in Re Artis Charles Harrell ( 2015 )

RECEIVED
IFIRST COURT OF APPEALS |
' HOUSTON, TEXAS FILED IN
1STCOURT OFAPPBA
HOUSTON, TEX
AUG 2 8 2015
CHRISTOPHER A. PRINE AUG>#2015
CLERK "======—— CHPfrrOPHER A. PRINE
ii-ERK_
AUG28
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01-15-00731-CV pRlN£
CAUSE NO. 2014-63129
TO THE
COURT OF APPEALS
FOR THE
FIRST DISTRICT OF TEXAS
AT HOUSTON
ARTIS CHARLES HARRELL,
Relator/
v.
JUDGE PATRICIA J. KERRIGAN
Respondent.
WRIT OF MANDAMUS
INDENTITY OF PARTIES
Relator, Artis Charles Harrell, pro se, at all relevant times
since the initation of this civil suit, has been incarcerated
and is being detained in TDCJ-CID at the McConnell Unit, 3001
South Emily Drive, Beevelli, Texas 78102-
Respondent, Judge Patricia J. Kerrigan, a Harris County Civil
District Court Judge, for the 190th Civil District Court at
201 Caroline St., 12th Floor, Houston, Texas 77002.
Interestd party, defendant, Jerome Godinich Jr., a Harris
County attorney at law, 929 Preston, Suite 200, Houston/ Texas
77002.
TABLE OF CONTENTS PAGE
IDENTITY OF PARTIES i
INDEX OF AUTHORITIES . ii
STATEMENT CONCERNING ORAL ARGUMENT .. ii
STATEMENT OF JURISDICTION ii
STATEMENT OF CASE 1
STATEMENT OF FACTS 2
ISSUE PRESENTED 3
I. THE TRIAL COURT REFUSE TO RULE ON PENDING
MOTIONS HAS CAUSED HARRELL'S CASE TO BE
ARBITRARILY DELAYED, THEREBY ABUSING ITS
DISCRETION ... 3
ISSUE NO. ONE............. 4
Argument & Authorities 4
CONCLUSION 6
PRAYER - ,... 6
CERTIFICATE OF SERVICE 7
EXHIBIT CERTIFICATE OF HARRELL 8
i
INDEX OF AUTHORITIES PAGE
TEXAS RULES OF APPELLATE PROCEDURE
RULE 51.1 - - - ii
RULE 51(a) 7
CASE LAW
Cooke v. Millard, 854 S.W.2d 134, 135 (Tex.App.—Houston
[1st Dist.] 1992, ori. proceeding) 5
Greenberg, Benson, Fisk & Fielder, P.C. v. Howell, 685
S.W.2d 694, 695 (Tex.App.--Dallas 1994, orig. proceeding)... 5
In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135-36 (Tex. 2004) , 4
Jones v. Smith,.470 S.W-2d 305, 307 (Tex.Civ.App.—Houston
[1st Dist.] 1971, orig. proceeding) .. 5
In re Martinez Ramirez, 994 S.W.2d 682, 683-84 (Tex.App---
San Antonio 1998, orig. proceeding) ...... 5
Kissam v. Williamson, 545 S.W.2d 265, 266-67 (Tex.App.—
Tyler 1976, orig. proceeding) 5
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) 4
STATEMENT OF ORAL ARGUMENT
Oral argument waived.
STATEMENT OF JURISDICTION
This Honorable Court of Appeals has jurisdiction to hear this
WRIT OF MANDAMUS according to Texas Rule of Appellate Procedure,
Rule 51.1, to compel Judge Patricia J. Kerrigan, to rule on
all pending motions.
ii
STATEMENT OF CASE
The Harris County District Clerk received and filed Artis
Charles Harrell's ("Relator") "Original Petition" on or
about October 10, 2014. See attached and incorporated as Exhibit
1.
Jerome Godinich Jr., the real party in interest, filed his
answer on or about November 12, 2014. See attached and
incorporated as Exhibit 2.
Relator served Godinich with the first set of interrogatories
on or about December 2, 2014; the second interrogatories was
served upon Godinich on or about January 2, 2015; and the third
interrogatories was served upon Godinich on or about February
23, 2015, respectively.. See attached and incorporated as Exhibit
3, 4/ and 5, respectively.
Relator filed three motions to compel with the trial court
on April 2.3, 2015. See attached and incorporated as Exhibits
6/ 7, and 8/ respectively.
Relator filed three motions for an immediate ruling on the
pending motions to compel with the trial court on or about May
13, 2015. See attached and incorporated as Exhibits 9, 10, and
11, respectively.
Relator sent the trial court judge a letter on May 28, 2015,
requesting an immediate ruling, or in the alternative, a reason
for refusing to rule on the pending motions. See attached and
incorporated as Exhibit 12.
STATEMENT OF FACTS
Artis Charles Harrell ("Relator") made "interrogatories"
discovery requests, whom the real party in interest, Jerome
Godinich, refused to answer under oath by not verifying his
answers. Relator took action by filing first, a motion with
the trial court to compel Godinich to answer the requested
interrogatories under oath by verifying his answers. The trial
court refused to rule upon Relator's motion to compel. Relator
then filed with the trial court a motion requesting an immediate
ruling on the motion to compel. Again, the trial court refused
to rule on the pending motions. Relator then wrote the trial
court judge a letter again requesting a ruling on the pending
motions. Once again, the trial, court refused to rule on the
pending motions. Relator now files this his request for writ
of mandamus as to compel the trial court to rule on the pending
motions.
ISSUE PRESENTED
ISSUE NO. ONE: THE TRIAL COURT REFUSE TO RULE ON PENDING MOTIONS
HAS CAUSED HARRELL'S CASE TO BE ARBITRARILY
DELAYED, THEREBY ABUSING ITS DISCRETION.
