in Re Ernie R West ( 2017 )

ACCEPTED
14-17-00886-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
12/20/2017 3:29 PM
CHRISTOPHER PRINE
CLERK
NO. 14-17-00886-CV
IN THE COURT OF APPEALS FILED IN
FOR THE FOURTEENTH DISTRICT 14th COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS
12/20/2017 3:29:01 PM
______________________________________________________
CHRISTOPHER A. PRINE
Clerk
In re ERNIE R. WEST,
Relator.
______________________________________________________
Original Proceeding from Cause No. 2016-85288
312th District Court, Harris County, Texas
Honorable David Farr, Judge Presiding, Respondent
RELATOR’S MOTION FOR REHEARING
MILLARD A. JOHNSON
State Bar No. 10772500
C. KEITH LEA
State Bar No. 24048269
SARA J. SHERMAN
State Bar No. 24068168
Johnson DeLuca Kurisky & Gould,
A Professional Corporation
4 Houston Center
1221 Lamar, Suite 1000
Houston, Texas 77010
Tel.: (713) 652-2525
Fax: (713) 652-5130
ATTORNEYS FOR RELATOR
REHEARING POINT
Point One: West was denied due process for his Motion for Protection.
Implicit in the Court’s denial of mandamus relief is the
determination that the subsequent hearing, relating to other
issues, served to cure the constitutional invalidity of the prior
orders. The only remedy for a denial of due process is due
process. Because the October 4, 2017 hearing was not a
rehearing of West’s Motion for Protection and was not an
evidentiary hearing that hearing could not cure the
constitutional infirmities that resulted from the Court’s
prior due process violations.
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RELATOR’S MOTION FOR REHEARING
Pursuant to Texas Rule of Appellate Procedure 52.9, Relator West
respectfully requests that the Court take another look at West’s Amended Petition
for Writ of Mandamus. The record reflects that the trial court refused to apply the
law to West, carving out unwritten exceptions for certain non-parties, and denying
him a full and meaningful hearing on his requested relief. Implicit in this Court’s
ruling is that West’s denial of due process was cured by later hearings. A later
hearing, however, unless conducted with the same evidentiary burdens, cannot cure
prior constitutionally defective proceedings. Thus, without a writ of mandamus,
this Court will be endorsing the Texas family court’s practice of selectively
applying the law and violating non-parties’ due process rights afforded under
Texas law.
Because West is a non-party, he has no adequate remedy on appeal as a
matter of law. See e.g., City of Hous. v. Chambers, 899 S.W.2d 306, 308 (Tex.
App.—Houston [14th Dist.] 1995, no writ); Cent. Mut. Ins. Co. v. Dunker, 799
S.W.2d 334, 336 (Tex. App.—Houston [14th Dist.] 1990, writ denied); Gunn v.
Cavanaugh, 391 S.W.2d 723, 724 (Tex. 1965).1 The Court, therefore, must have
based its denial of mandamus relief on the first prong only—whether the trial court
1
While in certain circumstances non-parties may be joined in the lawsuit—in which they would
be provided an adequate remedy on appeal—here, the record establishes that West would never
be joined in this litigation.
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committed a clear abuse of discretion. Accordingly, this Motion for Rehearing
will be limited to the trial court’s clear abuse of discretion.
The trial court abused its discretion when it refused to apply the law to West
and carved out exceptions for certain non-parties—“[p]rocess which is a mere
gesture is not due process.”
Texas Rule of Civil Procedure 176.6(e) provides that any person
commanded to appear at deposition and/or to produce documents, may move for a
protective order under Rule 192.6(b). West did that. The trial court had the
authority to protect West from the discovery only if West could establish that the
discovery was unduly burdensome, harassing, annoying, or an invasion of
personal, constitutional, or property rights. Tex. R. Civ. P. 192.6(b). Inherent in
the rule is the requirement that the resisting party produce evidence and establish
the right to relief. See, e.g., In Matter of Issuance of Subpoenas Depositions of
Bennett, 502 S.W.3d 373, 380–81 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(citing Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex.1987)). Here, the trial court
refused to apply the law when it refused West the opportunity to have a full
hearing on his evidentiary burden.
