in Re Carolyn Frost Keenan ( 2015 )

ACCEPTED
01-15-00581-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/27/2015 5:56:16 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00581-CV FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
In the First Court of Appeals 7/27/2015 5:56:16 PM
CHRISTOPHER A. PRINE
Houston, Texas Clerk
__________________________________________________________________
In re CAROLYN FROST KEENAN
Relator
__________________________________________________________________
On Petition for Writ of Mandamus from the
133rd District Court of Harris County, Texas
__________________________________________________________________
MOTION FOR REHEARING
AND REHEARING EN BANC
__________________________________________________________________
DYLAN B. RUSSELL
State Bar No. 24041839
PAUL A. PILIBOSIAN
State Bar No. 24007846
HOOVER SLOVACEK LLP
Galleria Tower II
5051 Westheimer, Suite 1200
Houston, Texas 77056
Telephone: (713) 977-8686
Facsimile: (713) 977-5395
Email: russell@hooverslovacek.com
Email: pilibosian@hooverslovacek.com
COUNSEL FOR RELATOR,
CAROLYN FROST KEENAN
IDENTITY OF PARTIES AND COUNSEL1
Relator:
Carolyn Frost Keenan (Defendant and Counter-Plaintiff below and hereinafter
“Relator” or “Keenan”)
Counsel for Relator:
Dylan B. Russell
State Bar No. 24041839
Paul A. Pilibosian
State Bar No. 24007846
HOOVER SLOVACEK LLP
Galleria Tower II
5051 Westheimer, Suite 1200
Houston, Texas 77056
Telephone: (713) 977-8686
Facsimile: (713) 977-5395
Email: russell@hooverslovacek.com
Email: pilibosian@hooverslovacek.com
1
Relator includes the Identity of Parties and Counsel section in this motion only to
identify new lead appellate counsel for Relator.
ii
TABLE OF CONTENTS
Page No.
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
REHEARING ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
REHEARING ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ISSUE 1: The trial court’s refusal to permit Keenan to “copy” or disclose to
“anyone else” the contents of the ballots, after initially allowing
Keenan’s counsel to inspect them, is arbitrary and unreasonable (an
abuse of discretion) since the fundamental issue in the case, the validity
of the Amendment, hinges on the number of approval ballots, a fact that
Keenan’s counsel: (1) cannot testify about without violating the trial
court’s order; and (2) should not be forced testify about per Rule 3.08
of the Texas Disciplinary Rule of Professional Conduct, which
“prohibits the lawyer from acting as both an advocate and a witness in
an adjudicatory proceeding”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ISSUE 2: Keenan does not have an adequate remedy on appeal: (1) because
without being able to offer into evidence during trial the ballots or their
contents, Keenan cannot present such facts for appellate review ; and (2)
because Keenan and the court system will waste time and money by
forcing the parties to try a case—that will eventually be retried upon
reversal—without such key evidence being presented.. . . . . . . . . . . 11
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF COMPLIANCE WITH RULE 9.. . . . . . . . . . . . . . . . . . . . . . 15
iii
INDEX OF AUTHORITIES
Cases: Page No.
Aghili v. Banks, 63 S.W.3d 812 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Batey v. Droluk, No. 01-12-01058-CV, 2014 Tex. App. LEXIS 3979 (Tex.
App.—Houston [1st Dist.] Apr. 10, 2014, no pet.). .. . . . . . . . . . . . . . . . . . . . . . . . 6
B&W Supply, Inc. v. Beckman, 305 S.W.3d 10 (Tex. App.—Houston [1st Dist.]
2009, pet. denied). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Duncan v. Dominion Estates Homeowners Ass’n, No. 01-09-01086-CV, 2011 Tex.
App. LEXIS 6274 (Tex. App.—Houston [1st Dist.] Aug. 11, 2011, no pet.). .. . . . 7
Gen. Motors Corp. v. Tanner, 892 S.W.2d 862 (Tex. 1995). ... . . . . . . . . . . . . . . . 8
Gillebaard v. Bayview Acres Ass’n, 263 S.W.3d 342 (Tex. App.—Houston [1st
Dist.] pet. denied). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
In re Allstate County Mut. Ins. Co., 447 S.W.3d 497 (Tex. App.—Houston [1st
Dist.] 2014, orig. proceeding). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
In re Baytown Nissan, Inc., 451 S.W.3d 140 (Tex. App.—Houston [1st Dist.]
