2d 256 (Tex.1974). As we noted in Crane: “After

the [privileged documents] had been inspected, examined and

reproduced ... a holding that the court had erroneously issued

the order would be of small comfort to relators in protecting

their papers.” 160 Tex. at 190, 328 S.W.2d at 439. It may

also occur where a discovery order compels the production

of patently irrelevant or duplicative documents, such that it

clearly constitutes harassment or imposes a burden on the

producing party far out of proportion to any benefit that may

obtain to the requesting party. See, e.g., Sears, Roebuck &

Co. v. Ramirez, 824 S.W.2d 558, 35 Tex.Sup.Ct.J. 454 (1992)

(demand for tax returns); General Motors Corp. v. Lawrence,

651 S.W.2d 732 (Tex.1983) (demand for information about

all vehicles for all years).

[14] [15] Second, an appeal will not be an adequate

remedy where the party's ability to present a viable claim

or defense at trial is vitiated or severely compromised by

the trial court's discovery error. It is not enough to show

merely the delay, inconvenience or expense of an appeal.

Rather, the relator must establish the effective denial of a

reasonable opportunity to develop the merits of his or her

case, so that the trial would be a waste of judicial resources.

We recently held that when a trial court imposes discovery

sanctions which have the effect of precluding a decision on

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

a final, appealable judgment. TransAmerican Natural Gas

Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991). Similarly,

a denial of discovery going to the heart of a party's case may

render the appellate remedy inadequate.

[16] [17] Finally, the remedy by appeal may be inadequate

where the trial court disallows discovery and the missing

discovery cannot be made part of the appellate record, or

the trial court after proper request refuses to make it part

of the record, and the reviewing court is unable to evaluate

the effect of the trial court's error *844 on the record

before it. See Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d

556, 558 (Tex.1990) (“[M]andamus is the only remedy

because the protective order shields the witnesses from

deposition and thereby prevents the evidence from being

part of the record.”); see generally Jampole, 673 S.W.2d at

576 (“Because the evidence exempted from discovery would

not appear in the record, the appellate courts would find it

impossible to determine whether denying the discovery was

harmful.”). If the procedures of Tex.R.Civ.P. 166b(4) are

followed, this situation should only rarely arise. If and when it

does, however, the court must carefully consider all relevant

circumstances, such as the claims and defenses asserted, the

type of discovery sought, what it is intended to prove, and

the presence or lack of other discovery, to determine whether

mandamus is appropriate. 10

[18] In the present case, the Walkers seek documents from

the Center to impeach one defendant's expert witness. This

information is not privileged, burdensome or harassing, nor

does it vitiate or severely compromise the Walkers' ability to

present a viable claim. In fact, as we have already noted, the

trial court may ultimately conclude that it is not admissible

or even discoverable. Finally, although the materials are

not before us, they were considered below, and we know

of no reason why they would not be available on appeal.

Therefore, under our traditional standards of mandamus

review, as measured by the factors we mention above, the

Walkers have an adequate remedy by appeal and mandamus

is inappropriate.

For the above reasons, we conclude that the Walkers have

not established their right to relief by mandamus on either

discovery matter. Therefore, we deny the Walkers' petition

for writ of mandamus.

GONZALEZ, J., concurs and files an opinion.

DOGGETT, J., dissents and files an opinion, joined by

MAUZY, J.

GAMMAGE, J., dissents and files an opinion.

GONZALEZ, Justice, concurring.

I agree with the court's disposition of this cause but disagree

with the court's opinion regarding the “Obstetrics Faculty

Records.” Specifically, I disagree with the court's attempt to

distinguish Russell v. Young, 452 S.W.2d 434 (Tex.1970).

Nevertheless, I concur in the result.

Russell holds that wholesale discovery of the private records

of a non-party witness is not permitted if the sole purpose for

discovery is to impeach the credibility of the non-party. 1452

S.W.2d at 435. The policy considerations of Russell still apply
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

today. By disapproving of Russell as “a mechanical approach

to discovery rulings,” at 839, the court forces trial courts to

get further involved in discovery matters. This increases the

backlog, delay, and cost of litigation by creating the need for

more hearings.

In the instant case, the plaintiffs sought to discover

documents from the University of Texas Health Science

Center to confirm the existence of a written policy restricting

faculty members from testifying for plaintiffs in medical

malpractice cases. This policy was sought for use in

impeaching defendant's expert witness, Dr. Gilstrap. In

refusing discovery, the trial court concluded *845 that

the relevance of this material was limited to impeachment.

As such, the requested documents fell squarely within the

prohibition of Russell.

Despite the court's mischaracterization of Russell, the issues

and type of evidence sought here and in Russell are identical.

Just as in Russell, the records sought in the instant case did

not relate directly to the subject matter of the suit. The only

difference between the present case and Russell is the identity

of the party seeking the information. In Russell, a defendant

sought evidence to impeach the plaintiffs' expert; here, the

plaintiff sought evidence to impeach a defendant's expert.

Surely, we cannot have a rule that changes in application

depending on whether the relator is a plaintiff or a defendant

in the trial court.

In my opinion, the court strains to distinguish Russell. The

court suggests that the trial judge made a mistake in her

ruling by failing to read Russell in conjunction with the

rules of civil procedure and evidence. However, when we

adopted the new Texas Rules of Civil Evidence, there was

no discussion whatsoever that, by their adoption, we intended

to reject the settled rule that information sought solely for

impeachment of a non-party is not discoverable. Russell, 452

S.W.2d at 435; see also W.W. Rodgers & Sons Produce Co. v.

Johnson, 673 S.W.2d 291, 294–95 (Tex.App.—Dallas 1984,

orig. proceeding). Furthermore, the scope of discovery has

not changed in the twenty years since Russell has been on the

books. When Russell was decided, the scope of discovery was

codified in Texas Rule of Civil Procedure 186a. It provided

in pertinent part that:

[p]arties may obtain discovery

regarding any matter which is relevant

to the subject matter in the pending

action whether it relates to the claim or

defense of the party seeking discovery

or the claim or defense of any other

party.

This same text is now codified in Rule 166b(2)(a). Clearly,

impeachment evidence regarding collateral matters would

not relate to the subject matter of the pending action.

Implicitly, the court concludes that the credibility of a nonparty witness alone is a relevant avenue of inquiry and, thus, is

a matter properly open to discovery under some new, broader

definition of relevancy.

While I agree that the definition of relevance in Rule 401 of

the Texas Rules of Civil Evidence includes matters bearing on

credibility, this alone does not explain or distinguish Russell.

A witness' credibility has always been a relevant matter. As

the United States Supreme Court has said: “[p]roof of bias

is almost always relevant because the jury, as finder of fact

and weigher of credibility, has historically been entitled to

assess all evidence which might bear on the accuracy and

truth of a witness' testimony.” United States v. Abel, 469

U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984).

Yet in Russell, we said that a trial court lacked “authority”

to order discovery from a non-party solely for purposes of

impeachment. 452 S.W.2d at 435. We chose to withdraw

all discretion in this particular area of discovery. Russell

concedes that impeachment evidence may be relevant and

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.

The fact that a matter may have some relevance yet not be

subject to discovery is hardly a novel concept. The basic

premise of the rules of discovery is to weigh the legitimate

needs of litigation against the other rights and values that

would be irreparably harmed by unfettered discovery. Russell

strikes the proper balance by protecting non-party witnesses

from indiscriminate invasions into their private lives where

the information sought would not appreciably shed light on

the issues of the case.

Furthermore, the decision in Russell was not grounded on

whether the credibility of the witness had been placed in

doubt. Instead, the court highlighted the fact that *846

the witness had not offered testimony at trial nor was his

deposition introduced into evidence at trial. The court said:

Relator has not yet taken the witness

stand nor has his deposition been

introduced into evidence because

there has not yet been a trial;
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

relator's records cannot possibly have

impeachment value because there is

nothing yet to impeach and there

may never be anything to impeach,

depending upon the contents of the

testimony, if any, which is introduced

during the trial of the lawsuit.

