Teresa Ward Cooper, as Next Friend of Jane Doe/D.T. v. First Financial Bank, N.A. ( 2020 )

AFFIRMED and Opinion Filed October 28, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00569-CV
TERESA WARD COOPER, AS NEXT FRIEND OF JANE DOE/D.T.,
Appellant
V.
FIRST FINANCIAL BANK, N.A., Appellee
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-01566-2016
MEMORANDUM OPINION
Before Justices Whitehill, Pedersen, III, and Reichek
Opinion by Justice Reichek
Teresa Ward Cooper, as next friend of Jane Doe/D.T., appeals the trial court’s
declaratory judgment in favor of First Financial Bank, N.A. (the “Bank”). Appellant
brings five issues, with multiple sub-issues, generally contending the trial court erred
in declaring that a document attempting to appoint Jay Sandon Cooper, appellant’s
husband, as D.T.’s deputy for purposes of a safe deposit box lease was ineffective
and in failing to award appellant her attorney’s fees. In addition, appellant requests
that all copies of a medical document submitted by the Bank in this case be turned
over to D.T. and expunged from the court’s record. For the reasons that follow, we
affirm the trial court’s judgment and deny appellant’s request.
Background
On July 7, 2015, D.T. executed a safe deposit box lease with the Bank (the
“Lease”). The Lease provided for the appointment of a deputy with authority to act
on D.T.’s behalf in connection with the Lease, the safe deposit box, and the box’s
contents. D.T. left the appointment space blank. The Lease further provided that
D.T. could appoint a deputy in the future by written notice so long as that notice (1)
was signed by D.T. along with an acknowledgement, (2) specifically referenced the
Lease, (3) indicated whether or not the appointment was intended as a power of
attorney with authority surviving D.T.’s disability or incapacity, and (4) included or
was accompanied by the signature of the deputy accepting the appointment and
confirming the Lease.
Approximately two months after D.T. entered into the Lease, Jay Sandon
Cooper presented the Bank with a power of attorney indicating he had been
appointed as D.T.’s attorney-in-fact. One of the powers listed in the document was
“banking and other financial institution transactions.” Based on this power of
attorney, Cooper1 requested access to D.T.’s safe deposit box.
1
All references to “Cooper” are to Jay Sandon Cooper. Teresa Ward Cooper is referred to as
“appellant.”
–2–
According to Dereece Howell, the Bank’s executive vice-president and chief
operations officer, the Bank had a handwritten statement from D.T. in its files
withdrawing a previous power of attorney she had granted to Cooper. Cooper’s new
power of attorney was not filed in Hood County, where the Bank was located, which
was required under Bank policy. In addition, Howell testified Cooper provided the
Bank with a physician’s statement predating D.T.’s signature on the new power of
attorney, declaring that D.T. was incapable of making executive decisions.2 The
Bank informed Cooper it would not accept the new power of attorney and he was
not given access to D.T.’s safe deposit box.
Six weeks later, Howell spoke with D.T. by phone. Howell and D.T.
discussed closing D.T.’s account and allowing Cooper access to the safe deposit box.
Following that conversation, Howell sent D.T. a letter enclosing a form for D.T. to
appoint Cooper as her deputy. Instead of adding Cooper as someone with authority
under the Lease, the form sent by the Bank was drafted to have Cooper act as D.T.’s
deputy for the purposes of emptying the safe deposit box and terminating the Lease.
The form contained a hold-harmless agreement in favor of the Bank for any claims
arising out of the Bank’s reliance on D.T.’s appointment of Cooper as her deputy.
2
Although the physician’s statement was not introduced into evidence, Howell testified regarding its
contents. Appellant’s objections to this testimony were overruled and appellant does not challenge that
ruling on appeal.