2014, orig. proceeding). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
In re Brewer Leasing, Inc., 255 S.W.3d 708, 712 (Tex. App.—Houston [1st Dist.]
2008, orig. proceeding). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
In re Ching, 32 S.W.3d 306 (Tex. App.—Amarillo 2000, orig. proceeding). .. . . 12
In re Sanders, 153 S.W.3d 54 (Tex. 2004) (per curiam). .. . . . . . . . . . . . . . . . . . . 10
In re Shifflet, No. 01-14-00929-CV, 2015 Tex. App. LEXIS 1963 (Tex.
App.—Houston [1st Dist.] Mar. 3, 2015, orig. proceeding) . .. . . . . . . . . . . . . . . . . 9
Lackshin v. Touchy, No. 01-90-00972-CV, 1990 Tex. App. LEXIS 3088, (Tex.
iv
App.—Houston [1st Dist.] Dec. 20, 1990, orig. proceeding) (per curiam) (not
designated for publication). ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Walker v. Packer, 827 S.W.2d 833 (Tex. 1990). .. . . . . . . . . . . . . . . . . . . . . . 11-12
Young v. Ray, 916 S.W.2d 1 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding)
. ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
He v. Jiang, No. 01-06-00255-CV, 2007 Tex. App. LEXIS 6281 (Tex.
App.—Houston [1st Dist.] Aug. 9, 2007, no pet.). .. . . . . . . . . . . . . . . . . . . . . 12-13
Statutes/Rules:
TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(A), reprinted in TEX. GOV'T CODE,
tit. 2, subtit. G app. A (TEX. STATE BAR R. art. X, § 9). . . . . . . . . . . . . . . . . . . . . . 10
TEX. PROP. CODE ANN. § 204.005(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
v
REHEARING ISSUES PRESENTED
ISSUE 1: The trial court’s refusal to permit Keenan to “copy” or disclose to
“anyone else” the contents of the ballots, after initially allowing
Keenan’s counsel to inspect them, is arbitrary and unreasonable (an
abuse of discretion) since the fundamental issue in the case, the validity
of the Amendment, hinges on the number of approval ballots, a fact that
Keenan’s counsel: (1) cannot testify about without violating the trial
court’s order; and (2) should not be forced testify about per Rule 3.08
of the Texas Disciplinary Rule of Professional Conduct, which
“prohibits the lawyer from acting as both an advocate and a witness in
an adjudicatory proceeding.”
ISSUE 2: Keenan does not have an adequate remedy on appeal: (1) because
without being able to offer into evidence during trial the ballots or their
contents, Keenan cannot present such facts for appellate review ; and (2)
because Keenan and the court system will waste time and money by
forcing the parties to try a case—that will eventually be retried upon
reversal—without such key evidence being presented.
vi
STATEMENT OF FACTS
On January 24, 2014, ROPO filed a lawsuit against Keenan. (CR1-0010). The
lawsuit seeks injunctive relief to force Keenan to remove certain improvements on
her property2 based on limitations in an amended deed restriction (“Amendment”)3
that Keenan claims is invalid, not having received the 75 percent approval required
under the Texas Property Code. (CR009). In addition to injunctive relief, the lawsuit
also seeks declaratory relief, damages, including statutory damages, and attorney’s
fees. (CR9-10).
On June 24, 2014, Keenan filed her Amended Answer and Original
Counterclaim, which asserted generally that the Amendment was “not properly
enacted,” is “invalid,” and is “unenforceable.” (CR124-32). On November 24, 2014,
Keenan filed her Supplemental Counterclaim, which similarly claimed that the
Amendment was not valid. (CR133-38). More specifically, Keenan alleged, as
follows:
Defendant disputes that 75% of the owners of the majority of square
footage in Sections 1 through 6 of River Oaks consented to the Invalid
2
The property located at 2940 Chevy Chase Drive in Houston, Texas (the “Property”)
3
The subject alleged deed restriction is entitled the Amendments to Reservations,
Restrictions and Covenants Applicable to All Properties Located within River Oaks Additions,
Including Tall Timbers Section and Country Club Estates Addition, which were filed by ROPO
of record with the Harris County Clerk on June 2, 2006 under File No. Z346431 (the “Improper
Amendment”) (CR 51-85).
-1-
Amendment.
(CR133-38).