Issue No. One: The trial court refuse to rule on pending motions
has caused Harrell's case to be arbitrarily
delayed, thereby abusing its discretion.
Argument & Authorities
mandamus is an extraordinary remedy, which is available only
when (1) a trial court clearly abuses its discretion and (2)
there is no adequate remedy by appeal. In re Prudential Ins.
Co. of Am., 148 S.W.Sd 124, 135-36 (Tex. 2004). A trial court
clearly abuses its discretion if it reaches a decision
so arbitrary and unreasonable as to amount to- a clear
and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833,
839 (Tex. 1992). With respect to a trial court's determination
of legal principles, "a trial court has no 'discretion'
in determining what the law is or applying the law to facts."
In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d
at 840).
In the instant case, Harrell requested interrogatories from
Godinich, the . real party in interest. Godinich refuse to answer
said interrogatories by not verifying his answers. Harrell filed
several motions with the trial court to compel Godinich to answer
all requested interrogatories by verifying his answers. The
trial court refused to rule on the pending motions.
Harrell then filed several other motions with the trial court
requesting an immediate ruling on the pending motions. Again,
the trial court refused to rule on the pending motions. :Harrell
then wrote the trial court judge a letter again requesting a
ruling on the pending motions. Once again, the trial
court refused to rule on the pending motions. With no adequate
remedy at law by appeal, Harrell was left with no choice but
to file this application for writ of mandamus.
A court of appeals may not prescribe the manner in which a
trial court exercise its discretion, but it may, by mandamus,
require a trial court to exercise its discretion in some manner.
Cooke v. Millard, 854 S.W.2d 134, 135 (Tex App.-Houston [st
Dist.] 1992, orig. proceeding); Jones v. Smith, 470 S.W.2d 3!05,
307 (Tex. Civ. App.-Houston [1st Dist.] 197.1, orig. proceeding).
A trial court may not arbitrarily halt proceedings in a pending
case, and mandamus will lie to compel a trial court to entertain
and rule on motions pending before it. Cooke, 854 S.W.2d at
135; Greenberg, Benson, Fisk & Fielder, P.C. v. Howell, 685
S.W.2d 694, 695 (Tex. App.-Dallas 1984, orig. proceeding).
A trial court is required to consider and rule upon a motion
within a reasonable time. In re Martinez Ramirez, 994 S.W.2d
682, 683-84 (Tex. App.-San Antonio 1998, otig. proceeding);
Ki.ss.am v. Williamson, 545 S.W.2d 265, 266-67 (Tex. Civ. App.-
Tyler 1976, orig. proceeding). If a motion is properly filed
and pending before a trial court, the act of considering and
ruling upon that motion is ministerial, and mandamus may issue
to compel the trial court to act. In re Martinez Ramirez, 994
S.W.2d at 68.3-84.
The instant case is a jury trial case, and Harrell wants to
invoke public policy of resolving this case within the time
5
frame of eighteen months.
In order for Harrell to bring this case to trial, he must
be able to conduct discovery. Without conducting discovery
there can be no final resolution. Harrell believes that he is
entitled to conduct discovery in order to investigate all claims
and defenses put forth be Harrell and Godinich.
CONCLUSION
Harrell believes that he has demonstrated that the trial court
has abused its discretion in not, within a reasonable time,
considered and ruled upon Harrell's multiple motions compelling
Godinich to answer requested interrogatories.
PRAYER
Harrell prays that this Court of Appeals grant this his Writ
of Mandamus in order that he may conduct discovery and proceed
to trial for a final resolution of all issues in dispute.
Respectfully submitted,
Artis Charles Harrell
Pro se - TDC# 1334295
W.G. McConnell Unit
3001 S. Emily Dr.
Beeville, Texas 78102
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Writ of Mandamus
was delivered to the interested parties by First Class Mail:
Judge Patricia J, Kerrigan
190th District Court
201 Caroline St.
12 Floor
Houston, Texas 77002
Jerome Godinich Jr.
Attorney at Law
929 Preston
Suite 200
Houston, Texas 7 7002
rtiis Charles Harrell
EXHIBIT CERTIFICATE OF HARRELL
THE STATE OF TEXAS .', IN THE FIRST COURT OF APPEALS
COUNTY OF HARRIS OF HARRIS COUNTY, TEXAS
I, ARTIS CHARLES HARRELL, Relator, do hereby certify that the
above and foregoing proceedings, instruments and other papers
contained in Exhibit 1 thru 12 inclusive, to which this
certification is attached to this Writ of Mandamus is made a
part thereof, are true and correct copies of all proceedings,
instruments and other papers specified by Rule Rule 51(a)
in Cause Number 2014-63129, styled ARTIS CHARLES HARRELL v.
JEROME GODINICH JR. in said.court 190 th District Court of Harris
County, Texas.
Executed on tsA/j/Ul&C r * / 2015
Artis Charles Harrell
EXHIBIT 1
ORIGINAL PETITION TO RECOVER DAMAGES FOR
BREACH OF FIDUCIARY DUTY FOR FAILURE TO DISCOLSE, AND
FOR FAILURE TO TURN OVER TO HARRELL, HARRELL'S CLIENT FILES
IN CRIMINAL CAUSE NUMBER 982557
CAUSE MO.
ARTIS CHARLES HARRELL IN THE STATE CIVIL
Plaintiff
DISTRICT COURT OF
JEROME GODINICH, JR.
