In re Fitzgerald

• Decision Date: 30 April 2014
• Docket Number: No. 12–12–00291–CV.,12–12–00291–CV.
• Citation: 429 S.W.3d 886
• Parties: In re Buster FITZGERALD, Relator.
• Court: Texas Court of Appeals

429 S.W.3d 886

In re Buster FITZGERALD, Relator.

No. 12–12–00291–CV.

Court of Appeals of Texas, Tyler.

April 30, 2014.

J. Bennett White, Tyler, for Relator.

Karen L. Hart, Dallas, for Real Party in Interest.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

OPINION

JAMES T. WORTHEN, Chief Justice.

In this original mandamus proceeding, Buster Fitzgerald challenges the trial court's judgment finding him in contempt for failing to comply with an order compelling discovery. We deny the petition.¹

Background

On March 4, 1988, the trial court signed an agreed judgment awarding Tyler National Bank approximately $40,000.00 from Fitzgerald. In 1990, the FDIC, as liquidator of Tyler National Bank, assigned the judgment to The Cadle Company.

Writs of execution were issued in 1995 and 2005, but both were returned by the sheriff after attempts to serve Fitzgerald were unsuccessful. In August 2011, Cadle sent Fitzgerald a request for production of documents and a deposition notice. Fitzgerald did not respond, and Cadle filed a motion to compel. Cadle sent Fitzgerald a copy of the motion, the supporting brief, and notice of the hearing on the motion, but again, Fitzgerald failed to respond. Nor did he appear in person at the hearing. However, Tyler attorney Steve Mason, with the Flowers Davis law firm, attended and argued on Fitzgerald's behalf. After the hearing, the trial court rendered an order granting Cadle's motion to compel. The order directed Fitzgerald to produce all documents responsive to Cadle's request for production and to appear for his deposition on the dates specified in the order.

On the date for producing the requested documents, and without doing so, Fitzgerald filed a “pro se” combined motion for reconsideration of Cadle's motion to compel and for a protective order based on various objections to the requested discovery. He did not appear for his deposition, and Cadle filed a motion for contempt and for sanctions.

The trial court set a hearing on Cadle's motion, and issued a show cause order and writ directing Fitzgerald to appear at the hearing. Fitzgerald did not comply. Instead, J. Bennett White, his counsel in this original proceeding, attended the hearing. White informed the court that he did not represent Fitzgerald, but he had filed a motion for leave to appear as “amicus curiae” for him. According to the motion, White sought to “call[ ] the Court's attention to the fact that it lacks jurisdiction over the person of Buster Fitzgerald with regard to the contempt proceedings filed by [Cadle].” After hearing argument on White's motion, the court denied it.

Additionally, the trial court found Fitzgerald in contempt for failing to attend the show cause hearing and ordered a writ of attachment. Fitzgerald “turned himself in,” accompanied by White as his counsel. The court set another show cause hearing, at which time it would also hear Fitzgerald's motion for reconsideration and protective order (motion for reconsideration). Fitzgerald appeared at that hearing accompanied by White as his counsel. The court denied Fitzgerald's motion for reconsideration and found him in contempt for violating the court's order compelling him to produce documents and appear for his deposition. As punishment, the court ordered Fitzgerald to pay Cadle's reasonable attorney's fees in the amount of $5,000.00 and court costs “for these proceedings.” The court also directed Fitzgerald to produce the requested documents and to appear for his deposition on the dates specified in the order. Fitzgerald posted a $25,000.00 surety bond to suspend the contempt judgment and filed a notice of appeal.² Approximately seven months later, he filed a petition for writ of mandamus.

Prerequisites to Mandamus

Mandamus relief is appropriate only when there has been a clear abuse of discretion by the trial court for which there is no adequate remedy by appeal. In re State, 355 S.W.3d 611, 613 (Tex.2011) (orig. proceeding). Ordinarily, the relator has the burden to establish both of these prerequisites to mandamus. See In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 935 (Tex.App.-Tyler 2005, orig. proceeding). But a contempt judgment is not appealable. In re Office of Attorney Gen. of Tex., 215 S.W.3d 913, 915 (Tex.App.-Fort Worth 2007, orig. proceeding). When, as here, no confinement is involved, a contempt judgment is reviewable only by mandamus. See In re Long, 984 S.W.2d 623, 625 (Tex.1999) (orig. proceeding). Accordingly, in this proceeding, Fitzgerald must satisfy only the first prerequisite to mandamus—a clear abuse of discretion by the trial court. See id.

