in Re Zak Nakhoda, James Wesselski, Kenneth Chambers, Philip Spotts, the Structural Alliance, Wesgroup Consulting, LLC, and the Mission Group ( 2015 )

ACCEPTED
01-15-00695-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/14/2015 9:17:38 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00695-CV
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS
8/14/2015 9:17:38 AM
CHRISTOPHER A. PRINE
Clerk
IN RE ZAK NAKHODA, JAMES WESSELSKI, KENNETH CHAMBERS, PHILIP
SPOTTS, THE STRUCTURAL ALLIANCE, WESGROUP CONSULTING, LLC, AND THE
MISSION GROUP,
Relators.
Original Mandamus Proceeding from the
80th District Court, Harris County, Texas;
Rankin Road, Inc. v. Underwriters at Lloyds of London, Gulf Coast Claims Service, Pat
Donovan, and John Andres
Trial Court Cause 2010-25885
RELATORS’ MOTION FOR EMERGENCY RELIEF
TO THE HONORABLE COURT:
Relators Zak Nakhoda, James Wesselski, Kenneth Chambers, Philip Spotts,
The Structural Alliance, Wesgroup Consulting, LLC, and The Mission Group
(“Relators”) seek an emergency stay of a discovery order compelling them to
produce confidential tax records that have nothing to do with the claims in the
underlying lawsuit pursuant to Texas Rule of Appellate Procedure 52.01. Relators
file this motion concurrently with their Petition for Writ of Mandamus.
FACTUAL BACKGROUND
Rankin Road, Inc. (“Rankin”), formerly represented by the Mostyn Law Firm
(“the Law Firm”), sued Underwriters at Lloyds of London, Gulf Coast Claims
Service, Pat Donovan, and John Andres (“the Insurer Parties”) in connection with
their handling of a claim for Hurricane-Ike related property damage. Rankin
designated Relators as experts to testify in support of its claims. Relators are not
parties to the underlying lawsuit.
The Insurer Parties counter-claimed for fraud and breach of contract, alleging
that Rankin knowingly misrepresented the cause of the property damage. Rankin
non-suited its claims, and the Mostyn Law Firm withdrew from the representation.
Only the Insurer Parties’ counter-claims remain at issue, and new counsel is handling
Rankin’s defense.
Rankin’s experts were designated to testify about claims that have now been
non-suited, and the Mostyn Law Firm is no longer part of the case. Nevertheless,
the Insurer Parties served Relators with subpoenas and depositions on written
questions, requesting all W-2 and 1099 forms showing income from the Mostyn Law
Firm from 2005 to 2015.
Relators moved for protection and to quash the subpoenas, asserting that this
highly intrusive discovery violates Texas Rule of Civil Procedure 195 and the Texas
Supreme Court’s recent decision in In re Ford Motor Co., 427 S.W.3d 396 (Tex.
2014); has no conceivable bearing on the Insurer Parties’ claims against Rankin; and
amounts to an impermissible fishing expedition into the relationship between
Rankin’s former counsel and its experts.
After hearing on July 30, 2015, the 80th District Court of Harris County,
Texas, the Honorable Larry Weiman presiding, denied the motion to quash and for
protection and ordered Relators to produce 1099 or W-2 forms received from the
Law Firm from 2008 to present by August 14, 2015. The Insurer Parties submitted
a proposed order the following day, which the Court signed on August 12, 2015.
Relators filed a Petition for a Writ of Mandamus concurrently with this
motion, seeking to overturn the trial court’s order. Relators now seek an emergency
stay of the trial court’s production order to preserve this Court’s jurisdiction and
protect Relators from discovery that clearly offends the Texas Rules of Civil
Procedure.
ARGUMENT
The Rules specifically contemplate temporary relief pending action by this
Court. TEX. R. APP. P. 52.10. A temporary stay is necessary to protect Relators from
patently irrelevant, overbroad, and harassing discovery and for the purpose of
protecting the court’s jurisdiction so that it can consider the merits of the mandamus
action. See In re Reed, 901 S.W.2d 605, 609 (Tex. App.—San Antonio 1995, orig.
proceeding). Mandamus review of interlocutory rulings can be “essential to preserve
important substantive and procedural rights from impairment or loss, allow the
appellate courts to give needed and helpful direction to the law that would otherwise
prove elusive in appeals from final judgments, and spare private parties and the
public the time and money utterly wasted enduring eventual reversal of improperly
conducted proceedings.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36
(Tex. 2004).
Only by granting a stay of the trial court’s production order can this Court
preserve its jurisdiction to consider Relators’ meritorious complaints about the trial
court’s order. Thus, Relators ask the Court to stay the order pending the Court’s
ruling on the merits of Relator’s mandamus action.
PRAYER
Relators ask this Court to grant this motion for temporary relief, and issue an
order staying the trial court’s order compelling production of all W-2 and IRS Form
1099s from 2008 to present by August 14th, and any other relief to which it may be
entitled.
CERTIFICATE OF COMPLIANCE
The undersigned certifies that all parties have been notified by expedited
means that this emergency motion to stay the effect of the trial court’s order has been
filed in compliance with TEX. R. APP. P. 52.10.
FOGLER, BRAR, FORD,
O’NEIL & GRAY LLP
By: /s/ Murray Fogler
Murray Fogler
State Bar No. 07207300
mfogler@beckredden.com
Jas Brar
State Bar No. 00797258
Robin O’Neil
State Bar No. 24079075
1221 McKinney, Suite 4500
Houston, Texas 77010
(713) 951-3700
(713) 951-3720 (Fax)
ATTORNEYS FOR RELATORS
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was forwarded to all
counsel of record by the Electronic Filing Service Provider, if registered; a true and
correct copy of this document was forwarded to all counsel of record not registered
with an Electronic Filing Service Provider and to all other parties as follows:
Counsel for Real-Parties-In-Interest:
Ms. Tamara M. Madden
Mr. Casey T. Wallace
JOHNSON, TRENT,
WEST & TAYLOR, LLP
919 Milam Street, Suite 1700
Houston, Texas 77002
Via TexFile
Ronald E. Tigner
Gregory S. Hudson
COZEN & O’CONNOR
1221 McKinney Suite 2900
Houston, Texas 77010
(832) 214-3900
(832) 214-3905 (fax)
Via TexFile
Respondent:
The Honorable Larry Weiman
80th Judicial District Court
201 Caroline, 9th Floor
Houston, Texas 77002
713-368-6100
Via US Mail
/s/ Murray Fogler
Murray Fogler
Counsel for Relators
Dated: August 13, 2015