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Cooper testified that D.T. refused to sign the form sent by the Bank because
of the hold-harmless language. Instead, Cooper drafted a different appointment
document that merely stated he was appointed as D.T.’s deputy. Although Cooper’s
signature on the document was acknowledged before a notary, D.T.’s signature was
not. Howell testified the Bank was concerned about the fact that D.T.’s signature on
the appointment was not notarized, but it wanted to try to make something work for
D.T. On November 2, Howell sent Cooper an email stating that, because the deputy
appointment form had not been acknowledged before a notary public, it was
important for her to speak directly to D.T. Howell further stated that, if D.T.
confirmed her signature on the appointment document and acknowledged she
wished to appoint Cooper as her deputy, the Bank would waive the other
appointment requirements set forth in the Lease and accept Cooper as D.T.’s deputy.
Howell testified that, in response to this email, she was told that she would not be
allowed to communicate with D.T. and Cooper began sending her threatening letters
and emails.
The Bank filed this suit on April 8, 2016, seeking a declaratory judgment that
the deputy appointment form tendered by Cooper was ineffective because it did not
meet the requirements set out in the Lease. The Bank attached numerous documents
to its petition, including the Lease, the purported new power of attorney, the deputy
appointment tendered by Cooper, and the physician’s statement declaring that D.T.
was not capable of making executive decisions.
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On the same day it filed its original petition, the Bank also filed a motion for
the appointment of a guardian ad litem and a motion to seal the court’s records to
protect D.T.’s identity and privacy. The trial court granted the sealing motion and
appointed a guardian ad litem for D.T. In its order appointing the ad litem, the court
stated it appeared from the record that D.T. was an elderly person who had been
diagnosed with dementia and may be vulnerable to identity theft and other abuses.
Appellant answered as D.T.’s next friend with a general denial. She also filed
a counterclaim seeking attorney’s fees. Appellant moved the court to remove the
guardian ad litem contending the appointment was groundless and there was no
indication that her interests as next friend were adverse to D.T.’s interests. The trial
court denied appellant’s motion.
The court conducted a bench trial at which Howell, Cooper, and appellant
testified. After hearing the evidence, the court concluded the deputy appointment
was not effective under the terms of the Lease. The court also denied appellant’s
counterclaim for attorney’s fees. Counsel for the Bank informed the court that the
Bank was willing to pay the fees for the ad litem and the trial court’s judgment
assessed the ad litem’s fees against the Bank.
In its findings of fact and conclusions of law, the court stated the deputy
appointment failed because it did not specify whether it was intended to operate as
a power of attorney surviving D.T.’s incapacity or disability and D.T.’s signature
was not acknowledged. The court further stated that, because it granted the Bank’s
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petition for declaratory judgment, appellant “was not the prevailing party, and her
claim for an award of attorney’s fees should have been, and was, denied.” Appellant
filed a request for specific additional and amended findings of fact, but the trial court
made no further findings.
Analysis
I. Subject Matter Jurisdiction
We begin with appellant’s third issue in which she contends the trial court’s
judgment is void for lack of subject matter jurisdiction. Appellant argues the Bank
failed to plead sufficient facts to show it had standing to bring this action. The
Bank’s petition states it was seeking a declaratory judgment pursuant to chapter 37
of the Texas Civil Practice and Remedies Code. The Bank sought a declaration that
the deputy appointment tendered by Cooper was ineffective to modify the Lease
agreement between it and D.T. because it did not meet the appointment requirements
set forth in the Lease.
Section 37.004 of the civil practice and remedies code states that a person
“interested” under a contract or whose “rights, status, or other legal relations” are
affected by a contract, may have any question regarding the construction or validity
of the contract determined and obtain a declaration of rights, status, or other legal
relations thereunder. TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a). The Bank,
as a party to the Lease, clearly has standing to request the trial court make a
determination of whether the deputy appointment tendered by Cooper was a valid
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modification of the Lease. Id. The attempted appointment created contractual
uncertainties about whether D.T. had effectively granted a third-party agency rights.
