in Re: Ty Beard, Jim E. Bullock, Brian Casper, Craig Daugherty and Don Harris ( 2015 )

ACCEPTED
12-15-00005CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/14/2015 10:02:33 AM
CATHY LUSK
CLERK
EMERGENCY RELIEF REQUESTED
ORAL ARGUMENT REQUESTED
FILED IN
12th COURT OF APPEALS
NO. ____________ TYLER, TEXAS
1/14/2015 10:02:33 AM
CATHY S. LUSK
Clerk
In the Court of Appeals
Twelfth Judicial District
Tyler, Texas
IN RE COUNSEL FOR GOUGHNOUR, Relators
PETITION FOR WRIT OF MANDAMUS
From the 241st District Court of Smith County, Texas
Jim E. Bullock Ty Beard
Texas Bar No. 00795271 State Bar No. 00796181
Brian Casper Donald Harris
State Bar No. 24075563 State Bar No. 00796709
CANTEY HANGER, LLP Craig Daugherty
1999 Bryan St. State Bar No. 05404300
Suite 3300 BEARD & HARRIS, P.C.
Dallas, Texas 75201 100 Independence Place,
Telephone: (214) 978-4100 Suite 101
Facsimile: (214) 978-4150 Tyler, Texas 75703
jbullock@canteyhanger.com Telephone: (903) 509-4900
bcasper@canteyhanger.com Facsimile: (903) 509-4908
ty@beardandharris.com
don@beardandharris.com
craig@beardandharris.com
Attorneys for Relators
Identity of Parties & Counsel
Relators
Relators in this matter are Ty Beard, Jim E. Bullock, Brian Casper, Craig
Daugherty, and Don Harris, attorneys who represent Deborah Patterson (Howard)
Goughnour in the matter styled In re the Deborah Patterson Howard Trust, Cause
No. 11-2216-C, pending before the 241st District Court of Smith County, Texas. The
attorneys representing Relators are:
Jim E. Bullock Ty Beard
Brian Casper Donald Harris
CANTEY HANGER, LLP Craig Daugherty
1999 Bryan St. BEARD & HARRIS, P.C.
Suite 3300 100 Independence Place,
Dallas, Texas 75201 Suite 101
Telephone: (214) 978-4100 Tyler, Texas 75703
Facsimile: (214) 978-4150 Telephone: (903) 509-4900
jbullock@canteyhanger.com Facsimile: (903) 509-4908
bcasper@canteyhanger.com ty@beardandharris.com
don@beardandharris.com
craig@beardandharris.com
Respondent
Respondent in this matter is the Hon. Jack Skeen, Jr., presiding judge of the
241st District Court of Smith County, Texas.
PETITION FOR WRIT OF MANDAMUS i
Real Party in Interest
The real party in interest in this matter is Robert H. Patterson, Jr., trustee of
the Deborah Patterson Howard Trust. The attorneys representing the real party in
interest are:
Mary C. Burdette Richard H. Lottman
Brandy Baxter-Thompson Gregory T. Kimmel
CALLOWAY, NORRIS, BURDETTE ALLENLOTTMANNKIMMEL, P.C.
& WEBER, PLLC 3805 Old Bullard Road
3811 Turtle Creek Blvd., Tyler, Texas 75701
Suite 400 Telephone: (903) 534-0006
Dallas, Texas 75219 Facsimile: (903) 534-3757
Telephone: (214) 521-1520 Richard@allenlottmann.com
Facsimile: (214) 521-2201 Greg@allenlottmann.com
MBurdette@cnbwlaw.com
BBThompson@cnbwlaw.com
PETITION FOR WRIT OF MANDAMUS ii
Table of Contents
Identity of Parties & Counsel ..................................................................................... i
Index of Authorities ................................................................................................. iv
Statement of the Case............................................................................................... vi
Statement of the Jurisdiction .................................................................................... vi
Issues Presented ...................................................................................................... vii
Statement of Facts ......................................................................................................1
Argument & Authorities ............................................................................................5
I. Respondent Abused His Discretion ....................................................................5
A. There Was No Discovery Abuse (Issue I) .....................................................6
B. Rule 215.3 Does Not Support the Sanctions Order (Issue II) ......................13
C. “Joint and Several” Sanction was an Abuse of Discretion (Issue III) .........14
D. Award of Attorneys’ Fees was an Abuse of Discretion (Issue IV) .............16
E. Respondent Failed to Consider Lesser Sanction (Issue V) ..........................17
F. Respondent Ignored Applicable Rules of Procedure (Issue VI) ..................20
II. Relators Have No Adequate Appellate Remedy (Issues VII-VIII) .................22
A. The Sanctions Order Exceeds Respondent’s Jurisdiction...........................22
B. Appeal is an Illusory Remedy for Relators .................................................23
C. Mandamus is Needed to Give Direction to the Law ...................................25
Conclusion ...............................................................................................................26
Prayer .......................................................................................................................27
Certification .............................................................................................................29
Certificate of Compliance ........................................................................................29
Certificate of Service ...............................................................................................30
Appendix ..................................................................................................................31
PETITION FOR WRIT OF MANDAMUS iii
Index of Authorities
Cases
American Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006) .... 13, 14, 18
Approximately $14,980.00 v. State, 261 S.W.3d 182 (Tex. App.—Houston [14th
Dist.] 2008, no pet.) ..............................................................................................20
Centennial Ins. Co. v. Commercial Union Ins. Companies, 803 S.W.2d 479 (Tex.
App.—Houston [14th Dist.] 1991, no writ) .................................................. 20, 21
Chapa v. Garcia, 848 S.W.2d 667 (Tex. 1992) ...................................... 6, 12, 14, 15
Dunn v. Street, 938 S.W.2d 33 (Tex. 1997).............................................................22
Electronic Data Systems Corp. v. Tyson, 862 S.W.2d 728 (Tex. App.—Dallas
1993, no writ) .......................................................................................................12
Great W. Drilling, Ltd. v. Alexander, 305 S.W.3d 688 (Tex. App.—Eastland 2009,
no pet.) ..................................................................................................................23
Grunauer v. Difilippo, 07-03-0149-CV, 2004 WL 111462 (Tex. App.—Amarillo
Jan. 22, 2004, no pet.).............................................................................................7
Hough v. Johnson, 456 S.W.2d 775 (Tex. Civ. App.—Austin 1970, no writ) .........7
Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) .......................... 5, 12, 14, 15, 20, 23
Hunt v. Heaton, 643 S.W.2d 677 (Tex. 1982) .................................................. 20, 21
In re Arras, 24 S.W.3d 862 (Tex. App.—El Paso 2000, no pet.) ............................24
In re CompleteRx, Ltd., 366 S.W.3d 318 (Tex. App.—Tyler 2012, no pet.) .. 20, 21,
27
In re Essex Insurance Co., 13-1006, 2014 WL 6612590 (Tex. Nov. 21, 2014) .....26
In re Ford Motor Co., 12-0957, 2014 WL 2994622 (Tex. July 3, 2014) 6, 17, 20, 26
In re Ford Motor Co., 988 S.W.2d 714 (Tex. 1998) ...............................................13
In re GlobalSanteFe Corp., 275 S.W.3d 477 (Tex. 2008) ......................................27
In re John G. & Marie Stella Kenedy Memorial Foundation, 315 S.W.3d 519 (Tex.
