NUMBER 13-11-00145-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE EMEX HOLDINGS L.L.C.
On Petition for Writ of Mandamus.
CONCURRING MEMORANDUM OPINION
ON RECONSIDERATION
Before the Court En Banc
Concurring Memorandum Opinion on Reconsideration
by Justice Perkes
I agree with the Court’s basic holding that the mandamus should be granted, but
concur because I believe our opinion of June 21, 2012, correctly disposed of the Naims’
contention that we should be able to consider recent changes in the procedural posture of
the case. See In re Emex Holdings, L.L.C., No. 13-11-00146-CV, 2012 WL 2354837 at
*11 (Tex. App.—Corpus Christi June 21, 2012, orig. proceeding)(mem. op)..The Naims
have shown no reason for conditioning mandamus relief on further trial court
proceedings.
Citing Henderson v. Floyd, 891 S.W.2d 252 (Tex. 1995) (per curiam), the Naims
contend that we should not direct the trial court to enforce the forum-selection clause
because the trial court should be given the opportunity to consider recent changes in the
procedural posture of this case, specifically including the effect of a “final judgment”
issued by the court of appeals in Mexico.
I believe the majority’s reliance on Henderson is misplaced. In Henderson, the
Texas Supreme Court conditionally granted mandamus relief directing the trial court to
vacate its order denying a motion for disqualification of counsel. Id. at 255. However,
the court specifically noted that the real party in interest contended that the relator waived
his right to disqualify counsel by failing to move to stay the proceedings while the motion
for rehearing was pending. Id. at 254–55. The court held that the real party's
“contention involves factual assertions that should be addressed in the first instance by
the district court, and our opinion today does not preclude the district court from
considering changed circumstances which would cast relator's motion for disqualification
in a different light,” but “[a]bsent such circumstances, however, [counsel is] disqualified.”
Id. at 255.
As we stated in our original opinion, Henderson stands for the proposition that
there may be instances where it is appropriate to allow the trial court to consider new
factual assertions or changed circumstances; however, I do not believe that the doctrine
applies in this case for the reasons stated in our original opinion. Henderson is different
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from this case because there, the party raising changed circumstances relied upon its
opponent’s conduct to justify further trial court action. The Henderson Court opined that
the law firm was disqualified because an employee worked on the case for opposing
counsel. Id. at 255. Here, the Naims are relying on their own conduct as evidence of
changed circumstances.
As we stated in our original opinion, it is axiomatic that an appellate court review
the actions of the trial court based on the record before the court at the time it makes its
ruling. In re Emex, 2012 WL 2354837, at *11; see Axelson, Inc. v. McIlhany, 798 S.W.2d
550, 556 (Tex. 1990) (orig. proceeding) (concluding that where evidence and rule
changes were not presented to the trial court, they did “not form a basis for us to find that
the trial court abused its discretion in this mandamus proceeding”); Sabine OffShore
Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (orig. proceeding)
(holding that in an original proceeding, the appellate court may not consider evidence that
was not part of the record before the trial court except to decide its own jurisdiction); In re
Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, (orig. proceeding)
(“We will not consider exhibits that were not part of the trial court record at the time of the
hearing on the motion that is the subject of this original proceeding.”); see also Methodist
Hosps. v. Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1998, no pet.) (“It is
axiomatic that an appellate court review actions of a trial court based on the materials
before the trial court at the time it acted.”). Thus, I would adhere to our original holding.
For the above reasons, I concur.
GREGORY T. PERKES
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Justice
Delivered and filed the
18th day of April, 2013.
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