Fourteenth Court of Appeals Asked: What the Heck Does Carry With the Case Actually Mean?

Bitgood v. Martinez

No. 14-22-00694-CV

(Tex. App. Aug 24, 2023)

REPUBLISHED BY LIT: AUG 30, 2023

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.