An actual controversy existed based on the purported agent’s demands to exercise
rights under the Lease and his threats when those demands were not met. See
Fleming v. Ahumada, 193 S.W.3d 704, 716 (Tex. App.—Corpus Christi–Edinburg
2006, no pet.); Stark v. Benckenstein, 156 S.W.3d 112, 117 (Tex. App.—Beaumont
2005, pet. denied).
Appellant points to a statement made by the Bank in an earlier motion for
summary judgment that it “filed this action to protect its customer” to argue the Bank
does not have standing to assert D.T.’s rights. This statement was made by the Bank
to explain its motivation for bringing the suit and its decision to not seek an award
of its attorney’s fees. Because the Bank viewed the requested declaration as
benefiting D.T., the Bank also asked the trial court to deny appellant’s counterclaim
for her attorney’s fees. Nothing in the Bank’s discussion of attorney’s fees suggests
it was relying on D.T.’s rights under the Lease as its basis for standing to bring this
action. As a party to the contract, the Bank had its own rights and standing. See
TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a).
Appellant next contends the trial court lacked subject matter jurisdiction
because any declaration regarding the deputy appointment was moot. Appellant
argues the durable power of attorney Cooper tendered to the Bank two months before
the attempted appointment was sufficient to grant Cooper access to the safe deposit
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box and, therefore, the trial court’s declaration does not resolve the controversy
between the parties.
The general test in Texas for whether a suit is appropriate for judicial
resolution is that there must be a real controversy between the parties which will be
actually determined by the judicial declaration sought. Brooks v. Northglen Ass’n,
141 S.W.3d 158, 163–64 (Tex. 2004); Nootsie, Ltd. v. Williamson Cty. Appraisal
Dist., 925 S.W.2d 659, 662 (Tex. 1996). An issue is moot if a party seeks a judgment
on a controversy that does not really exist, or a judgment that, when rendered, cannot
have any practical legal effect on a then-existing controversy. Seals v. City of Dallas,
249 S.W.3d 750, 754 (Tex. App.—Dallas 2008, no pet). As discussed above, a real
controversy existed regarding whether the deputy appointment tendered by Cooper
to the Bank was an effective modification of the Lease. The trial court’s declaration
resolved this controversy by determining the appointment was ineffective.
Appellant’s argument that the declaration fails to resolve the controversy
because Cooper’s power of attorney grants him access to the safe deposit box is a
non sequitur. The power of attorney and the deputy appointment are two separate
alleged grants of agency by D.T. to Cooper. The Bank rejected Cooper’s purported
power of attorney, and appellant has asserted no affirmative claims or defenses
against the Bank contending that rejection was wrongful. Nor did appellant seek a
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judicial determination that Cooper’s power of attorney was valid and enforceable.3
Accordingly, the only means for Cooper to access the safe deposit box at issue is the
attempted appointment of him as D.T.’s deputy under the terms of the Lease. The
trial court’s judgment resolves this matter.
Finally, appellant argues the trial court’s declaration did not resolve the
“underlying issue” because it “leaves the Bank in control of D.T.’s safe deposit box.”
A matter is not unresolved simply because a party does not agree with the outcome.
Although appellant complains that D.T. is still not in possession of the contents of
her safe deposit box, the trial court’s declaration does not prevent D.T. from
accessing the box. The declaration states only that the deputy appointment tendered
by Cooper in October 2015 was ineffective to give him access to the box. This was
the only issue the trial court was asked to decide. We resolve appellant’s third issue
against her.
II. Necessary Parties
In her second issue, appellant contends the trial court’s declaration “does not
resolve the claimed dispute for non-joinder of Mr. Cooper.” Appellant states that
Cooper could “reasonably argue” the judgment is not binding on him as a non-party
3
In her brief, appellant states the Bank’s incorporation of the power of attorney in its petition was a
“judicial admission.” Although unclear, appellant appears to contend that the Bank’s attachment of the
power of attorney to its pleading constituted a judicial admission of its validity and enforceability.
