Opinion
No. 05-08-00259-CV
Opinion issued April 10, 2008.
Original Proceeding from the 191st Judicial District Court Dallas County, Texas, Trial Court Cause No. 06-01463.
Before Justices MORRIS, RICHTER, and MAZZANT.
MEMORANDUM OPINION
In this petition for writ of mandamus and petition of prohibition, relator asserts the trial court abused its discretion by granting the real parties in interest's motion to compel the production of real parties' client file and by issuing a show cause order against the relator. This Court requested the response of the real parties in interest, Rakesh Chopra, Sangeeta Chopra, and Crystal Building Corporation and they failed to respond. The facts of this original proceeding are known to the parties so we do not recite them here in detail. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion and order pursuant to rule 52.8(d) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 52.8(d). We agree that the trial court abused its discretion in ordering the production of the real parties' client file and in issuing the show cause order. Because we conclude the trial court's order and notice are void, relator need not show that it does not have an adequate appellate remedy. Accordingly, we conditionally grant the petition for writ of mandamus.
Relator, the law firm of Mosser Maller PLLC, contends that it formerly represented the real parties in interest, Rakesh Chopra, Sangeeta Chopra, and Crystal Building Corporation, in a suit styled Karpul Sing and Lakhbir S. Gill v. Rakesh Chopra, Sangeeta Chopra, and Crystal Building Corporation, trial cause no. 06-01463. On October 15, 2007, the trial court granted Mosser Mallers PLLC, James C. Mosser, and Mark L. Hill's motion to withdraw as counsel. Relator states in its petition that it has retained the real parties' file because, after relator made a demand for payment of legal fees, the real parties still owe the firm legal fees. In an effort to obtain the real parties' file from relator, new counsel for the real parties filed "Defendants' Motion to Compel Mosser Mallers, PLLC to Release Defendants' Files" in cause no. 06-01463. The motion to compel relied on rule 1.15(d) of the Texas Disciplinary Rules of Professional Conduct as authority requiring release of the real parties' file. On January 31, 2008, the trial court granted the motion and ordered relator to "release the Defendants' entire file pertaining to this matter. . . ." After relator failed to comply with the January 31, 2008 order to release the entire real parties' file, the real parties moved to hold relator in contempt. The trial court issued a notice for a show cause hearing set for February 29, 2008. We granted relator's motion for emergency stay and stayed the January 31, 2008 order and the February 29, 2008 notice of show cause hearing.
Rule 1.15(d) provides, in part, "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as . . . surrendering papers and property to which the client is entitled. . . . The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation." TEX. DISCIPLINARY R. PROF'L CONDUCT 1.15(d).
Mandamus relief lies when the trial court has abused its discretion and a party has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). An order is void when a court has no power or jurisdiction to render it; mandamus will lie to correct an order the trial court had no power to render. See Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex. 1986) (orig. proceeding). If an order is void, the relator need not show it does not have an adequate appellate remedy, and mandamus relief is appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).
Relator argues that the trial court does not have personal jurisdiction over it because it is not a party to the underlying litigation, has never been served with citation or petition, and has not waived service. Relator states that it had withdrawn from representing the real parties by the court's order of October 15, 2007 and that it did not appear before the court on the motion to compel or the motion for contempt.
For a trial court to have jurisdiction over a party, the party must be properly before the court
in the pending controversy as authorized by procedural statutes and rules. In re Mask, 198 S.W.3d 231, 234 (Tex.App.-San Antonio 2006, orig. proceeding) ( citing Perry v. Ponder, 604 S.W.2d 306, 322 (Tex.Civ.App.-Dallas 1980, no writ). Generally, a trial court does not have jurisdiction to enter a judgment or order against a respondent unless the record shows proper service of citation on the respondent, or an appearance by the respondent, or a written memorandum of waiver at the time the judgment or order was entered. In re Mask, 198 S.W.3d at 234.
In this case, it is not disputed that relator was not served with citation, did not waive citation, has not appeared, and is not a party to the dispute in trial court. Production of documents from a non-party is available by serving a subpoena compelling a request for production of documents under rule 205. See Tex. R. Civ. P. 205.1. The real parties did not compel production from the non-party relator with the service of subpoena as required by rule 205. See Tex. R. Civ. P. 205.1 and 205.3. Accordingly, the order granting the motion to compel production of the real parties' file was not entered pursuant to the procedural rules. A trial court's ruling that requires production beyond what our procedural rules permit is an abuse of discretion. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding). We conclude the trial court has abused its discretion in granting the real parties' motion to compel relator to produce the file.
We note the trial court has authority to find a nonparty in contempt for failure to comply with a discovery order pursuant to rule 205.3. See Tex. R. Civ. P. 215.2(c). However, the trial court's January 31, 2008 order granting the motion to compel was not issued pursuant to rule 205.3. The trial court's February 7, 2008 notice for show cause was issued without authority and, therefore, was an abuse of discretion. See Ex parte Evans, 939 S.W.2d 142,144 (Tex. 1997) (holding that judgment of contempt was void because it punished relator for violating order that the trial court lacked authority to enter).
We conclude the trial court acted without personal jurisdiction over the relator and abused its discretion in granting real parties' motion to compel relator to produce the client file and in
issuing a notice of show cause hearing. Because the order and notice are void, the relator need not show it does not have an adequate appellate remedy, and mandamus relief is appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d at 605. Accordingly, we conditionally grant the relator's petition for writ of mandamus. A writ will issue only in the event the trial court fails to vacate its order of January 31, 2008 "Order Granting Defendants' Motion to Compel Mosser Mallers, PLLC" and its February 7, 2008 "Notice to Show Cause."
To the extent relator requests the issuance of a writ of prohibition, we DENY its request for a writ of prohibition because it did not show it was entitled to such relief.