in Re Mother Doe and Father Doe, Individually and as Next Friends of John Doe and Jane Doe ( 2014 )

Opinion issued July 8, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00369-CV
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IN RE MOTHER DOE AND FATHER DOE, INDIVIDUALLY AND AS
NEXT FRIENDS OF JOHN DOE AND JANE DOE, Relators
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relators, Mother Doe and Father Doe, Individually and as next friends of
John Doe and Jane Doe, have filed a petition for writ of mandamus, seeking an
order “directing Respondent to vacate her orders of April 21, [sic] and April 29,
2014, and to allow Relators to properly investigate and prosecute the underlying
suit herein.”1 Specifically, relators challenge the portion of the trial court’s orders
that prohibits them “from discussing this litigation with anyone other than their
attorneys or the court.” We dismiss the petition as moot.
Background
Relators, plaintiffs below, filed an “Original Petition and Application for
Temporary Restraining Order” on March 18, 2014. On March 19, 2014, the trial
court issued a temporary restraining order, which ordered that “PLAINTIFFS and
DEFENDANTS and/or their agents are hereby restrained from discussing this
litigation with anyone other than their attorneys or the court” and that “NONE of
the parties hereto, their agents, or individuals they have immediate control over
shall speak to anyone concerning this litigation including, but not limited to, any
media outlet such as television or radio stations or written media (in any form)
NOR shall any of the parties hereto, their agents, or individuals they have
immediate control over communicate with anyone concerning this litigation
through social media including, but not limited to, email, Facebook, Twitter,
Instagram, or other social media outlets.”
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The underlying case is Mother Doe and Father Doe, Individually and as next
friends of John Doe and Jane Doe, Minors v. Beth Yeshurun Day School, Tom
Elieff, Cindy Kirsch, and Kelli Sydow, cause number 1045092, pending in the
County Civil Court at Law No. 2 of Harris County, Texas, the Honorable Theresa
W. Chang presiding.
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On March 28, 2014, relators and the real parties in interest attended
mediation. At that time, the parties signed a “Mediation Settlement Agreement,”
extending certain provisions of the temporary restraining order, including the
provision “imposing a ‘gag order,’” until April 22, 2014. The parties further
agreed to “reconvene the mediation . . . on or before April 18, 2014.”
On April 21, 2014, the real parties in interest, defendants below, filed a
“Motion to Extend Temporary Sealing Pending Mediation Completion.” In the
motion, the real parties in interest stated that “the mediation cannot be completed
by April 18, 2014” and that the parties agreed to mediation on May 9, 2014.
The trial court heard the motion on April 21, 2014. At the hearing, the trial
court stated the court was going to “continue sealing the record . . . but I don’t
want to be – I don’t want to seal the records indefinitely. So May 12, 2014 is a
good date. We are going to seal the records till that date including that date.” The
trial court then extended the terms of the temporary restraining order that had been
previously extended by agreement of the parties, “including imposing a gag
order[,] . . . through and including May 12, 2014 so to [sic] permit mediation to
conclude.” The trial court explained:
I sealed the records, all the records, . . . so you can have a good
mediation. So actually for the benefit of the two minor children. . . .
I think for right now for the record to be sealed, for there’s a gag order
to be in place [sic], it’s actually good for all parties. So your client
can go to new [sic] school and start a new life and their school can go
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about their way but whether or not we are going to continue to seal the
records or not or continue gag record [sic], I don’t know.
The court continued: “I normally do not impose a gag order but since children
involved [sic], I want to do that for right now, because it is not permanent. It’s just
till May 12th so you have a chance to mediate.”
At the conclusion of the hearing, the trial court issued the April 21, 2014
order, extending the terms of the temporary restraining order, “including imposing
a ‘gag order,’ . . . through and including May 12, 2014, so as to permit the
mediation to conclude.”
On April 29, 2014, the trial court held another hearing regarding the gag
order. On that date, the trial court further explained the reasoning behind the April
21, 2014 order:
It’s really for the benefit of [the] children.
And I really want to have the opportunity for both parties to
have a successful mediation. It’s not a guarantee, but I think it
provide [sic] an environment that both parties can have a mediation
without – without ruining it. . . .