2010) .....................................................................................................................23
In re Long, 984 S.W.2d 623 (Tex. 1999) .................................................................24
In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999) ................................................26
In re Prudential Insurance Company of America, 148 S.W.3d 124 (Tex. 2004) ..22,
25
In re Rusk Energy, Ltd., 12-07-00245-CV, 2008 WL 257019 (Tex. App.—Tyler
Jan. 31, 2008, no pet.).................................................................................... 22, 24
In re Siemens Corp., 153 S.W.3d 694 (Tex. App.—Dallas 2005, no pet.) ...... 26, 27
In re Texas Natural Resource Conservation Commission, 85 S.W.3d 201 (Tex.
2002) .....................................................................................................................24
In re Van Waters & Rogers, Inc., 145 S.W.3d 204 (Tex. 2004) .............................25
PETITION FOR WRIT OF MANDAMUS iv
Jones v. American Flood Research, Inc., 218 S.W.3d 929 (Tex. App.—Dallas
2007, no pet.) ................................................................................................. 13, 19
Mart. v. Khoury, 843 S.W.2d 163 (Tex. App.—Texarkana 1992, no writ) ..........24
Maynard v. Caballero, 752 S.W.2d 719 (Tex. App.—El Paso 1988, writ denied) 23
Old Republic Ins. Co. v. Edwards, 01-10-00150-CV, 2011 WL 2623994 (Tex.
App.—Houston [1st Dist.] June 30, 2011, no pet.) ................................................7
Renfroe v. Jones & Associates, 947 S.W.2d 285 (Tex. App.—Fort Worth 1997,
writ denied) ...........................................................................................................23
Scheffer v. Chron, 560 S.W.2d 419 (Tex. Civ. App.—Beaumont 1977, writ ref’d
n.r.e.) .............................................................................................................. 20, 21
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) ... 6, 18,
19
Union Carbide Corp. v. Martin, 349 S.W.3d 137 (Tex. App.—Dallas 2011, no
pet.) ................................................................................................................ 19, 20
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ..................................... 5, 14, 15, 20
Way v. Coca Cola Bottling Co., 119 Tex. 419, 29 S.W.2d 1067 (Comm’n App.
1930) .....................................................................................................................23
Statutes
TEX. CIV. PRAC. & REM. CODE §41.008(c) ..............................................................14
TEX. GOV’T CODE §22.201....................................................................................... vi
TEX. GOV’T CODE §22.221....................................................................................... vi
Rules
LOCAL SMITH COUNTY RULES OF CIVIL TRIAL, RULE 2.1 ........................................21
LOCAL SMITH COUNTY RULES OF CIVIL TRIAL, RULE 2.4 ........................................21
TEX. R. APP. P. 44.1(a) .............................................................................................24
TEX. R. CIV. P. 176.2 ................................................................................................10
TEX. R. CIV. P. 176.5 ..................................................................................................7
TEX. R. CIV. P. 191.2 ......................................................................................... 20, 21
TEX. R. CIV. P. 205.1 ..................................................................................................8
TEX. R. CIV. P. 215.2 ................................................................................................13
TEX. R. CIV. P. 215.3 ......................................................................................... 13, 23
TEX. R. EVID. 902 .......................................................................................................9
PETITION FOR WRIT OF MANDAMUS v
Statement of the Case
Relators represent Deborah Patterson (Howard) Goughnour, remainder
beneficiary of the Deborah Patterson Howard Trust, in the matter styled In re the
Deborah Patterson Howard Trust, Cause No. 11-2216-C, pending before the 241st
District Court of Smith County, Texas, a suit for damages involving claims that the
real party in interest, Robert H. Patterson, Jr., breached his fiduciary duty as trustee
of the Deborah Patterson Howard Trust. On April 22, 2014, Respondent, the Hon.
Jack Skeen, Jr., presiding judge of the 241st District Court, sanctioned Relators under
Texas Rule of Civil Procedure 215.3; on December 5, 2014, Respondent ordered
Relators to appear before him on January 21, 2015 to show cause why they should
not be held in contempt for not complying with the April 22, 2014 sanctions order.
Relators seek relief from these orders.
Statement of the Jurisdiction
The Court of Appeals has jurisdiction over this mandamus proceeding under
Sections 22.201(m) and 22.221(b)(1) of the Texas Government Code.
PETITION FOR WRIT OF MANDAMUS vi
Issues Presented
I. Was it an abuse of discretion for Respondent to sanction Relators for conduct
that is not a violation of any discovery rule or order?
II. Since Texas Rule of Civil Procedure 215.3 only permits sanctions against
“parties,” was it an abuse of discretion for Respondent to sanction the
attorneys (who are not “parties”) under this rule?
III. Without a relationship between the sanctioned conduct and four of the five
Relators, was it an abuse of discretion for Respondent to sanction all five
Relators jointly and severally?
IV. Did Respondent abuse his discretion by awarding attorney’s fees without the
evidence required by the Texas Supreme Court in Long v. Griffin and El Apple
I, Ltd. v. Olivas?
V. Did Respondent abuse his discretion by failing to consider less stringent
sanctions as required by the Texas Supreme Court in TransAmerican Natural
Gas Corp. v. Powell and American Flood Research, Inc. v. Jones?
VI. Did Respondent abuse his discretion by disregarding Texas Rule of Civil
Procedure 191.2 and the Smith County Local Rules?
VII. Do Relators have an adequate appellate remedy since they are not “parties” to
this litigation and have no independent right of appeal, and since Respondent
(despite continuing the case without any new trial setting) deliberately ordered
the sanctions paid prior to final judgment and has since issued a “show cause”
order?