Defendant HARRIS COUNTY, TEXAS
ORIGINAL PETITION TO RECOVER DAMAGES FOR
BREACH OF FIDUCIARY DUTY FOR FAILURE TO DISCLOSE, AND
FOR FAILURE TO TURN OVER TO HARRELL, HARRELL'S CLIENT FILES
IN CRIMINAL CAUSE NUMBER 982557
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Artis Charles. Harrell, files this original petition,
complaining of Jerome Godinich, Jr.'s breach of fiduciary duty
and respectfully shows:
I
Pursuant to Texas Rules of Civil Procedure, Rule 190.1,
Plaintiff intends to conduct discovery in this case under Level
3-
II
Plaintiff Artis Charles Harrell is an incarcerated individual
residing at W.G. McConnell Unit, 3001 S. Emily Dr., Beeville,
Texas 78102, of Bee County.
Ill
SERVICE OF CITATION REQUESTED
Defendant Jerome Godinich, Jr. is an individual doing business
at 929 Preston, Suite 200, Houston, Texas 77002, of Harris
County, at which the Citation and a copy of the Petition shall
be served by a process server.
IV
ARREST AND DETENTION
On Match 3, 2004, several City of Houston Police officers
from Harris County, Texas, entered Artis Charles Harrell's
("Harrell") home located at 9602 Bird Nest Trail in Fort Bend
County, Texas without his consent, arrest warrant, probable
cause and exigent circumstances.
V
INITIAL APPEARANCE
On March 31, 2004, Harrell was taken before a Harrel County
magistrate, twenty-eight (28) days after the March 3, 2004 arrest
(see attached and incorporated Magistrate's Warnings as Exhibit
A), who informed him of the charge, the right to remain silent,
the right to request or retain an attorney, the possibility
that any statement made may be used against him, and the general
circumstances under which pretrial release may be secured; at
which time the magistrate denied him bail.
VI
PRELIMINARY ASSIGNED COURT APPEARANCE
AND
PRETRIAL BOND HEARING
On April 1, 2004, Harrell appeared in the 184th District Court
with Jerome Godinich Jr. ("Godinich") as his attorney for the
purpose of the trial court determining pretrial release. The
court had no authority to detain Harrell in custody between
March 3, 2004 and May 10, 2004 without bail, specifically when
no warrant had been issued and no grand jury indictment until
May 10, 2004.
2
VII
ORDER APPOINTING COUNSEL
Although, on March 31, 2004, Harrell requested the court to
appoint counsel to represent him because he was financially
unable to employ counsel, counsel was not appointed until April
27, 2004, cause number 982557 (see attached and incorporated
Order Appointing Counsel as Exhibit B).
VIII
GODINICH WAS NEGLIGENT AT THE
PRELIMINARY ASSIGNED COURT APPEARANCE AND BOND HEARING,
CAUSING HARRELL'S PREMATURE INCARCERATION AND RESULTING DAMAGES
On April 1, 2004, the trial court held the preliminary court
appearance and bond hearing to determine probable cause for
Harrell's further detention. Harrell was allowed to consult
with Godinich, at which time, Harrell informed Godinich that
he believed his March 3, 2004 arrest was illegally performed
without a warrant or probable cause, and that he had been placed
in a live lineup on March 11, 2004 against his will, after he
had invoked his right to counsel on March 4, 2004 during police
interrogation. Godinich told Harrell he would reset the case
in order to investigate his claim of unlawful arrest. The case
was reset for April 27, 2004, and the trial court denied bail
without making a probable cause determination for Harrell's
March 3, 2004 arrest in cause number 982557. On April 27, 2004,
the trial court officially appointed Godinich as Harrell's
attorney in cause number 982557 (see attached and incorporated
Agreed Setting as Exhibit C), case reset for May 26, 2004.
Godinich allowed time to elapse in seeking Harrell's release
3
from premature incarceration, where no warrant had been issued
for Harrell's arrest on March 3, 2004, and no indictment had
been issued by the grand jury until May 10, 2004 (see attached
and incorporated Indictment as Exhibit D).
IX
FIDUCIARY MISCONDUCT WAS INHERENTLY UNDISCOVERABLE
Fiduciary's misconduct was inherently undiscoverable because
Godinich concealed the matter that influnced his actions to
Harrell's prejudice duricg Harrell investigating claims
of ineffective assistance of counsel against Godinich in 2007.
Harrell, during his state writ of habeas corpus proceedings,
claimed that Godinich failed to challenge the probable cause
for his arrest and detention, where Godinich had filed a pretrial
motion to suppress evidence, claiming that Harrell's arrest
had been illeqally performed without a warrant or probable cause
(see attached and incorporated Motion to Suppress Evidence as
Exhibit E).
Godinich responded by filing a sworn affidavit with the trial
court on March 17, 2008, claiming that he "is not aware
of abandonding any of the motions to suppress filed in this
case (see attached and incorporated Godinich's Affidavit as
Exhibit F).
Godinich*s affidavit concealed material facts about Harrell's
illegal arrest that made the breach of fiduciary duty claim
inherently undiscoverable. Moreover, the trial court record
at the habeas proceedings reflect that it accepted Godinich's
4
March 17, 2008 sworn affidavit as true and creditable (see
attached and incorporated Respondent's Proposed Findings of
Fact, Conclusions of Law and Order as Exhibit G).
X
DISCOVERY BY SERENDIPITY
When Harrell was pursuing his investigation against Godinich
for ineffective assistance of counsel at trial. Godinich made
discovery Of fiduciary misconduct inherently undiscoverable
by making false statements in his March 17, 2008 sworn affidavit.
After exhausting state and federal remedies. Harrell continued
his investigation against Godinich for ineffective assistance
during his 2005 criminal trial, cause number 982557, by filing
a "motion for the production of grand jury proceeding
and transcript in cause number 982557 namely; probable cause
documents'" (see attached and incorporated Motion For Production
as Exhibit H).
