Justin Lane v. Thomas Derwood Lane, Glyndia Faye Lane, Jason Lane, Rachel Lane, and Matthew Lane ( 2012 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
_________________________
No. 06-11-00089-CV
______________________________
JUDGE CARLOS CORTEZ, Appellant
V.
COYT RANDAL (RANDY) JOHNSTON, THE DALLAS MORNING NEWS, INC.,
AND ALM MEDIA, LLC, D/B/A THE TEXAS LAWYER
AND JUDGE MARTY LOWY, Appellees
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court No. DC-10-14346
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
OPINION
Carlos Cortez has appealed an order of a trial court determining that certain documents
presented to and file stamped by the District Clerk of Dallas County are “court records” as
defined in Rule 76a of the Texas Rules of Civil Procedure.1
The controversy over these documents has its genesis in a dispute between Cortez and
Coyt Randal (Randy) Johnston, the named defendant in the suit from which this appeal is being
prosecuted. This is not this Court’s first exposure to the dispute between Cortez and Johnston.
Cortez, a Dallas County district judge, had brought a suit against Johnston under Rule 202, Texas
Rules of Civil Procedure, in an effort to depose Johnston, and Johnston filed a petition for writ of
mandamus in which he had sought to block the taking of his deposition. This Court denied that
petition in our cause number 06-10-00095-CV. Some of the facts giving rise to the immediate
controversy as recited within this opinion may have their origin in our familiarity with the
previous case before this Court, the file contents of which we take judicial notice.
The conflict had its roots in the filing by Johnston of a complaint against Cortez with the
State Judicial Conduct Commission (Commission), wherein Johnston alleged that Cortez had
(among other things) publicly demeaned other judges and was rumored to have consorted with
prostitutes and used illicit drugs. Although the contents of such filings are required by law to be
held in the strictest confidence (TEX. GOV’T CODE ANN. § 33.0321 (West 2004)), someone
apparently ignored the confidential constraints and some of the information contained in the
complaint was leaked to at least one member of the press. Cortez was questioned by a reporter
1
This was originally appealed to the Fifth Court of Appeals and was transferred to this Court after all of the justices
of the Fifth Court of Appeals recused themselves.
2
about this filing and, in response, Cortez mentioned Johnston as the source of the accusations
and labeled each of the charges fabrications. Cortez also lambasted Johnston and three Dallas
County district judges, naming them as willing participants in the complaint and predicting the
professional demise of all four. The story of the filing of the complaint and Cortez’s public
response were published. At some point after this, Johnston released information to multiple
parties (including many attorneys and, presumably, representatives of the press) as to the content
of the accusations in his filing. This public revelation by Johnston was followed by the above-
mentioned suit to compel Johnston’s deposition and, ultimately, by the filing of a defamation suit
by Cortez against Johnston.
In the course of the ensuing lawsuit, Cortez made a demand on Johnston for disclosure
pursuant to Rule 194, et seq. of the Texas Rules of Civil Procedure, and Johnston sought
Cortez’s deposition. After some disagreements concerning the logistics of the sought deposition
and the amount of restrictions (if any) to be placed on the fruits of discovery, the parties entered
into a Rule 11 agreement dated January 14, 2011, which provided that the contents of the
deposition would “not be published nor shared with any non-parties nor used for any purpose
other than as evidence in this lawsuit until such time as the court rules on the issue of whether a
Protective Order should be placed on the use of Judge Cortez’ deposition.” The Rule 11
agreement went on to say that such a determination was to be sought at the earliest date and that
“[f]ailure by Judge Cortez to bring the issue before the Court per this agreement will render this
Rule 11 agreement a nullity.” On January 18, 2011, Cortez filed a motion for protective order in
which he sought to have the trial court designate virtually all of the discovery and pleadings in
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the case designated as “confidential information” which would be ordered (in essence) sealed
from public view and used only for the purposes of the pending litigation. The parties proceeded
to the taking of Cortez’s deposition on January 17, 2011, during which Cortez refused to respond
to a number of personal questions posed to him.
On Friday, February 11, 2011, Johnston hand delivered Cortez his response to the request
for disclosure, which had been demanded by Cortez. This response included two witness
statements taken by Johnston, the contents of which, if true, at the very least would certainly
elicit public disapprobation of Cortez. Immediately after Cortez’s receipt of the response to the
request for disclosures that had been requested, Cortez was apparently either stricken with a
sudden attack of pudeur or he determined that discretion was the better part of valor. Whatever
might have prompted Cortez, he demonstrated remarkable alacrity by filing (on the same day) a
notice of nonsuit of his claims against Johnston.
