LIT UPDATE & COMMENTARY
SEP 17, 2024
The carry with the case procedural question focused on in this article would be mooted, as the appeal was dismissed for lack of jurisdiction, so the answer to the motion to clarify remains – unanswered.
Peter J. Riga [died 2018] and Michael Easton [aka Bitgood] v. Commission for Lawyer Discipline–
Appeal from 151st District Court of Harris County
Opinion issued May 10, 2007
In The Court of Appeals For The First District of Texas
NO. 01-06-00239-CV
PETER J. RIGA AND MICHAEL EASTON, Appellants
V.
COMMISSION FOR LAWYER DISCIPLINE, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2005-06483
O P I N I O N
In this interlocutory appeal, the district court granted a plea to the jurisdiction and held that, in a disciplinary action against a lawyer, the district court has no subject-matter jurisdiction over issues and parties not contemplated by the Texas Rules of Disciplinary Procedure.
See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8) (Vernon Supp. 2006)
(allowing interlocutory appeal).
The district court’s March 1, 2006 order dismissed all other parties to the disciplinary action other than appellee, the Commission for Lawyer Discipline, and appellant Peter J. Riga.
Appellants Michael Easton and Riga appeal.
We reverse.
Background
The Commission brought a disciplinary action against Riga, alleging that Riga violated provisions of the Texas Disciplinary Rules of Professional Conduct and that Riga assisted Easton, his legal assistant, in the unauthorized practice of law.
Pursuant to Texas Rule of Disciplinary Procedure 3.02, the supreme court appointed the Honorable Craig Fowler, judge of the 255th District Court of Dallas County, to preside over the disciplinary action.
Easton filed a plea in intervention, bringing claims against Pamela Halliburton, the Commission’s lawyer, and Suzanne Ross, a member of one of the State Bar’s grievance committees.
Riga filed counterclaims against the State Bar of Texas, the Commission, and Halliburton, seeking monetary damages under title 42, United States Code, section 1983 and sanctions under state law.
Easton later filed a motion to recuse Judge Fowler.
The State Bar, the Commission, Halliburton, and Ross filed a plea to the jurisdiction in which they argued
(1) that Judge Fowler’s appointment order did not authorize him to preside over any parties or claims other than the disciplinary action brought by the Commission against Riga
and
(2) that the district court lacked subject-matter jurisdiction over parties and claims outside the disciplinary action.
Before taking action on the motion to recuse, Judge Fowler granted the plea to the jurisdiction on May 25, 2005.
That order was not appealed.
In November 2005, Judge Fowler referred Easton’s motion to recuse to the presiding judge of the administrative judicial region, who later denied the motion.
Acting in “an abundance of caution” after the denial of the motion to recuse, the State Bar, the Commission, Halliburton, and Ross asked the district court to reconsider its plea to the jurisdiction.
Before the district court signed a second order on March 1, 2006 granting the plea to the jurisdiction, Riga and Easton on February 20, 2006 filed another motion to recuse Judge Fowler.
The district court’s March 1, 2006 order does not mention the pending recusal motion, but in a separate order on March 1, 2006, the district court referred the recusal motion to the presiding judge of the administrative judicial region.
The record does not reflect the ultimate disposition of the recusal motion.
Discussion
Riga and Easton bring two issues.
The first challenges the district court’s action in ruling on the plea to the jurisdiction while the recusal motion was pending.
The second challenges the merits of the order, in which Riga and Easton argue that the district court as a court of general jurisdiction had subject-matter jurisdiction over the matters concerning the other parties and claims. (1)
The record establishes that Judge Fowler was aware that a second motion to recuse was pending when he signed the March 1, 2006 order granting the plea to the jurisdiction.
Texas Rule of Civil Procedure 18a(c) requires a judge who declines to recuse to forward the recusal motion to the presiding judge of the administrative judicial region. (2)
Judge Fowler did this.
However, Rule 186a(c) further requires that the trial judge may make no further orders and take no further action prior to a hearing on the forwarded motion.
The only exception provided by the Rule is if the further order states good cause for ruling notwithstanding the pending recusal motion.