On September 14, 2010, the trial court denied harrell's motion
for production. harrell then appealed the trial court's denial,
and the Clerk sent Harrell a certified copy of the Clerk's Record
dated December 14, 2010. This Clerk's Record contained a copy
of ' a criminal complaint that had been filed in cause number
982557 for aggravated robbery. This complaint does not state
a reason to believe Harrell committed any offense against the
State of Texas. Moreover, December 2010 is when Harrell had
discovered that his arrest and detention had been illegally
performed without a warrant or probable cause (see attached
5
and incorporated Clerk's Record at page 2 as Exhibit I).
Godinich represented Harrell on April 1, 2004 at the
preliminary assigned court appearance and pretrial bond hearing.
Godinich knew or should have known of the March 30, 2004 criminal
complaint. Godinich had a legal duty to disclose, and his failure
to disclose the March 30, 2004 criminal complaint to Harrell
or to the trial court constituted fraudulent concealment, a
claim that is not subject to defense of limitation, (see attached
and incorporated Artis Charles Harrell's Affidavit as Exhibit
J).
XI
GODINICH'S LEGAL DUTY TO HARRELL
In light of the circumstances, the discovery of the March
30, 2004 criminal complaint, where the trial court record does
not reflect a warrant or an indictment for Harrell's arrest
between the dates of March 3, 2004 and May 9, 2004. Harrell
has an absloute right for a judicial officer to determine whether
probable cause existed for his arrest and detention prior to
the return of the May 10, 2004 indictment in cause number 982557.
Had Godinich sought Harrell's release from unlawful custody,
he would have laid grounds for suppressing the March ll, 2004
pretrial live lineup out-of-court identification and related
evidence, and minimized Harrell's loss of earning capacity and
loss profits between March 3, 2004 and May 10, 2004.
Godinich had a legal duty to secure Harrell's immediate release
from unlawful custody, either by (1) personal recognizance bond,
6
or pretrial writ of habeas corpus because no probable cause
existed for his arrest and detention between March 3, 2004 and
May 10, 2004. Godinich*s breach of duty at the preliminary
assigned court appearance and bond hearing caused Harrell's
premature incarceration and resulting damages.
XII
DAMAGES CAUSED BY BREACH OF FIDUCIARY DUTY
Harrell seeks to recover mental anguish damsges because the
fiduciary misconduct was foreseeable. Harrell seeks to recover
loss of profits from the time between March 3' 2004 and May
10, 2004, and loss of earning capacity because harrell's
diminished capacity to earn a living was foreseeable in light
of the fiduciary misconduct.
XIII
GODINICH IS NEGLIGENT FOR HIS FAILURE TO
TURN OVER TO HARRELL, HARRELL'S CLIENT FILES
IN CRIMINAL CAUSE NUMBER 982557
In November 2006, Harrell first requested his client files
from Godinich, but Godinich refuse to respond (see attached
and incorporated Harrell's letter dated November 18, 2006 as
Exhibit K). Once Harrell discovered the March 30, 2004 criminal
complaint, Harrell again contacted Godinich requesting the entire
contents of his [Harrell's] client files located within his
[Godinich's] records, generated by him [Godinich] in his
representation of Harrell as defense and appellate counsel in
cause number 982557 (see attached and incorporated Harrell's
Affidavit as Exhibit J).
7
After Godinich refuse to respond, Harrell contacted the State
Bar of Texas. On October 14, 2013, Mr. Godinich gave the
following response: "We have been unable to locate your files.
Your case was tried in July 2005 and we do not retain files
longer than four years after the case has. been resolved." (See
attached and incorporated State Bar Letter as Exhibit L and
Godinich?s Letter as Exhibit M).
Harrell then notified Godinich that he [Harrell] was
not satified with his [Godinich's] October 14, 2013 response
and requested that he [Godinich] provide harrell with a sworn
affidavit explaining his actions and inactions taken in handling
his [Harrell's] case in cause number 982557 (see attached and
incorporated Harrell'a Letter dated October 21, 2013 as Exhibit
N). Again, Godinich refuse to respond. Harrell then gave Godinich
a "demand letter and notice of intent to sue for breach
of Fiduciary Duty." (See attached and incorporated Harrell's
i
Demand letter as Exhibit O).
PRAYER FOR RELIEF
Therefore, Plaintiff respectfully request judgment against
Defendant in a sum that is within jurisdictional limits of this
Court, together with the costs and disbursements of this action,
and any other relief to which Plaintiff deems himself entitled.
Artis Charles Harrell
TDC# 1334295
W.G. McConnell Unit
3001 S. Emily Dr.
Beeville, Texas 78102
PRO SE
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this original
petition was delivered by certified mail return receipt
requested to Jerome Godinich Jr. at 929 Preston, Suite 200,
Houston, Texas 77002, of Harris County.
Artis Charles "Harrell
TDC# 1334295
W.G. McConnell Unit
3001 s. Emily Dr.
Beeville, Texas 78102
EXHIBIT 2
DEFENDANT'S ORIGINAL ANSWER AND VERIFIED DENIAL
NO. 2014-63129
ARTIS CHARLES HARRELL § IN THE DISTRICT COURT
§
§
§
VS. § 190TH JUDICIAL DISTRICT
§
§
§
JEROME GODINICH JR. § HARRIS COUNTY, TEXAS
DEFENDANT'S ORIGINAL ANSWER AND VERIFIED DENIEL
TO THE HONORABLE JUDGE OF SAID COURT:
Now Comes Jerome Godinich Jr., hereinafter "Defendant," and files this Original Answer
and Verified Denial to Plaintiffs Original Petition and would respectfully show unto the Court
as follows:
I.
Defendant denies generally the allegations contained in Plaintiffs Original Petition filed
herein and demands strict proof thereof.
II.
