in Re: 462 Thomas Family Properties, LP ( 2015 )

ACCEPTED
05-15-00607-CV
05-15-00607-CV FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/13/2015 9:16:55 AM
LISA MATZ
CLERK
No. _____
FILED IN
IN THE FIFTH DISTRICT COURT OF APPEALS
5th COURT OF APPEALS
DALLAS, TEXAS DALLAS, TEXAS
5/13/2015 9:16:55 AM
LISA MATZ
Clerk
IN RE 462 THOMAS FAMILY PROPERTIES, LP, ET AL.,
Relators.
Original Proceeding
From the Probate Court No. 1, Dallas, County, Texas
Cause No. PR 10-00877-1
EMERGENCY MOTION TO STAY THE PROBATE COURT’S ORDER
COMPELLING THE PRODUCTION OF CERTAIN DOCUMENTS
Alan S. Loewinsohn Douglas W. Alexander
State Bar No. 12481600 State Bar No. 00992350
alan@lfdlaw.com dalexander@adjtlaw.com
Kerry Schonwald Amy Warr
State Bar No. 24051301 State Bar No. 00795708
kerry@lfdlaw.com awarr@adjtlaw.com
LOEWINSOHN FLEGLE DEARY, LLP Melanie Plowman
12377 Merit Drive, Suite 900 State Bar No. 24002777
Dallas, Texas 75251 mplowman@adjtlaw.com
Telephone: (214) 572-1700 ALEXANDER DUBOSE JEFFERSON &
Facsimile: (214) 571-1717 TOWNSEND LLP
515 Congress Avenue, Suite 2350
Mary Elizabeth Conlon Austin, Texas 78701
State Bar No. 24045691 Telephone: (512) 482-9300
marybeth@theconlonlawfirm.com Facsimile: (512) 482-9303
THE CONLON LAW FIRM, P.C.
8333 Douglas Ave., Suite 1414 Mary C. Burdette
Dallas, Texas 75225 State Bar No. 04268800
Telephone: (214) 750-1200 mburdette@cnbwlaw.com
Facsimile: (214) 890-9920 CALLOWAY, NORRIS, BURDETTE & WEBER, PLLC
3811 Turtle Creek Blvd., Suite 400
Dallas, TX 75219
Telephone: (214) 521-1520
Facsimile: (214) 521-2201
COUNSEL FOR RELATORS
Relators, 462 Thomas Family Properties, LP, et al., seek an emergency stay
of the attached probate court Order in order to preserve for mandamus review by this
Court their claim to attorney-client privilege of three documents ordered to be
produced by the probate court. See Order Denying Defendants’ Objections to Dan
Brittain Subpoenas Duces Tecum, Probate Court No. One of Dallas County (May
11, 2015) (attached as Ex. A). The probate court issued the Order yesterday
afternoon, May 11, 2015. Relators seek an emergency stay from this Court because
though the Order includes a temporary stay of the compelled production of the
documents, that stay expires this Friday, May 15, 2015 at noon. The probate court
granted this temporary stay in order to give Relators time to request, and this Court
time to consider, the granting of a further stay pending resolution of the Petition for
Writ of Mandamus filed contemporaneously with this motion. Relators have also
contemporaneously submitted under seal to this Court the documents at issue for in
camera review.
The challenged Order compels the production of certain documents that
Relators demonstrate in their mandamus petition are attorney-client privileged under
Texas Rule of Evidence 503. These documents are: (1) a memorandum prepared
by an attorney for Relators that embodies and reflects legal advice and counseling
to Relators; and (2) two versions of a draft amendment to a Partnership Agreement
prepared by Relators’ counsel that were never executed. The documents have been
described as follows:
1. Amended and Restated Agreement of Limited Partnership of 462 Thomas
Family Properties, L.P. (version 1) (undated) (in camera Ex. 1)
2. Amended and Restated Agreement of Limited Partnership of 462 Thomas
Family Properties, L.P. (version 2) (undated) (in camera Ex. 2)
3. Memo to Self from T. Daniel Brittain regarding A&R 462 Thomas Family
Properties, LP Agreement (September 4, 2012) (in camera Ex. 7)
As described in the Motion to File Part of Mandamus Record under Seal, these three
documents have been submitted to this Court for in camera view, together with three
other redlined documents that Relators prepared to facilitate analysis of the attorney-
client privilege claim. Following a hearing and in camera review of the documents
at issue, the probate court decided the documents were not protected by the privilege
under the exceptions to the privilege that appear in Rule 503(d)(2) and (d)(5).