Russell, 452 S.W.2d at 437. Thus, it is evident that the court

has today reinterpreted Russell with little or nothing to gain

in a way that further obscures the proper scope of discovery.

I am concerned that as a result of today's ruling, some nonparties will be subjected to harassment and intrusion into

their private lives, and that trial courts will be inundated

with hearings on collateral issues far afield from the merits

of the cause of action or defense. The court has attempted

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.

Finally, for the reasons expressed in Joachim v. Chambers,

815 S.W.2d 234, 241 (Tex.1991) (Gonzalez, J., dissenting), I

agree with the clarification of the standards for the issuance

of mandamus.

DOGGETT, Justice, dissenting.

Them that's got shall get

Them that's not shall lose

—God Bless The Child 1

With a double standard, the majority strikes a devastating

blow at the most direct method of curbing abuses of judicial

power. Many judicial excesses far beyond the scope of

anything alleged in this particular case will henceforth receive

only an official nod and wink from the Texas Supreme Court.

Mandamus is the legal tool by which appellate courts can

promptly correct arbitrary and capricious rulings by trial

judges. Today's opinion announces that this remedy will be

available to support concealment of the truth but not its

disclosure. Mandamus is officially declared a one-way street

in the Texas courts—our judiciary can help to hide but not to

detect.

Despite a determination that a “clear abuse of discretion” has

occurred in this particular case, at 840, all relief is denied.

Finding a wrong and denying a remedy echoes the logic of

the majority's recent conclusion that a tax is unconstitutional

but must be paid anyway. See Carrollton–Farmers Branch

Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d

489, 524 (1992) (Edgewood III ) (Doggett, J., dissenting).

Rather than correcting the abuse, the court simply gives the

Walkers the same message it gave Texas taxpayers—wait.

Only after a full jury trial based upon incomplete discovery

will the judiciary even consider any possibility of relief.

For those who have previously sought more specific

guidelines for the use of mandamus concerning discovery

orders, the majority responds with not one but two standards

for reviewing trial court action: orders compelling discovery

may be immediately corrected; review of denied discovery

is postponed indefinitely in a manner to ensure that no

meaningful relief will ever be forthcoming.

I.

What a different path this court now pursues than that so

recently proclaimed in its unanimous decision that

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

the fullest practicable extent.”

State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991) (quoting

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

our recent, unanimous writings in Axelson, Inc. v. McIlhany,

798 S.W.2d 550, 553, 555 (Tex.1990, orig. proceeding)

(“[Discovery should provide] the fullest knowledge of the

facts and issues prior to trial.... [T]he ultimate purpose of

discovery ... is to seek the truth....”); and Tom L. Scott, Inc. v.

McIlhany, 798 S.W.2d 556, 559 (Tex.1990, orig. proceeding)

(“The primary policy behind discovery is to seek truth so

that disputes may be decided by facts that are revealed rather

than concealed.”). Without mandamus review to add meaning

to these laudatory expressions, they are just hollow words.

The new signal is clear—circumvent discovery and conceal

information.

Today's opinion reflects the radical change in philosophy

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.

No longer may appellate courts intercede through mandamus

even for the trial court's complete abuse of discretion in
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

denying access to vital data; under the newly-announced

double standard, intervention can, however, be accorded for

those who persevere in evasion.

When a local business is defrauded, when a community is

exposed to dangerous toxic wastes, when a manufacturer

ignores reports that a safety design change would reduce user

injuries, when a monopoly extorts unfair gain from the public,

when discrimination results in job loss, and in numerous

other circumstances, the burden of proving wrongdoing is

exceedingly difficult to satisfy without obtaining evidence of

that wrong from the files of the perpetrator. In such situations

denial of discovery effectively means denial of all relief. That

reality does not go unrecognized by today's majority.

Entities that begin litigation in control of most of the relevant

evidence can often defeat their adversaries simply by denying

them the power of information:

[T]hose with established positions of

power are more likely to ... win

by preventing their adversaries from

producing evidence; they are less

likely to be in the position of having to

extract evidence from their opponents

to make out their case.

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

another edge to the already advantaged. Providing immediate

review for orders that start the flow of information but

refusing to consider those that stop it, the majority once again

expresses its preference for helping the powerful over the

seemingly powerless. Those opposing meaningful discovery

tend to be institutions rather than

individuals, and tend to be among the

more wealthy and powerful segments

of society. A review system that gives

priority (that is, immediate review) to

the complaints of privilege holders,

but which consigns the complaints of

parties seeking discovery until after

final judgment, gives an advantage

to those wealthy institutional litigants.

They have the power to achieve more

favorable results during the pretrial

process; their opponents must wait.

Elizabeth G. Thornburg, Interlocutory Review of Discovery

Orders: An Idea Whose Time Has Come, 44 Sw.L.J. 1045,

1082 (1990) (hereinafter Review of Discovery Orders )

(footnote omitted). 2 In this way the *848 majority ensures

that the scales of justice—which at the onset of litigation are

often in reality uneven—never achieve balance.

Until this court included discovery orders within the scope

of mandamus review, very few reported opinions addressed

this important subject. Trial judges were effectively accorded

unlimited discretion with a “resulting atmosphere [that]

was very hostile to discovery.” Id. at 1071. As a practical

matter, discovery battles, often both complex and timeconsuming, were shunned. When the party controlling vital

data exercises the power of withholding it, fighting every

important request, the judicial command “go work it out”

often amounts to a denial of meaningful discovery. The

mud-wrestling that frequently ensues in such contests may

discourage a trial judge from determining who is acting fairly

and who started the fight. If mandamus is not available to

correct ill-considered or hasty denials, the hope for ultimate

justice in complex litigation is prematurely crushed. The

majority's decision today marks a return to those dark ages

when discovery was regularly denied as the path of least

resistance and greatest convenience for the judiciary.

II.

By its very nature, discovery involves a search for what is

largely unknown from someone who may have an incentive

to make that search as long and tortuous as possible. Efforts

to prevent discovery have been limited only by the boundless

imagination of the top legal talent in America. Requests are

either too broad or too narrow; records produced are either

minimal or in such voluminous, disorganized form as to make

locating relevant information most difficult; vital documents

vanish in “routine document destruction” programs or are

misplaced. Accordingly, our discovery rules have required

continual revision to cope with the newest ways invented

by those intent on subverting the process. Each revision of

the Texas Rules of Civil Procedure during the last decade

has included attempted clarification and improvement of

discovery procedures. This has produced a body of law that is

“complex and rapidly evolving.” David W. Holman & Byron

C. Keeling, Entering the Thicket? Mandamus Review of Texas

District Court Witness Disclosure Orders, 23 St. Mary's L.J.
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13

365, 375 (1991) (hereinafter Mandamus of Disclosure Orders

).

Given the creativity of those who would thwart discovery,

rules of procedure cannot be drawn to provide clear

guidance in every situation; judicial interpretation is

essential. The more complicated the rule, the more

necessary the construction and the greater the likelihood for

misinterpretation. See id. at 386 (“Erroneous interpretations

of these changes ... are likely with the absence of prior

significant precedent.... [and] could have a substantial effect

on the subsequent course of a lawsuit.”). This court's

responsibility does not and cannot end when the text of

promulgated amendments appears in the Texas Bar Journal.

Rather, the court has a duty both to make the rules and to

interpret them.