Verified Denial
Defendant Jerome Godinich Jr. denies that he is liable in the capacity in which he has
been sued.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that upon a final
hearing hereof, the court order that Plaintiff recover nothing ofand from Defendant and award
Defendant attorney's fees, post-judgment interest and all costs ofCourt and such further and
other relief, at law and in equity towhich Defendant may show himselfjustly entitled.
Respectfully submitted,
Jerotne Godinij
929 Pseston,
Houston>Tgp(s 77002
Tel: (713) 237-8388
Fax:(713)224-2889
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument was
delivered via facsimile and CertifiedMail, RRR to the following counselof record:
Artis Harrell
TDCJ#01334295
William G. McConnell Unit
3001 South Emily Drive
Beeville, TX 78102
On this the 12th day of November 2014.
VERIFICATION
STATE OF TEXAS
COUNTY OF HARRIS
On thisday,Jerome Godinich Jr. appeared before me, the undersigned notary public, and,
after being by me first duly sworn, stated that hehas read the foregoing Original Answer and
Verified Denial and thatthe factual allegations stated therein are within his personal knowledge
and are true and correct.
SUBSCRIBED AND SWORN TO before me this the l{ day of fJiX/g m bd/y
2014.
k^- (K
NOTARY PUBLIC IN AND FOR
dz*s
THE STATE OF TEXAS
Jerome Godinich, Ji U.S. POSTAGE
PAID
Attorney at Law '»,.-. . HOUSTON.TXrg^ssesas-v . "*^Ml^cBWEW,"'
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929 Preston, Suite 200 $»~"~*iNOV 12,14
Houston, Texas 77002 -*<• AMOUNT
701M 51ED DDDE 73MD A137 $6.49
1000 00112902-23
78102
II
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P Artis Harrell
TDCJ#01334295
William G. McConnell Unit ^y
3001 South Emily Drive
Beeville, TX 78102
•'ssl U^ciSaoci-js^ *llJllji/'/|jP/*'»f//|>f-|J*#'#'798 S.W.2d 550,
555 (Tex. 1990). Discovery may be obtained about any matter
relevant to the subject matter of the case. Tex. R. Civ.
P. 192.3. Information is discoverable as long as it appears
"reasonably calculated to lead to the discovery of
admissible evidence." Id.
10. Harrell's discovery requests are reasonably caculated
to lead to the discovery of admissible evidence.
Specifically, they seek information regarding one party's
legal duty to the other party. This information
is necessary because Godinich was Harrell's trial attorney
in a criminal action, of which Harrell discovered that
Godinich had concealed exculpatory evidence in harrell's
defense causing Harrell to be denied due process of law.
Also this information is likely to lead to additional and
2
other information is relevant to the dispute.
11. A trial court may compel a party to respond adequately
to interrogatories. Tex. R. Civ. P. 215.1(b). Godinich
did not respond adequately to interrogatories as required
by Texas Rule of Civil Procedure 193.1. Therefore, the
court should compel Godinich to comply with the
rule. Godinich's responses are inadequate for the following
reasons:
a. Godinich did not verify his responses to
interrogatories. Texas Rule of Civil Procedure
197.2(d) requires the interrogatories to be
verified by Godinich.
P. Conclusion
Godinich's answers are non-responsive to interrogatories
because Godinich was in possession of all information regarding
his investigation into the facts of Harrell's criminal case.
Godinich has yet to explain why he is not in possession of such
investigatory facts. Godinich is Still concealing information
as his answers are not verified.
E. Prayer
For these reasons, Harrell asks the court to set this motion
for hearing and, after the hearing, compel Godinich to file
adequate responses to Harrell's discovery request..
CERTIFICATE OF SERVICE
I certify that a copy of Artis Charles Harrell's Motion to
Compel Jerome Godinich to Respond to Plaintiff's First
Interrogatories was served upon the Defendant at the below
listed address:
Jerome Godinich Jr.
929 Preston, Suite 200
Houston, Texas 77002
Certified Mail return receipt No. 7008 0500 0000 6637 6770
Executed on April 27, 2015.
.s
c.
Charles
/JL**tJ/
Harrell
Pro se - TDC# 1334295
W.G. McConnell Unit
3001 S. Emily Dr.
Beeville, Texas 78102
CERTIFICATE OF CONFERENCE
I certify that a reasonable effort was made to resolve the
dispute without the necessity of court intervention, and efforts
failed.
Executed on April 27, 2015.
Artis
]A. c
Charles
nkL*££t
Harrell
EXHIBIT 7
ARTIS CHARLES HARRELL'S MOTION TO COMPEL
JEROME GODINICH JR. TO RESPOND TO
PLAINTIFF'S SECOND INTERROGATORIES TO THE DEFENDANT
CAUSE NO. 201463129
ARTIS CHARLES HARRELL § IN THE 190th JUDICIAL
§
§
VS. § DISTRICT COURT OF
§
§
JEROME GODINICH JR. § HARRIS COUNTY, TEXAS
ARTIS CHARLES HARRELL'S MOTION TO COMPEL
JEROME GODINICH JR. TO RESPOND TO
PLAINTIFF'S SECOND INTERROGATORIES TO THE DEFENDANT
Artis Charles Harrell ("Harrell") asks the court to compel
Jerome Godinich Jr. ("Godinich") to respond to Harrell's
discovery requests.
A. Introduction
1. Plaintiff is Artis Charles Harrell; defendant is Jerome
Godinich Jr.
2. Harrell sued Godinich for damages for breach of fiduciary
duty for failure to disclose, and for failure to turn over
to Harrell, Harrell's client files in criminal cause number
982557.
3. Discovery in this suit is governed by a Level 3 discovery
control plan. The trial court has not set a date for when
the discovery period will end.