Notably, on December 18, 2014, ROPO filed a supplement to its traditional and
no-evidence motion for summary judgment. (CR280-88). In the supplement, ROPO
made the following argument in response to Keenan’s claim that the Amendment was
unenforceable because the required 75% approval was not met:
Defendant’s last effort to challenge the Amended Restrictions is
her baseless claim that 75 percent of the square footage owners of
property in Sections 1 through 6 of River Oaks did not vote in favor of
the Amended Restrictions. As discussed above, a section-by-section
vote is not required. Moreover, as reflected in Exhibit C to the
Certification, Gary Mangold (the General Manager of ROPO) and
Marvin Nathan (of the Nathan Sommers Jacobs law firm) attested under
oath that over 75 percent of the owners of real property in River
Oaks approved the Amended Restrictions by ballot vote. (See
Exhibit 2 at Exhibit C). Defendant has no evidence to the contrary.
Therefore, her challenges to the Amended Restrictions should be
dismissed.
(CR284) (emphasis added). Thus, instead of relying on the actual ballots to prove
that the Amendment was valid and enforceable, a certification was provided claiming
that the 75% minimum threshold was met. (CR 627-28). Similarly, ROPO never filed
of record any of the ballots with the Amendment. Instead, the certification merely
stated that the “Ballots are and will be kept in the files of” ROPO. (CR 627).
In order to overcome ROPO’s position that the 75% minimum threshold had
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been met, Keenan sent discovery to ROPO that it produce “all documents consisting
of executed Ballots collected by Plaintiff regarding” the Amendment. (CR 247). On
October 29, 2014, ROPO served objections and responses to Keenan’s discovery and
objected to producing these documents on the basis that such were confidential,
privileged, and irrelevant. (CR 244-47). ROPO made this claim even though it
subsequently filed one of the alleged ballots in support of its Motion for Summary
Judgment. (CR 280-89).
On November 10, 2014, Keenan filed a Motion to Compel ROPO to produce
the ballots as well as other discovery. (CR 139-73). In response, ROPO again
claimed that the ballots were privileged and confidential, among other arguments.
(CR 182-83).
On November 24, 2014, the trial court conducted an oral hearing on Keenan’s
Motion to Compel. (CR 264). At the hearing, the trial court made a number of verbal
rulings partially granting Keenan’s Motion but did not enter a written order. (CR
264). Afterwards, the parties could not agree on what rulings the trial court made at
the hearing. (CR 264). On January 7, 2015, therefore, the parties filed a Joint Motion
for Clarification of Rulings on Defendant’s Motion to Compel. (CR 264-65).
On January 27, 2015, the trial court granted Keenan’s Motion to Compel but
in a written order set out numerous significant restrictions regarding the ballots, as
-3-
follows:
It is ORDERED that River Oaks Property Owners, Inc. shall
respond to Defendants Request for Production No. 1 by making the
Ballots for the 2006 Amendments to the Deed Restrictions available for
inspection by Defendant’s counsel in ROPO’s storage room where the
Ballots are kept in ROPO’s ordinary course of business. The Ballots are
to remain confidential and are only to be reviewed by Defendant’s
counsel. The contents of the Ballots are not to be disclosed to anyone
else without further order from the Court. Defendant, her counsel,
agents, and representatives are expressly prohibited from contacting the
voters identified in the Ballots in any way regarding their vote.
Defendant shall not copy, photograph, modify, remove or otherwise
alter the Ballots.
(CR266) (emphasis added).
Subsequently, Keenan’s counsel inspected the ballots. (CR 270). Because he
could not share the outcome of that inspection with “anyone,” Keenan filed a second
Motion to Compel Production of Ballots (“Motion for Ballots”) on May 21, 2015.
(CR. 268-407). In the Motion for Ballots, Keenan specifically requested the
following relief:
Defendant asks that the Court remove the restrictions on the Defendant’s
ability to use the Ballots so that Defendant can adequately defend herself
and prosecute her claims in this lawsuit.
...
Defendant respectfully requests that the Court amend the [January 27,
2015] Order and require Defendant to produce the Ballots without
restraints.
(CR272).
On June 1, 2015, the trial court conducted an oral hearing on the Motion for
-4-
Ballots. (CR 440). At the hearing, the trial court stated that it would not allow
Keenan to obtain copies of the ballots “at this point.” (CR 462). The trial court also
stated that it “very well may let [Keenan] subpoena them to trial at that point. But I’m
not going to turn them over to [Keenan] at this point.” (CR 461).