Our American system of jurisprudence is founded on the

precept that it is of great benefit to have a written body of case

law construing controlling legal principles and applying them

to particular facts. This approach is undeniably desirable in

the discovery context:

In a system where trial court

decisions are unreported and have no

precedential value, the creation of a

body of reported appellate case law

regarding discovery has substantial

value. Case law on discovery promotes

uniform interpretation of the discovery

rules and, in time, decreases the

opportunity for individual *849

judge's biases to shape discovery

outcomes. Reported decisions develop

clear rules, where rules are possible,

and narrow the range of judicial

discretion in other areas simply by

providing numerous cases finding

that the trial court did or did not

abuse its discretion. Such case law

can be particularly helpful in a

jurisdiction that has recently amended

its discovery rules. Over time, the

existence of discovery case law may

even clarify the rules sufficiently so as

to decrease the number of disputes in

the trial court.

Review of Discovery Orders at 1080 (footnotes omitted).

Appellate opinions properly applying mandamus produce,

then, both more consistency and more accuracy in trial court

decisions. See id. at 1077. 3

The role of this court is particularly important in answering

novel or significant questions of discovery law. See

Mandamus of Disclosure Orders at 376 (“[P]re-trial appellate

review of [important discovery] questions could lend critical

guidance to the development of Texas discovery practice.”).

Rather than avoiding its responsibility, this court should

utilize mandamus review to reduce the abuse of judicial

power when “a unique question of discovery” law is

presented. David West, Note, The Use of Mandamus to

Review Discovery Orders in Texas: An Extraordinary

Remedy, 1 Rev.Litigation 325, 327 (1981) (hereinafter The

Use of Mandamus ).

Most trial court mistakes denying discovery result from the

need to make repeated, quick decisions based upon limited

information. Recognizing this circumstance, trial judges

sometimes actually encourage litigants to raise disputed

rulings affecting truly vital matters for appellate examination

through mandamus by automatically staying their orders.

Refusal of prompt appellate review not only denies a party its

rights but may also deprive a trial court of desired guidance.

Today's opinion appropriately recognizes that “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.” At 839 n. 7. But under the standard

announced, questions of importance concerning judiciallyapproved concealment of facts will never be considered. The

significance to the state's jurisprudence of a ruling should

certainly not be controlled by whether the order granted or

denied discovery.

III.

With mandamus now severely limited, many important issues

will not be reviewed. See generally Review of Discovery

Orders at 1056; The Use of Mandamus at 337 & n. 94. Abuses

of judicial power will go forever uncorrected when the party

disallowed discovery, realizing the difficulty of proving a

case with less than full information and the uphill task of

maintaining a successful appeal, is either forced to settle or

forgoes a costly and extended appeal following defeat on

the entire case. Nor will improper rulings ever be reviewed

where one denied discovery, although severely handicapped,

nonetheless prevails at trial.
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14

Where appeals do occur, remedies will be rare even for

egregious pretrial rulings. To succeed in this endeavor, one

must show that

the error complained of amounted to

such a denial of the rights of appellant

as *850 was reasonably calculated to

cause and probably did cause rendition

of an improper judgment in the case,

or was such as probably prevented

the appellant from making a proper

presentation of the case to the appellate

court.

Tex.R.App.P. 81(b). This standard is universally regarded

as a “more difficult hurdle” than abuse of discretion. Helen

A. Cassidy, The Instant Freeze–Dried Guide to Mandamus

Procedure in Texas Courts, 31 S.Tex.L.Rev. 509, 512 (1990).

As another commentator has aptly concluded,

only an unusual discovery order would

be dispositive enough to show the

harmful error that most jurisdictions

require for appellate reversal. Many

appellants, therefore, would not even

raise the discovery points on appeal.

Review of Discovery Orders at 1056; see also Mandamus of

Disclosure Orders at 376 n. 40 (observing that, because of the

harmless error rule, many discovery rulings are not pursued

on appeal). In denying mandamus today, the majority closes

and locks the appellate courthouse door to any meaningful

consideration of numerous significant matters.

IV.

Only with the tragic recent change in course by this court's

majority has such denial of access become acceptable.

Previously both this court and the courts of appeals had

employed their writ power as necessary to correct the abusive

refusal of discovery. Among those cases providing the

foundation for appropriate mandamus review is Barker v.

Dunham, 551 S.W.2d 41 (Tex.1977, orig. proceeding), in

which the trial court had overruled a motion to complete an

expert witness's deposition and to compel production of his

work papers. We interceded, stating that: “It is settled that

the writ of mandamus may issue in a discovery proceeding to

correct a clear abuse of discretion by a trial judge.” Id. at 42.

Similarly, in Allen v. Humphreys, 559 S.W.2d 798 (Tex.1977,

orig. proceeding), the trial court refused to order discovery of

tests, surveys and complaints by similarly affected persons.

This court found an abuse of discretion and granted the

writ, despite the argument that the plaintiff had “an adequate

remedy via the normal appellate process.” Id. at 801. It is

difficult to perceive, in light of this argument and the court's

subsequent grant of mandamus relief, how the majority can

now claim that “we [had] not focused” on the requirement of

an inadequate remedy by appeal in Allen and on, admittedly,

a “few [other] occasions.” At 840–841.

Following these two opinions, this court has not hesitated

to consider and correct the wrongful denial of discovery.

By issuing mandamus to rectify an erroneous trial court

ruling refusing discovery in Jampole v. Touchy, 673 S.W.2d

569 (Tex.1984, orig. proceeding), this court recognized that

appeal is not an adequate remedy:

[R]equiring a party to try his lawsuit, debilitated by the

denial of proper discovery, only to have that lawsuit

rendered a certain nullity on appeal, falls well short of a

remedy by appeal that is “equally convenient, beneficial,

and effective as mandamus.”

Id. at 576 (quoting Crane v. Tunks, 160 Tex. 182, 190,

328 S.W.2d 434, 439 (1959) (citation omitted)); see also

Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068

(Tex.1926).

A trial court's unwillingness to order the production of

accident scene photographs was overturned by mandamus

in Terry v. Lawrence, 700 S.W.2d 912 (Tex.1985, orig.

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

a deposition and quashing the accompanying document

request. A blanket order protecting hospital records was

similarly vacated by mandamus in Barnes v. Whittington,

751 S.W.2d 493 (Tex.1988, orig. proceeding). In Lunsford

v. Morris, 746 S.W.2d 471 (Tex.1988, orig. proceeding),

this court again granted mandamus to remedy a trial

court's erroneous disallowance *851 of relevant discovery.

See also Loftin v. Martin, 776 S.W.2d 145 (Tex.1989,

orig. proceeding) (correcting by mandamus wrongful denial

of discovery); Turbodyne Corp. v. Heard, 720 S.W.2d

802 (Tex.1986, orig. proceeding) (per curiam) (mandamus

directing trial court to rescind order denying discovery of

documents from insurer in subrogation action); Ginsberg v.

Fifth Court of Appeals, 686 S.W.2d 105 (Tex.1985, orig.
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15

proceeding) (erroneous bar of deposition by court of appeals

cured by mandamus). 4

It is only after fifteen years of repeated judicial reliance upon

Barker and Allen in the issuance of numerous opinions that

we learn these precedents of our court are not good law. This

is all the more strange in that we had explicitly refused to

overrule them. When that very request was urged in Jampole,

673 S.W.2d at 576, our answer was unmistakable: “We

decline to do so.” But the majority's new answer is simple:

“Line them up against the wall.” What does it matter that

a dozen or more Texas Supreme Court cases and countless

decisions of the courts of appeals are to the contrary? They

can be disposed of in a mass execution of precedent. 5

Today's firing squad announces that it is only answering the

command of Jim Sales and two law students who separately

criticized the court during the period 1977–79. At 840–841.

It thereby rationalizes constructing so distorted a standard on

the corpses of so many prior authorities.

One of the most significant casualties is Jampole v. Touchy,

which has formed the centerpiece for discovery in litigation

over defective products and toxic substances for almost

a decade. The majority, in a massive understatement,

“disapproves” Jampole “to the extent [it implies] that a

remedy by appeal is inadequate merely because it might

involve more delay or cost than mandamus.” At 842.

