Joseph W. Peine v. Elite Airfreight, Inc. ( 2015 )

ACCEPTED
01-14-00860-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/15/2015 2:39:28 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00860-CV
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
HOUSTON, TEXAS 5/15/2015 2:39:28 PM
CHRISTOPHER A. PRINE
Clerk
JOSEPH W. PEINE,
Appellant,
v.
ELITE AIRFREIGHT, INC. and
ADVANCED LOGISTICS SERVICES, INC.,
Appellees.
AGREED MOTION TO SEAL BRIEF OF APPELLANT
Yvonne Y. Ho
State Bar No. 24055673
yvonne.ho@bgllp.com
Sean Gorman
State Bar No. 08218100
BRACEWELL & GIULIANI LLP
711 Louisiana Street, Suite 2300
Houston, Texas 77002-2770
Telephone: (713) 223-2300
Facsimile: (800) 404-3970
ATTORNEYS FOR ELITE
AIRFREIGHT, INC. AND
ADVANCED LOGISTICS
SERVICES, INC.
Pursuant to Texas Rule of Appellate Procedure 10, Appellee Elite Airfreight,
Inc. files this Agreed Motion to Seal the Brief of Appellant.
Appellee Elite Airfreight requests this Court seal the Brief of Appellant,
filed on April 22, 2015. The Brief of Appellant contains extensive references to
portions of the reporter’s record that the trial court ordered to be sealed pursuant to
Texas Rule of Civil Procedure 76a(1)(a). As a result, the Brief of Appellant should
be sealed.
On October 17, 2014, the trial court in this case signed an Order, attached as
Appendix A, granting Defendants Elite Airfreight, Inc.’s and Advanced Logistics
Services, Inc.’s (“Defendants”) motion to seal certain testimony and exhibits, on
the basis that they contained privileged communications between Defendants and
Edward Peine, an attorney who had represented Defendants during the relevant
time period. (CR.232-37; Supp.CR.3-4). By its terms, the Order directs that the
following be sealed:
the transcript of the bill of exceptions made by Plaintiff
of the testimony that would have been offered by Edward
Peine; the exhibits to that bill of exception, including the
deposition transcript of Edward Peine, whether attached
to the transcript as an exhibit or contained in the court’s
files in any manner; the exhibits to Plaintiff’s Responses
to Defendants’ No-Evidence Motion for Summary
Judgment filed on November 6, 2009; and the exhibits to
the Plaintiff’s Responses to Defendants’ Traditional
Motion for Summary Judgment filed on November 13,
2009.
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(Supp.CR.3-4, attached as Appendix A). These items, which are contained in
Volume 3 of the reporter’s record, remain sealed pursuant to the trial court’s order.
Because the Brief of Appellant contains references to Edward Peine’s sealed
testimony, the Brief also should be sealed.
This Court has the authority to order that a brief previously filed in public
form be sealed when, as here, the brief contains references to portions of the record
that were sealed by the trial court. See, e.g., R.V.K. v. L.L.K., 103 S.W.3d 612, 614
(Tex. App.—San Antonio 2003, no pet.) (en banc) (ordering the appellate clerk to
retroactively seal the parties’ briefs and motions containing references to sealed
portions of the record); Tindall v. Nationsbank of Tex., N.A., 1998 WL 324731, at
*1 (Tex. App.—Dallas June 22, 1998, no pet.) (per curiam) (“Our records reflect
that on May 21, 1998, pursuant to appellee’s May 7, 1998 agreed motion to seal all
documents contained in the appellate record, supplemented by a copy of the trial
court’s order sealing court records, we ordered the appellate record and all
pleadings and papers on file herein . . . be placed under seal.”). The parties agree
that sealing the Brief of Appellant is appropriate.
PRAYER
For these reasons, Appellee Elite Airfreight, Inc. requests that this Court
grant the agreed motion and seal the Brief of Appellant filed on April 22, 2015.
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Respectfully submitted,
/s/ Yvonne Y. Ho
Yvonne Y. Ho
State Bar No. 24055673
yvonne.ho@bgllp.com
Sean Gorman
State Bar No. 08218100
sean.gorman@bgllp.com
BRACEWELL & GIULIANI LLP
711 Louisiana Street, Suite 2300
Houston, Texas 77002-2770
Telephone: (713) 223-2300
Facsimile: (800) 404-3970
ATTORNEYS FOR APPELLEES,
ELITE AIRFREIGHT, INC.
AND ADVANCED LOGISTICS
SERVICES, INC.
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CERTIFICATE OF CONFERENCE
Pursuant to TEX. R. APP. P. 10.1(a)(5), counsel for Appellee Elite Airfreight,
Inc. conferred with counsel for Appellant Joseph W. Peine, and the parties agreed
to the relief sought in this motion to seal the Brief of Appellant.
/s/ Yvonne Y. Ho
Yvonne Y. Ho
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this motion was served on the
following via the manner indicated on the 15th day of May, 2015:
Mr. Thomas W. McQuage Via eFile.txcourts.gov
mcquage@swbell.net
P.O. Box 16894
Galveston, Texas 77552-6894
Telephone: (409)762-1104
Facsimile: (409)762-4005
ATTORNEY FOR APPELLANT,
JOSEPH W. PEINE
/s/ Yvonne Y. Ho
Yvonne Y. Ho
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APPENDIX
Order Granting Motion to Seal Court Records ......................................................... A
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#4893861.4
Tab A
5ELP)S
NO. 2008-61097
JOSEPH W. PEINE, § IN THE DISTRICT COURT OF
Plaintiff, §
§
VS. § HARRIS COUNTY, TEXAS
§
ELITE AIRFREIGHT, INC., §
AND ADVANCED LOGISTICS §
SERVICES, INC., §
Defendants. § 189™ JUDICIAL DISTRICT
ORDER GRANTING MOTION TO SEAL COURT RECORDS
On this day the Court considered the Motion to Seal Court Records filed by Elite
Airfreight, Inc. and Advanced Logistics Services, Inc. (“ALSI”) (collectively, “Defendants”)
(the “Motion”).
After careful consideration, the Court is of the opinion that the Motion should be
GRANTED. The Court finds that the documents sought to be sealed contain communications
that are protected by the attorney-client privilege and that there is therefore a specific, serious
and substantial interest which clearly outweighs the presumption of openness or any probable
adverse effect that sealing will have upon the general public health or safety. Moreover this
y
court finds that no less restrictive means than sealing records will adequately ana effectively
protect the specific interest asserted.
It is therefore ORDERED that Defendants’ Motion is GRANTED, and pursuant to o-
Texas Rule of Civil Procedure 76a(l)(a), the following items are sealed: the JcJ
A
transcript of the bill of exception made by Plaintiff of the testimony that would have been offered
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by Edward Peine; the exhibits to that bill of exception, including the deposition transcript of
Edward Peine, whether attached to the transcript as an exhibit or contained in the court’s files in
any manner; the exhibits to Plaintiffs Responses to Defendants’ No-ÿvi •til for
Chris Daniel
District Clerk
OCT 17
7
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Summary Judgment filed on November 6, 2009; and the exhibits to the Plaintiffs Responses to
Defendants’ Traditional Motion for Summary Judgment filed on November 13, 2009.
The District Clerk is ordered to seal the records.
SIGNED this the
11 day of Lt , 2014.
HON. WILLIAM R. BURKE, JR.,
JUDGE PRESIDING
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