VIII. Does Respondent’s abuse of discretion constitute an exceptional case
warranting mandamus review and intervention?
PETITION FOR WRIT OF MANDAMUS vii
Statement of Facts
In July 2011, real party in interest Robert H. Patterson, Jr., (the “Trustee”)
initiated the matter styled In re the Deborah Patterson Howard Trust, Cause No. 11-
2216-C pending before the 241st District Court of Smith County, Texas (the
“underlying action”), filed his resignation as trustee of the Deborah Patterson
Howard Trust (the “Trust”), and requested that the Court approve his final
accounting and discharge him from all liability. [R. TAB 1]. Deborah Patterson
(Howard) Goughnour, the Trust’s remainder beneficiary, (“Deborah”) intervened
and brought counterclaims against the Trustee for breach of his fiduciary duty arising
out of his misusing the Trust’s money to fund a speculative real estate venture,
known as Bighorn Ventures III, Ltd., in which the Trustee had a personal, financial
stake (“Bighorn”). [R. TAB 2].
On May 29, 2013, Craig Daugherty (“Mr. Daugherty”), one of the attorneys
representing Deborah, sent an email to Janie Malone and Jerry Hill at Central Title
Company seeking copies of certain documents (the “Requested Documents”). [R.
TAB 5, EX. B, at 4]. Attached to this email was a document entitled “Subpoena to
Appear and Produce Documents” (the “Purported Subpoena”) which requested the
title company’s custodian of records “to produce and permit inspection and copying”
of the Requested Documents in the courtroom of the 401st District Court of Smith
County, Texas on June 25, 2013 or, alternatively, to produce the Requested
PETITION FOR WRIT OF MANDAMUS PAGE 1
Documents along with a business records affidavit by May 28, 2013. [R. TAB 5, EX.
A, EX. B at 4-11]. The Requested Documents concerned “real estate transactions for
which Central Title Company served as the closing agent” and which involved the
Trustee, entities owned by the Trustee, or entities which had conducted business
with the Trust. [R. TAB 5 at 30-31, EX. A at 3]. Mr. Daugherty’s email requested that
Mr. Hill or Ms. Malone call him to discuss. [R. TAB 5, EX. B at 4].
Mr. Hill called Mr. Daugherty and arrangements were made for Central Title
Company to voluntarily produce certain documents. [R. TAB 5 at 32-33; TAB 7 at 30-
35]. Indeed, no one from Central Title Company appeared in the courtroom of the
401st District Court of Smith County, Texas on June 25, 2013 or called Mr.
Daugherty to question whether such appearance was required. [R. TAB 7 at 37-39].
Instead, around the beginning of July 2013, Central Title Company began
voluntarily providing the Requested Documents as Mr. Hill and Mr. Daugherty
agreed. [R. TAB 5 at 32-33, EX. B at 12-14; TAB 7 at 31-32].
Subsequently, on July 8, 2013, without conferring with Deborah’s counsel,
the Trustee’s lawyers moved to quash the Purported Subpoena and for sanctions. [R.
TAB 3; TAB 5 at 35, 57; TAB 6 at 28, 31]. On July 10, 2013, Mr. Daugherty wrote the
Trustee’s counsel that he would retract the Purported Subpoena, serve Central Title
Company with an actual subpoena for the Requested Documents and agreed that the
Trustee’s motion to quash would apply to this actual subpoena. [R. TAB 5, EX. C].
PETITION FOR WRIT OF MANDAMUS PAGE 2
Additionally, he provided the Trustee’s counsel with access to all of the documents
which Central Title Company had thus far produced. [Id.]. Nonetheless, the Trustee
did not withdraw his motion for sanctions.
On September 12, 2013, September 19, 2013, and November 13, 2013, the
Respondent conducted a hearing on the Trustee’s motion. [R. TABS 5-7]. The
Trustee presented no evidence that he had been harmed or prejudiced in any way by
the Purported Subpoena beyond Relators simply having received some of the
Requested Documents from Central Title Company. [R. TAB 5 at 21, 37, 42-43, 47;
TAB 7 at 10]. The Trustee did not offer into evidence any invoices for his attorneys’
fees or other written statements showing what services were performed, which
attorney performed them and at what hourly rate, when they were performed or how
much time the work required.1
Respondent did not grant (or even rule on) the Trustee’s motion to quash but
nevertheless ruled that:
“a procedure was used that in the Court’s view—and certainly, y’all
have a difference of opinion about—difference of opinion, but in the
Court’s view, a procedure was used that didn’t meet the requirements
of the statute. And I’ll leave it at that…
…the Court does find the rule was violated. The Court does find
sanctions are in order. Attorney’s fees are ordered for what the Court
1
Respondent at one point stated “I’ve got the attorney fee schedule I asked for.” [R. TAB 6 at 114].
And the Trustee’s counsel at one point stated “we have submitted a statement for fees….” [R. TAB
7 at 70]. But no invoices or other documents supporting the testimony of the Trustee’s counsel
were offered or admitted into evidence.
PETITION FOR WRIT OF MANDAMUS PAGE 3
allowed for sanctions for. It’s up to the Court to try to reach what, in
the Court’s view, is reasonable and necessary…
…I’m going to award attorney’s fees as a sanction for a violation of the
rule for a total of 35 hours at $400 an hour, which is a total of
$14,000….”
[R. TAB 7 at 82, 90-91]. On April 22, 2014, Respondent signed the Trustee’s
proposed order (the “Sanctions Order”). [R. TAB 9].
The Sanctions Order finds that Relators “prepared, signed and sent a false trial
Subpoena to Central Title Company dated May 28, 2013,” that Relators “sent the
False Trial Subpoena in order to avoid compliance with Rules 176.2, 176.3(b),
199.2(b)(5), 200, and 205, which constitutes an abuse of the discovery process that
is sanctionable under Rule 215.3,” and that “an appropriate sanction” is an award of
attorney’s fees calculated at 35 hours at the rate of $400 per hour “which is
reasonable and necessary”; it then orders Relators, jointly and severally, to pay
$14,000 to the Trust no later than July 21, 2014. [Id.].
Relators filed their Motion to Modify Sanction Order on June 20, 2014
requesting that Respondent modify the Sanctions Order to defer payment until after
rendition of a final judgment in the underlying action. [R. TAB 10]. Relators’ Motion
to Modify Sanction Order was submitted for consideration on July 7, 2014;2 despite
2
“Motions shall state a date of submission at which time the Motion will be considered without a
hearing, unless both a request for oral argument and a response are filed. The movant shall select
the date of submission which shall be no sooner than the Monday following fifteen (15) days from
PETITION FOR WRIT OF MANDAMUS PAGE 4
passage of the submission date, Respondent has not ruled either way on Relators’
request.