Although leaving untouched for now this court's prior writing

on the proper scope of discovery, the majority has in fact

overruled that landmark precedent in its entirety. Despite

a gross abuse of discretion in denying critical discovery in

Jampole, the majority's only correction by mandamus would

be to require inclusion of the disputed materials in *852 the

record, to await a deferred and meaningless appellate review.

V.

Instead of affording the relief that prior rulings demand, the

majority announces, after considerable mental gymnastics,

that “at least three [discovery situations] come to mind” where

mandamus is justified, at 843; then it strangely proceeds to

describe six. The first three instances where remedy by appeal

is inadequate stem from a trial court's wrongful allowance

of discovery. First, mandamus will issue if “disclosure of

privileged information ... will materially affect the rights

of the aggrieved party.” At 843. This requisite is easily

fulfilled with discovery objections that include an assertion

of privilege, the violation of which necessarily impinges on

the objecting party's rights.

Second, mandamus will issue when a trial court orders the

disclosure of “trade secrets without adequate protections

to maintain the confidentiality of the information.” At 843

(citing, without discussion, Automatic Drilling Machs., Inc.

v. Miller, 515 S.W.2d 256 (Tex.1974, orig. proceeding)).

Posing numerous problems, this hastily-drawn exception has

no relevance to the instant case and was concocted by the

majority without any briefing or argument by counsel. One

privilege is thereby unjustifiably elevated above all others.

Moreover, the writing implies an absolute protection of trade

secrets from discovery when in fact this privilege is most

definitely qualified, as recognized by Automatic Drilling,

515 S.W.2d at 259, 6 the rule itself, Tex.R.Civ.Evid. 507

(trade secrets not protected when nondisclosure conceals

fraud or works injustice), and even Mr. Sales, whose writing

purportedly warranted today's brash action. 7 Nor does this

exception consider the availability in some cases of the

interlocutory appeal mechanism provided in Tex.R.Civ.P.

76a(8) to address the adequacy of a protective order. See Eli

Lilly & Co. v. Marshall, Order Granting Leave to File Petition

for Writ of Mandamus (Doggett, J., dissenting), 829 S.W.2d

156 (Tex.1991).

The third situation requiring mandamus is an “order [that]

compels the production of patently irrelevant or duplicative

documents, such that it clearly constitutes harassment or

imposes a burden on the producing party far out of proportion

to any benefit that may obtain to the requesting party.” At 843.

This “catch-all” exception indeed makes the extraordinary

writ of mandamus an ordinary one. In almost any complex

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

of an undue burden. See, e.g., Sears, Roebuck & Co. v.

Ramirez, 824 S.W.2d 558 (Tex.1992) (per curiam) (granting

mandamus to preclude disclosure of corporate tax returns

on the basis of undue burden and unnecessary expense, not

privilege). 8

A fourth exception, based on *853 Transamerican Natural

Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991, orig.

proceeding), is described when the trial court imposes

“discovery sanctions ... precluding a decision on the merits

of a party's claims ... unless the sanctions are imposed

simultaneously with the rendition of a final, appealable
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 16

judgment.” At 843 (emphasis deleted). The majority falsely

suggests that today's standard creates a symmetry with

Transamerican. Unlike Transamerican, which treated the

striking of a petition in the same manner as the entry of a

default judgment, this ruling creates a double standard. Unlike

Transamerican, which involved a readily-perceptible wrong

such as an order of dismissal, a determination of whether

hidden documents “go to the heart of a party's case,” at 843,

involves significant uncertainties.

More importantly, Transamerican was issued at a time when

the announced policy of this court was to deter abuses of

discretion without regard to whether discovery was granted

or denied. A wide spectrum of sanction orders arising from

discovery rulings are immediately appealable. See Braden

v. Downey, 811 S.W.2d 922 (Tex.1991, orig. proceeding).

Superimposing Transamerican and Braden on today's double

standard sends a clear message to the rare trial court that

would impose significant penalties on those who obstruct

discovery with deceit and delay—be careful. There is no real

danger of immediate and genuine appellate examination of

an order denying discovery, but there is a constant threat of

appellate review of an order granting discovery or imposing

meaningful sanctions on obstructionists. Once again the

majority provides an incentive for concealment.

The remaining two situations address the wrongful denial

of discovery, and constitute a narrow path in the

woods compared to the expressway for resisting discovery

constructed in the previous four exceptions. Mandamus is

possible when

the missing discovery cannot be made

part of the appellate record, or the trial

court after proper request refuses to

make it part of the record, and the

reviewing court is unable to evaluate

the effect of the trial court's error on

the record before it.

At 843–844. The quick fix of including materials in the

appellate record is both ingenious and ingenuous. It has the

immediate “benefit” of excluding a great number of errors in

the discovery area from mandamus review. As the majority

in fact recognizes, “this situation should only rarely arise.”

At 844. 9 And if it ever does, the majority guarantees that

no relief will be forthcoming, by directing that the reviewing

court

carefully consider all relevant circumstances, such as the

claims and defenses asserted, the type of discovery sought,

what it is intended to prove, and the presence or lack

of other discovery, to determine whether mandamus is

appropriate.

At 844. Within these constraints, there will always be

a readily available excuse to deny both discovery and

mandamus.

In most cases the materials can be boxed up, file-stamped, and

sent to the appellate court. How this will accomplish anything

more than cluttering the judicial chambers is quite another

matter. No clue is given as to how to resolve the obvious

difficulties inherent in appellate determination, without any

effective argument and analysis by counsel, of whether each

item would have affected the result. Moreover, this approach

improperly requires courts of appeals to act as juries while

denying to the true fact-finder evidence that may be highly

*854 relevant to the proceeding. This distrust of juries—

of ordinary people resolving factual disputes—is increasingly

reflected in the majority's decisions. 10

The only hope for review of a trial court's order denying

discovery is upon proof that a claim has been “vitiated or

severely compromised by the trial court's discovery error.”

At 843. It must be shown “that the trial would be a waste of

judicial resources,” at 843, and that “a denial of discovery

[goes] to the heart of a party's case.” At 843. It is far from clear

whether these encompass one or three different standards.

What is clear is that few cases, if any, will satisfy whatever

standard is applied.

The majority offers no example of a case in which a party

has ever met such a heavy burden. Apparently an applicant

for mandamus in this court must confess that, without the

discovery sought, the trial court should and must direct a

contrary verdict. Any semblance of a chance at prevailing

prevents a determination that the trial would be a “waste

of judicial resources” or that the discovery denied goes

“to the heart of a party's case.” While this situation may

theoretically arise in the future, it will be most unlikely. Nor

is there any explanation of how a party can be expected

to show such a probability without having any of the

materials in question. We have previously recognized the

hardship inherent in showing need for documents when their

contents are unknown. State v. Lowry, 802 S.W.2d 669,

673 (Tex.1991) (“It is difficult for the [relators] to make a

more particularized showing of need for these documents, the

contents of which are unknown to them.”).
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 17

Application of today's font of mandamus law to the

Walkers' situation is most revealing. The majority summarily

concludes that the trial court's misapplication of the law

to deprive them of relevant evidence “does [not] vitiate

or severely compromise the Walkers' ability to present a

viable claim.” At 844. Most ironically, today's announcement

imposes one type of double standard on top of another alleged

double standard. The Walkers claim they have uncovered

a double standard at a taxpayer-financed institution that

encourages faculty to defend those accused of medical

malpractice while discouraging professional advice on behalf

of the alleged victim. It is the merits of this revelation that

the majority so eagerly seals away from both the Walkers and

the public.