Appellant cites no authority for this proposition. In addition, at various points throughout her brief,
appellant either assumes the enforceability of Cooper’s power of attorney or presents argument regarding
its independent validity. Because issues of the validity and enforceability of the power of attorney were
never presented to the trial court for determination, this issue has not been preserved for our review. See
In re R.J.P., 391 S.W.3d 677, 678 (Tex. App.—Dallas 2013, no pet.).
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to the suit. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(a). Based on this
theoretical future argument, appellant contends the declaration is an impermissible
advisory opinion. Appellant cites Kodiak Resources, Inc. v. Smith, 361 S.W.3d 246
(Tex. App.—Beaumont 2012, no pet.) in support of this contention.
In Kodiak Resources, some of the lessors under a mineral lease brought a
declaratory judgment action against the lessees to terminate the lease. Id. at 248.
The appellate court addressed the issue of whether it was an abuse of discretion for
the trial court to deny the defendant lessees’ motion to join the remaining lessors as
necessary parties. Id. Unlike the facts presented in Kodiak Resources, Cooper is not
a party to the lease contract at issue. Also unlike the defendants in Kodiak
Resources, appellant never sought to join Cooper as a party in this suit. An alleged
defect in parties must be raised in the trial court by a verified pleading. TEX. R. CIV.
P. 93(4); see also BCH Dev. Corp. v. Bee Creek Hills Neighborhood Ass’n, No 03-
96-00416-CV, 1996 WL 727385, at *6 (Tex. App.—Austin Dec. 19, 1996, writ
denied) (not designated for publication). Appellant’s answer in this case was only
an unverified general denial. Appellant did not raise the issue of Cooper as a
necessary party to this action until her brief on appeal. Accordingly, appellant has
waived this issue. Brooks, 141 S.W.3d at 163.
As for appellant’s contention that the trial court’s judgment constitutes an
advisory opinion, we have already concluded the court’s declaration resolves the
controversy between the Bank and appellant regarding the effectiveness of the
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attempted modification of the Lease. This is a final and complete adjudication of
the dispute between the only two parties to the Lease. See id. at 162. We resolve
appellant’s second issue against her.
III. Effectiveness of the Deputy Appointment
In her fourth issue, appellant contends the trial court erred in granting the
declaratory judgment in favor of the Bank. Appellant does not appear to dispute that
the deputy appointment document tendered by Cooper fails to meet the requirements
for a valid appointment under the terms of the Lease. Appellant argues instead that
the deputy appointment and the power of attorney must be construed together and,
when combined, they contain all the necessary elements for a valid appointment.
Appellant contends the trial court “committed harmful error when it did not consider
the effect of the power of attorney on the Lease and deputy appointment.” She
further states, without discussion or analysis, that the power of attorney was part of
the “entire agreement.” Neither the power of attorney itself nor the circumstances
surrounding its creation or the creation of the Lease supports appellant’s position.
“Under generally accepted principles of contract interpretation, all writings
that pertain to the same transaction will be considered together, even if they were
executed at different times and do not expressly refer to one another.” DeWitt Cty.
Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex. 1999). In addition, separate
writings may be construed together if the connection appears on the face of the
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documents by express reference or by internal evidence of their unity. Kartsotis v.
Bloch, 503 S.W.3d 506, 516 (Tex. App.—Dallas 2016, pet. denied).
The Lease is a contract between the Bank and D.T. Under the terms of that
contract, if D.T. wished to modify the Lease to appoint a deputy, she was required
to submit a form that met certain requirements. The deputy appointment made the
subject of this suit was the form submitted for that purpose.
The purported power of attorney is an entirely separate agency designation
unrelated to the contract between the Bank and D.T. The power of attorney and the
Lease do not reference each other and they were not created at or near the same time.