The record is replete with the trial court’s own admissions that it was not
following the rules or the law:
THE COURT: … there is not a reason
for me to not allow them to depose a
non-party who they believe has
relevant information. App. 714:4–5.
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…
… there is not a reason that he would
not be somebody they would have a
right to depose. App. 715:6–8.
…
So, Mr. Johnson, your client is going
to be deposed. … The Court finds he is
subject to being deposed. App.
723:12–13; 15–16.
…
THE COURT: In our world in family
court is not going to block that
deposition. App. 731:13–14.
…
Well, the appellate court is going to
love this. I can't imagine why the
deposition will be quashed. I can't
imagine my doing that. As far as how
it's limited and when it occurs, I can
certainly see working on that. If that
helps at all, let's see if we can move
this along. App. 467:4–9.
These statements, all but one made prior to the presentation of any evidence and
the other made in middle of West’s presentation of evidence, unequivocally
broadcasts that non-parties will be treated differently in the family courts and that
Rule 192.6 will be ignored because of that status. The trial court has no discretion
to carve out an exception that abridges the rights to due process of non-parties
mandated by Texas law—stated in other words; the opportunity to move for
protection is meaningless without a fair opportunity to meet the evidentiary burden
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placed on the movant. The trial court ignored the law, which was a clear abuse of
discretion.
Because the trial court openly disregarded the law and refused to allow West
a meaningful evidentiary hearing on his requested relief—full protection from the
discovery because of its improper purpose, among other issues—everything that
followed was hollow. “[P]rocess which is a mere gesture is not due process.”
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 315, 70 S. Ct. 652, 657,
94 L. Ed. 865 (1950). The United States Supreme Court has observed the follows:
The right to a hearing embraces not only the right to
present evidence, but also a reasonable opportunity to
know the claims of the opposing party and to meet them.
The right to submit argument implies that opportunity;
otherwise the right may be but a barren one.
Morgan v. United States, 304 U.S. 1, 18, 58 S. Ct. 773, 776, 82 L. Ed. 1129
(1938).
The United States Supreme Court has also recognized that “the right to
procedural due process is ‘absolute’ in the sense that it does not depend upon the
merits of a claimant’s substantive assertions.” Carey v. Piphus, 435 U.S. 247, 266,
98 S. Ct. 1042, 1054, 55 L. Ed. 2d 252 (1978) (citing Boddie v. Connecticut, 401
U.S. 371, 375, 91 S. Ct. 780, 784, 28 L. Ed. 2d 113 (1971); Anti-Fascist Comm. v.
McGrath, 341 U.S., at 171–72, 71 S.Ct., at 648–49 (Frankfurter, J., concurring)
(analyzing this principle when determining whether nominal damages should be
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afforded for due process violations). This same concept was additionally
examined by the Texas Supreme Court in Ex parte Davis, when the Court noted
that while “the receipt of additional evidence [among other factors] might not have
led to a different judgment, due process required that a reasonable opportunity for
exerting those influences on the court’s judgment be afforded.” Ex parte Davis,
161 Tex. 561, 566, 344 S.W.2d 153, 157 (1961).
Thus, the determination here is not, and cannot be, whether the outcome may
be different or that the trial court may have reached the right results. The law is
clear that no result can stand in the face of due process violations.
Once the trial court violated West’s due process rights on his motion for
protection, the constitutional infirmities could only be cured by a second
evidentiary hearing on his motion.
As the trial court’s admission that it was not applying the law constitutes an
abuse of discretion and denial of due process, this Court’s denial of mandamus
relief implies that this Court found that future hearings cured the constitutional
violations. They cannot because West was never given the opportunity to fully
present evidence and thus, meet his burden of proof on his motion for protection.
The evidentiary burden placed on West for establishing a right for protection
is real and not purely theoretical. The law requires West to meet his evidentiary
burden in order to obtain the relief he requested. During the April 25, 2017
hearing, after hearing only a brief amount of evidence, the Court advised West that
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his request for complete protection was denied and he would only be allowed to
present evidence for the purpose of imposing certain limitations.2 Thus, he was
curtailed from the having the opportunity to meet his burden of proof. Then,
during the October 4, 2017 hearing, while some of the issues were discussed, it
was not a motion for protection hearing and there was no evidence presented.3
“A fundamental requirement of due process is the opportunity to be
heard.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed.