Fully aware of the impact of expert credibility on the

outcome of much medical malpractice litigation, the majority

denies the Walkers the very information that could perhaps

demonstrate the bias of a key witness. An official blessing is

thus provided for trial court action that may have a material,

adverse effect on their ability to present a viable case. Having

now learned that the denial of impeachment evidence is

never susceptible to mandamus, it remains to be seen what

other critical information will next be similarly viewed as

unimportant to this majority.

While the nature of the double standard approved by today's

writing requires that this dissent focus on wrongful denials,

I recognize that the wrong can be every bit as real from

improper grants of discovery. As a practical matter there is

probably less danger that a trial judge will capriciously ignore

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

to how it occurs or whom is helped. What I deplore is

the discrimination which the majority officially substitutes

for even-handedness. Scholars viewing *855 the so-called

“Walker mandamus standard” should recognize that it is not

a standard but an excuse for ignoring wrongdoing.

After today's decision, discovery disputes will no longer be

resolved on a level playing field. I believe that mandamus

should be available to correct any trial court abuse concerning

a subject that is important to the jurisprudence of the state and

which substantially affects rights of an aggrieved party. If this

requisite is satisfied, relief should be accorded without regard

to whether the trial court has granted or denied discovery.

VI.

In supporting today's opinion, Justice Gonzalez insists that

we must stem what he claims is an alarming increase in

the number of mandamus filings. At 844–846 (Gonzalez, J.,

concurring). The view that “the sky is falling” is best reflected

in the gruesome statistics and conclusions of his dissenting

opinion in Joachim v. Chambers, 815 S.W.2d 234, 241

(Tex.1991). See also Jampole, 673 S.W.2d at 578 (Barrow,

J., dissenting); cf. C.L. Ray & M.R. Yogi McKelvey, The

Mandamus Explosion, 28 S.Tex.L.Rev. 413, 413–14 (1987).

Blaming an ever-increasing caseload for the Texas courts

on the advent of the discovery mandamus is wholly

insupportable. These petitions most often present emergency

situations requiring expedited review and, consequently, are

frequently viewed as a thorn in the side of appellate courts.

See Review of Discovery Orders at 1059 n. 99. But I cannot

agree that justice should be denied or delayed solely to

accommodate appellate judges.

Recent studies have debunked the myth of the mandamus

explosion. The Joachim dissent, to which Justice Gonzalez

once again points with pride today, is based upon an analysis

that fails to segregate filings arising from discovery disputes.

A more detailed study of Supreme Court experience during a

period of more than ten years correctly concluded that:

[I]nterlocutory review of discovery orders ... has [had] a

positive effect.... The increase [in appellate caseloads] has

been an extremely small and manageable one....

. . . . .

The numbers, then, suggest that while the availability of

interlocutory review of discovery orders added cases to the

appellate docket, interlocutory review has not added a large

or burdensome number of cases.

Review of Discovery Orders at 1047, 1059.

The fact is that most petitions are denied, with fewer than

3% granted by us during fiscal year 1991. Most of these

were handled expeditiously, with over half resolved within

one month of filing. Moreover, Justice Gonzalez completely

ignored the fact that mandamus requests in this court actually

decreased over the last three years. There were 202 of these

in fiscal 1991, down from 257 and 258, respectively, in fiscal

1989 and 1990. Although the court's overall workload is
Walker v. Packer, 827 S.W.2d 833 (1992)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18

expanding, the contribution of mandamus filings is certainly

not uncontrollable. 11 “In deciding whether courts should

permit interlocutory *856 review in specific cases, judges

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

discovery is denied may reduce the appellate workload, the

result will be a significant decline in the quality of justice. The

inconvenience caused by the unexpected arrival of a petition

that often demands immediate action is the price paid “to

assure that ... trial proceedings are fair and equitable to all

concerned parties.... ‘[W]e must not sacrifice justice upon

the altar of expediency.’ ” Mandamus Review of Disclosure

Orders at 422 (quoting David W. Holman & Byron C.

Keeling, Disclosure of Witnesses in Texas: The Evolution

and Application of Rules 166b(6) and 215(5) of the Texas

Rules of Civil Procedure, 42 Baylor L.Rev. 405, 458 (1990))

(emphasis added).

VII.

The majority announces here not a standard, but a pseudostandard. In reality, the rule is little more than “how can

we help those whom we want to help?” The only true

precedent for this is Terrazas v. Ramirez, 829 S.W.2d 712

(Tex.1991), where Republican relators in redistricting were

accorded relief in the Supreme Court never sought in any

other forum. This “triple R exception to mandamus,” id. at

760–61 (Mauzy, J., dissenting), only presages the continued

pursuit of this goal.

If doubts remain as to the one-sidedness of the standard

announced today, its application to currently pending cases

should resolve them. See, e.g., Remington Arms Co. v.

Canales, No. D–1867, 35 Tex.S.Ct.J. 245 (Dec. 13, 1991)

(trial court order which found documents relating to firearm

safety relevant and required their production stayed despite

no timely response or objection being made); Eli Lilly & Co.

v. Marshall, No. D–1827, 35 Tex.S.Ct.J. 168, 354 (Dec. 3,

1991 and Jan. 23, 1992) (stays of trial court order directing

production of information relating to the drug Prozac); see

id. at 189 (Order Granting Leave to File Petition for Writ of

Mandamus) (Doggett, J., dissenting); Valley Baptist Medical

Center v. Bennett, No. D–1193, 34 Tex.S.Ct.J. 668 (June

18, 1991) (stay issued to protect hospital from disclosure of

materials relating to policy of informing patients of risk of

treatment), and 35 Tex.S.Ct.J. 452 (Feb. 12, 1992) (motion

for leave to file granted). One interested in verifying the true

meaning of the majority's carefully chosen words will do well

to observe how the court actually disposes of each of these

matters.

VIII. CONCLUSION

In an apparent attempt to cope with a false “mandamus

explosion,” today's opinion has offered us an explosion of

another type—a reverberating detonation of this court's prior

rulings. True the majority has considerable experience in

disregarding precedent as merely a lifeless thing of the

past. See Edgewood III, 826 S.W.2d at 516, 517 (Doggett,

J., dissenting); Terrazas, 829 S.W.2d at 739 (Mauzy, J.,

dissenting); Stewart Title Guaranty Co. v. Sterling, 822

S.W.2d 1, 12 (Tex.1991) (Doggett, J., dissenting). But a

dozen or more Texas Supreme Court authorities and even

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

social policy objectives.

Through both deed and now word, the majority invites a

true explosion in mandamus filings. What does an attorney

whose client faces the possibility of a judgment for significant

damages have to lose from accepting the beneficence of a

majority of this court ever willing to serve as protector of the

privileged? Will a deposition site other than that ordered by

the trial court *857 be more costly and inconvenient to the

claimant? Get a stay from the Texas Supreme Court, even

if your petition is still pending in the court of appeals. See

Continental Can Co. v. Wittig, No. D–2015, 35 Tex.S.Ct.J.

355, 1992 WL 17415 (Jan. 29, 1992) (stay of trial court

order directing engineering employee of products liability

defendant to be deposed in Houston rather than Chicago even

though mandamus petition was pending in court of appeals).

Did the trial court resolve a conflict in deposition schedules

in a manner unacceptable to an insurance company? Don't

worry, the Texas Supreme Court will stay proceedings even

without bothering to get a response from the affected judge.

See Cigna Corp. v. Spears, No. D–2069, 35 Tex.S.Ct.J. 463

(Feb. 19, 1992). Any attorney whose client desires to make

more difficult access to information that will jeopardize its

credibility, suggest its liability or defeat its defenses would

be foolish to accept a trial court discovery order. A majority

of the Texas Supreme Court is ready and willing to interfere

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19

The ripple effect created by today's refusal to accord

mandamus review to pretrial discovery orders will swell to

tidal-wave proportion, and sweep before it any hope of fair

and consistent application of our Texas discovery rules. In

many cases it will leave buried in the sand any possibility

of trials directed by the full and truthful revelation of the

underlying facts. Juries will be forced to resolve critical

disputes based not on truths but rather upon whatever halftruths can be discovered. Left in the wreckage on the beach

will be the tattered remains of the many prior decisions of this

court and others that viewed litigation as a search for truth in

which fair and prompt appellate review of an order denying

discovery was vital.