4. The trial court has not set a date for when the case will
go to trial or a date for pre-trial conference hearing.
5. On January 5, 2015, Harrell served Godinich with
the discovery request in accordance with Texas Rule of
Civil Procedure 21 and 21a.
6. Godinich served the attached responses on January 20, 2015.
7. Godinich is required by the Rules of Civil Procedure to
verify all answers. However, Godinich has failed to do
so.
8. Harrell attaches his affidavit to this motion to establish
facts not appearant from the record and incorporates it
by reference.
C. Argument & Authorities
9. The purpose of discovery is to seek the truth, so disputes
may be decided by what the facts reveal, not by what facts
are concealed. Axelson, Inc. v. Mcllhany, 798 S.W.2d 550,
555 (Tex. 1990). Discovery may be obtained about any matter
relevant to the subject matter of the case. Tex. R. Civ.
P. 192.3. Information is discoverable as long as it appears
"reasonably calculated to lead to the discovery of
admissible evidence." Id.
10. Harrell's discovery requests are reasonably calculated
to lead to the discovery of admissible evidence.
Specifically, they seek information regarding one party's
legal duty to the other party. This information
is necessary because Godinich was Harrell's trial attorney
in a criminal action, of which Harrell discovered that
Godinich had concealed exculpatory evidence in Harrell's
defense causing Harrell to be denied due process of law.
Also this information is likely to lead to additional and
other information that is relevant to the dispute.
11. A trial court may compel a party to respond adequately
to interrogatories. Tex. R. Civ. P. 215.1(b). Godinich
did not respond adequately to interrogatories as required
by Texas Rules of Civil Procedure 193.1. Therefore, the
court should compel Godinich to comply with the
rule. Godinich's responses are inadequate for the following
reasons:
a. Godinich did not verify his responses to
interrogatories. Texas Rules oe Civil Procedure
197.2(d) required the interrogatories to
be verified by Godinich.
D. Conclusion
Godinich's answers are non-responsive to interrogatories
because Godinich was in possession of all information regarding
his investigation into the facts of Harrell's criminal case.
Godinich has yet to explain why he is not in possession of such
investigatory facts. Godinich is still concealing information
as his answers are not verified.
E. Prayer
For these reasons, Harrell asks the court to set this motion
for hearing and, after the hearing, compel Godinich to file
adequate responsess to Harrell's discovery requests.
CERTIFICATE OF SERVICE
I certify that a copy of Artis Charles Harrell's Motion to
Compel Jerome Godinich Jr. to Respond to Plaintiff's Second
Interrogatories was served upon the Defendant at the below listed
address:
Jerome Godinich Jr.
929 Preston, Suite 200
Houston, Texas 77002
Certified Mail return receipt no. 7008 0500 0000 6637 6770
Executed on April 27, 2015.
Artis Charles Harrell
Pro se - TDC# 1334295
W.G. McConnell Unit
3001 S. Emily Dr.
Beeville, Texas 78102
CERTIFICATE OF CONFERENCE
I certify that a reasonable effort was made to resolve the
dispute without the necessity of court intervention, and efforts
failed.
Executed on April 27, 2015,
Artis Charles Harrell
EXHIBIT 8
ARTIS CHARLES HARRELL'S MOTION TO COMPEL
JEROME GODINICH JR. TO RESPOND TO
PLAINTIFF'S THIRD INTERROGATORISE TO THE DEFENDANT
CAUSE NO. 201463129
ARTIS CHARLES HARRELL § IN THE 190th JUDICIAL
§
' • §
VS. § DISTRICT COURT OF
§
§
JEROME GODINICH JR. § HARRIS COUNTY, TEXAS
ARTIS CHARLES HARRELL'S MOTION TO COMPEL
JEROME GODINICH JR. TO RESPOND TO
PLAINTIFF'S THIRD INTERROGATORIES TO THE DEFENDANT
Artis Charles Harrell. ("Harrell") asks the court to compel
Jerome Godinich Jr. ("Godinich") to respond to Harrell's
discovery requests.
A. Introduction
1. Plaintiff is Artis Charles Harrell; defendant is Jerome
Godinich Jr.
2. Harrell sued Godinich for damages for breach of fiduciary
duty for failure to disclose, and for failure to turn over
to Harrell, Harrell's client files in criminal cause number
982557.
3. Discovery in this suit is governed by a Level 3 discovery
control plan. The trial court has not set a date for when
the discovery period will end.
4. The trial court has. not set a date for when the case will
go to trial or a date for pre-trial conference hearing.
B. Facts
5. On February 23, 2015, Harrell served Godinich with the
attached discovery request in accordance with Texas Rules
of Civil Procedure 21 and 21a.
6. Although Godinich's responses were due on March 25, 2015,
Godinich had not responded to Harrell's discovery request.
Therefore, the court should order Godinich to file
responses. Harrell attaches the certified mail recipt and
a copy of the requested discovery to this motion and
incorporates it by reference.
7. Godinich not responding to the requested discovery clearly
demonstrates that he is continuing to conceal material
information that would resolve all matters that are in
dispute.
8. Harrell attaches his affidavit to this motion to establish
facts not apparent from the record and incorporates it
by reference.
C. Argument & Authorties
9. The purpose of discovery is to seek the truth, so disputes
may be decided by what the facts reveal, not by what facts
are concealed. Axelson, Inc. v. Mcllhany, 798 S.W.2d 550,
555 (Tex. 1990). Discovery may be obtained about any matter
relevant to the subject matter of the case. Tex. R. Civ.
P. 192.3 Information is discoverable as long as it appears
"reasonably calculated to lead to the discovery of
admissible evidence." Id.
10. Harrell's discovery request are reasonably calculated
to lead to the discovery of admissible evidence.