The next working day (Monday, February 14), Johnston filed a motion to compel and for
sanctions, seeking attorney’s fees. This motion incorporated as exhibits a copy of the complaint
which Johnston had filed with the Commission and the entire deposition testimony of Cortez.
Johnston simultaneously filed a copy of the requested disclosure, which incorporated the two
witness statements to which reference is made above. (The motion to compel and for sanctions
made specific references to the witness statements as well.) These were apparently delivered to
the clerk by Johnston in an envelope which was sealed by Johnston and marked by him as
“Sealed Documents.” Later that same day, the trial court entered its order of nonsuit without
prejudice in compliance with Cortez’s notice.
4
Some three weeks after the entry of the order on Cortez’s nonsuit, The Dallas Morning
News, Inc., and ALM Media, LLC, d/b/a The Texas Lawyer, jointly intervened in the lawsuit
pursuant to Rule 76a, Texas Rules of Civil Procedure, asserting a right of access to court records,
anticipatorily denying that the same should be sealed. See TEX. R. CIV. P. 76a. Quite late in the
proceedings, Judge Martin Lowy (one of the Dallas County district judges publicly criticized by
Cortez) also filed an intervention. Reference to all three of these parties is hereinafter made as
Intervenors.
The trial court allowed the parties to file briefs concerning the issues of whether the
documents were court records, as defined in Rule 76a, and—if they were court records—whether
they should be sealed. A hearing was held April 11 on the application of the Intervenors for
access to the records, during which Cortez requested the trial court that he be allowed to meet
with the court during an in camera review of the documents (outside the presence of the
Intervenors) to provide explanations as to why he believed portions of the documents should be
ordered sealed. The trial court indicated that an in camera review of the documents had already
been conducted by him and the trial court refused to allow Cortez to engage in an ex parte
explanation of the reasons Cortez believed that the documents should be sealed. Cortez then
announced to the trial court that he was withdrawing his request that the documents be sealed
and that he now sought only a determination as to whether the documents were “court records”
as defined by Rule 76a, but maintaining that he still had a right pursuant to Rule 192.6 of the
5
Texas Rules of Civil Procedure to a protective order sealing the documents.2 See TEX. R. CIV. P.
192.6.
On April 15, 2011, the trial court entered an order which reads as follows:
On April 11, 2011, a hearing was held to determine whether the documents for
which a Protective Order is sought were “court records.’’ After review of the
evidence and argument of counsel the court finds the documents filed by
defendants in this cause are “court records” and sets this matter for hearing on
May 9, 2011 pursuant to Rule 76a, Texas Rules Civil Procedure and orders that
notice of this hearing be given as required by Rule 76a.
In his appeal of that order, Cortez raises many points, most of which relate to issues
which bear no relation to the issue of whether these are court records but, rather, bear upon the
issue of whether the documents should be sealed. He argues (both in his brief and at oral
argument) that he is protected under various theories from disclosure of at least a portion of the
contents of the documents.3 We point out that the sole order from which any appeal has been
taken is the singular determination that the documents are “court records” as defined by Rule 76a
and nothing else. We will not deal in speculation about whether any of Cortez’s arguments that
the documents could (or should) be protected from disclosure by sealing have merit or whether
the trial court should have permitted Cortez to have an ex parte session with the trial court to
explain his reasoning for finding in his favor. To do so would require us to issue an advisory
2
We note the existence of two apparently diametrically opposed positions taken by Cortez as to the activities which
the lawsuit could support after the filing of the nonsuit. On one hand, Cortez maintains that these documents could
not be filed in the lawsuit because it was an empty shell. Yet, Cortez argues (despite the fact that the sole question
before us is the determination of whether the documents are “court records”) that the case will still permit him to
seek a protective order pursuant to Rule 192.6 of the Texas Rules of Civil Procedure, even though this Rule does not
contain a similar provision to that providing for continuing jurisdiction found in Rule 76a(7) of the Texas Rules of
Civil Procedure.
3
For instance, Cortez employs the word “privilege” some eighty-four times in his brief without any clear explanation
of the nature of the privilege being claimed.
6
opinion, a realm into which appellate courts are forbidden to enter. Patterson v. Planned
Parenthood of Houston & Sw. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998) (citing Morrow v.
Corbin, 62 S.W.2d 641, 646 (Tex. 1933)).