So I thought to . . . extend the sealing of our records to extend
the gag order to May 12, 2014 will allow the parties to have mediation
on May the 9th, 2014. And it may be successful, maybe not. But at
least we will know we give the parties an opportunity to mediate or to
conclude that mediation. And hopefully you will mediate; we’ll have
the settlement. If not, the gag order and the records be sealed – will
be expired and we can go full litigation. And that’s what the Court
system is all about. And the records will be open to everybody who
wants to know and everybody can go to press and talk about why their
side is correct.
I really don’t – do not want the children to be harmed between
now and May 12th. So if the parties can be settled – I mean to reach
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agreement during the mediation, I do not want to harm that chance.
It’s really for the children’s sake because once we have harm to the
school, to the teachers, to the children – and I think it’s permanent
harm. I just want to give the parties an opportunity to mediate.
Finally, the trial court held that the court was “going to keep the status quo until
May the 12th, 2014. And after that, it’s a new day, a new game.”
At the conclusion of the hearing, the trial court issued the April 29, 2014
“Second Amended Order on Extension of Temporary Sealing Pending Mediation
Completion.” In the order, the trial court found that the parties “agreed to . . .
conclude the mediation on May 9, 2014,” that there was “a continuing compelling
need . . . to allow the mediation to conclude successfully,” and that there would be
“imminent and irreparable harm to . . . the scheduled mediation on May 9, 2014 if
the Court does not issue an order on extension of temporary sealing and temporary
‘gag order,’ . . . and the success of the mediation on May 9, 2014 will be
negatively affected.” The trial court therefore reiterated its April 21, 2014 order,
extending the terms of the temporary restraining order “through and including May
12, 2014 to permit the mediation to conclude.”
On May 6, 2014, relators filed their petition for writ of mandamus.
Analysis
An appellate court may not decide a moot controversy. See Nat’l Collegiate
Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999); Trulock v. City of
Duncanville, 277 S.W.3d 920, 923 (Tex. App.—Dallas 2009, no pet.). A case on
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appeal becomes moot when there is no live controversy between the parties. See
Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183 (1982); In re Sierra
Club, 420 S.W.3d 153, 156 (Tex. App.—El Paso 2012, orig. proceeding); Trulock,
277 S.W.3d at 924. “[I]f no controversy continues to exist between [the parties],
the appeal is moot and this court must dismiss the cause.” Gen. Land Office of
State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990).
There are two exceptions that allow an appellate court to address an issue
that is otherwise moot: (1) the issue is capable of repetition yet evading review;
and (2) the collateral consequences doctrine. See OXY U.S.A., 789 S.W.2d at 571;
In re Sierra Club, 420 S.W.3d at 157.
The capable of repetition yet evading review exception applies when the
following circumstances are both present: (1) the challenged action was in its
duration too short to be fully litigated prior to its cessation or expiration, or the
party cannot obtain appellate review before the issue becomes moot; and (2) there
is a reasonable expectation that the same complaining party will be subject to the
same action again. See Murphy, 455 U.S. at 482, 102 S. Ct. at 1183; Tex. A&M
Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011); In re Sierra
Club, 420 S.W.3d at 157; Trulock, 277 S.W.3d at 924, 928. For the capable of
repetition yet evading review exception to apply, “there must be a ‘reasonable
expectation’ or a ‘demonstrated probability’ that the same controversy will recur
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involving the same complaining party;” a mere physical or theoretical possibility
of recurrence is not sufficient. Murphy, 455 U.S. at 482, 102 S. Ct. at 1183–84;
see Trulock, 277 S.W.3d at 924–25.
“The ‘collateral consequences’ exception has been applied when . . .
prejudicial events have occurred ‘whose effects continued to stigmatize helpless or
hated individuals long after the unconstitutional judgment had ceased to operate.’”
OXY U.S.A., 789 S.W.2d at 571 (quoting Spring Branch I.S.D. v. Reynolds, 764
S.W.2d 16, 19 (Tex. App.—Houston [1st Dist.] 1988, no writ)); see In re Sierra
Club, 420 S.W.3d at 158.
Here, relators challenge two orders of the trial court, issued on April 21,
2014 and April 29, 2014, both of which ceased to operate on May 12, 2014.
