Court of Appeals of Texas, Eighth District, El Paso
IN RE: WALTER L. BOYAKI, INDIVIDUALLY AND AS REPRESENTATIVE OF BOYAKI FAMILY TRUST, RELATORS.
ORIGINAL PROCEEDING IN MANDMAUS
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, JUSTICE
Walter L. Boyaki, Individually and as Representative of
Boyaki Family Trust, filed a mandamus petition against the
Honorable Alyssa G. Perez, Judge of the 210th District Court
of El Paso County, Texas, asking that the Court order
Respondent to vacate her order requiring Relators to file an
amended petition joining Brother Edwin Gallagher and Brother
Richard Fish as defendants. We conditionally grant mandamus
L. Boyaki and the Boyaki Family Trust sued the real parties
in interest to recover a donation made to the St. Joseph
School on or about February 2, 2015 in the amount of $6, 250
which Relators intended to fund scholarships at the school.
The petition alleges that on January 20, 2016, Defendants
acknowledged receipt of $6, 000 and thanked Relators for
donating to the Defendant Foundation. On February 10, 2016,
Walter L. Boyaki sent a letter to the Defendant Foundation
complaining that the donated funds had been misapplied. The
petition alleges that Defendants Carpenter and Seitz diverted
the donation to the Foundation for the Diocese of El Paso
without Boyaki's permission. Boyaki requested that the
funds be transferred back to St. Joseph School, but
Defendants failed to do so. Relators' petition includes
claims for breach of contract, DTPA violations, and fraud.
filed a motion to abate requesting that the trial court order
Relators to join Brother Edwin Gallagher and Brother Richard
Fish (collectively referred to as "the Brothers")
as "indispensable" parties. In order to evaluate
the arguments presented in the mandamus petition and
response, it is necessary to have an understanding of the
Brothers' relationship to St. Joseph School amid
allegations that the Brothers misappropriated large sums of
money belonging to the school. Included in the mandamus
record is an Indebtedness Agreement executed by the Diocese
of El Paso on behalf of St. Joseph Parish and the Brothers of
the Poor of St. Francis, Inc. (the Corporation) on June 1,
2016. The Indebtedness Agreement includes the following
Brother Edwin Gallagher, CFP, and Brother Richard Fish, CFP,
(the 'Brothers'), who are members of the Order,
began teaching and providing administrative services to [St.
Joseph School] in 1989 and retired in 2015.
During their tenure, Brother Edwin and Brother Richard
misappropriated at least $800, 264 of funds owned by [St.
In order to induce St. Joseph not to take legal action
against the Corporation, the Order, and the Brothers, the
Corporation and the Order have agreed to reimburse St. Joseph
the sum of $800, 264 as provided [in the Indebtedness
Corporation agreed to make four installment payments to St.
Joseph School in 2016 and 2017. Upon payment of the $800,
246, St. Joseph School agreed to provide the Corporation, the
Order, and the Brothers with a complete release of all claims
and causes of action. The final installment payment was made
in April 2017. Walter L. Boyaki and the Boyaki Family Trust
also released the Brothers from "any and all liability
either or both may have, if any, concerning the transfer of
certain scholarship monies provided to St. Joseph School in
2015 by Releasors from St. Joseph School to either the
Foundation for the Diocese of El Paso, the Catholic Legacy
Fund, or any other entity controlled by the Foundation for
the Diocese of El Paso."
April 9, 2019, the trial court entered an amended order
granting Defendants' motion to abate and ordering
Relators to file an amended petition joining Brother Edwin
Gallagher and Brother Richard Fish as defendants. The order
provided that if Relators failed to file the amended petition
by April 24, 2019, the case would be set for dismissal.
Relators filed a mandamus petition challenging the ruling,
and the Court granted a motion to stay the April 9, 2019
MOTION TO DISMISS
filed a motion to dismiss the mandamus petition because
Relators did not include in the mandamus record a
transcription of the hearings held on March 27, 2019 and
April 3, 2019 or all of the exhibits admitted into evidence
at those hearings. After filing the motion to dismiss,
Defendants provided the transcriptions and exhibits with
their response to the mandamus petition. Rule 52.7(a)(2)
requires that the relator file with the petition a properly
authenticated transcript of any relevant testimony from any
underlying proceeding, including any exhibits offered in
evidence, or a statement that no testimony was adduced in
connection with the ...