A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 888 (Tex.2010) (orig. proceeding). Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id. Regarding factual issues, the review is much more deferential. See id. Ordinarily, the reviewing court must defer to the trial court's factual resolutions and any credibility determinations that may have affected those resolutions. Id. at 839–40;In re Raymond James & Assocs., Inc., 196 S.W.3d 311, 318 (Tex.App.-Houston [1st Dist.] 2006, orig. proceeding). To determine whether there is an abuse of discretion, we review the entire record. In re University Interscholastic League, 20 S.W.3d 690, 691–92 (Tex.2000) (orig. proceeding).

When a contempt order is challenged, mandamus relief is available if the relator shows that the order underlying the contempt judgment is void, or that the contempt judgment itself is void. See Snodgrass v. Snodgrass, 332 S.W.3d 653, 663 (Tex.App.-Houston [14th Dist.] 2010, no pet.).

Contempt

Contempt of court is broadly defined as disobedience to or disrespect of a court by acting in opposition to its authority. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex.1995) (orig. proceeding). Direct contempt occurs in the presence of the court, and constructive contempt occurs outside the court's presence. In re Reece, 341 S.W.3d 360, 365 (Tex.2011) (orig. proceeding). The contempt alleged here, violation of a written court order outside the presence of the court, is constructive contempt. See Ex parte Chambers, 898 S.W.2d at 259.

Contempt is not to be presumed, but rather is presumed not to exist. Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 830 (1960) (orig. proceeding). We cannot weigh the evidence supporting the trial court's contempt finding to determine whether it preponderates for or against the relator. In re Long, 984 S.W.2d at 626–27. However, we can determine whether the contempt judgment is void. Id.;Ex parte Chambers, 898 S.W.2d at 259.

Hearing on the Motion to Compel

In his first issue, Fitzgerald argues the trial court had no legitimate basis for subjecting him to its ruling on Cadle's motion to compel. He contends that Mason's participation in the hearing cannot establish his authority to act as his representative and that he was not properly served with notice of the hearing. We construe Fitzgerald's argument as a contention that the order granting the motion to compel is void.

Authority of Counsel

It is well established in Texas that an attorney appearing for a party is presumed to be duly authorized to do so. See, e.g., West v. City Natl. Bank of Birmingham, 597 S.W.2d 461, 463 (Tex.Civ.App.-Beaumont 1980, no writ); Hidalgo Cnty. Drainage Dist. No. 1 v. Magnolia Petroleum Co., 47 S.W.2d 875, 876 (Tex.Civ.App.-San Antonio 1932, writ ref'd). This presumption prevails until it is conclusively shown by competent evidence that the attorney was not authorized to appear for the litigant. West, 597 S.W.2d at 463;Hidalgo Cnty. Drainage Dist. No. 1, 47 S.W.2d at 876. “Evidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on the facts of each case.” City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005).

The general rule is that the testimony of an interested witness, though not contradicted, does no more than raise a fact issue to be determined by the fact finder. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex.1990). An exception applies when the testimony is not contradicted by any other witness or attendant circumstances, is clear, direct and positive, and is free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon. Id. When the exception applies, the testimony is taken as true as a matter of law. Id. But failure to contradict does not necessarily preclude a holding that a fact issue is raised when, for example, there are circumstances shown in the record that tend to discredit or impeach the testimony of the interested witness. See id. (citing Anchor Cas. Co. v. Bowers, 393 S.W.2d 168, [170] (Tex.1965)).

Mason's Appearance and Participation

At the hearing on Cadle's motion to compel, Mason informed the trial court that Celia Flowers, another attorney with Flowers Davis, had been “engaged,” but not “until just recently,” to represent Fitzgerald on the motion to compel. Mason appeared because Flowers was out of town. According to Mason, he had tried to get the hearing postponed to see if the parties could resolve the dispute. Cadle's counsel confirmed that she and Mason had discussed the possibility of postponement.

Mason explained that postponement was necessary for two reasons. First, there was a deposition in another case that might be helpful because Fitzgerald's financial situation had not changed since then. Second, Cadle's requests were “very broad.” Mason told the court that “we just want the opportunity to try to negotiate and deal with the requests with counsel before we are—know that there is a problem such that needs an order to compel.”

Mason recounted his conversations with Cadle's counsel during the preceding two days in which they discussed...