in Re Siemens Gamesa Renewable Energy Wind US, LLC ( 2017 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: In re Siemens Gamesa Renewable Energy Wind US, LLC,
Relator
Appellate case number: 01-17-00927-CV
Trial court case number: 2013-67072-7
Trial court: 190th District Court of Harris County
On December 4, 2017, relator, Siemens Gamesa Renewable Energy Wind US,
LLC, filed a petition for a writ of mandamus. The petition seeks to declare the
respondent trial judge’s October 30, 2017 order, which granted real party in interest
GCube Underwriting Limited, as assignee and subrogee of E.ON Climate & Renewables
North America, LLC (“GCube”)’s first supplemental motion to enforce judgment, as
void, suspending enforcement of that order, and directing the successor judge to vacate
the order.
With the petition, relator also filed an opposed motion to seal the petition for writ
of mandamus and sworn record. Relator’s motion attaches an agreed motion to seal court
records, under Rule of Civil Procedure 76a, and a judgment confirming arbitration award
under seal, signed by the respondent on April 2, 2014, which had maintained the seal on
the arbitration award and other related documents and exhibits from a previous order.
See TEX. R. CIV. P. 76a. Requests to seal records are governed by Texas Rule of Civil
Procedure 76a, which provides no authority for an appellate court to make the findings
necessary to decide motions to seal the record. See id.; see also Envtl. Procedures, Inc. v.
Guidry, 282 S.W.3d 602, 636 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“On
its face, Texas Rule of Civil Procedure 76a, entitled ‘Sealing Court Records,’ does not
give appellate courts the authority to find the necessary facts and to determine motions to
seal on appeal, and the parties have not cited any statute, rule, or case stating that
appellate courts have this authority.”). However, because relator included the
respondent’s order sealing the arbitration award and related documents, the Court grants
relator’s motion and directs the Clerk of this Court to file the petition for writ of
mandamus and sworn record under seal and not file them electronically. See TEX. R.
APP. P. 9.2(c)(3) (“Documents filed under seal, . . . or to which access is otherwise
restricted by . . . court order must not be electronically filed.”).
Relator’s petition had named the Honorable Patricia Kerrigan as the respondent,
the presiding judge at the time of the challenged order, but also notes that Judge Kerrigan
resigned on October 31, 2017, and that the Honorable Debra Ibarra Mayfield was
appointed to replace her on September 13, 2017. Relator claims that good cause exists
not to abate this petition, as required by Rule 7.2(b), because with a void order entered
after the plenary-power period, there is nothing for the new judge to reconsider. See TEX.
R. APP. P. 7.2(b). However, “[m]andamus will not issue against a new trial judge for
what a former one did.” In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 (Tex.
2008) (orig. proceeding) (citations omitted); see also In re Blevins, 480 S.W.3d 542, 544
(Tex. 2013) (orig. proceeding) (per curiam) (holding that “appellate courts should either
deny the petition for mandamus . . . or abate the proceedings pending consideration of the
challenged order by the new trial judge.”).
Accordingly, the Court sua sponte abates this petition and remands the case to
allow the successor Judge Debra Ibarra Mayfield to reconsider the October 30, 2017
order granting GCube’s first supplemental motion to enforce judgment, signed by
respondent Judge Kerrigan. See TEX. R. APP. P. 7.2(b) (“If the case is an original
proceeding under Rule 52, the court must abate the proceeding to allow the successor to
reconsider the original party’s decision.”) (emphasis added). Further, the Clerk of this
Court is directed to substitute the Honorable Debra Ibarra Mayfield as the respondent.
See TEX. R. APP. P. 7.2(a).
The Court orders the trial court clerk to file, within 30 days of the date of this
order or, if the trial court schedules a hearing, within 15 days of that hearing, a
supplemental clerk’s record with the successor’s order on reconsideration with the Clerk
of this Court. This case is abated, treated as a closed case, and removed from this Court’s
active docket. This original proceeding will be reinstated on this Court’s active docket
when a compliant supplemental clerk’s record, and a supplemental reporter’s record, if
any, are filed. The Court will also consider a motion to reinstate by either party.
It is so ORDERED.
Judge’s signature:/s/ Laura C. Higley
 Acting for the Court
Date: December 12, 2017