In determining whether documents are “court records,” we must look at what that
definition includes, which is set out in Rule 76a(2) of the Texas Rules of Civil Procedure, stating
that court records are:
(a) all documents of any nature filed in connection with any matter
before any civil court, except:
(1) documents filed with a court in camera, solely for the
purpose of obtaining a ruling on the discoverability of such documents;
(2) documents in court files to which access is otherwise
restricted by law;
(3) documents filed in an action originally arising under the
Family Code.
(b) settlement agreements not filed of record, excluding all reference
to any monetary consideration, that seek to restrict disclosure of information
concerning matters that have a probable adverse effect upon the general public
health or safety, or the administration of public office, or the operation of
government.
(c) discovery, not filed of record, concerning matters that have a
probable adverse effect upon the general public health or safety, or the
administration of public office, or the operation of government, except discovery
in cases originally initiated to preserve bona fide trade secrets or other intangible
property rights.
TEX. R. CIV. P. 76a(2).
7
Certainly, none of the documents fall within the portion of the definition set out in Rule
76a(2)(b) as there obviously was no settlement of the issues in this case. If they are court
records, they must be found to be included within one of the other two definitions.
Application of Rule 76a(2)(a)
In looking at the pertinent documents to determine if they fall within Rule 76a(2)(a), we
must take into account the fact that the documents were not filed until after Cortez filed his
sudden nonsuit. What was the status of the case once the nonsuit was filed?
Here, although Johnston had apparently intended to file a motion for sanctions for
Cortez’s refusal to answer pertinent questions at his deposition, he had not yet done so and he
had no other claims pending at that time which had been filed before the filing of the notice of
nonsuit. However, Johnston did file the documents between the time that Cortez filed his notice
of nonsuit and the entry of the order granting the nonsuit, well within the plenary power of the
trial court. What, then, is the impact of Johnston’s filing of a motion for sanctions and does that
motion fall within the definition of “court records” as defined by Rule 76a(2)(a)?
The knee jerk reaction is to look solely to Rule 162 of the Texas Rules of Civil Procedure
(dealing with dismissals and nonsuits), which states in part, “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.” TEX. R. CIV. P. 162 (emphasis added). Taking that
further, we find that the Texas Supreme Court has said, “Even if the nonsuit applies to the entire
case, the nonsuit or voluntary dismissal is effective when notice is filed or announced in open
court. Entry of an order granting the nonsuit is ministerial.” FKM P’ship, Ltd. v. Bd. of Regents
8
of the Univ. of Houston Sys., 255 S.W.3d 619, 632 (Tex. 2008). This kind of statement might
lead one to the conclusion that once a notice of nonsuit is given, it is always the case that once
the plaintiff nonsuits and there are no pending claims for affirmative relief remaining on file,
“The lawsuit remains on the docket merely as an empty shell awaiting the final ministerial act of
dismissal.” Zimmerman v. Ottis, 941 S.W.2d 259, 263 (Tex. App.—Corpus Christi 1996, no
writ).
However, this fails to take into account that because a trial court does not lose plenary
power over the case until after the expiration of thirty days from the date of the entry of a final
judgment (TEX. R. CIV. P. 329b(d), (e)), it still retains the power during that time period to
impose sanctions, even if a motion to impose sanctions had not been filed before delivery of the
notice of nonsuit. Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996).
“After a nonsuit, a trial court retains jurisdiction to address collateral matters, such as motions
for sanctions, even when such motions are filed after the nonsuit, as well as jurisdiction over any
remaining counterclaims.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010).
Therefore, the trial court still had the authority to entertain Johnston’s motion to compel and
motion for sanctions, despite the fact that the actual filing of the motion followed the filing of the
notice of nonsuit by a weekend.4
The case was obviously not filed in an action originating under the Texas Family Code
and we have not been shown that access to the records is “otherwise restricted by law,” despite
4
If the trial court determined that Cortez could have been compelled to answer the questions to which he refused to
respond, it would have been possible for the trial court to conclude that at least some of the preparatory work for the
motion to compel and for sanctions took place before the announcement of a nonsuit, thereby raising the possibility
that sanctions could have been granted.
9
the fact that Cortez has attempted to say that those records are restricted from disclosure by
certain nebulous and unnamed privileges. TEX. R. CIV. P. 76a(2)(a)(3).
Cortez steadfastly maintains that all of the documents were filed with the trial court in
camera, solely for the purpose of obtaining a ruling on the discoverability of such documents.