The trial of this cause has been continued five times, and there is now no trial
setting at all. [R. TAB 7 at 103-09; TAB 12].
On September 17, 2014, the Trustee moved for an order holding Relators in
contempt for failing to pay the attorneys’ fees awarded under the Sanctions Order.
[R. TAB 13]. On December 5, 2014, Respondent signed a show cause order requiring
Relators to appear in the courtroom of the 241st District Court of Smith County,
Texas on January 21, 2015 at 9:00 a.m. “to then and there show cause why [Relators]
have not complied with the [Sanctions Order].” [R. TAB 14].
Argument & Authorities
As the parties seeking mandamus relief, Relators must show that Respondent
abused his discretion and that they have no adequate remedy by appeal. Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992).
I. Respondent Abused His Discretion
A trial court has no discretion in determining what the law is or applying the
law to the facts. Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996). A clear
failure by the trial court to analyze or apply the law correctly (even if the issue is one
the date of filing, except on leave of Court. The motion will be submitted to the Court for ruling
on that date or later.” LOCAL SMITH COUNTY RULES OF CIVIL TRIAL, Rule 2.3.
PETITION FOR WRIT OF MANDAMUS PAGE 5
of first impression) constitutes an abuse of discretion. In re Ford Motor Co., 12-
0957, 2014 WL 2994622 (Tex. July 3, 2014); Chapa v. Garcia, 848 S.W.2d 667,
668 (Tex. 1992).
Imposing sanctions for discovery abuse requires the trial court, first, to find a
direct relationship exists between offensive conduct and the sanction imposed and,
second, to ensure the punishment fits the crime and is no more severe than necessary
to satisfy its legitimate purposes of securing compliance with discovery rules,
deterring other litigants from similar misconduct, and punishing violators.
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
Respondent both misconstrued and misapplied the law in the Sanctions Order
and, therefore, abused his discretion.
A. There Was No Discovery Abuse (Issue I)
The first prong of the TransAmerican test requires the court to determine
whether the underlying conduct actually constitutes an abuse of the discovery
process. In re Ford Motor Co., 988 S.W.2d at 718. There is no discovery abuse here.
The Sanctions Order declares that Relators “sent a false trial Subpoena to
Central Title Company….” [R. TAB 9, ¶¶1-2]. The Trustee argued and Respondent
concluded that the Purported Subpoena abused the discovery process by requiring
someone to appear at a trial or a hearing that didn’t exist. [R. TAB 5 at 9, 11]. But
the Purported Subpoena makes no mention whatsoever of a trial or even a hearing;
PETITION FOR WRIT OF MANDAMUS PAGE 6
indeed, its very title is “subpoena to appear and produce documents.” [R. TAB 5, EX.
A] (emphasis added).
In any event, the Purported Subpoena did not satisfy the requirements to be a
subpoena under Rule 176;3 it was not served by a sheriff or constable or non-party
over 18 years of age, was not accompanied with a witness fee, and no return was
filed with the trial court. [R. TAB 5 at 17; TAB 7 at 30-31]. Because it did not satisfy
the requirements of Rule 176, it was not an enforceable subpoena. See Hough v.
Johnson, 456 S.W.2d 775, 778 (Tex. Civ. App.—Austin 1970, no writ) (subpoena
effective only if “all prerequisites to the issuance and service of the subpoena have
been complied with”); see also Old Republic Ins. Co. v. Edwards, 01-10-00150-CV,
2011 WL 2623994 (Tex. App.—Houston [1st Dist.] June 30, 2011, no pet.) (no valid
subpoena where no return filed or witness fee tendered) and Grunauer v. Difilippo,
07-03-0149-CV, 2004 WL 111462 (Tex. App.—Amarillo Jan. 22, 2004, no pet.)
(failure to comply with Rule 176.1 made subpoena legally insufficient).
Because it was not an enforceable subpoena, its legal effect was no more than
a “pretty please” and Central Title Company’s compliance wholly voluntary.
3
See TEX. R. CIV. P. 176.5 (subpoena must be served by sheriff or constable of the State of Texas,
or any person who is not a party and is 18 years of age or older; must be served with fees required
by law; and proof of service must be made by filing either: (1) the witness’s signed written
memorandum attached to the subpoena showing that the witness accepted the subpoena; or (2) a
statement by the person who made the service stating the date, time, and manner of service, and
the name of the person served).
PETITION FOR WRIT OF MANDAMUS PAGE 7
Essentially, the Sanctions Order presupposes that requesting the voluntary sharing
of information somehow violates the Rulesthat simply asking is some
unforgiveable sin. The Texas Rules of Civil Procedure provide processes for and
protections from compelled disclosure and production,4 but they do not prohibit
obtaining information voluntarily shared. To interpret the Rules as Respondent has
would unimaginably increase the cost of litigation since even “friendly” witnesses
could not voluntarily provide evidence.
Fortunately, the Texas Supreme Court has not adopted such a costly restraint
on obtaining voluntarily disclosed information from non-parties.
Rather than violating any Rule, Mr. Daugherty explained that he was seeking
the voluntary production of documents together with a business records affidavit
under Texas Rule of Evidence 902(10):5
4
See TEX. R. CIV. P. 205.1 (“A party may compel discovery from a nonparty—that is, a person
who is not a party or subject to a party’s control—only by obtaining a court order under Rules
196.7, 202, or 204, or by serving a subpoena compelling: (a) an oral deposition; (b) a deposition
on written questions; (c) a request for production of documents or tangible things, pursuant to Rule
199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written
questions; and (d) a request for production of documents and tangible things under this rule”)
(emphasis added).
5
“Records or photocopies; admissibility; affidavit; filing. Any record or set of records or
photographically reproduced copies of such records, which would be admissible under Rule 803(6)
or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who
would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such
affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record
or records along with such affidavit are filed with the clerk of the court for inclusion with the
papers in the cause in which the record or records are sought to be used as evidence at least fourteen
days prior to the day upon which trial of said cause commences, and provided the other parties to
said cause are given prompt notice by the party filing same of the filing of such record or records
PETITION FOR WRIT OF MANDAMUS PAGE 8
a form of a witness subpoena was drawn up and was sent to the records
custodiannot served on the records custodian, not physically served,
no witness fee attached, simply sent to the records custodian along with
a business records affidavit. And they were given a choice; you can
comply with the request for production of documents, voluntarily
through the business records affidavit … if we have to we’ll subpoena
the records. It’s your choice. The subpoena, it’s important to
understand, was never being used to force production of documents. It
wasn’t worth the paper it was typed on.
