Opinions, Nov. 22, 2016: The Perils of Appealing with a Partial Record

The Fourteenth Court of Appeals released a memorandum opinion today in In re A.I.F., No. 14-16-00016-CV which concerned an appeal of a modification. While it is not at all clear that appellant’s appeal would have fared substantially better with a full and complete record, it is clear that the partial record precluded even a fair hearing of his appeal.

Mother and Father were divorced in November 2013 and Mother was awarded SMC. Father was awarded supervised visitation for twelve hours each week. A few months later, Father filed a motion to modify possession and access. A jury heard Father’s request to change conservatorship but the jury declined to change conservatorship. The Father tried the issue of expanded access to the bench, but the judge (in the 311th judicial district court) rendered a final order further limiting Father’s access to ten to twelve hours a month. After his motion for new trial was denied, Father appealed.

Father asserted ten issues on appeal. Mother alleged the appeal was frivolous and asked to be awarded damages. The Court of Appeals addressed Father’s issues not in the order he briefed them, but roughly chronologically.

First, regarding Father’s complaints concerning the trial, the reporter’s record was incomplete and contained only a transcript of the hearing on Father’s motion for new trial. The Court of Appeals noted that an incomplete record is not always fatal to an appeal, but then held that because the record in this case did not include the parties’ agreement to a partial reporter’s record, an agreed statement of the case, or a statement of Father’s issues to be presented on appeal, the COA must presume the material omitted from the record supported the trial court’s judgment. This led the COA to overrule Father’s first, third, fourth, fifth, sixth, and eighth issues (i.e. six of ten).

Father also challenged the fees awarded to the amicus, evidently misstating the amounts awarded in his brief. But even if he had challenged the correct amounts, the COA held it would have overruled the issue because it must presume the missing portions of the record would have supported the award.

Father also challenged a statement made by the trial court after ruling on his post-judgment motions but the COA found the trial court’s statement was correct and unobjectionable. After the trial court denied Father’s motion for new trial and excused the litigants, Father remarked “Your Honor, my son is suffering the consequences of the decision of this Court.” The trial court responded (correctly, as the COA noted) “Mr. [Father], your appropriate remedies now don’t lie in this Court. Okay? You’re excused. Thank you.” The issue–and even the Court of Appeals wasn’t sure what it was–was overruled.

In his seventh issue, the Father challenged Associate Judge Newey presiding over cases and signing orders past the retirement age of 75. The COA found that whether Judge Newey’s appointment as an AJ violated the Texas Constitution or the Family Code depends on the date of his birth, which was not a fact litigated in the case. The issues was overruled.

In his final issue, Father argued a California trial court reached an erroneous judgment in his 1994 personal-injury suit. The issue was overruled.

Finally, the Court of Appeals turned to Mother’s request for sanctions. She argued the appeal was frivolous and brought in bad faith. The Court of Appeals noted it generally awards sanctions “only in truly egregious circumstances” and declined Mother’s request.

The trial court was affirmed.





Opinions, Nov. 1, 2016: Pleading the Litigation Exception to Physician-Patient Privilege

Happy Dia De Los Muertos! Hope everyone had a safe and fun Halloween last night.

This morning, the First District Court of Appeals released its published opinion in In re Morgan, No. 01-16-00530-CV,  a mandamus concerning the litigation exception to the physician-patient privilege.

Nathaniel Morgan filed for divorce from Nikki Morgan. In his amended petition, Nathaniel requested to be named primary. In January, 2016, he propounded interrogatories and requests for production which included a request for Nikki’s medical, psychological, and psychiatric records.  Nikki objected to the request as outside the scope of discovery, unduly burdensome, and protected by physician-patient privilege. Nathaniel filed a motion to compel and for sanctions. After a hearing, the trial court ordered thirteen pages of medical records concerning a medical condition of Nikki’s to be produced in full after an in camera inspection. Specifically, the trial court found that Nathaniel relied upon Nikki’s condition as part of his claim or defense and that the records were relevant to that condition which triggered the litigation exception under Texas Rule of Evidence 509(e)(4). Nikki filed a petition for writ of mandamus.

The exception applies when “any party relies on the patient’s physical, mental, or emotional condition as part of the party’s claim or defense and the communication or record is relevant to that condition.” TEX. R. EVID. 509(e)(4), 510(d)(5). There is a two-prong test to the exception: “(1) the records sought to be discovered are relevant to the condition at issue, and (2) the condition is relied upon as a part of a party’s claim or defense, meaning that the condition itself is a fact that carries some legal significance.” Both prongs must be met. But even if both prongs are met, the trial court must perform an in camera inspection of the information.

The Court of Appeals noted that the test is not mere relevance. The condition must be central or ultimate to the claim, as opposed to merely tangential.

In her first issue, Nikki argued that no pleading demonstrated a reliance on a medical condition sufficient to invoke the litigation exception to the physician-patient privilege. Nathaniel’s pleadings did not include an allegation that Nikki’s medical condition affected her suitability to serve as a conservator. Nor did Nikki’s own pleadings raise the issue. Thus, though the trial court found that Nathaniel’s claim relied on Nikki’s condition, the record did not support that finding. Because no pleading or defense mentioned Nikki’s medical condition, the trial court erred by finding the litigation exception applied and ordering the production of the medical records.

Because the Court of Appeals sustained Nikki’s first issue, it did not reach her second issue. The petition for writ of mandamus was granted.

One of the implied holdings of this case is that the claim or defense alleged by the party seeking the medical records must be asserted in writing in the pleadings. This is consistent with dicta in R.K. v. Ramirez, 887 S.W.2d 836, 843 n. 7 (Tex. 1994) (“Whether a condition is a part of a claim or defense should be determined on the face of the pleadings, without reference to the evidence that is allegedly privileged.”). One may reasonably suppose that Nathaniel made the argument orally because the trial court found after a hearing that Nathaniel relied upon such claim or defense. This raises the question: If Nathaniel amends his pleadings accordingly, will the litigation exception apply?