MAUZY, J., joins in this dissenting opinion.

GAMMAGE, Justice, dissenting.

I dissent. Today's decision departs from previous instances

where this court has provided mandamus relief to correct a

wrongful denial of discovery, and labors too hard to conclude

that appeal is an adequate remedy for a party who is denied

adequate discovery.

I would hold that mandamus is available to correct a trial

court error which negatively and materially affects the right

of aggrieved parties to adequately present their cases, whether

the particular party is seeking discovery or resisting it.

See Iley v. Hughes, 158 Tex. 362, 368, 311 S.W.2d 648,

652 (1958); see also Elizabeth G. Thornburg, Interlocutory

Review of Discovery Orders: An Idea Whose Time Has Come,

44 SW.L.J. 1045 (1990). In the case before us, the trial court's

denial of discovery has a material and adverse effect on the

Walkers' ability to present their case. The information they

seek could impugn the credibility of key expert witnesses at

trial. Because their medical malpractice claim, like all such

claims, will likely stand or fall on the credibility of the expert

witnesses, I would hold that the Walkers are entitled to the

information they seek, and that relief by appeal is inadequate.

Discovery is the “linchpin of the search for truth,” and

“[a]ffording parties full discovery promotes the fair resolution

of disputes by the judiciary.” State v. Lowry, 802 S.W.2d 669,

671 (Tex.1991). Today the court removes and disposes of that

“linchpin” and abandons enforcement of fair and adequate

discovery. Because I believe that mandamus relief should be

readily available when a court allows either too much or too

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 20

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 21

(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

Discovery

Orders

All

Mandamus

Filings

Total Mandamus

and Applications

for Writ

Discovery

as Percentage

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.
Watson v. Homeowners Ass'n of Heritage Ranch, Inc., 346 S.W.3d 258 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

346 S.W.3d 258

Court of Appeals of Texas,

Dallas.

E. Steve WATSON, Appellant,

v.

The HOMEOWNERS ASSOCIATION

OF HERITAGE RANCH, INC., Appellee.

No. 05–10–00364–CV. | July 28, 2011.

Synopsis

Background: Nonprofit homeowners association member

brought action against homeowners association seeking a writ

of mandamus to permit him to inspect the books and records

of the association. The association filed a general denial and

raised the affirmative defenses that the suit was not ripe or was

moot because it never denied member the right to examine

and copy its books and records. The 416th District Court,

Collin County, Chris Oldner, J., entered summary judgment

in favor of association. Member appealed.

[Holding:] The Court of Appeals, Moseley, J., held that

homeowners association did not refuse to permit member to

examine the books and records at a reasonable time.

Affirmed.

West Headnotes (3)

[1] Mandamus

Conduct of hearing or trial

Mandamus

Appeal and Error

An original proceeding for a writ of mandamus

initiated in the trial court is a civil action subject

to trial and appeal on substantive law issues and

the rules of procedure as any other civil suit.

Cases that cite this headnote

[2] Mandamus

Nature of acts to be commanded

Mandamus

Necessity of demand

Mandamus

Refusal or default

There are three requisites to a common law

action for a writ of mandamus: (1) a legal duty

to perform a non-discretionary act; (2) a demand

for performance of the act; (3) and a refusal to

perform.

Cases that cite this headnote

[3] Common Interest Communities

Association records

Mandamus

Corporations and associations subject to

mandamus

Homeowners association nonprofit did not

refuse to permit member to examine the books

and records at a reasonable time, and, therefore,

member was not entitled to mandamus relief

compelling association to permit him to examine

records, notwithstanding member's allegations

that the association engaged in improper

accounting practices, failed to document

transactions, and kept false and misleading

financial records; member was permitted to

examine and copy the association's records for

a total of approximately 22 hours. V.T.C.A.,

Business Organizations Code § 22.351.

Cases that cite this headnote

Attorneys and Law Firms

*259 E. Steve Watson, Attorney at Law, Allen, TX, pro se.

Robert L. Harris, Shannon, Gracey, Ratliff & Miller, LLP,

Dallas, TX, for Appellee.

Before Justices MORRIS, MOSELEY, and MYERS.

OPINION

Opinion By Justice MOSELEY.
Watson v. Homeowners Ass'n of Heritage Ranch, Inc., 346 S.W.3d 258 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

E. Steve Watson sued The Homeowners Association of

Heritage Ranch, Inc. (the HOA) seeking a writ of mandamus

to permit him to inspect the books and records of the HOA.

The HOA filed a general denial and raised the affirmative

defenses that Watson's suit was not ripe or was moot because

the HOA never denied him the right to examine and copy the

HOA's books and records. Eventually the trial court granted

the HOA's motion for summary judgment. Watson appeals,

arguing in a single issue that genuine issues of material fact

were raised regarding his claims and the HOA's affirmative

defenses. We affirm the trial court's judgment.

Watson is a member of the HOA, which is a non-profit

corporation. Former article 1396–2.23 gives members of a

non-profit corporation the right, on a proper written demand,

to examine and copy records as follows:

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.

Act of May 24, 1993, 73d Leg., R.S., ch. 733, § 12, 1993

Tex. Gen. Laws 2873, 2879 (expired Jan. 1, 2010) (current

version at TEX. BUS. ORGS.CODE ANN. § 22.351 (West

2010)). The HOA's bylaws authorize the board of directors to

establish reasonable rules regarding inspection of its records

by members, including the notice to be given, the hours and

days of the week when inspection may be made, and payment

of the cost of reproducing requested copies of the documents.

Watson alleged he made a written demand to inspect the

records of the HOA on May 20, 2009 to determine if the

financial records of the HOA were properly and accurately

kept and whether true results of the HOA's financial

operations were communicated to the members. He alleged

he was permitted to examine and copy some records, but that

the HOA later refused to make additional records available.

In an e-mail dated September 9, 2009, Watson requested

additional documents regarding the relationship between the

HOA and Western Golf Properties (WGP), the manager of

the golf course located on the subdivision. On September

18, 2009, Watson made a formal written demand to review

the additional documents, stating the same purpose as in his

May 20, 2009 demand. He stated that he would file suit to

enforce his rights if the additional documents were not made

available to him by September 30, 2009. Watson alleged the

HOA advised him on September 30, 2009 that it would review

his request at the board meeting in October, “but gave no

assurance that Plaintiff would be permitted continued access

to such records for purposes of examination and/or *260

copying.” Watson filed this suit on October 1, 2009.

The HOA moved for summary judgment, asserting that the

HOA had not refused Watson's written demands to examine

and copy its books and records, that Watson's assertions that

the HOA would not permit him to examine the books and

records in the future were not ripe, and that Watson's prior

written demands were moot because he had been permitted to

examine and copy the books and records both before suit was

filed and again on November 16 and 17 and December 21,

2009. Watson's response and his affidavit argue he was given

limited access to some documents for approximately two days

before he filed suit. After he filed the suit, he was denied

access until November 16, 2009 and again until December 22,

2009, when he was allowed to examine records for a period of

less than two days. The trial court granted the HOA's motion

for summary judgment without specifying the grounds on

which it relied.

[1] [2] We review a trial court's summary judgment de

novo. See Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex.2003). We apply the well-established

standards for reviewing summary judgments. See Nixon v.