[R. TAB 5 at 28]. Texas Rule of Evidence 902 supports a process for obtaining
business records via voluntary production without the need for subpoena, deposition
or deposition on written questions. [APPX. TAB C; R. TAB 8 at 2-4]. Indeed, the
process embodied in Rule of Evidence 902 does not require prior notice of the
request to the opposing party but only requires that notice of the intent to use the
documents be served on the opposing party at least two weeks prior to trial. TEX. R.
EVID. 902(10)(a).
Rather than violating any Rule, the process utilized by Mr. Daugherty is
permitted by a Rule (i.e., Texas Rule of Evidence 902). In fact, this “pretty please”
request for the voluntary production of documents under a Rule 902 affidavit—
whereby the draft “subpoena” is mailed, faxed, or emailed to a records custodian
and affidavit, which notice shall identify the name and employer, if any, of the person making the
affidavit and such records shall be made available to the counsel for other parties to the action or
litigation for inspection and copying. The expense for copying shall be borne by the party, parties
or persons who desire copies and not by the party or parties who file the records and serve notice
of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if
it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to
commencement of trial in said cause.” TEX. R. EVID. 902(10)(a).
PETITION FOR WRIT OF MANDAMUS PAGE 9
with instructions regarding voluntarily providing documents (including, in some
cases, a Rule 902 business records affidavit) but is not served under Rule 176.5(a)
unless the records custodian’s policy or procedure requires it—is a very common
practice in Texas, being sent hundreds of times (or more) each day. [R. TAB 6 at 22-
23; APPX. TAB E].6 Central Title Company did not require service of a subpoena; it
voluntarily produced the Requested Documents.
Moreover, the Purported Subpoena itself contradicts the Sanctions Order’s
finding of an attempt to “avoid compliance with Rules 176.2, 176.3(b), 199.2(b)(5),
200 and 205.” Had the Purported Subpoena been an attempt to compel Central Title
Company’s production of documents, it would absolutely have been permitted by
Rules 176.2 and 176.3(b), because it would have required Central Title Company
“to produce and permit inspection and copying…of documents or tangible things in
their possession, custody or control,” and by Rules 205.1(d) and 205.3(b), which
specifically permit the use of subpoenas to compel production of documents from
non-parties.7 Rules 199.2(b)(5) and Rule 200which govern production of
6
Respondent requested that Mr. Daugherty brief the Rule 902 business records affidavit procedure
for him. [R. TAB 6 at 113]. Mr. Daugherty’s detailed brief of Rule 902 business records affidavit
practice is set forth in the Record. [R. TAB 8].
7
See TEX. R. CIV. P. 176.2 (“A subpoena must command the person to whom it is directed to do
either or both of the following: (a) attend and give testimony at a deposition, hearing, or trial; (b)
produce and permit inspection and copying of designated documents or tangible things in the
possession, custody, or control of that person.”) (emphasis added); TEX. R. CIV. P. 176.3(b) (“A
subpoena may not be used for discovery to an extent, in a manner, or at a time other than as
provided by the rules governing discovery.”). TEX. R. CIV. P. 205.1(d) (“A party may compel
PETITION FOR WRIT OF MANDAMUS PAGE 10
documents at a deposition and the process for deposition on written questions,
respectivelyare not even applicable;8 Mr. Daugherty’s email was neither a
deposition notice nor a request that Central Title Company submit to a deposition on
written questions.
So, the Sanctions Order could not be based on a violation of Rules 199.2 or
200, because they are inapplicable. And, even had the Purported Subpoena been an
enforceable subpoena, the Sanctions Order could not be based on Rules 176.2,
176.3(b), 205.1(d) or 205.3(b), because they authorize the discovery of documents
from third parties via subpoena. In any event, the Sanctions Order cannot be based
on any alleged attempt by Relators to “avoid compliance with Rules 176.2, 176.3(b),
199.2(b)(5), 200, and 205,” because there was no enforceable subpoena or attempt
to serve one—these Rules simply do not apply to the Purported Subpoena.
discovery from a nonparty … by serving a subpoena compelling … a request for production of
documents and tangible things under this rule.”); TEX. R. CIV. P. 205.3(b) (“The notice must state:
(1) the name of the person from whom production or inspection is sought to be compelled; (2) a
reasonable time and place for the production or inspection; and (3) the items to be produced or
inspected ….”).
8
“A notice of intent to take an oral deposition must be served on the witness and all parties a
reasonable time before the deposition is taken…A notice may include a request that the witness
produce at the deposition documents or tangible things within the scope of discovery and within
the witness's possession, custody, or control. If the witness is a nonparty, the request must comply
with Rule 205 and the designation of materials required to be identified in the subpoena must be
attached to, or included in, the notice. The nonparty's response to the request is governed by Rules
176 and 205. When the witness is a party or subject to the control of a party, document requests
under this subdivision are governed by Rules 193 and 196.” TEX. R. CIV. P. 199.2(a), (b)(5). “A
party may take the testimony of any person or entity by deposition on written questions before any
person authorized by law to take depositions on written questions.” Id., 200.1(a), et seq.
PETITION FOR WRIT OF MANDAMUS PAGE 11
Respondent and the Trustee relied on Electronic Data Systems Corp. v. Tyson,
862 S.W.2d 728 (Tex. App.—Dallas 1993) for the proposition that using a subpoena
with a non-existent trial date to acquire documents from a non-party constituted an
abuse of discovery under Rule 215. [R. TAB 5 at 10]. Their reliance is misplaced.
In Electronic Data Systems Corp. v. Tyson, the trial court’s sanctions were
overturned, because the Dallas Court of Appeals found that “the trial court’s actions
do not meet the TransAmerican criteria” and that “the trial court abused its
discretion….” Electronic Data Systems Corp. v. Tyson, 862 S.W.2d 728, 738-39
(Tex. App.—Dallas 1993, no writ).
