Livesay Law Office v. Zaria Dajlala Ricartea ( 2023 )

NUMBER 13-23-00222-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LIVESAY LAW OFFICE, Appellant,
v.
ZARIA DAJLALA RICARTEA, Appellee.
On appeal from the 93rd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras
This is an appeal of the trial court’s March 23, 2023 order sealing certain court
records. Appellant Livesay Law Office contends that the sealing order did not comply with
Texas Rule of Civil Procedure 76a because: (1) there was no written motion to seal filed;
(2) there was no hearing held; (3) there was no public notice of any hearing; and (4) there
was no evidence justifying the sealing order. See TEX. R. CIV. P. 76a(1), (3), (4). Because
we agree on appellant’s first point, we reverse and render.
I. BACKGROUND
The underlying case is a divorce proceeding in which appellant, representing
petitioner Carlos Hernandez, filed a motion for sanctions against Nereida Lopez
Singleterry, one of the attorneys representing respondent (appellee herein) Zaria Dajlala
Ricartea. At the final divorce hearing on January 20, 2023, appellee’s co-counsel asked
“that any motions for sanctions not only be withdrawn but stricken from the court’s file
completely and sealed.” The trial court replied, “They will be.” Appellant’s co-counsel
replied, “I think you were going to do that anyway, Judge.” The trial court signed an order
on March 23, 2023, granting the oral motion for sanctions, but the order itself was “sealed
by the court.”1 On May 22, 2023, appellant filed a notice of appeal challenging “the order
sealing record[s] entered on March 23, 2023.”
On May 30, 2023, appellant filed a “Response to Court’s Claim That Order Not
Appealable[ 2] and Request to Abate Appeal.” Appellant argued in this filing that the order
on appeal does not comply with Texas Rule of Civil Procedure 76a for the reasons set
forth above, and he asked us to abate the appeal in order for the trial court to correct
these procedural defects. See TEX. R. CIV. P. 76a(1), (3), (4), (8). On June 15, 2023, we
abated the appeal pursuant to appellant’s request and remanded the case with
instructions for the trial court to “determine whether any party has filed a written motion
requesting sealing of the subject records.” Our order stated, among other things, that “if
1 The order states appellant’s co-counsel agreed “to seal [the subject] motion for sanctions, all
exhibits and all proposed and signed orders associated with [the] motion.”
2 On May 25, 2023, this Court notified appellant that there appeared to be no final, appealable
order. However, on June 5, 2023, this Court notified appellant that, upon further review, it appears that the
order is final and appealable. See TEX. R. CIV. P. 76a(8).
2
no party has filed a written motion to seal records, the trial court shall certify that fact in a
written order” and shall “cause its written order to be included in a supplemental clerk’s
record, which shall be filed with the Clerk of this Court within thirty (30) days from the date
of this order.” See TEX. R. CIV. P. 76a(8). On the other hand, if the trial court determined
that a party had filed such a motion, we ordered the trial court to conduct proceedings in
accordance with Texas Rule of Civil Procedure 76a.
On July 18, 2023, appellant filed a “Notice of Trial Court’s Refusal to Comply With
This Court’s Order,” observing that the deadline for the trial court to file its order had
passed. On July 26, 2023, appellant filed a “Notice of Trial Court’s Continuing Refusal to
Comply With This Court’s Order,” observing that the trial court had still not filed its order
pursuant to our directions. In his notices, appellant asked us to “deem that no written
motion to seal was filed” and to “summarily reverse” the sealing order. We ordered
appellee to file a response to the requests made in appellant’s notice on or before 5:00
p.m. on Thursday, August 3, 2023. Appellee did not file a response.
On August 4, 2023, a supplemental clerk’s record was filed which included a letter
from the trial court to the Clerk of this Court stating, in its entirety: “[Appellant] provided
me a copy of the transcript of the January 20, 2023 hearing. All parties agreed to seal the
matters at issue in this case. I am sending a copy of the transcript.” 3 The letter does not
state whether any party filed a written motion to seal records, and no order appears in the
supplemental clerk’s record.
3 The letter included a copy of the transcript of the January 20, 2023 hearing. That transcript had
previously been provided to this Court as part of the reporter’s record on July 5, 2023.
3
II. DISCUSSION
As an order sealing records, the trial court’s March 23, 2023 order is deemed to
be severed from the underlying case and is an appealable final judgment. See TEX. R.
CIV. P. 76a(8) (“Any order (or portion of an order or judgment) relating to sealing or
unsealing court records shall be deemed to be severed from the case and a final judgment
which may be appealed by any party or intervenor who participated in the hearing
preceding issuance of such order.”). Moreover, the documents presently on file provide
this Court with the information necessary to resolve this appeal, and appellee has been
given a reasonable amount of time to respond to the requests made in appellant’s notices.
Accordingly, we allow the appeal to be submitted without briefs. See TEX. R. APP. P. 2,
28.1(e).
Appellant contends that the trial court’s March 23, 2023 sealing order did not
comply with Texas Rule of Civil Procedure 76a because, among other things, there was
no written motion to seal filed. See TEX. R. CIV. P. 76a(3) (“Court records may be sealed
only upon a party’s written motion, which shall be open to public inspection.”). In response
to our request for clarification as to whether any party filed a written motion to seal
records, the trial court filed a letter which included a copy of a hearing transcript. We
construe the trial court’s letter as confirming appellant’s assertion that no party filed any
written motion to seal records. 4 Moreover, we observe that the transcript of the January
20, 2023 hearing does not substantiate the trial court’s statement that “[a]ll parties agreed
to seal the matters at issue in this case.” To the contrary, there is no indication that
4 Appellant has filed an “Amended Motion for Contempt” asking us to hold the trial court, appellee,
and Singleterry in contempt and to “place[ them] in jail until they compl[y] with this Court’s order.” We look
with disfavor upon the trial court’s and appellee’s failure to comply with this Court’s orders. However, we
deny the “Amended Motion for Contempt.”
4
appellant, his co-counsel, or his client explicitly agreed at that hearing that the motion for
sanctions should be sealed. In any event, the requirements of Rule 76a are mandatory
and may not be waived by agreement of the parties. See In re Cook, 629 S.W.3d 591,
608 (Tex. App.—Dallas 2021, orig. proceeding) (Smith, J., concurring) (“[P]arties may not
enter a Rule 11 agreement to skirt the requirements of [R]ule 76a.”).
Because no written motion to seal was filed, the March 23, 2023 sealing order was
erroneous as a matter of law and must be reversed. 5 See id. We express no opinion on
whether the other requirements of Rule 76a were satisfied.
III. CONCLUSION
We reinstate the appeal, reverse the trial court’s March 3, 2023 sealing order, and
render judgment denying appellee’s oral motion to seal records. All other pending motions
are denied as moot.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
24th day of August, 2023.
5 We note that, according to the docket sheet, the March 23, 2023 sealing order is itself sealed.
This is improper. See TEX. R. CIV. P. 76a(6) (providing that an order which decides “a motion relating to
sealing or unsealing court records” shall be “open to the public”). That said, because of our disposition, we
need not direct that the March 23, 2023 order be unsealed.
5