Here, the order granting the plea to the jurisdiction does not refer in any way to the pending recusal motion, much less state good cause for why the order was signed when the recusal motion was pending.
Accordingly, the March 1, 2006 order is “void” because it was signed in violation of Rule 18a.
See Hudson v. Tex. Children’s Hosp., 177 S.W.3d 232, 236-37 (Tex. App.–Houston [1st Dist.] 2005, no pet.).
The Commission argues that, even if Judge Fowler erroneously signed the March 1, 2006 order, the dismissal was proper on the grounds of governmental immunity.
This argument was not raised in the plea to the jurisdiction, and we decline to address it before this ground is presented to the trial court.
Accordingly, we sustain issue one.
We do not reach issue two, concerning the scope of the district court’s jurisdiction over matters not directly related to the Commission’s disciplinary action against Riga.
Conclusion
We reverse the March 1, 2006 order granting the plea to the jurisdiction.
We do not render an order in its place because the trial court should not have taken action until the forwarded recusal motion was heard pursuant to Texas Rule of Civil Procedure 18a(d).
The Clerk of this Court is directed to issue the mandate immediately.
See Tex. R. App. P. 18.6.
This opinion is to be published in the official reporter system pursuant to Texas Rule of Disciplinary Procedure 6.06.
Sam Nuchia, Justice
Panel consists of Justices Nuchia, Keyes, and Higley.
1. Riga and Easton draw a distinction between whether the district court has subject-matter jurisdiction to hear the matters concerning the other parties and claims, as opposed to whether it would be error for the district court to litigate those matters in a disciplinary action.
2. Texas Rule of Civil Procedure 18a refers to the presiding judge of the administrative judicial district, rather than the administrative judicial region.
The legislature created administrative judicial regions.
Tex. Gov’t Code Ann. 74.042 (Vernon 2005).
The term “administrative judicial region” is used in the Rules of Judicial Administration, Texas Rule of Civil Procedure 3a, and Texas Parental Notification Rule 2.2(d).
The term “administrative judicial district” is used in Texas Rule of Civil Procedure 18a, Rule of Disciplinary Procedure 3.02, and Standards and Rules for Certification of Certified Shorthand Reporters section IV(O).
The difference in terms is immaterial.
🔥SUMNER TRENDING ON LIT🔥
Goings v. Sumner Cnty D.A’s Office (10th Cir., 2014)
“It is beyond cavil that a state court is an adequate forum for the resolution of challenges to distinctly state prosecutorial or court procedures or processes…”— lawsinusa (@lawsinusa) September 17, 2024
AUG 30, 2023,
SEP 17 2024
Above is the date LIT Last updated this article.
What does “carry with the case” mean in Texas state courts?
In the context of Texas state courts, “carry with the case” typically refers to documents, evidence, or related materials that are submitted or introduced as part of a legal proceeding and are considered to be an integral part of that particular case. These items are “carried with the case” throughout the litigation process and are used to support or defend a party’s claims or arguments.
For instance, if a party submits documents, affidavits, photographs, or any other form of evidence to support their claims or defenses in a Texas state court case, those materials are said to “carry with the case.” This means that these items become part of the official record of the case and will be considered by the court when making decisions or judgments.
In essence, “carry with the case” emphasizes that the submitted materials are directly relevant to the proceedings and are treated as part of the ongoing legal matter. This concept is not exclusive to Texas state courts and can be found in legal proceedings in various jurisdictions as well.
TO THE HONORABLE JUSTICES OF THE FOURTEENTH COURT OF APPEALS:
Karina Martinez, Marianna Sullivan, and Imperial Lofts, LLC (collectively “Appellees”), file this Opposed Motion to Clarify the Procedural Background & for the Court to Modify its Order, and in support of this motion would respectfully show the following:
I. Background & Clarification
On July 13, 2023, the Court issued an Order granting Appellees’ motion for leave to file the parties’ settlement agreement under seal to determine whether the appeal is moot.
Part of the Order directed Appellees to “provide a supplemental clerk’s record with a permanent sealing order pertaining to the above listed documents that complies with Rule 76a.”
Appellees cannot comply with the above direction from the Court because there is no such permanent sealing order, including for the reason noted in the Appellees’ prior motion for leave, that the “settlement agreement would not be considered ʻcourt records’ as defined in Texas Rule of Civil Procedure 76a(2).”