Mr. Property Management Co., 690 S.W.2d 546, 548–49

(Tex.1985); see also TEX.R. CIV. P. 166a. An original

proceeding for a writ of mandamus initiated in the trial court

is a civil action subject to trial and appeal on substantive

law issues and the rules of procedure as any other civil suit.

Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n.

1 (Tex.1991). There are three requisites to a common law

action for a writ of mandamus: a legal duty to perform a nondiscretionary act, a demand for performance of the act, and a

refusal to perform. Dallas Fort Worth Int'l Airport Bd. v. Cox,

261 S.W.3d 378, 382 (Tex.App.-Dallas 2008, no pet.).

[3] Watson's request for mandamus is based on the HOA's

alleged refusal to perform its legal duty under article 1396–

2.23 to permit him to inspect its books and records. To invoke

the right to examine and copy records under that statute, the

member of the non-profit corporation must make a written

demand stating a proper purpose. He may then examine and

copy, at any reasonable time, the books and records relevant

to the proper purpose at his expense. See Act of May 24, 1993,
Watson v. Homeowners Ass'n of Heritage Ranch, Inc., 346 S.W.3d 258 (2011)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

73d Leg., R.S., ch. 733, § 12, 1993 Tex. Gen. Laws 2873,

2879 (expired Jan. 1, 2010).

To establish entitlement to the writ of mandamus, Watson

was required to show (1) the HOA had a legal duty under

article 1396–2.23, (2) he made a written demand stating a

proper purpose, and (3) the HOA refused to permit him to

examine the books and records at a reasonable time. See Cox,

261 S.W.3d at 382. The HOA does not claim that Watson's

stated purpose was improper.

The summary judgment evidence shows Watson made the

May 20, 2009 and September 18, 2009 written demands

described above. The summary judgment record indicates the

HOA gave Watson access to the HOA's books and records in

response to the May 20, 2009 written demand. 1

The HOA's September 30, 2009 letter stated that the board

had discussed Watson's September 18 demand and “agreed

that there is not a problem in you examining *261 the

records you requested.” The letter also stated the board

decided it needed to establish a policy for payment of the costs

associated with the making the records available and copying

them and would do so at its October meeting. The letter

indicated Watson would be allowed to review the charges and

proceed with his request at that time.

The HOA's president testified in his affidavit that, after

Watson filed suit, he again examined the HOA's books and

records for approximately twenty-two hours on November 16

and 17 and December 21, 2009. 2 The president also testified

the HOA would make its books and records available to

Watson in the future after proper notice of a proper purpose

and at a reasonable time at Watson's expense.

Watson's response and affidavit state that he was denied

access to the records at various times, but admit that he was

given access on November 16, 2009 and on December 22,

2009. He does not dispute that he was permitted to examine

and copy the HOA's records for a total of approximately

twenty-two hours in November and December.

Watson's summary judgment response is replete with

allegations of improper accounting practices, failures to

document transactions, and false and misleading financial

records of the HOA. These assertions, however, are not

material to whether the HOA refused to permit him to

examine the books and records at a reasonable time. 3

We conclude the summary judgment record establishes that

the HOA did not deny Watson's written demands to examine

and copy the relevant books and records. Accordingly, the

trial court did not err by granting the HOA's motion for

summary judgment. We overrule Watson's sole issue.

We affirm the trial court's judgment.

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.
Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

940 S.W.2d 359

Court of Appeals of Texas,

Dallas.

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.

No. 05–95–01727–CV. | Feb. 19, 1997.

Psychiatrists brought libel and slander action against attorney

who represented patients in lawsuit against psychiatrists. The

101st Judicial District Court, Dallas County, Jay Patterson,

J., denied psychiatrists' motion to restrict use of or access to

discovery records consisting of financial and office records.

Psychiatrists appealed. The Court of Appeals, Lagarde, J.,

held that: (1) it lacked jurisdiction over appeal insofar as it

concerned denial of relief under rule permitting court to limit

scope of discovery; (2) sufficient evidence supported finding

that discovery documents were “court records”; and (3) trial

court did not abuse its discretion in denying motion.

Affirmed.

West Headnotes (12)

[1] Records

Court records

Party seeking to seal court records must prove

required elements by preponderance of evidence.

Vernon's Ann.Texas Rules Civ.Proc., Rule 76a.

1 Cases that cite this headnote

[2] Records

Court records

Trial court may not presume particular document

or group of documents are court records, for

purposes of motion to seal, when party raises

issue of whether discovery documents are court

records; rather court must make a factual

determination of whether specific document or

category of documents constitutes court records.

Vernon's Ann.Texas Rules Civ.Proc., Rule 76a.

Cases that cite this headnote

[3] Records

Court records

Court of Appeals reviews trial court's ruling

on motion to seal court records under abuse of

discretion standard. Vernon's Ann.Texas Rules

Civ.Proc., Rule 76a.

2 Cases that cite this headnote

[4] Records

Court records

In determining if trial court abused its discretion

in ruling on motion to seal documents, test is

whether trial court acted without reference to

guiding rules or principles provided by rule

governing sealing of documents or if trial

court acted in arbitrary or unreasonable manner.

Vernon's Ann.Texas Rules Civ.Proc., Rule 76a.

5 Cases that cite this headnote

[5] Appeal and Error

Abuse of discretion

When reviewing matters committed to trial

court's discretion, Court of Appeals may not

substitute its judgment for that of trial court.

1 Cases that cite this headnote

[6] Appeal and Error

Province of trial court

Appeal and Error

Province of trial court

In a nonjury trial or hearing, trial judge is sole

judge of witnesses' credibility and weight given

their testimony.

1 Cases that cite this headnote

[7] Records

Court records
Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Court of Appeals had jurisdiction over

defendants' claim that trial court erred in denying

their motion to restrict use of and access to

discovery documents under rule permitting court

to seal court records. Vernon's Ann.Texas Rules

Civ.Proc., Rule 76a.

Cases that cite this headnote

[8] Appeal and Error

Relating to witnesses, depositions,

affidavits or discovery

Court of Appeals lacked jurisdiction over

defendants' appeal insofar as it concerned denial

of relief under rule permitting court to limit

scope of discovery. Vernon's Ann.Texas Rules

Civ.Proc., Rule 166b, subd. 5, par. c.

Cases that cite this headnote

[9] Records

Court records

Trial court ruled, in granting plea in intervention,

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

discovery documents sought to be sealed

were court records. Vernon's Ann.Texas Rules

Civ.Proc., Rule 76a.

Cases that cite this headnote

[10] Appeal and Error

Failure to make bill of exceptions, case, or

statement of facts

In absence of a statement of facts, Court of

Appeals must presume that sufficient evidence

was introduced in trial court to support trial

court's decision. Rules App.Proc., Rule 50(d).

1 Cases that cite this headnote

[11] Records

Court records

In the absence of statement of facts, Court

of Appeals presumed that sufficient evidence

supported trial court's finding that discovery

documents were “court records” in court's ruling

denying libel plaintiffs' motion to restrict use or

access to those documents. Vernon's Ann.Texas

Rules Civ.Proc., Rule 76a; Rules App.Proc.,

Rule 50(d).

Cases that cite this headnote

[12] Records

Court records

Trial court did not abuse its discretion in denying

psychiatrists' motion to restrict use of and access

to discovery records, consisting of financial and

office records, in their libel and slander action

against attorney who was representing patients in

lawsuit against psychiatrists, where psychiatrists

presented no evidence that lack of restrictions

on use of discovery would harm their defense

in patients' action or that any existing orders

in patients' action would prevent patients from

obtaining those requested documents. Vernon's

Ann.Texas Rules Civ.Proc., Rule 76a.

1 Cases that cite this headnote

Attorneys and Law Firms

*360 William A. Smith, J. Douglas Uloth, Smith & Uloth,

P.C., Dallas, for Appellants.