Nor were they created as part of the same transaction. The same is true for the power
of attorney and the deputy appointment. Although both the deputy appointment and
the power of attorney pertain to a grant of agency authority, the deputy appointment
relates to the Lease alone, whereas the power of attorney pertains to a full range of
matters and transactions for which a power of attorney may be granted. The Bank
rejected the power of attorney, and it played no role in the discussions among the
Bank, D.T., and the Coopers about the deputy appointment. Regardless of whether
it is ultimately determined that the power of attorney is valid – a matter not before
us – it cannot be read and construed together with the Lease or deputy appointment
because these documents were executed at different times, between different parties,
for different purposes, and in the course of different transactions. See Vinson v.
Brown, 80 S.W.3d 221, 231 (Tex. App.—Austin 2002, no pet.).
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In the alternative, appellant contends the Bank has waived strict compliance
with the deputy appointment requirements set forth in the Lease based on its
communications with D.T. and Cooper. Waiver is an affirmative defense and the
party asserting it bears the burden of proof.4 In re State Farm Lloyds, 170 S.W.3d
629, 634 (Tex. App.—El Paso 2005, orig. proceeding). The elements of waiver
include (1) an existing right, (2) the party’s actual knowledge of its existence, and
(3) the party’s actual intent to relinquish that right, or intentional conduct
inconsistent with claiming that right. Safeco Ins. Co. of Am. v. Clear Vision
Windshield Repair, LLC, 564 S.W.3d 913, 920 (Tex. App.—Houston [14th Dist.]
2018, no pet.). For waiver to be established by conduct, that conduct must be
unequivocally inconsistent with claiming a known right. Van Indep. Sch. Dist. v.
McCarty, 165 S.W.3d 351, 353 (Tex. 2005).
Appellant first points to the deputy appointment form the Bank sent to D.T.
containing the hold-harmless provision. Appellant notes that this form had no
language regarding whether it was intended to operate as a power of attorney
surviving D.T.’s incapacity or disability. Accordingly, appellant contends the Bank
waived the requirement that the deputy appointment contain a power of attorney
provision.
4
Although appellant failed to properly plead waiver as an affirmative defense, we address this issue to
the extent it appears to have been tried by consent. See Haas v. Ashford Hollow Cmty. Improvement Ass’n,
Inc., 209 S.W.3d 875, 884 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
–13–
Although the deputy appointment form sent by the Bank did not include
language regarding whether it was intended to operate as a power of attorney
surviving D.T.’s incapacity or disability, this was because the form also contained a
hold-harmless provision and stated the Lease was terminated once Cooper withdrew
the contents of the safe deposit box. With the Lease terminated, there was no need
for the appointment to define the nature of Cooper’s authority on an ongoing basis.
In contrast, the unacknowledged appointment form tendered by Cooper simply
stated he was appointed as D.T.’s deputy, leaving the lessor/lessee relationship
between the Bank and D.T. unchanged. Cooper’s form put the Bank in the position
of determining, at its own peril, the nature and extent of Cooper’s continuing agency.
Because the hold-harmless provision and termination language in the Bank’s
proposed form obviated its need for the power of attorney provision, the trial court
could properly conclude the proposed form was not an unequivocal waiver of the
Bank’s right to demand, in the absence of those things, a form meeting the
requirements of the Lease.
Appellant also points to Howell’s email stating the Bank would accept the
deputy appointment Cooper drafted if Howell was able to speak with D.T. and
personally confirm D.T.’s desire to appoint Cooper as her deputy and her signature
on the document. It is undisputed, however, that no one at the Bank was permitted
to speak with D.T. following this email. As with the Bank’s proposed deputy
appointment form, it is clear the Bank was willing to forgo certain requirements for
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the deputy appointment only if other specified conditions were met. Because it is
undisputed the conditions were not met, the evidence supports a finding that the
Bank did not waive its right to insist on compliance with the terms of the Lease.
