Opinion
14-22-00397-CV
12-22-2022
IN RE RAYMOND CHOATE AND KELLY MALLADY, Relators
ORIGINAL PROCEEDING WRIT OF MANDAMUS County Civil Court at Law No. 1 Harris County, Texas Trial Court Cause No. 1180192
Panel consists of Justices Zimmerer, Spain, and Poissant.
ORDER
PER CURIAM.
On June 6, 2022, relators Raymond Choate and Kelly Mallady filed a petition for writ of mandamus in this Court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relators ask this Court to compel the Honorable Audrie Lawton-Evans, presiding judge of the County Civil Court at Law No. 1 of Harris County, to vacate the trial court's April 12, 2022 order compelling relator Choate's examination under oath.
On October 18, 2022, the real party in interest advised this Court that relators had transferred the underlying case to the multidistrict litigation ("MDL") pretrial court. The real party in interest requested that the mandamus proceeding be dismissed as moot. Thus, on November 15, 2022, this Court dismissed relators' petition for writ of mandamus as moot.
On November 21, 2022, relators filed a motion for rehearing in this Court, arguing their mandamus proceeding should be reinstated. Relators attached to their motion an order signed November 11, 2022, by the MDL pretrial court that remanded the underlying case back to the trial court. Relators maintain that this Court's dismissal of their mandamus as moot four days after it had been remanded was improper. The real party in interest filed a response in opposition to relators' motion, arguing that relators' petition for writ of mandamus should not be reinstated; rather, relators should be required to file a new a new petition for writ of mandamus. Notwithstanding, both the relators and the real party in interest seek a decision on the merits.
Because the MDL pretrial court remanded the underlying case back to the trial court prior to this Court dismissing relators' petition for writ of mandamus, this Court has jurisdictional capacity to act on the relief relators' seek in their mandamus proceeding. Accordingly, we grant relators' motion for rehearing and reinstate relators' petition for writ of mandamus for consideration on the merits.
Spain, J. dissenting.
DISSENTING OPINION ON ORDER
Charles A. Spain, Justice
Relators filed a motion for rehearing with what purports to be a November 11, 2022 order signed by the multidistrict litigation court. Part of the order is handwritten and illegible: "the Court finds that [?]." See Tex. R. Jud. Admin. 13.6 (proceedings in pretrial multidistrict litigation court). The order does legibly state, "This case is remanded to the Harris County Civil Court at Law [No.] 1, Harris County, Texas." See Tex. R. Jud. Admin. 13.7 (remand to trial court).
Texas Rule of Appellate Procedure 10.2 governs evidence on motions:
A motion need not be verified unless it depends on the following types of facts, in which case the motion must be supported by affidavit or other satisfactory evidence. The types of facts requiring proof are those that are:
(a) not in the record;
(b) not within the court's knowledge in its official capacity; and
(c) not within the personal knowledge of the attorney signing the motion.
Neither the relators, real party in interest, or this court claim the motion does not need to be verified. Clearly, the rule requires the motion to be verified. It is not. And every lawyer knows-or should know-that documents attached to pleadings aren't evidence absent a rule to the contrary. That's what's happening with this motion.
See, e.g., Tex.R.Civ.P. 166a; Tex.R.App.P. 10.2.
The court could notify the relators and provide an opportunity to cure. I assume that verification would have been swiftly provided. The court could also have inquired about the illegible portion of the order, perhaps leading to both relators and the real party in interest agreeing that language is irrelevant. Instead, the court appears to be in a move-the-merchandise mood and suspends Rule 10.2 without explanation. See Tex. R. App. P. 2 (allowing suspension of rules).
This court reaches the merits of the motion without necessary evidence properly before the court. Were I a betting man, I would bet the order is what it purports to be. But this is a court, not a casino. Our job is to follow the law, not "fix" things. This court errs in not following the law.
I dissent to the court's failure to give notice and allow an opportunity to cure. I also dissent to the court reaching the merits when there is no evidentiary basis to support that ruling.
The court's failure does not preclude filing a verified motion for reconsideration, which is the proper way to fix the problem. An explanation of the illegible portion of the order would also be helpful.