Opinion
No. 06-21-00024-CV
04-19-2021
IN RE SAFECO INSURANCE COMPANY OF INDIANA
Original Mandamus Proceeding Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
In this original proceeding, Safeco Insurance Company of Indiana (Relator) seeks a writ of mandamus requiring the 62nd Judicial District Court of Hopkins County (Respondent) to withdraw its March 1, 2021, order compelling Relator to produce a corporate representative to testify and ordering Relator to pay $1,500.00 for the costs incurred due to Relator's failure and refusal to produce its representative for deposition. Because Relator has failed to comply with Rule 52.7(a)(1) of the Texas Rules of Appellate Procedure, we deny the petition for a writ of mandamus.
A mandamus petitioner, or relator, must file with the petition "a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding[.]" In re Long, 607 S.W.3d 443, 445 (Tex. App.—Texarkana 2020, orig. proceeding) (quoting TEX. R. APP. P. 52.7(a)(1)); see TEX. R. APP. P. 52.3(k)(1)(A) ("The appendix must contain . . . a certified or sworn copy of any order complained of, or any other document showing the matter complained of."). While "'[d]ocuments that are attached to a properly prepared affidavit are sworn copies,' . . . documents attached to an improperly prepared affidavit are not." Id. (quoting In re Henderson, No. 06-15-00034-CR, 2015 WL 13522812, at *1 (Tex. App.—Texarkana Mar. 10, 2015, orig. proceeding) (mem. op.) (quoting In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding))). "The affidavit 'must affirmatively show it is based on the personal knowledge of the affiant'"; and "the affidavit 'is insufficient unless the statements in it are direct and unequivocal and perjury can be assigned to them.'" Id. (quoting Henderson, 2015 WL 13522812, at *1 (quoting Butler, 270 S.W.3d at 759)).
See In re Garrett, No. 05-20-00462-CV, 2020 WL 2552892, at *1 n.1 (Tex. App.—Dallas May 20, 2020, orig. proceeding) (mem. op.) (an affidavit complies when it states, "under penalty of perjury, that the affiant has personal knowledge that the copies of the documents in the appendix are true and correct copies of the originals").
In this case, the affidavit filed by Relator did not contain any affirmative statement that it was based on the personal knowledge of the affiant. Rather, it simply stated that each document that was "a true and correct copy of [name of document] filed in [the cause below]" and then stated, "I state under penalty of perjury that the foregoing is true and correct." That is insufficient. See In re Gentry, No. 05-20-00442-CV, 2020 WL 2519892, at *1 (Tex. App.—Dallas May 18, 2020, orig. proceeding) (mem. op.) (insufficient: certification that the petition was "TRUE and CORRECT, to the best of my knowledge under the threat of perjury"); see also Long, 607 S.W.3d at 445 (insufficient: "Attached to this [r]ecord are true and correct copies of every document that is material to Relator's claim for relief and was filed in the underlying proceeding."); In re Butler, 270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig. proceeding) (insufficient: "The documents contained in the attached Record and attached Appendix to the Relators' Petition for Writ of Mandamus are to my knowledge true and correct copies of the original documents.").
"'Because the record in a mandamus proceeding is assembled by the parties,' we must 'strictly enforce[] the authentication requirements of rule 52 to ensure the integrity of the mandamus record.'" Long, 607 S.W.3d at 445-46 (quoting In re Smith, No. 05-19-00268-CV, 2019 WL 1305970, at *1 (Tex. App.—Dallas Mar. 22, 2019, orig. proceeding) (mem. op.) (quoting In re McKinney, No. 05-14-01513-CV, 2014 WL 7399301, at *1 (Tex. App.—Dallas Dec. 15, 2014, orig. proceeding) (mem. op.)). "It is the relator's burden to provide this Court with a sufficient record to establish the right to mandamus relief." Id. at 446 (quoting Henderson, 2015 WL 13522812, at *2 (citing TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1)). Because the affidavit is insufficient, the documents attached to the affidavit are not sworn copies and do not comply with Rule 52.7(a)(1). Therefore, the record is inadequate to grant mandamus relief.
Accordingly, we deny the petition for writ of mandamus.
On March 31, 2021, this Court granted Relators' motion for an emergency stay of the trial court's March 1, 2021, order compelling discovery and any related enforcement proceedings. Because we deny the petition for writ of mandamus, the emergency stay is hereby lifted. --------
Josh R. Morriss, III
Chief Justice Date Submitted: April 16, 2021
Date Decided: April 19, 2021