Most significantly, however, the trial court’s written order denied the Motion
for Ballots, (CR437) leaving in place the restrictions set forth in the January 15, 2015
order, (CR266), as follows:
! that the Ballots were “only to be reviewed by [Keenan]’s counsel”;
! that the contents of the Ballots would “not to be disclosed to anyone
else”; and
! that the “[Keenan] shall not copy, [or] photograph . . . the Ballots.”
(CR 437). As soon as Keenan obtained a copy of the order and the hearing transcript
for the June 1, 2015 hearing, Keenan filed her petition for writ of mandamus. On July
21, 2015, this Court, without explanation, denied the petition in a one-page
memorandum opinion. This motion for rehearing and rehearing en banc followed.
-5-
REHEARING ARGUMENT
ISSUE 1: The trial court’s refusal to permit Keenan to “copy” or disclose to
“anyone else” the contents of the ballots, after initially allowing
Keenan’s counsel to inspect them, is arbitrary and unreasonable (an
abuse of discretion) since the fundamental issue in the case, the
validity of the Amendment, hinges on the number of approval
ballots, a fact that Keenan’s counsel: (1) cannot testify about
without violating the trial court’s order; and (2) should not be
forced testify about per Rule 3.08 of the Texas Disciplinary Rule of
Professional Conduct, which “prohibits the lawyer from acting as
both an advocate and a witness in an adjudicatory proceeding.”
ROPO has sued Keenan for breach of a contract (the Amendment) and seeks
damages, attorney’s fees, and injunctive relief. (CR1-0010). It goes without saying
that in order to prove breach of contract, a plaintiff must prove “the existence of a
valid contract.” B&W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). The moment Keenan asserted a
general denial to ROPO’s breach of contract claim, ROPO had the burden of proof
at trial to establish the validity of the Amendment. See Batey v. Droluk, No.
01-12-01058-CV, 2014 Tex. App. LEXIS 3979, at *15-16 (Tex. App.—Houston [1st
Dist.] Apr. 10, 2014, no pet.) (stating “ a general denial . . . puts the claims of the
plaintiff ‘in issue,’ placing the burden on the plaintiff to establish liability”). Simply
put, “[a] party seeking to enforce a deed restriction has the burden of proof at trial to
show that the restrictions are valid and enforceable.” Gillebaard v. Bayview Acres
Ass’n, 263 S.W.3d 342, 347 (Tex. App.—Houston [1st Dist.] pet. denied). Moreover,
-6-
this Court has noted that “[c]ovenants restricting the free use of land are not favored.”
Duncan v. Dominion Estates Homeowners Ass’n, No. 01-09-01086-CV, 2011 Tex.
App. LEXIS 6274, at *15 (Tex. App.—Houston [1st Dist.] Aug. 11, 2011, no pet.).
In addition to generally denying ROPO’s claim, Keenan also counterclaimed
asserting that the Amendment was “not properly enacted,” “invalid,” and
“unenforceable” because Keenan disputed “that 75% of the owners of the majority
of square footage in Sections 1 through 6 of River Oaks consented to the Invalid
Amendment.” (CR124-38). ROPO disputed Keenan’s counterclaim and in a
summary judgment claimed that “over 75 percent of the owners” approved the
Amendment and that Keenan had “no evidence to the contrary.” (CR284).
Simply put, the fundamental disputed fact in the lawsuit is the validity of the
Amendment, which depends on whether 75 percent of the applicable owners
approved it. But so long as the trial court’s January 27, 2015 remains in place, ROPO
is right about one thing: Keenan has “no evidence to the contrary,” or at least that it
can share with the factfinder at trial. (CR284).
Although most mandamus cases involving discovery, including those by this
Court, deal with improper orders compelling discovery,4 different panels of this Court
4
E.g., In re Brewer Leasing, Inc., 255 S.W.3d 708, 712, 715-16 (Tex. App.—Houston
[1st Dist.] 2008, orig. proceeding) (granting in part and denying in part petition for writ of
mandamus of order compelling production of financial records that were relevant to the issue of
punitive damages).
-7-
have issued mandamus relief when lower courts prevented a party from obtaining
clearly relevant discovery.
For example, in Lackshin v. Touchy, this Court issued conditional mandamus
relief when the lower court refused to compel the production of records relevant to
the net worth of the defendant for purposes of establishing exemplary damages. No.
