When State Court Rules Limiting Sealing Aren't Quite Followed ….

From Livesay Law Office v. Ricartea, decided Thursday by the Texas Court of Appeals (Corpus Christi-Edinburg), in an opinion by Chief Justice Dori Contreras, joined by Justices Gina Benavides and Nora Longoria, reversing an order by Judge Fernando Mancias:

The underlying case is a divorce proceeding in which appellant … filed a motion for sanctions against … one of the attorneys representing respondent (appellee herein) …. At the final divorce hearing on January 20, 2023, appellee's co-counsel asked "that any motions for sanctions not only be withdrawn but stricken from the court's file completely and sealed." The trial court replied, "They will be." Appellant's co-counsel replied, "I think you were going to do that anyway, Judge." The trial court signed an order on March 23, 2023, granting the oral motion for sanctions, but the order itself was "sealed by the court." {The order states appellant's co-counsel agreed "to seal [the subject] motion for sanctions, all exhibits and all proposed and signed orders associated with [the] motion."} On May 22, 2023, appellant filed a notice of appeal challenging "the order sealing record[s] entered on March 23, 2023." …

On June 15, 2023, we … remanded the case with instructions for the trial court to "determine whether any party has filed a written motion requesting sealing of the subject records." Our order stated, among other things, that "if no party has filed a written motion to seal records, the trial court shall certify that fact in a written order" and shall "cause its written order to be included in a supplemental clerk's record, which shall be filed with the Clerk of this Court within thirty (30) days from the date of this order." On the other hand, if the trial court determined that a party had filed such a motion, we ordered the trial court to conduct proceedings in accordance with Texas Rule of Civil Procedure 76a.

On July 18, 2023, appellant filed a "Notice of Trial Court's Refusal to Comply With This Court's Order," observing that the deadline for the trial court to file its order had passed. On July 26, 2023, appellant filed a "Notice of Trial Court's Continuing Refusal to Comply With This Court's Order," observing that the trial court had still not filed its order pursuant to our directions…. We ordered appellee to file a response to the requests made in appellant's notice on or before 5:00 p.m. on Thursday, August 3, 2023. Appellee did not file a response.

On August 4, 2023, a supplemental clerk's record was filed which included a letter from the trial court to the Clerk of this Court stating, in its entirety: "[Appellant] provided me a copy of the transcript of the January 20, 2023 hearing. All parties agreed to seal the matters at issue in this case. I am sending a copy of the transcript." {That transcript had previously been provided to this Court as part of the reporter's record on July 5, 2023.} The letter does not state whether any party filed a written motion to seal records, and no order appears in the supplemental clerk's record….

Appellant contends that the trial court's March 23, 2023 sealing order did not comply with Texas Rule of Civil Procedure 76a because, among other things, there was no written motion to seal filed. See TEX. R. CIV. P. 76a(3) ("Court records may be sealed only upon a party's written motion, which shall be open to public inspection."). In response to our request for clarification as to whether any party filed a written motion to seal records, the trial court filed a letter which included a copy of a hearing transcript. We construe the trial court's letter as confirming appellant's assertion that no party filed any written motion to seal records.

Moreover, we observe that the transcript of the January 20, 2023 hearing does not substantiate the trial court's statement that "[a]ll parties agreed to seal the matters at issue in this case." To the contrary, there is no indication that appellant, his co-counsel, or his client explicitly agreed at that hearing that the motion for sanctions should be sealed. In any event, the requirements of Rule 76a are mandatory and may not be waived by agreement of the parties.

Because no written motion to seal was filed, the March 23, 2023 sealing order was erroneous as a matter of law and must be reversed. {We note that, according to the docket sheet, the March 23, 2023 sealing order is itself sealed. This is improper. See TEX. R. CIV. P. 76a(6) (providing that an order which decides "a motion relating to sealing or unsealing court records" shall be "open to the public"). That said, because of our disposition, we need not direct that the March 23, 2023 order be unsealed.} We express no opinion on whether the other requirements of Rule 76a were satisfied.

{Appellant has filed an "Amended Motion for Contempt" asking us to hold the trial court, appellee, and Singleterry in contempt and to "place[ them] in jail until they compl[y] with this Court's order." We look with disfavor upon the trial court's and appellee's failure to comply with this Court's orders. However, we deny the "Amended Motion for Contempt."} …