Opinion
Appellate case number: 01-19-00559-CV
11-21-2019
Scott Lindberg v. Scott Callahan
ORDER Trial court case number: 19-DCV-262220 Trial court: 458th District Court of Fort Bend County
The record in this case contains a reporter's record and a clerk's record and a sealed supplemental clerk's record. On October 23, 2019, appellee filed an opposed motion to seal the appellate record, file, and briefs because the trial court's order seals documents involving minor children.
An appellate court has no authority to seal records and so this Court issued an order abating the appeal and remanding to the trial court to determine whether any portion of the clerk's record should be sealed under Texas Rule of Civil Procedure 76a. The Court also requested a response from appellant concerning appellee's request to seal this Court's file and briefs.
On November 5, 2019, appellant filed a response to appellee's motion to seal, as well as a motion to reinstate the appeal. Appellant first stated that he withdrew his opposition to appellee's motion to seal and stated that the hearing in the trial court was no longer necessary. Appellant also asked that we clarify our order because the appeal concerns an order sealing appellant's Supplement to Verified Petition to Take Videotaped Deposition Pursuant to Texas Rule of Civil Procedure 202, and the transcribed audio record attached to the Petition as an exhibit. Appellant contends that this Court's order could be construed to permit the trial court to reconsider its sealing order that is currently on appeal.
Clerk's Record
Although appellant asserts that he is unopposed to appellee's motion to seal, only one document and its attachment are currently sealed and all other documents in the clerk's record remain unsealed. The Rules of Appellate Procedure do not provide for an appellate court to make a decision concerning sealing records, and "to permit full consideration of the competing public policy interests implicit in the procedural requirements of [Rule] 76a," we temporarily abated the appeal for the trial court to hold a hearing on whether to seal any other trial court records. Simply because appellant is unopposed to the motion to seal does not relieve the trial court from conducting the required review under Rule 76a. See TEX. R. CIV. P. 76a. Therefore, the hearing in the trial court continues to be necessary and the abatement is not lifted.
Appellant also contends that this Court's order is unclear concerning which court records the trial court must review and urges us to clarify our order to explain that the trial court is not to reconsider the July 19, 2019 order sealing appellant's Supplement to Verified Petition to Take Videotaped Deposition Pursuant to Texas Rule of Civil Procedure 202, and the transcribed audio record attached to the Petition as an exhibit. To the extent this Court's order was unclear, we grant appellant's motion and issue this order.
The order issued on October 29, 2019, abating this appeal and remanding to the trial court remains in effect. The Court amends the order issued on October 29, 2019 to limit the trial court's review to the trial court documents included in the unsealed clerk's record filed in the appellate court. The deadline for the trial court to hold a hearing and make a determination under Rule 76a about the trial court documents included in the unsealed clerk's record is extended until January 3, 2020.
Appellant's and Appellee's Briefs
As for this Court's file, the reporter's record, and the briefs, appellee requested that we seal these documents and appellant indicates that he is unopposed. This Court has no authority to seal documents. But, a review of appellant's brief, which has been received but not yet filed, reveals that it includes information ordered sealed by the trial court. The parties must discuss the sealed documents in their briefs because the appeal is from an order sealing those documents, but in order to carry out the trial court's sealing order, this Court concludes that it must order the briefs sealed. Accordingly, the Clerk of this Court is ordered to file under seal appellant's brief, which was received on October 18, 2019. Appellee's brief, and any further responsive briefs, are also to be filed under seal.
Reporter's Record
The reporter's record from the hearing on the motion to seal records also, of necessity, includes the sealed documents as evidence and testimony concerning those sealed documents. Accordingly, to carry forward the trial court's sealing order, this Court also concludes that it must order the reporter's record sealed.
Although the reporter's record and the parties' briefs are ordered sealed, the parties' counsel are permitted to review the sealed documents by making arrangements with this Court's clerk's office.
Appellate Court Filed Documents
Finally, as to the appellate file, this Court has reviewed all filings and determines that only one document on file references information in the sealed documents and that is appellee's motion to seal, filed on October 23, 2019. Accordingly, to carry forward the trial court's sealing order this Court concludes that it must order appellee's motion to seal appellate records sealed. If the parties file documents in the future that reference the contents of the documents sealed by the trial court, they must note that these documents are filed under seal to carry forward the trial court's sealing order.
No Waiver
Finally, appellant claims that appellee waived his right to obtain an order sealing the appellate record because he did not request sealing until two months after the clerk's record was filed and five days after appellant filed his brief. In support of this contention, appellant cites Environmental Procedures, Inc. v. Guidry, 282 S.W.3d 602, 636 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Significantly, Guidry did not involve the sealing of documents that mentioned minor children. Accordingly, appellant's motion to reinstate is granted in part as to clarification of this Court's order but is otherwise denied.
It is so ORDERED. Judge's signature: Justice Richard Hightower
[v] Acting individually [ ] Acting for the Court Date: November 21, 2019