As previously noted, the probate court has granted a stay of its order until
Friday, May 15, 2015 at noon. See Ex. A (granting stay). If, however, this Court
does not rule on Relator’s mandamus petition prior to the expiration of the probate
court’s stay order, the Relators face the prospect of being compelled to produce the
documents while the mandamus petition remains pending. In the absence of a stay
from this Court, Relator could be compelled to relinquish their attorney-client
privilege and the issues raised in Relators’ mandamus petition could be rendered
moot.
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Once a privileged document is produced, the privilege cannot be restored. See
Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding); see also,
e.g., Mem. Hosp.—The Woodlands v. McCown, 927 S.W.2d 1, 12 (Tex. 1996) (orig.
proceeding) (“It is well settled that an erroneous order requiring the production of
privileged documents leaves the party claiming privilege without an adequate
remedy by appeal.”). Thus, Relators respectfully request that a stay be issued until
the Court rules on Relators’ mandamus petition. This Court has jurisdiction to stay
an order of a trial court to protect its jurisdiction. TEX. R. APP. P. 52.10; see also,
e.g., In re Tex. Farmers Ins. Co., No. 02-13-00449-CV, 2014 WL 345677, at *4
(Tex. App.—Fort Worth Jan. 30, 2014, orig. proceeding) (noting that order
compelling production was stayed to permit consideration of relators’ mandamus
petition); In re Rogers, 200 S.W.3d 318, 321 (Tex. App.—Dallas 2006, orig.
proceeding) (noting the issuance of a stay of order compelling production of
documents pending resolution of mandamus petition asserting privilege).
A trial is currently set in the probate court for May 18, 2015. Relators do not
seek a stay of the May 18, 2015 trial setting, but only a stay of the Order of May 11,
2015 compelling production of the documents at issue. Counsel for Real Parties in
Interest indicated during yesterday’s hearing in the probate court that Real Parties in
Interest intend to keep the trial date.
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PRAYER
Relators respectfully request a stay of the probate court’s order compelling
production of certain documents pending the conclusion of all proceedings
addressing Relators’ Petition for Writ of Mandamus. Relators also request any other
relief to which they may be entitled at law or in equity.
Respectfully submitted,
/s/ Douglas W. Alexander
Douglas W. Alexander
State Bar No. 00992350
alexander@adjtlaw.com
Amy Warr
State Bar No. 00795708
awarr@adjtlaw.com
Melanie Plowman
State Bar No. 24002777
mplowman@adjtlaw.com
ALEXANDER DUBOSE JEFFERSON &
TOWNSEND LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701-3562
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
Alan S. Loewinsohn
State Bar No. 12481600
alan@lfdlaw.com
Kerry Schonwald
State Bar No. 24051301
kerry@lfdlaw.com
LOEWINSOHN FLEGLE DEARY, LLP
12377 Merit Drive, Suite 900
Dallas, Texas 75251
Telephone: (214) 572-1700
Facsimile: (214) 571-1717
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Mary Elizabeth Conlon
State Bar No. 24045691
marybeth@theconlonlawfirm.com
The Conlon Law Firm, P.C.
8333 Douglas Ave., Suite 1414
Dallas, Texas 75225
Telephone: (214) 750-1200
Facsimile: (214) 890-9920
Mary C. Burdette
State Bar No. 04268800
mburdette@cnbwlaw.com
CALLOWAY, NORRIS, BURDETTE &
WEBER, PLLC
3811 Turtle Creek Blvd., Suite 400
Dallas, TX 75219
Telephone: (214) 521-1520
Facsimile: (214) 521-2201
COUNSEL FOR RELATORS
CERTIFICATE OF CONFERENCE
On May 12, 2015, I communicated with Wes Holmes, counsel for Real Parties
in Interest. He stated that his clients oppose this motion for stay.
/s/ Kerry Schonwald
Kerry Schonwald
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CERTIFICATE OF SERVICE
On May 12, 2015, I electronically filed this Emergency Motion to Stay the
Probate Court’s Order Compelling the Production of Certain Documents with the
Clerk of the Court using eFile.TXCourts.gov electronic filing system which will
send notification of such filing to the following:
Wes Holmes Larry A. Flournoy, Jr.
Texas Bar No. 09908495 State Bar No. 00795348
wes@wesholmes.com lflournoy@jhflegal.com
Susan Shelton JORDAN, HOUSER & FLOURNOY, LLP
Texas Bar No. 08996750 10000 North Central Expressway
susan@wesholmes.com Suite 800
THE HOLMES LAW FIRM Dallas, Texas 75231
10000 North Central Expressway Telephone: (214) 369-0361
Suite 400 Facsimile: (214) 242-2170
Dallas, Texas 75231
Telephone: (214) 890-9266
Facsimile: (214) 890-9295
Jim Hartnett, Jr.