Appellees’ prior motion for leave should have clarified that they seek to file the parties’ settlement agreement not under seal pursuant to Rule 76a but merely for in camera review by this Court, just like the example referenced in the prior motion for leave.
See, e.g., Case No. 21-0453, In re Molina Healthcare Inc., available at https://search.txcourts.gov/Case.aspx?cn=21-0453&coa=cossup (last visited June 21, 2023) (see Unopposed Motion for Leave to Submit Documents in Camera filed on June 3, 2021).
For example, the Texas Rules of Civil Procedure provide an example of the distinction between filing documents under seal and filing them in camera.
See Tex. R. Civ. P. 21(f )(4)(B)(i) (providing an exception to electronic filing for “documents filed under seal or presented to the court in camera”).
Similarly, the Texas Rules of Appellate Procedure provide an exception to electronic filing for documents “filed under seal, subject to a pending motion to seal, or to which access is otherwise restricted by law or court order.”
See Tex. R. App. P. 9.2(c)(3).
Additionally, for “good cause, an appellate court may permit a party to file other documents in paper form in a particular case.” Id.
II. Arguments and Authorities
As previously noted, the subject matter of this appeal encompasses whether Appellant is entitled to relief under the TCPA.
This Court, however, cannot answer those merits issues due to mootness.
See Estate Land Co. v. Wiese, 546 S.W.3d 322, 326 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)
(stating “[a]ppellate courts lack jurisdiction to decide moot controversies and render advisory opinions”).
This court has a duty to determine its jurisdiction over an appeal, whether sua sponte or upon the motion of a party claiming that the Court does not have jurisdiction over the appeal.
See Ward v. Lamar Univ., 484 S.W.3d 440, 451-52 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(stating that “appellate courts have a duty to assess their own jurisdiction sua sponte” and “may ascertain facts necessary to the exercise of [their] jurisdiction.”).
Appellees submit that this Court lacks jurisdiction over this appeal because the issues raised by Appellant are the subject of a binding settlement agreement, including a release, between and among Appellant and Appellees.
See Wiese, 546 S.W.3d at 326 (stating “[a] case becomes moot if a controversy ceases to exist at any stage of the proceedings, including the appeal”).
Appellees are confident that upon a four-corners in camera review of the parties’ settlement agreement, which released Appellees from any such liability as is discussed in Appellant’s brief, this Court will conclude that the issues raised by Appellant are moot.
Accordingly, this Court should ultimately dismiss this appeal because of mootness, and thus will never reach any merits issues. Lee v. Lee, 528 S.W.3d 201, 208 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (stating “before we can reach the merits of the trial court’s challenged rulings, we first must determine whether we have jurisdiction to do so”).
At this time, however, Appellees cannot file a copy of the parties’ settlement agreement with the Court due to a confidentiality clause that would require, in this context, a court order directing Appellees to file that agreement with this Court, in camera.
See Tex. R. Civ. P. 21(f )(4)(B)(i); see also Tex. R. App. P. 9.2(c)(3).
III. Relief Sought
Appellees, therefore, move that this Court grant this motion and issue a modified order directing Appellees to promptly hand deliver to this Court, for an in camera review, a paper or electronic copy of the full, unredacted version of the confidential Settlement Agreement.
Upon the filing of that agreement per this Court’s modified order, Appellees will file a detailed motion to dismiss explaining why the text of the settlement agreement renders Appellant’s appeal moot, resulting in dismissal of the appeal without regard to the merits.
PRAYER
Appellees request that this Court grant the Opposed Motion to Clarify the Procedural Background & for the Court to Modify its Order, issue a modified order requiring that a paper or electronic copy of the fully-unredacted settlement agreement be delivered to the Court for an in camera review, and that the Court grant such other and further relief to which Appellees are justly entitled.
Aug. 24, 2023
Via E-File
Mary Zamarron, Deputy Clerk
Fourteenth Court of Appeals
301 Fannin, Suite 245
Houston, Texas 77002
RE: No. 14-22-00694-CV; Michael Joseph Bitgood a/k/a Michael Easton v.Karina Martinez, et al.,
in the Court of Appeals for the Fourteenth Judicial District of Houston, Texas.