Although they were filed in an envelope upon which Johnston had marked “Sealed Documents,”
there was neither any request made by him or by Johnston that they be examined only in camera,
nor was there any request that the trial court rule on their discoverability. Motions are not
discovery matters. The trial court correctly determined that the motion to compel and for
sanctions was not filed in camera, solely for the purpose of obtaining a ruling on the
discoverability of such documents.
None of the three exceptions to Rule 76a(2)(a) exclude the motion to compel and for
sanctions from inclusion within the definition of “documents of any nature filed in connection
with any matter.”5 TEX. R. CIV. P. 76a(2)(a).
The entirety of Johnston’s motion to compel and for sanctions (with its exhibit
attachments, including the deposition of Cortez and the letter of complaint which Johnston filed
with the Commission with its attachments) falls within the Rule 76a(2)(a) definition of “court
records.”
5
We note that if the motion to compel and motion for sanctions (which included an attached copy of the deposition
of Cortez) is not a court record under Rule 76a(1)(a), the deposition itself would be unfiled discovery within the
definition of court records as contained in Rule 76a(1)(c), discussed hereinafter, subject to the same restrictions set
out in that Rule.
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Application of Rule 76a(2)(c)
The final definition of “court records” is found in Rule 76a(2)(c), which incorporates
unfiled discovery meeting certain criteria. The response to the request for disclosure (with the
attached two witness statements) are not incorporated within the motion to compel and for
sanctions.6
Rule 191.4(a)(2) of the Texas Rules of Civil Procedure specifically includes responses to
discovery requests as discovery materials which “must not be filed.” TEX. R. CIV. P. 191.4(a)(2).
Accordingly, the responses to the requests for disclosure were specifically prohibited from being
filed with the clerk of the court and we treat them as being unfiled—despite the fact that they
were in the same envelope with the motion to compel and for sanctions. After determining that
they fall within the category of unfiled discovery, we look to see if they are the kind of discovery
material which Rule 76a(2)(c) classifies as not falling within that definition of “court records.”
As mentioned above, Rule 76a(2)(c) specifically incorporates within the definition of
“court records” such unfiled discovery which concerns “matters that have a probable adverse
effect upon the general public health or safety, or the administration of public office, or the
operation of government, except discovery in cases originally initiated to preserve bona fide
trade secrets or other intangible property rights.” TEX. R. CIV. P. 76a(2)(c). The trial court
indicated that it had reviewed all of the documents in camera and all of the documents were
introduced into evidence (albeit remaining under seal). Based upon his review of the documents
6
The findings of fact entered by the trial court say that the witness statements were obtained by Johnston outside of
the discovery process and belonged to him. However, when copies of these statements were delivered to Cortez in
response to his request for disclosure, they also became unfiled discovery.
11
and the evidence introduced, the trial court made extensive findings of fact and conclusions of
law.
The trial court found that the contents of the documents include information that concern
matters that have a probable adverse effect upon the administration of public office or the
operation of government because undisclosed information may be used by litigants attempting to
gain an unfair advantage before Cortez acting in his official capacity as a district judge and
because the papers contain allegations which could impact the public reputations of four judges
and an attorney, as well as calling in questions of disrepute to the operations of the civil district
courts in Dallas County, the State Bar of Texas, and the Texas Judicial Conduct Commission.
We review the trial court’s rulings on a Rule 76a proceeding for an abuse of discretion. Gen.
Tire, Inc. v. Kepple, 970 S.W.2d 520 (Tex. 1998).
When the character of documents is disputed, the party claiming that the documents are
court records has the burden to prove by a preponderance of the evidence that the documents are
court records. Roberts v. West, 123 S.W.3d 436, 441 (Tex. App.—San Antonio 2003, pet.
denied); Upjohn Co. v. Freeman, 906 S.W.2d 92, 95–97 (Tex. App.––Dallas 1995, no writ); Eli
Lilly & Co. v. Biffle, 868 S.W.2d 806, 808 (Tex. App.—Dallas 1993, no writ). The trial court
determines whether the documents are court records based upon evidence. Biffle, 868 S.W.2d at
809.
We find that the trial court, having reviewed the documents, had sufficient evidence to
make the findings that they were, indeed, court records and did not abuse its discretion in making
that finding.
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We affirm the judgment of the trial court in its determination that the documents are court
records.
Bailey C. Moseley
Justice
Date Submitted: August 9, 2012
Date Decided: September 4, 2012
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