Therefore, there is no longer a “live” controversy between the parties in this
original proceeding. Accordingly, we conclude that this original proceeding has
become moot. See In re Sierra Club, 420 S.W.3d at 157.
On May 15, 2014, the Clerk of this Court notified relators that this
proceeding appeared to be moot and that the proceeding may be dismissed for want
of jurisdiction unless relators filed a response showing that this Court has
jurisdiction.
Relators responded on May 23, 2014. In their response, relators contend that
the capable of repetition yet evading review exception applies in this case, because
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“[i]t is reasonable to expect that Respondent could” extend the provisions of the
temporary restraining order again. Relators further contend that “Respondent
apparently believed she had the authority to enter [the April 21, 2014 and April 29,
2014 orders], with no supportive pleading, based upon no evidence, and over the
objections of Relators’ counsel,” and mandamus relief is therefore “required to
ensure that Respondent does not abuse her discretion in an identical or
substantially similar manner in the future.”2
Contrary to relators’ contentions, the record reveals neither a “reasonable
expectation” nor a “demonstrated probability” that the trial court will further
2
Relators additionally argue that the April 21, 2014 and April 29, 2014 orders have
not “lapsed for all purposes,” because opposing counsel has “threatened motions
for contempt against counsel for Relators regarding alleged violations of the
Orders.” It is not clear whether relators are contending that (1) the orders are
capable of repetition yet evading review or (2) relators are subject to collateral
consequences as a result of the orders. In either event, the theoretical possibility
that the real parties in interest might file a motion for contempt, which the trial
court might grant, is insufficient to establish either that the challenged orders are
capable of repetition yet evading review or that relators are subject to collateral
consequences. See Murphy v. Hunt, 455 U.S. 478, 482, 102 S. Ct. 1181, 1183–84
(1982); Tex. A&M Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 291 (Tex.
2011); In re Sierra Club, 420 S.W.3d 153, 158 (Tex. App.—El Paso 2012, orig.
proceeding). Moreover, if relators are held in contempt for violating either the
April 21, 2014 order or the April 29, 2014 order, they may seek appellate review
of the contempt order by filing a petition for writ of habeas corpus. See Ex parte
Shaffer, 649 S.W.2d 300, 301–02 (Tex. 1983); In re Markowitz, 25 S.W.3d 1, 2–3
(Tex. App.—Houston [14th Dist.] 1998, orig. proceeding).
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extend or will re-impose the gag order at issue.3 As an initial matter, Relators
concede, in their May 23, 2014 “Second Reply,” that both the April 21, 2014 order
and the April 29, 2014 order expired on May 12, 2014. Thus, the trial court cannot
“illegally extend the TRO,” because it is no longer in effect. See In re Sierra Club,
420 S.W.3d at 157.
Further, the trial court explicitly stated that the records would not be sealed
indefinitely and that the April 21, 2014 and April 29, 2014 orders were intended to
provide the parties with an opportunity to mediate the case on May 9, 2014. The
real parties in interest, in their response filed on May 12, 2014, informed this Court
that the mediation occurred on May 9, 2014. Relators have neither offered
evidence nor contended that the mediation did not take place as scheduled, nor
have they offered any evidence showing that the trial court further extended the
gag order or issued a new gag order.
Accordingly, because the trial court explicitly issued the challenged orders
for the purpose of permitting the parties to engage in mediation on May 9, 2014
and relators have failed to produce any evidence showing either that mediation did
not occur or that the trial court extended the challenged orders, we conclude that
there is no “reasonable expectation” or “demonstrated probability” that relators
3
In their May 23, 2014 “Second Reply to Real Parties in Interest’s Response to
Petition for Writ of Mandamus,” relators state that they “are not seeking to have
the Court record unsealed, but are only seeking to bar future gag orders.”
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will be subject to another gag order. See In re Sierra Club, 420 S.W.3d at 157;
Trulock, 277 S.W.3d at 929.
Conclusion
Based on the foregoing, we conclude that this original proceeding has
become moot, no exception to the doctrine of mootness applies, and we lack
jurisdiction over this proceeding. Accordingly, we dismiss the petition for writ of
mandamus for want of jurisdiction. We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Brown.
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