Specifically, they seek information regarding Godinich's
legal duty to Harrell. This information is necessary because
2
Godinich was Harrell's trial counsel in a criminal action,
of which Harrell discovered that Godinich had concealed
exculpatory evidence in Harrell's defense, causing Harrell
to be denied due process of law. Also this information
will lead to additional and other information that is
relevant to the dispute.
1.1. A trial court may compel a party to respond adequately
to interrogatories. Tex. R. Civ. P. 215.(b). Godinich
did not respond to interrogatories as required by Texas
Rules of Civil Procedure 193.1. Therefore, the court should
compel Godinich to respond to the interrogatories that
is attached to this motion and incorporates it by reference.
D. Conclusion
Godinich is in fact continuing to conceal material information
that will ultimately resolve all disputes in this case.
E. Prayer
For these reasons, Harrell asks the court to set this motion
for hearing and, after the hearing, compel Godinich to
file responses to Harrell's discovery requests.
CERTIFICATE OF SERVICE
I certify that a copy of Artis Charles Harrell's Motion to
Compel Jerome Godinich to Respond to Plaintiff's Third
Interrogatories was served upon the Defendant at the below listed
address:
Jerome Godinich Jr.
929 Preston, Suite 200
Houston, Texas 77002
Certified Mail return receipt requested No. 7008 0500 0000 6637
6770
Executed on April 27, 2015
c • KleislAje>£i
lis Charles Harrell
Pro se - TDC# 1334295
W.G. McConnell Unit
3001 S. Emily Dr.
Beeville, Texas 78102
CERTIFICATE OF CONFERENCE
I certify that a reasonable effort was made to resolve the
dispute without the necessity of court intervention, and efforts
failed.
Executed on April 27, 2015.
w, C^LmZ/I
'Ar*tis
Artis Charles Harrell
EXHIBIT 9
MOTION TO TRIAL COURT FOR AN IMMEDIATE RULING ON
"ARTIS CHARLES HARRELL'S MOTION TO COMPEL JEROME GODINICH JR.
TO RESPOND TO PLAINTIFF'S FIRST INTERROGATORIES TO THE DEFENDANT"
CAUSE NO. 201463129
ARTIS CHARLES HARRELL IN THE 190th JUDICIAL
VS, DISTRICT COURT OF
JEROME GODINICH JR. HARRIS COUNTY, TEXAS
V, MOTION TO TRIAL COURT FOR AN IMMEDIATE RULING ON
"ARTIS CHARLES HARRELL'S MOTION TO COMPEL JEROME GODINICH JR.
TO RESPOND TO PLAINTIFF'S FIRST INTERROGATORIES TO THE,DEFENDANT"
Artis Charles Harrell ("Harrell") asks the court to immediately
rule on Harrell's pending motion to compel Jerome Godinich jr.
to respond to plaintiff's first interrogatories to the Defendant,
and would show the following:
Facts
1. On December 2, 2014, Harrell served Jerome Godinich Jr.
("Godinich") with request for discovery and Godinich refuse
to verify his answers, which in essence is a concealment
of information.
2. On April 27, 2015, Harrell filed a motion with this court
to compel Godinich to properly respond to requested
discovery
3. As of to date, this court has not ruled on said motion.
4. Harrell is asking for an immediate ruling;:, so that he can
expedite his case in a timely manner without delay.
5. Harrell request that, if this court refuses to rule on
the pending mation, a reason for such refusal to
rule on the pending motion is requested.
Conclusion
The immediate ruling in this case is necessary as to expedite
discovery and final resolution involving all matters in dispute
prior to trial.
Prayer
For these reasons, Harrell asks the court to set this motion
for a hearing, rule on said motion, and after the hearing, compel
Godinich to file adequate responses to Harrell's discovery
request.
Certificate of Service
I certify that a copy of the "Motion to Trial Court for an
Immediate Ruling on Artis Charles harrell's Motion to Compel
Jerome Godinich Jr. to Respond to Plaintiff's F First
Interrogatories to the Defendant" was served upon Defendant
at the below listed address:
Jerome Godinich Jr.
929 Preston
Suite 200
Houston, Texas 77002
Certified Mail RRR No. 7013 3020 0000 0355 2573
Respectfully submitted,
•A tl^/f
Artis Charles Harrell
Pro se - TDC# 1334295
Executed on may 13, 2015 W.G. McConnell Unit
3001 S. Emily Dr.
Beeville/ Texas 78102
EXHIBIT 10
MOTION TO THE TRIAL COURT FOR AN IMMEDIATE RULING ON
"ARTIS CHARLES HARRELL'S MOTION TO COMPEL JEROME GODINICH JR.
TO RESPOND TO PLAINTIFF'S SECOND INTERROGATORIES TO THE DEFENDANT"
CAUSE NO. 201463129
ARTIS CHARLES HARRELL § IN THE 190th JUDICIAL
§
§
VS. § DISTRICT COURT OF
§
JEROME GODINICH JR. § HARRIS COUNTY, TEXAS
MOTION TO TRIAL COURT FOR AN IMMEDIATE RULING ON
"ARTIS CHARLES HARRELL'S MOTION TO COMPEL JEROME GODINICH JR.
TO RESPOND TO PLAINTIFF'S SECOND INTERROGATORIES TO THE DEFENDANT"
Artis Charles Harrell ("Harrell") asks the court to immediately
rule on Harrell's pending motion to compel Jerome Godinich Jr.
to respond to plaintiff's second interrogatories to the Defendant
and would show the following:
FACTS
1. On January 2, 2015, Harrell served Jerome Godinich Jr.
("Godinich") with request for discovery and Godinich refuse
to respond to the requested discovery, which in essence
is a concealment of information.
2. On April 27, 2015, Harrell filed a motion with this court
to compel Godinich to respond to requested discovery.