01-90-00972-CV, 1990 Tex. App. LEXIS 3088, at *1-7 (Tex. App.—Houston [1st
Dist.] Dec. 20, 1990, orig. proceeding) (per curiam) (not designated for publication).
Specifically, this Court noted that “[s]ince relators’ pleadings support a claim for
punitive damages, relators were entitled to discover the net worth of the real parties
in interest.” Id. at *6.
In Young v. Ray, this Court issued conditional mandamus relief when the trial
court refused to compel production of documents relating to why the insurance
company denied coverage, which was relevant to the issue of the plaintiff’s claim for
bad faith. 916 S.W.2d 1, 1-3 (Tex. App.—Houston [1st Dist.] 1995, orig.
proceeding). Specifically, this Court held that “the plaintiffs are entitled to the
documents they sought in their requests for production, that is, documents relating to
the defendants’ decision to deny coverage.” Id. at 4.
Similarly, in Gen. Motors Corp. v. Tanner, the Texas Supreme Court issued
conditional mandamus relief when the trial court refused to permit allow the
-8-
defendant to inspect the car part that was alleged to have caused the plaintiff’s injury.
892 S.W.2d 862, 863 (Tex. 1995). The Court noted that “[d]enying GM access to the
very part that Gay claims caused his injury effectively denies GM a reasonable
opportunity to develop the merits of its defense.” Id. at 864. Importantly, as would
be relevant in this case, the Court noted that the discovery rules permit a party to
“copy any document . . . within the scope of discovery.” Id. at 863.
Here, there is no rational basis to prevent Keenan from copying the ballots and
revealing their contents at trial, particularly when the trial court seemingly concluded
that the documents were relevant enough to permit Keenan’s counsel to review them.
But without the ballots and without being able to reveal their contents, counsel’s
inspection itself does nothing to help Keenan prosecute her counterclaims and
otherwise defend against ROPO’s claims against her. The January 27, 2015 order, and
the June 1, 2015 order refusing to vacate or amend it, are arbitrary and unreasonable.
See In re Shifflet, No. 01-14-00929-CV, 2015 Tex. App. LEXIS 1963, at *13 (Tex.
App.—Houston [1st Dist.] Mar. 3, 2015, orig. proceeding) (stating “[a] clear abuse
of discretion occurs when a trial court ‘reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law’”).
Although, arguendo, Keenan may have some evidence about the ballots and
their contents in the form of her counsel’s notes and recollection having reviewed
-9-
them, but under the current rulings, Keenan’s counsel cannot “disclose[] to anyone
else” what the ballots show through trial testimony nor can Keenan “copy” the ballots
so they can offered into evidence at trial. (CR 437).
Moreover, even if Keenan’s counsel testified a trial regarding his
understanding of what the ballots showed, in violation of the trial court’s January 15,
2015 order, Keena’s counsel would also violate Rule 3.08 of the Texas Disciplinary
Rule of Professional Conduct, which “prohibits the lawyer from acting as both an
advocate and a witness in an adjudicatory proceeding.” In re Sanders, 153 S.W.3d
54, 56 (Tex. 2004) (per curiam).
Forcing Keenan to present evidence about the ballots through her attorney’s
testimony would be more than inappropriate. To be sure, “the practice of attorneys
furnishing from their own lips and on their own oaths the controlling testimony for
their client is one not to be condoned by judicial silence . . . . nothing short of actual
corruption can more surely discredit the profession.” Aghili v. Banks, 63 S.W.3d 812,
818 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). In fact, this Court recently
noted that “[c]ompelling an attorney of record involved in the litigation of the case
to testify concerning the suit’s subject matter generally implicates work product
concerns’ and ‘is inappropriate under most circumstances.’” In re Baytown Nissan,
Inc., 451 S.W.3d 140, 149 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding).
-10-
While the trial court’s January 15, 2015 order stands, however, Keenan has no other
means to put on this evidence on at trial.
Based upon the foregoing, the trial court clearly abused its discretion by failing
to permit Keenan to copy the subject ballots and otherwise disclose their contents at
trial in order to prove that the 75% minimum approvals was not obtained as required
under Section 204.005 of the Texas Property Code. See TEX. PROP. CODE §
204.005(b)(1) (stating “[a] petition to . . . modify existing restrictions approved and
circulated by a property owners’ association is effective if . . . the petition is approved
by the owners. . . of at least 75 percent of the real property in the subdivision”).