To summarize, the Sanctions Order is based on Respondent’s determination
that emailing a legally unenforceable request to voluntarily provide documents
violated—and revealed Relators’ attempt to avoid complying with—inapplicable
rules, all based on a prior trial court’s ruling that was reversed by the court of
appeals. “Because the record does not support the trial court’s finding that
[Relators’] conduct was an abuse of the discovery process…the trial court’s sanction
order was not just.” In re Ford Motor Co., 988 S.W.2d at 718. And Respondent’s
erroneous application of the law constitutes an abuse of discretion and a failure of
the first TransAmerican prong. In re Ford Motor Co., 2014 WL 2994622; Huie, 922
S.W.2d at 927-28; Chapa, 848 S.W.2d at 668; Walker, 827 S.W.2d at 840;
TransAmerican Natural Gas Corp., 811 S.W.2d at 917.
PETITION FOR WRIT OF MANDAMUS PAGE 12
B. Rule 215.3 Does Not Support the Sanctions Order (Issue II)
When a sanctions order names a specific rule or tracks a rule’s language, the
appellate court is confined to determining whether sanctions are proper under that
rule alone. American Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583-84 (Tex.
2006). Here, the Sanctions Order purports to punish Relators for “an abuse of the
discovery process that is sanctionable under Rule 215.3.” [R. TAB 9, ¶2].
However, Rule 215.3 applies only where “the court finds a party is abusing
the discovery process.” TEX. R. CIV. P. 215.3 (emphasis added). Rule 215.3 does
not provide a basis for sanctioning counsel. Compare TEX. R. CIV. P. 215.3 (trial
court may sanction “a party” for abusing the discovery process) with TEX. R. CIV. P.
215.2(b)(2), (8) (trial court may sanction a party “or the attorney advising him” for
disobeying a discovery order); see In re Ford Motor Co., 988 S.W.2d 714, 720-21
(Tex. 1998) (“When a trial court finds that a party has abused the discovery process,
Rule 215(3) authorizes a trial court to impose an appropriate sanction…under Rule
215, the trial court must predicate its award of attorney’s fees on a party’s abuse of
the discovery process”) (emphasis added); see also Jones v. American Flood
Research, Inc., 218 S.W.3d 929, 930 (Tex. App.—Dallas 2007, no pet.) (concluding
on original submission that the trial court abused its discretion by sanctioning
counsel under Rule 215.3 because it did not find that a party abused the discovery
process) (referencing Jones v. American Flood Research, Inc., 153 S.W.3d 718, 724
PETITION FOR WRIT OF MANDAMUS PAGE 13
(Tex. App.—Dallas 2005) review granted, judgment rev’d, 192 S.W.3d 581 (Tex.
2006)).
Because the Sanctions Order imposed a sanction on counsel under a rule
which does not provide for sanctioning counsel, Respondent failed to apply the law
correctly, which is an abuse of discretion. In re Ford Motor Co., 2014 WL 2994622;
Huie, 922 S.W.2d at 927-28; Chapa, 848 S.W.2d at 668; Walker, 827 S.W.2d at
840.9
C. “Joint and Several” Sanction was an Abuse of Discretion (Issue III)
The first TransAmerican prong also requires the trial court to ensure that any
sanction be imposed only on the person engaging in the offending conduct.
American Flood Research, Inc., 192 S.W.3d at 583. The Sanctions Order declared
that “Craig M. Daugherty, Ty Beard, Donald Harris, Jim E. Bullock and Brian
Casper…prepared, signed and sent a false trial Subpoena to Central Title
9
In his motion for sanctions, the Trustee also complained that Relators sought his removal as
trustee “without citing, or having, any legal authority for such relief” and made “false and
groundless accusations…[of] criminal charges.” [R. TAB 3, ¶¶17-18]. On the contrary, Respondent
correctly conducted a hearing under Section 113.082 of the Texas Trust Code (cited by Relators)
regarding the Trustee’s removal via interlocutory order. [R. TAB 15 at 32-48]. And the “false and
groundless accusations…[of] criminal charges” are specifically authorized as allegations to avoid
the limitation on punitive damages under Section 41.008 of the Texas Civil Practice and Remedies
Code. See TEX. CIV. PRAC. & REM. CODE §41.008(c) (“This section does not apply to a cause of
action against a defendant from whom a plaintiff seeks recovery of exemplary damages based on
conduct described as a felony in the following sections of the Penal Code if, except for Sections
49.07 and 49.08, the conduct was committed knowingly or intentionally: … (10) Section 32.45
(misapplication of fiduciary property or property of financial institution)”); see also R. TAB 2 at
¶69, TAB 16 at 5-6.
PETITION FOR WRIT OF MANDAMUS PAGE 14
Company…” and attempted to “avoid compliance with Rules 176.2, 176.3(b),
199.2(b)(5), 200, and 205….” [R. TAB 9, ¶¶1-2]. However, there simply is no legally
sufficient (or even credible) evidence in the record that Ty Beard, Donald Harris,
Jim E. Bullock or Brian Casper participated in preparing, signing or sending any
“false trial Subpoena to Central Title Company.” In addition to the fact that the
Purported Subpoena simply was not a “false trial subpoena,” it was not signed by
Ty Beard, Donald Harris, Jim E. Bullock or Brian Casper, and the email to Central
Title Company was not sent by Ty Beard, Donald Harris, Jim E. Bullock or Brian
Casper. [R. TAB 5, EX. B at 4-11].
Absent evidence that they prepared or signed the Purported Subpoena or
emailed it to Central Title Company, the Sanctions Order fails to establish a direct
relationship between the sanction and any improper conduct by Ty Beard, Donald
Harris, Jim E. Bullock and Brian Casper. Sanctioning them “jointly and severally”
therefore, is contrary to the law’s prescription. American Flood Research, Inc., 192
S.W.3d at 583; TransAmerican Natural Gas Corp., 811 S.W.2d at 917. And
Respondent’s misapplying the law constitutes an abuse of discretion. In re Ford
Motor Co., 2014 WL 2994622; Huie, 922 S.W.2d at 927-28; Chapa, 848 S.W.2d at
668; Walker, 827 S.W.2d at 840.
PETITION FOR WRIT OF MANDAMUS PAGE 15
D. Award of Attorneys’ Fees was an Abuse of Discretion (Issue IV)
A party applying for an award of attorney’s fees must provide sufficient
evidence supporting the request before the court can make a meaningful review and
ruling. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761-64 (Tex. 2012). Sufficient
evidence includes, at a minimum, evidence “of the services performed, who
performed them and at what hourly rate, when they were performed, and how much
time the work required”; indeed, without any evidence of the time spent on specific
tasks, the trial court has insufficient information to meaningfully review the fee
request. Long v. Griffin, 11-1021, 2014 WL 1643271 (Tex. Apr. 25, 2014).