3. As of to date/ this court has not ruled on said motion.
4. Harrell is asking for an immediate ruling so that he can
expedite his case in a timely manner without delay.
5. Harrell request that, if this court refuses to rule on
the pending motion/ a reason for such refusal to
rule on the pending motion is requested.
CONCLUSION
The immediate ruling in this case is necessary as to expedite
discovery and a final resolution involving all matters in dispute
prior to trial.
Prayer
For these reasons, Harrell asks the court to set this motion
for a hearing, rUle on said motion, and after the hearing, compel
Godinich to file adequate responses to Harrell's discovery
request.
Certificate of Service
I certify that a copy of the "Motion to Trial Court for an
Immediate Ruling on Artis Charles Harrell's Motion to Compel
Jerome Godinich Jr. to Respond to Plaintiff's Second
Interrogatories to the Defendant" was served upon Defendant
at the below listed address:
Jerome Godinich Jr.
929 Preston"
Suite 200
Houston, Texas 77002
Certified Mail RRR No. 7013 3020 0000 0355 2573
Executed on May 13, 2015 Respectfully submitted,
ffrtis Charles Harrell
TDC# 1334295
W.G. McConnell Unit
300.1 S. Emily Dr.
Beeville, Texas 78102
EXHIBIT 11
MOTION TO TRIAL COURT FOR AN IMMEDIATE RULING ON
"ARTIS CHARLES HARRELL'S MOTION TO COMPEL JEROME GODINICH JR-
TO RESPOND TO PLAINTIFF'S THIRD INTERROGATORIES TO THE DEFENDANT"
CAUSE NO. 201463129
ARTIS CHARLES HARRELL IN THE 190th JUDICIAL
§
§
VS. § DISTRICT COURT OF
§
JEROME GODINICH JR. § HARRIS COUNTY, TEXAS
MOTION TO TRIAL COURT FOR AN IMMEDIATE RULING ON
"ARTIS CHARLES HARRELL'S MOTION TO COMPEL JEROME GODINICH JR.
TO RESPOND TO PLAINTIFF'S THIRD INTERROGATORIES TO THE DEFENDANT"
Artis Charles Harrell ("Harrell") asks the court to immediately
rule on Harrell's pending motion to compel Jerome Godinich Jr.
to respond to Plaintiff's third interrogatories to the Defendant,
and would show the following:
Facts
1. On February 23, 2015,. Harrell served Jerome Godinich Jr.
("Godinich") with request for discovery and Godinich refuse
to respond to the requested discovery, which in essence
is a concealment of information.
2. On April 27, 2015, Harrell filed a motion with this court
to compel Godinich to respond to requested discovery.
3. As of to date, this court has not ruled on said motion.
4. Harrell is asking for an immediate ruling so that he can
expedite his case in a timely manner without delay>
5. Harrell request that, if this court refuses to rule on
the pending motion, a reason for such refusal to
rule on the pending motion is requested.
Conclusion
The immediate ruling in this case is necessary as to expedite
discovery and a final resolution involving all matters in dispute
prior to trial.
Prayer
For these reasons, Harrell asks the court to set this motion
for a hearing, rule on said motion, and after the hearing, cpmpel
Godinich to file adequate responses to Harrell's discovery
request.
Certificate of Service
I certify that a copy of the "Motion to Trial Court for an
Immediate Ruling on Artis Charles Harrell's Motion to Compel
Jerome Godinich Jr. to Respond to Plaintiff's Third
Interrogatories to the Defendant" was served upon Defendant
at the below listed address:
Jerome Godinich Jr.
929 Preston
Suite 200
Houston, Texas 77002
Certified Mail RRR No. 7013 3020 0000 0355 2573
Respectfully,Submitted,
•7/W /3> ^/s
rjht C$l»a£f
Artis Charles Harrell
Pro se - TDC# 1334295
W.G. McConnell Uhit
3001 S. Emily Dr.
Beeville, Texas 78102
EXHIBIT 12
HARRELL'S LETTER TO
JUDGE PATRICIA J. KERRIGAN
DATED MAY 28, 2015
ARTIS CHARLES HARRELL
PRO SE - TDC# 1334295
W.G. McConnell Unit
3001 S. Emily Dr.
Beeville, Texas 78102
May 28, 2015
Judge Patricia J. Kerrigan
Civil Courthouse
201 Caroline St.
12th Floor
Houston, Texas 77002
RE: Harrell v. Godinich; Cause No. 201463129
Immediate Ruling on Pending Motions
Dear Judge Kerrigan:
I've filed the instant suit against the defendant for breach
of fiduciary duty. On file is my request for a jury trial. The
trial court has not set a date for when the case will go to
trial. Discovery in this case is governed by a Level 3 discovery
control plan. The trial court has not set a date for when the
discovery period will end.
I've served the defendant with interrogatorie s on December
2, 2014, January 2, 2015, and February 23, 2015 respectively.
The defendant is required by the Rules of Civil Procedure to
verify all answers, as well provide an answer to int errogatories.
However, the defendant has failed to do so in either form, verify
his answer and provide answers to interrogator ies. This has
lead me to file with the court motions to compe 1 and motions
for an immediate ruling on the motion to compe 1. I've filed
these motions on April 27, 2015 and May 13, 2015 respectively.
As of to date/ this court has not ruled on said motions. I'm
asking that this court make an immediate ruling on the pending
motions so that I can expedite riiy case through the court in
a timely manner without delay. If this court refuses to rule
on the pending motions within 30 days from the date of this
letter. This will force me to file with the Court of Appeals
a ^rit of Mandamus.
Thank you Judge Kerrigan with your assistance.
Sincerely,
ArMs Charl arrell
cc:filed
ACH