2d 62 (1965) (quoting Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 783)
(internal quotation marks omitted). “It is an opportunity which must be granted at
a meaningful time and in a meaningful manner.” Id. As the Texas Supreme Court
stated in University of Texas Medical School v. Than, “the remedy for a denial of
due process is due process.” Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d
926, 933 (Tex. 1995) (citing Perry v. Sindermann, 408 U.S. 593, 603, 92 S. Ct.
2694, 2700–01, 33 L. Ed. 2d 570 (1972) (upon proof of protected interest, professor
whose contract was not renewed is not entitled to reinstatement but to hearing
comporting with due process); McIntire v. State, 698 S.W.2d 652, 661–62 (Tex.
Crim. App. 1985) (remedy for failure to grant hearing on motion for new trial is a
hearing, not a new trial). In Than, the Supreme Court held that because of due
2
App. 467:4–9.
3
See generally Supp. App. 2–165.
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process violations occurring in the medical student’s original expulsion
proceedings, he must be entitled to another expulsion hearing to cure the
constitutional defects. See id. at 933–34.
Here, the trial court could have only fully accorded West due process by
either allowing a full hearing prior to its ruling or by considering the issue anew
under the same evidentiary standards. Once his due process rights were violated,
only a second hearing on the same standards would have wiped the slate clean.
Only that would have restored West to the position he would have occupied had
due process of law been accorded to him in the first place. See Armstrong, 380
U.S. at 552.
Accordingly, West has not asked this Court to grant any relief on his motion
for protection. Instead, as Texas law provides, West respectfully requests that this
Court reconsider his request for mandamus and, after full briefing and oral
argument, direct the trial court to provide West a full and meaningful evidentiary
hearing on his motion that comports with due process.
PRAYER
For these reasons, Ernie R. West asks the Court to reconsider its denial of
West’s petition for writ of mandamus, that the Court order oral argument, and that
with or without oral argument, this Court grant West’s petition for writ of
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mandamus, and order the relief sought therein. The relief is not onerous and is not
beyond what the law provides. West only asks this Court to order that the trial
court provide West his due process rights, which dictate a complete and
meaningful hearing on his Motion for Protection. West also prays for all other
relief to which he may be entitled.
Respectfully submitted,
JOHNSON, DELUCA, KURISKY &
GOULD,
a Professional Corporation
By: /s/ Millard A. Johnson
Millard A. Johnson
Texas Bar No. 10772500
mjohnson@jdkglaw.com
C. Keith Lea
Texas Bar No. 24048269
klea@jdkglaw.com
Sara J. Sherman
Texas Bar No. 24068168
ssherman@jdkglaw.com
4 Houston Center
1221 Lamar Street, Suite 1000
Houston, Texas 77010
(713) 652-2525 (Telephone)
(713) 652-5130 (Facsimile)
ATTORNEYS FOR RELATOR ERNIE R.
WEST
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading has
been delivered via the court’s electronic filing system to all counsel of record on
this, the 20th day of December, 2017, as follows:
Maisie A. Barringer
Adam Dietrich
Jenkins & Kamin LLP
Two Greenway Plaza, Suite 600
Houston, Texas 77046
Phone: 713-600-5500
Fax: 713-600-5501
Attorneys for Real Party in Interest
Jon Monroe
Ruby Bolton
The Bolton Law Firm, PC
724 W. Main St.
Tomball, TX 77375
Phone: 281-351-7897
Attorney for Real Party in Interest
Shawna Monroe
/s/ Millard A. Johnson
Millard A. Johnson
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CERTIFICATIONS
The undersigned counsel for Relator hereby certifies that the computer
program used to prepare this Motion for Rehearing shows that the applicable word
count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1) is 1,765 words,
including footnotes. This document also complies with the typeface requirement
of Texas Rule of Appellate Procedure because it has been prepared in 14 point
Times New Roman font.
/s/ Millard A. Johnson
Millard A. Johnson
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