Moreover, the request should be supported by “contemporaneous billing records or
other documentation recorded reasonably close to the time when the work is
performed.” El Apple I, Ltd., 370 S.W.3d at 762-63.
The Sanction Order merely states that Relators should reimburse the Trust for
the Trustee’s attorneys “preparing and filing the Motion for Sanctions as well as
preparing for and attending three (3) hearings on the Motion for
Sanctions…calculated at thirty-five (35) hours at the rate of $400 per hour, which is
reasonable and necessary….” [R. TAB 9, ¶¶3-4]. The only evidence presented to the
trial court consisted of general, summary testimony by the Trustee’s counsel opining
that more than $20,000 was “reasonable and necessary.” [R. TAB 5 at 22-23; TAB 7
at 70-71, 89]. No written statements or invoices showing “the services performed,
PETITION FOR WRIT OF MANDAMUS PAGE 16
who performed them and at what hourly rate, when they were performed, and how
much time the work required” were introduced into evidence. This summary
testimony without the detailed evidence indicating the time expended on specific
tasks simply was not legally sufficient evidence to support Respondent’s award of
attorneys’ fees. Long, 2014 WL 1643271.
Moreover, the Sanctions Order was not supported by any (much less legally
sufficient) evidence “of the services performed, who performed them and at what
hourly rate, when they were performed, and how much time the work required” or
“contemporaneous billing records or other documentation recorded reasonably close
to the time when the work is performed”both required by the Texas Supreme
Court for an award of attorney’s fees. Long, 2014 WL 1643271; El Apple I, Ltd.,
370 S.W.3d at 762-64. In fact, despite two of the attorneys stating they billed at a
lower rate, the Sanctions Order awards fees at $400 per hour without any (much less
legally sufficient) evidence of which attorney provided which service. Simply put,
Respondent’s granting any attorney’s fees based on the evidence before him
disregarded the Texas Supreme Court’s mandate and was an abuse of discretion. In
re Ford Motor Co., 2014 WL 2994622; Walker, 827 S.W.2d at 840.
E. Respondent Failed to Consider Lesser Sanction (Issue V)
In rendering sanctions, the trial court must consider the availability of less
stringent sanctions and whether such lesser sanctions would fully promote
PETITION FOR WRIT OF MANDAMUS PAGE 17
compliance. TransAmerican Natural Gas Corp., 811 S.W.2d at 917-18; American
Flood Research, Inc., 192 S.W.3d at 583. Respondent did not.
While the evidence unquestionably shows that Mr. Daugherty immediately
offered an accommodation upon learning of the Trustee’s concerns (arguably
requiring less than one hour of time for the Trustee’s counsel to confer with Mr.
Daugherty), [R. TAB 5 at 51, 54-55, 57-58, 64-65, EX. C; TAB 6 at 29-30; TAB 7 at
90-91], the record shows that Respondent did not consider anything other than
awarding nearly the full amount of attorneys’ fees sought by the Trustee’s counsel.
[R. TAB 5 at 41-44, 62-63, 66-68; TAB 6 at 48; TAB 7 at 76].
Rather, the situation here is much the same as in Union Carbide Corporation
v. Martin, 349 S.W.3d 137 (Tex. App.Dallas 2011):
[I]t is uncontroverted that Martin’s counsel did not contact Union
Carbide’s counsel to confer regarding Martin’s opposition to the
subpoena duces tecum prior to filing the motions to quash the subpoena
duces tecum, for protective order, and for sanctions. The local rules of
the Dallas County civil district courts specifically require that prior to
filing a motion, “counsel for the potential movant shall personally
attempt to contact counsel for the potential respondent” in an effort to
resolve disputed matters...Further, the rules of civil procedure require a
certificate of conference on all discovery motions or requests for
hearings related to discovery…Martin’s June 15, 2009 motions,
including his motion for sanctions, did not contain a certificate of
conference. Martin’s counsel admitted that he failed to confer with
counsel for Union Carbide prior to filing the motions. The record is also
uncontroverted that once Union Carbide became aware of Martin’s
objections to Union Carbide’s discovery and the motions filed by
Martin, Union Carbide repeatedly attempted to reach Martin’s counsel
regarding Martin’s objections to the discovery and to advise Martin’s
PETITION FOR WRIT OF MANDAMUS PAGE 18
counsel that Union Carbide was willing to withdraw the subpoena
duces tecum.
Union Carbide Corp. v. Martin, 349 S.W.3d 137, 146-48 (Tex. App.—Dallas 2011,
no pet.). In this case, it is uncontroverted that the Trustee’s counsel did not confer
with Relators prior to filing the motion for sanctions, that such conference was
required by the Smith County local rules prior to a hearing on any motion for
sanctions, [APPX. TAB D, §2.1], and that Mr. Daugherty promptly contacted the
Trustee’s counsel and took steps in response to the Trustee’s concerns.
The conclusion here is the same which the Dallas Court of Appeals reached
in Union Carbide Corp., that the time and expense spent by all on the Trustee’s
motion and hearings simply could have been avoided by the Trustee’s counsel
complying with Local Rule 2.1 and Texas Rule of Civil Procedure 191. See id., 349
S.W.3d at 147.
And just as in Union Carbide Corp., neither the record nor the Sanctions
Order contains a statement by the trial court that a lesser sanction would not be
effective or any indication that the trial court even considered lesser sanctions. See
id.; TransAmerican Natural Gas Corp., 811 S.W.2d at 917; Jones, 218 S.W.3d at
932. Indeed, the Trustee presented no legally sufficient evidence (indeed, no
evidence) that the Purported Subpoena caused him any actual, measurable harm that
was not redressed by Mr. Daugherty’s subsequent actions.
PETITION FOR WRIT OF MANDAMUS PAGE 19
Accordingly, the same as in Union Carbide Corp., Respondent disregarded
the requirements of the Texas Supreme Court which constituted an abuse of
discretion. In re Ford Motor Co., 2014 WL 2994622; Huie, 922 S.W.2d at 927-28;
Walker, 827 S.W.2d at 840; Union Carbide Corp., 349 S.W.3d at 148.
F. Respondent Ignored Applicable Rules of Procedure (Issue VI)
A trial court’s clear failure to apply the law correctly constitutes an abuse of
discretion. In re CompleteRx, Ltd., 366 S.W.3d 318, 321 (Tex. App.—Tyler 2012,
no pet.). Accordingly, a trial court may not completely disregard rules governing
trials. Hunt v. Heaton, 643 S.W.2d 677, 678 (Tex. 1982); Centennial Ins. Co. v.