As a final alternative, appellant contends the trial court should have ruled in
her favor as a matter of equity to avoid a “patently unfair result.” Appellant fails to
explain how the trial court could, in the name of equity, ignore long settled principles
of contract law to rule in her favor. Even in matters of equity, it is an abuse of
discretion for the trial court to rule without regard to guiding legal principles. See
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
Appellant notes the trial court failed to make additional findings of fact she
requested regarding the power of attorney and communications from the Bank.
Appellant contends, without argument or authority, that this evidence supports an
equitable judgment in her favor. She further contends the court’s failure to make the
requested findings prevented her from adequately presenting her case on appeal.
The requested additional findings about which appellant complains include findings
that (1) the power of attorney was presented to the Bank approximately two months
after the Lease was executed and two months before the deputy appointment was
tendered, (2) paragraph 5 of the power of attorney states that it grants Cooper the
power of “banking and other financial institution transactions,” (3) the Bank was
willing to accept a deputy appointment in a form other than the form prescribed by
the Lease as demonstrated by its communications with D.T. and Cooper, and (4) the
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deputy appointment presented to the bank by Cooper did not comport with the
specific appointment requirements set forth in the Lease. None of these facts was in
dispute. A court need not make findings of fact on undisputed matters. Limbaugh
v. Limbaugh, 71 S.W.3d 1, 5 (Tex. App.—Waco 2002, no pet.). Furthermore,
additional findings are required only if they relate to ultimate or controlling issues.
See Rich v. Olah, 274 S.W.3d 878, 886 (Tex. App.—Dallas 2008, no pet.). An
ultimate fact issue is one essential to the cause of action that would have a direct
effect on the judgment. Id. Most of the above requested findings pertain only to
evidentiary matters rather than ultimate or controlling issues. As such, the trial court
was not required to make the requested findings. Id.
The remaining requested finding about which appellant complains was that
the Bank did not give the power of attorney “any effect upon the [deputy]
appointment” because it was not filed of record in Hood County and, therefore, the
power of attorney “was not considered by the court as having any effect upon the
appointment.” It is undisputed that one of the reasons the Bank rejected Cooper’s
power of attorney was that it was not filed in Hood County. But Howell testified at
trial that the Bank rejected the power of attorney for multiple reasons, including
D.T.’s withdrawal of a previous power of attorney granted to Cooper and a
physician’s opinion predating the power of attorney stating that D.T. was not capable
of making executive decisions. Appellant’s requested finding suggests that D.T.’s
failure to file the power of attorney in Hood County was the sole basis for its
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rejection and, as such, it is contrary to the uncontroverted evidence presented by the
Bank at trial. A trial court is not required to make additional findings that are
unsupported by the record. Id. In addition, the reasons for the Bank’s rejection of
the power of attorney are irrelevant to the ultimate and controlling issues in this case.
Id. Accordingly, we resolve appellant’s fourth issue against her.
IV. Attorney’s Fees
In her first issue, appellant contends the trial court’s judgment is “defective”
and its findings of fact and conclusions of law are “inadequate to protect D.T.’s right
to appeal the denial of attorney’s fees and costs in this litigation.” In the alternative,
she contends the trial court erred in failing to award her reasonable and necessary
fees and costs.
Appellant contends the trial court’s judgment and findings are vague and she
is “left to guess” the reason why her request for attorney’s fees was denied. The
judgment states that appellant “is not the prevailing party and her counterclaim [for
attorney’s fees] is denied.” In its findings and conclusions, the court stated “[s]ince
the petition for declaratory judgment was granted, Counter-Petitioner Teresa Ward
Cooper, as Next Friend of [D.T.], was not the prevailing party, and her claim for an
award of attorney’s fees and costs should have been, and was, denied.” Appellant
argues these statements are ambiguous because they do not state her claim for fees
was denied because she was not the prevailing party.