Dear Ms. Zamarron,
Please bring this letter to the Court’s attention.
Today, the Court “carried with the case” Appellees’ Opposed Motion to Clarify the Procedural Background & for the Court to Modify its Order.
That motion sought to have this Court modify its July 13, 2023 order to allow Appellees to file a confidential settlement agreement in camera, instead of “under seal” pursuant to Rule 76a.
Thus, Appellees remain confused as to whether the Court’s July 13, 2023 order requested them to go to the trial court to have that court conduct a Rule 76a hearing and then potentially sign an order sealing the confidential settlement agreement that Appellees have been trying to file with this Court so that:
(1) Appellant’s appeal can be dismissed as moot;
and
(2) Appellees (and their under-signed counsel) do not get sued by Appellant, or worse,1 for having filed that settlement agreement without a court order authorizing me to do so.
1 E.g., State of Texas v. Michael J. Bitgoood, Case No. 14-23-00047-CR, available at https://search.txcourts.gov/Case.aspx?cn=14-23-00047-CR&coa=coa14 (last visited Aug. 24, 2023).
Accordingly, Appellees plan to file a Rule 76a motion in the trial court as soon as practicable so that any sealing order signed by the assigned judge can be supplemented as part of the clerk’s record in this appeal, after which point Appellees hope to be able to file the confidential settlement agreement with this Court, which Appellees believe would render this appeal moot, such that the merits of this appeal need not be reached.
Respectfully submitted,
HOOVER SLOVACEK LLP
By:/s/ Dylan B. Russell
Dylan B. Russell
State Bar No. 24041839
5051 Westheimer, Suite 1200
Houston, Texas 77056
Telephone: (713) 977-8686
Facsimile: (713) 977-5395
Email: russell@hooverslovacek.com
ATTORNEY FOR APPELLEES
CERTIFICATE OF SERVICE
I hereby certify that on this, the 24th day of August, 2023, a true and correct copy of the foregoing document was served to all counsel of record as follows:
Via e-service
Brad Beers
5020 Montrose Blvd., Ste. 700
Houston, Texas 77006
Email: Brad@Beers.law
Attorney for Appellant,
Michael J. Bitgood a/k/a Michael Easton
/s/ Dylan B. Russell
Dylan B. Russell
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Dylan Russell on behalf of Dylan Russell Bar No. 24041839
russell@hooverslovacek.com Envelope ID: 78868823
Filing Code Description: Letter
Filing Description: Letter re: Appellees Opposed Motion to Clarify the Procedural Background & for the Court to Modify its Order
Status as of 8/24/2023 10:36 AM CST
Associated Case Party: Michael Joseph Bitgood a/k/a Michael Easton
Thursday, August 24, 2023
Sean O’Neal Braun
Lewis Brisbois Bisgaard & Smith LLP
24 Greenway Plz Ste 1400
Houston, TX 77046-2410
* DELIVERED VIA E-MAIL *
Shane Kotlarsky
Lewis Brisbois Bisgaard & Smith
24 Greenway Plz Ste 1400
Houston, TX 77046-2410
* DELIVERED VIA E-MAIL *
Dylan Benjamen Russell
Galleria Tower II
5051 Westheimer
Suite 1200
Houston, TX 77056
* DELIVERED VIA E-MAIL *
William S. Helfand
LEWIS BRISBOIS BRISGAARD & SMITH
LLP
24 Greenway Plaza Street, Suite 1400
Houston, TX 77046-2410
* DELIVERED VIA E-MAIL *
Bennett Greg Fisher
Fisher and Associates
55 Waugh Dr., Suite 603
Houston, TX 77007
* DELIVERED VIA E-MAIL *
David A. Oubre
Lewis, Brisbois, Bisgaard & Smith, LLP
24 Greenway Plz Ste 1400
Houston, TX 77046-2410
* DELIVERED VIA E-MAIL *
Brad Beers
Beers Law Firm
5020 Montrose Blvd., Suite 700
Houston, TX 77006
* DELIVERED VIA E-MAIL *
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