State Bar No. 09169200
jim@hartnettlawfirm.com
THE HARTNETT LAW FIRM
2920 N. Pearl Street
Dallas, Texas 75201
Telephone: (214) 742-4655
Facsimile: (214) 855-7857
Attorneys for Real Parties in Interest
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Hon. John Peyton, Jr.
Old Criminal Court Building
501 Main Street, 4th Floor
Dallas, Texas 75202
Telephone: (214) 653-7236
john.peyton@dallascounty.org
Respondent
/s/ Douglas W. Alexander
Douglas W. Alexander
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CAUSE NO. PR-1 0-00877-1
ROBERT K. THOMAS, as Trustee of the ROBERT K.
THOMAS TRUST, as Trustee of the TABATHA D.
THOMAS EXEMPT TRUST, as Trustee of the TYLER
J. THOMAS EXEMPT TRUST, as Trustee of the
ROBERT T. THOMAS EXEMPT TRUST, as Trustee of
the TIERNEY G. THOMAS EXEMPT TRUST, as
Trustee of the TIERNEY G. THOMAS GST-EXEMPT
TRUST A, as Trustee of the ROBERT T. THOMAS
GST-EXEMPT TRUST A, as Trustee of the TYLER J.
THOMAS GST-EXEMPT TRUST A, and as Trustee of
the TABATHA D. THOMAS GST-EXEMPT TRUST A,
Plaintiffs,
IN PROBATE COURT NO. ONE
OF
462 THOMAS FAMILY PROPERTIES, LP, 462
THOMAS FAMILY PROPERTIES MANAGEMENT, DALLAS COUNTY, TEXAS
LLC, DONALD T. CONLON, ROBYN THOMAS
CONLON, Individually, as Executor of the Estate of
Howard Gillis Thomas, Deceased, and as Trustee of the
KEVIN T. CONLON EXEMPT TRUST, as Trustee of
the KEVIN T. CONLON GST-EXEMPT TRUST A, as
Trustee of the WILLIAM K. CONLON EXEMPT
TRUST, as Trustee of the PATRICK C. CONLON
EXEMPT TRUST, as Trustee of the ROBYN THOMAS
CONLON TRUST, as Trustee of the PATRICK C.
CONLON GST-EXEMPT TRUST A, and as Trustee of
the WILLIAM K. CONLON GST-EXEMPT TRUST A,
Defendants
ORDER DENYING DEFENDANTSO OBJECTIONS
TO DAN BRITTAIN SUBPOENAS DUCES TECUM
ON THIS DAY, came on to be considered Defendants' objections to the two subpoenas
duces tecum to Dan Brittain for testimony on May 17,2015 and May 18, 2015. Defendants have
objected on the basis of the attorney-client privilege to the production of documents in these
categories: "The unsigned Amendment to the Agreement of Limited Partnership of 462 Thomas
Family Properties, LP ('the Unsigned Amendment') identified by you at your deposition on
April 30, 2015," "All drafts of the Unsigned Amendment," and "All correspondence, email
I
communications, and memoranda related to the Unsigned Amendment." The documents
requested have been submitted to the Court for in camera review.
The Court hereby OVERRULES Defendants' objections to the production of the in
camera documents pursuant to Texas Rule of Evidence 503(dX2) and 503(d)(5). The Court
orders the in camera documents be produced to Plaintiff, provided however, that the order to
produce the documents is stayed until Friday, May 15,2015 at noon.
So ORDERED.
SIGNED AND ENTERED: 2015.
ON. JO PE JR.
E PRESIDING
JTJDGE STTITNC BY ASSIGNMENT
AGREED AS TO FORM ONLY AGREED AS TO FORM:
AND NOT SUBSTANCE:
LOE\ilINSOHN FLEGLE DEARY, LLP THE HOLMES LAW FIRM
Alan S. Loewinsohn
Wes Holmes
Texas Bar No. 12481600
Texas Bar No. 09908495
alanl@lfdlaw.com
Kerry Schonwald wes@wesholmes.com
Texas Bar No. 24051301 Susan Shelton
kenys@lfdlaw.com Texas Bar No. 08996750
12377 Merit Drive, Suite 900 susan@wesholmes.com
Dallas, Texas 75251 10000 North Central Expressway,
(214) 572-1700 - Telephone Suite 400
(21 4) 572-17 17'- Telecopier Dallas, Texas 75231
214-890-9266
COUNSEL FOR DEFENDANTS
COUNSEL FOR ROBERT THOMAS
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