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Although appellant filed a request for additional and amended findings of fact,
the only findings she requested on the issue of attorney’s fees concerned the
reasonableness and necessity of the fees she incurred. She submitted no additional
or amended findings addressing the basis of the trial court’s decision to deny her
claim. Because she did not make the court aware of her complaint, appellant failed
to preserve this issue. See Tagle v. Galvan, 155 S.W.3d 510, 516 (Tex. App.—San
Antonio 2004, no pet.).
Even if this issue had been preserved, there is nothing ambiguous about the
reason for the trial court’s denial of appellant’s claim for fees. The only reason for
the court to recite that appellant did not prevail – a fact made obvious by the
remainder of the judgment, findings, and conclusions – was to explain the basis of
its decision to deny her claim for fees. The grant or denial of attorney’s fees in a
declaratory judgment action is within the discretion of the trial court, and its decision
will not be reversed on appeal absent a clear showing that this discretion was abused.
Ochoa v. Craig, 262 S.W.3d 29, 33 (Tex. App.—Dallas 2008, pet. denied).
Although a trial court may award attorney’s fees to the non-prevailing party in a
declaratory judgment action, the court is well within its discretion to deny an award
of fees based on the outcome of the case. Id.; Brazoria Cty. v. Tx. Comm’n on Envtl.
Quality, 128 S.W.3d 728, 744 (Tex. App.—Austin 2004, no pet.). We resolve
appellant’s first issue against her.
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V. Expunction
In her fifth issue, appellant requests we order the court’s files expunged and
the Bank’s records purged to remove the physician’s statement regarding D.T.’s
mental incapacity. Appellant contends the document is protected by the physician-
patient privilege under rule 509 of the Texas Rules of Evidence. See TEX. R. EVID.
509. In making her request for expunction, appellant relies on In re GMAC Finance,
L.L.C., 167 S.W.3d 940 (Tex. App.—Waco 2005, orig. proceeding). Appellant’s
reliance is misplaced.
In re GMAC was an original proceeding in which the appellate court addressed
a request by a party to expunge from the court’s record a privileged document
inadvertently attached to the party’s response to a petition for writ of mandamus. Id.
at 941. Contrary to appellant’s argument, the court concluded it had no authority to
grant the expunction request. Id. The court did, however, seal the record and,
relying on rule 193.3(d) of the Texas Rules of Civil Procedure, ordered the parties
to return all copies of the document to the attorney who inadvertently disclosed it.
Id. at 942.
The record in this case has already been sealed. Unlike the document at issue
in In re GMAC, the allegedly privileged document at issue here was not filed for the
first time in the appellate court. The doctor’s statement was made a part of multiple
filings in the trial court. Although appellant raised the issue of the physician-patient
privilege in the court below, she never requested the trial court order all copies of
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the document returned to D.T. Accordingly, this issue has been waived. See In re
R.J.P., 391 S.W.3d at 678.
Even absent waiver, under rule 193.3(d), a party that inadvertently produces
privileged material during the course of litigation must assert the applicable privilege
within ten days of the production to have the material returned. TEX. R. CIV. P.
193.3(d). Nothing in In re GMAC or rule 193.3(d) suggests this Court has the
authority to order the Bank to return a document that was knowingly presented to it
years ago outside the course of this litigation. We deny appellant’s request.
We affirm the trial court’s judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
190569F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TERESA WARD COOPER, AS On Appeal from the 380th Judicial
NEXT FRIEND OF JANE District Court, Collin County, Texas
DOE/D.T., Appellant Trial Court Cause No. 380-01566-
2016.
No. 05-19-00569-CV V. Opinion delivered by Justice
Reichek. Justices Whitehill and
FIRST FINANCIAL BANK, N.A., Pedersen, III participating.
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED. Appellant TERESA WARD COOPER, AS NEXT FRIEND
OF JANE DOE/D.T.’s request for expunction is DENIED.
It is ORDERED that appellee FIRST FINANCIAL BANK, N.A. recover its
costs of this appeal from appellant TERESA WARD COOPER, AS NEXT
FRIEND OF JANE DOE/D.T.
Judgment entered October 28, 2020
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