Accordingly, this Court should grant Keenan’s motion, withdraw the panel’s prior
memorandum opinion, and issue an opinion compelling the trial court to permit
Keenan to copy the ballots and then disclose them for purposes of discovery, trial
preparation, and trial.
ISSUE 2: Keenan does not have an adequate remedy on appeal: (1) because
without being able to discover and offer into evidence the subject
ballots during trial, Keenan cannot present such ballots for
appellate review after a trial; and (2) because Keenan and the court
system will waste time and money by forcing the parties to try a
case—that will eventually be retried upon reversal— without such
key evidence being presented.
The Texas Supreme Court has noted that “a denial of discovery going to the
heart of a party’s case may render the appellate remedy inadequate.” Walker v.
-11-
Packer, 827 S.W.2d 833, 843 (Tex. 1990). The Court further explained how this is
so, noting that “the remedy by appeal may be inadequate where the trial court
disallows discovery and the missing discovery cannot be made part of the appellate
record.” Id.
For example, In re Ching, the court noted that without allowing even an in
camera inspection of the subject records, which were claimed to be privileged, it
could not “make a definitive ruling upon this question” of privilege and relevance.
32 S.W.3d 306, 312-13 (Tex. App.—Amarillo 2000, orig. proceeding). As such, the
court of appeals granted the petition for writ of mandamus directing the trial court to
review the documents for an in camera inspection and if deemed irrelevant, the lower
court would seal the records “for inspection by an appellate court in the event of an
appeal of the underlying suit.” Id. at 313.
Here, not only will Keenan be unable to offer the ballots into evidence at
trial—while the trial court’s rulings stand—there will simply be no evidence of the
ballots or their contents for this Court to review in the event of an appeal. Stated
another way, since the validity of the Amendment is a question of law and will
depend on whether the required 75% of votes was obtained, this Court will not be
able review de novo this fundamental legal question in an appeal. He v. Jiang, No.
01-06-00255-CV, 2007 Tex. App. LEXIS 6281, at *7 (Tex. App.—Houston [1st
-12-
Dist.] Aug. 9, 2007, no pet.) (stating “[w]hether a particular agreement constitutes a
valid contract is generally question of law”).
Furthermore, since whether the Amendment is valid is question of law, if the
case proceeds to trial without evidence to determine that question, the case will likely
be reversed for want of such evidence. Such a result would cost the “litigants and the
public ‘the time and money utterly wasted enduring eventual reversal of improperly
conducted proceedings.’” In re Allstate County Mut. Ins. Co., 447 S.W.3d 497, 499
(Tex. App.—Houston [1st Dist.] 2014, orig. proceeding). For this additional reason,
there is no adequate remedy by appeal.
Based upon the foregoing, this Court should grant Keenan’s motion, withdraw
the panel’s prior opinion, and issue an opinion compelling the trial court to permit
Keenan to copy the ballots and then disclose them for purposes of discovery, trial
preparation, and trial.
PRAYER
Petitioner Carolyn Frost Keenan respectfully requests that this Court grant this
motion, withdraw the panel’s prior opinion, and issue an opinion compelling the trial
court to permit Keenan to copy the ballots and then disclose them for purposes of
discovery, trial preparation, and trial, and that Carolyn Frost Keenan receive all other
relief to which she may be justly entitled.
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Respectfully submitted,
HOOVER SLOVACEK LLP
By: /s/ Dylan B Russell
Dylan B. Russell
State Bar No. 24041839
Paul A. Pilibosian
State Bar No. 24007846
HOOVER SLOVACEK LLP
Galleria Tower II
5051 Westheimer, Suite 1200
Houston, Texas 77056
Telephone: (713) 977-8686
Facsimile: (713) 977-5395
pilibosian@hooverslovacek.com
COUNSEL FOR RELATOR,
CAROLYN FROST KEENAN
CERTIFICATE OF SERVICE
I hereby certify that on this the 27th day of July, 2015, a true and correct copy
of the foregoing Motion for Rehearing and Rehearing En Banc, was served via
certified mail, return receipt requested, as follows:
Linda Glover
Jason R. Bernhardt
WINSTEAD P.C.
1100 JPMorgan Chase Tower
600 Travis Street
Houston, Texas 77002
/s/ Dylan B. Russell
Dylan B. Russell
-14-
CERTIFICATE OF COMPLIANCE WITH RULE 9
I certify that this document has 3,079 non-exempt words per Word Perfect.
/s/ Dylan B. Russell
Dylan B. Russell
-15-