Thomas J. Williams, Haynes & Boone, L.L.P., Fort Worth,

Ronald L. Palmer, C. Craig Tadlock, Baker & Botts, L.L.P.,

Dallas, James R. Moriarty, The Law Offices of James R.

Moriarty & Associates, Houston, for Appellees.

Before LAGARDE, MALONEY and MORRIS, JJ.

OPINION

LAGARDE, Justice.

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
Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

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 attorney

who placed allegedly libelous advertisements in newspapers

and on radio stating that appellants had 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 of income 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 *361 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. 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

[1] 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(1). “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. CIV. 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(1). The party seeking to seal the

court records must prove the elements of rule 76a(1) 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).

[2] A trial court may not presume a particular document

or group of documents 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; Eli Lilly, 868 S.W.2d at 808.

When the issue is raised, the trial court must make a factual

determination of whether a specific document or category of

documents constitutes court records. Upjohn, 906 S.W.2d at

96; Eli Lilly, 868 S.W.2d at 808.

[3] [4] 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, 106 S.Ct.

2279, 90 L.Ed.2d 721 (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.
Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

[5] [6] 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 judge of the

witnesses' credibility and the weight given their testimony.

Id.; Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d

219, 224 (Tex.App.—Dallas 1989, writ denied).

JURISDICTION

[7] 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 *362 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.

CIV. 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

[8] 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 of relief under

rule 166b. See 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

[9] 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 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.

[10] 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. *363 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).

[11] 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 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 court records. We

overrule appellants' second point of error.
Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

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 medical organizations;

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(1).

[12] 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

plaintiff's 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(1). Id. at 505–06. The court of appeals affirmed

the sealing order to the extent that it concealed the plaintiff's

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 *364 for reviewing the denial of a sealing

order differ from those for reviewing the granting of a sealing

order. 7 Therefore, Fox does not 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 plaintiff's 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 plaintiff's 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 of the

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 Montgomery County, Moriarty would be likely to use

information discovered in 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
Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

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 of

restrictions 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 specific, serious,

and substantial interest which 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.

*365 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.

We affirm the trial court's order denying appellants' motion

to seal.

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.
Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (1997)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

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.
§ 22.351. Member's Right to Inspect Books and Records, TX BUS ORG § 22.351

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

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.
Art. 1396-2.23. Books and Records, TX CIV ST Art. 1396-2.23

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

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.
§ 82.114. Association Records, TX PROPERTY § 82.114

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

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:
§ 82.114. Association Records, TX PROPERTY § 82.114

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

(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.
42.3. Involuntary Dismissal in Civil Cases, TX R APP Rule 42.3

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

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.
190.5. Modification of Discovery Control Plan, TX R RCP Rule 190.5

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

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.
191.1. Modification of Procedures, TX R RCP Rule 191.1

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 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 191.3

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.
191.3. Signing of Disclosures, Discovery Requests, Notices,..., TX R RCP Rule 191.3

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

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.
191.3. Signing of Disclosures, Discovery Requests, Notices,..., TX R RCP Rule 191.3

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 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 191.3

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.
191.3. Signing of Disclosures, Discovery Requests, Notices,..., TX R RCP Rule 191.3

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

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.
192.4. Limitations on Scope of Discovery, TX R RCP Rule 192.4

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

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

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

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

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

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

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.
Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

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 timelyfiled 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.
Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

(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.
Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

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 ageold 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
Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

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
Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

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.
Rule 329b. Time for Filing Motions, TX R RCP Rule 329b

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

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

Sign In My Account SUBSCRIBE: Home Oe!Jvery Oigita! Rea! Estate Rentals Cars Today's Paper Going Out Gulde Find&Save 

l'n<,,l J"\- Politics 

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." 

US Supreme Court Chief Justice John G. Roberts participates in the 

court's official photo session in th ls October 8, 2010 file photo at the 

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 

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 

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 

held up under Congress' right to tax people for not 

buying into the insurance system. 

Supreme Court in Washington, DC. AFP PHOTO I TIM 

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. 

Added Dean Clancy, vice president of health care policy for FreedomWorks, a tea party aligned group: 

"The justification to uphold the individual mandate while simultaneously admitting ii is unconstitutional 

under the Commerce Clause is baffling," said Dean Clancy. 

Spin aside, it's seems clear that Roberts had his eye on legacies - both his own and that of the Courtwhen he threw his lot in with the majority opinion. 

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 

viewed by the public at large. A bare majority - 52 percent - regarded the Court in a favorable light in a 

recent Pew 12Q!J, a significant tumble from the 80 percent favorable rating the Court scored as recently as 

1994. 

Along with - or perhaps precipitated by- the Court's diminished regard among the Ame;ican public, has 

been an increasing willingness by the President to directly criticize or challenge the natlori1

s. highest court. 

In his 2010 State of the Union Speech- and with many of the Justices in attendance- Obama bashed 

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." 

n l !h ;l\k i nk:uinuwui I,,],. \·!,,, 

Is Congress abA~ti~ . 

threaten hospit~!~s~~f?? , /;;' /j-' '<J 

Latest Tweets 

With clock licking, Republicans feuding over OHS funding, 

immigration action wapo.st/1wfl9TD 

WaPoSoan 

NEW. @JebBush needs to find way to connect with 

conservatives who haven't joined rush to back hlm. By @costareports wapo.stl1zKp4KG 

edatpost 

A searchable index of Clinton Foundation donors. wapo.stltAvLAlg 

Tho Fix 

More tweets from The Fix 

Post Newsletters & Alerts 

Sign-up for e-mail newsletters and alerts and get the 

http://www.washingtonpost.com/blogs/the-fix/post/john-roberts-umpire/2012/06/28/gJQAxSZM9V_blog.html Page 1 of 8 
John Roberts, umpire. - The Washington Post 

Then, in the immediate aftermath of oral arguments this spring on the health care law, Obama offered 

something of a warning to the Court, arguing that an overturning of Affordable Care Act would be both 

'.'.J.mprecedented" and "extraordinary_:. 

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 

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 

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): 

"Judges have to have the humility to recognize that they operate within a system of precedent. shaped 

by other judges equally striving to Jive up to the judicial oath. And judges have to have the modesty to 

be open in the decisional process to the considered views of their colleagues on the bench." 

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: 

Roberts votes for Obama, who didn't vote for him 

Roberts joins liberal wing._fil!Y.S mandate is permissible 

J..r&..ypdates: Reactions to Supreme Court ruling 

Obama victorious today .. as GOP looks to November 

Tags Older> 

Former White House 

press secretary Jay 

Carney going to 

2/27/15 4:46 PM 

news you need delivered directly to your inbox. 

~i Behind the 

Government 

Showdown 

'Morning Fix 

_;Afternoon Fix 

-·1 Politics News & 

Analysis 

1 J Politics News Alerts 

IWonkbook 

_:Federal Insider 

See all Washington Post Newsletters 

No room for uprinces11 in Pope Francis1 

Vatican 

How to declutter your office, your home, 

and your mind 

Dozens of mysterious new craters 

discovered in Siberia 

Ffnd us on Facobook 

254,627 people like Washington Post Politics. 

Facebooksoclar plug1n 

Featured Advertiser Links 

Looking to buy a home? Visit TWP Real Estate section 

for the latest open houses. 

Wireless Solves Parking Nightmare 

Featured Advertiser Links 

Sponsored Links 

r>~American Express Hotels 

'£'~,;~Book Your Next Hotel Stay & You Can Earn 

-Membership Rewards® Points. 

amencanexpress com/Travel 

Try Equifax 

Take control of your credit with Equifax 

Complete m Premier 

YNAV eqwfax com 

TaxSlayer 

Max your refund with TaxSlayer. 

https.//www taxslayer.com 

Buy a link here 

http://www.washingtonpost.com/bJogs/the-fix/post/john-roberts-umpire/2012/06/28/gJQAx5ZM9V_blog.html Page 2 of 8