Commercial Union Ins. Companies, 803 S.W.2d 479, 482 (Tex. App.—Houston
[14th Dist.] 1991, no writ); Scheffer v. Chron, 560 S.W.2d 419, 421 (Tex. Civ.
App.—Beaumont 1977, writ ref’d n.r.e.). And when the language in a rule is specific
and its meaning is clear, the rule is entitled to a literal interpretation. Approximately
$14,980.00 v. State, 261 S.W.3d 182, 187 (Tex. App.—Houston [14th Dist.] 2008,
no pet.)
Rule of Civil Procedure 191.2 and Smith County Local Rule 2.1 both required
the Trustee’s counsel to confer with Relators prior to filing the motion to quash and
for sanctions, and Local Rules 2.1 and 2.4 specifically prohibited Respondent’s
consideration of the Trustee’s motion without such conference. See TEX. R. CIV. P.
191.2 (discovery motions and requests for hearings “must contain” a certificate of
PETITION FOR WRIT OF MANDAMUS PAGE 20
conference); LOCAL SMITH COUNTY RULES OF CIVIL TRIAL, RULE 2.1, 2.4 (court will
not consider a motion for sanctions absent certificate of conference; clerk of the court
is directed not to submit opposed motions without certificate of conference).10
There is no question that the Trustee’s counsel did not confer with Relators
prior to filing the motion for sanctions. There is no question that Respondent
proceeded to hear, consider and rule on the Trustee’s motion despite the lack of such
conference. And there is no question that these actions violated the clear language
of both the Rules of Civil Procedure and the Local Rules of Smith County. In other
words, Respondent completely disregarded both the Texas Rules of Civil Procedure
and the Local Rules of Smith County and, thus, abused his discretion. Hunt, 643
S.W.2d at 678; In re CompleteRx, Ltd., 366 S.W.3d at 321; Centennial Ins. Co., 803
S.W.2d at 482; Scheffer, 560 S.W.2d at 421.
10
“All discovery motions or requests for hearings relating to discovery must contain a certificate
by the party filing the motion or request that a reasonable effort has been made to resolve the
dispute without the necessity of court intervention and the effort failed.” TEX. R. CIV. P. 191.2.
“Before filing a motion, counsel for a moving party must confer or certify that a reasonable effort
has been made to confer with the counsel, if known, of all parties affected by the requested relief
to determine whether or not the contemplated motion will be opposed. Such a conference is
required for all motions except motions to dismiss the entire action, motions to quash, motions
for protection, temporary restraining orders, motions for judgment on the pleadings, motions for
summary judgment, and motions for new trial…If a motion to compel or for sanctions is sought,
the Court will not consider the motion unless the movant certifies that the movant has conferred
with or made a reasonable effort to confer with opposing counsel in an effort to resolve the dispute
without the necessity of Court intervention and that attempt has failed.” LOCAL SMITH COUNTY
RULES OF CIVIL TRIAL, Rule 2.1 (emphasis added). “All opposed motions must include either (i)
a certificate which states that a conference was held and indicates the date of the conference and
the attorneys who conferred, or (ii) a certificate explaining why it was not possible to hold the
conference…The clerk of the court is directed not to submit opposed motions to the judge unless
there has been compliance with this rule.” Id., Rule 2.4 (emphasis in the original).
PETITION FOR WRIT OF MANDAMUS PAGE 21
II. Relators Have No Adequate Appellate Remedy (Issues VII-VIII)
Whether an appellate remedy is “adequate” requires a practical analysis rather
than a formulaic approach; the term “adequate” is simply a proxy for carefully
balancing use of mandamus proceedings
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 Insurance Company of America, 148 S.W.3d 124, 136 (Tex. 2004).
A. The Sanctions Order Exceeds Respondent’s Jurisdiction
A trial court has wide latitude in managing proceedings and parties before it,
but it cannot surpass the limits placed on its authority. See Dunn v. Street, 938
S.W.2d 33, 35 (Tex. 1997) (mandamus proper to review show cause order trial court
had no jurisdiction to issue); In re Rusk Energy, Ltd., 12-07-00245-CV, 2008 WL
257019, at *6 (Tex. App.—Tyler Jan. 31, 2008, no pet.), subsequent mandamus
proceeding, 12-07-00245-CV, 2008 WL 375972 (Tex. App.—Tyler Feb. 13, 2008)
(trial court’s orders must be supported by sufficient evidence). Here, Respondent
sanctioned Relators for conduct which was not a violation of any discovery rule or
order, and he did so under a Rule which does not provide for sanctioning of counsel
while disregarding Texas Supreme Court mandates and rules—all beyond
PETITION FOR WRIT OF MANDAMUS PAGE 22
Respondent’s jurisdiction. Huie, 922 S.W.2d at 927-28. And mandamus is proper if
a trial court issues an order that exceeds its jurisdictional authority. In re John G. &
Marie Stella Kenedy Memorial Foundation, 315 S.W.3d 519, 522 (Tex. 2010).
B. Appeal is an Illusory Remedy for Relators
In order for an appeal to supersede the remedy by mandamus, not only must
there be an actual remedy by appeal, but also the appeal provided for must be
competent to afford relief on the very subject-matter of the application for
mandamus, equally convenient, beneficial, and effective as mandamus. Way v. Coca
Cola Bottling Co., 119 Tex. 419, 429-30, 29 S.W.2d 1067, 1071-72 (Comm’n App.
1930). While Rule 215.3 states than a sanctions order “shall be subject to review on
appeal from the final judgment,” TEX. R. CIV. P. 215.3, that, however, is an illusory
remedy for Relators.
First, Relators have no independent right of appeal. Relators are Deborah’s
attorneys and not “parties” to the underlying action. See Great W. Drilling, Ltd. v.
Alexander, 305 S.W.3d 688 (Tex. App.—Eastland 2009, no pet.) (attorney is
representative of party to the litigation); Maynard v. Caballero, 752 S.W.2d 719
(Tex. App.—El Paso 1988, writ denied) (attorney acts on behalf of his client);
Renfroe v. Jones & Associates, 947 S.W.2d 285 (Tex. App.—Fort Worth 1997, writ
denied) (attorney represents client in the litigation). This distinction deprives
Relators of an independent right to appeal the Sanctions Order. In re Arras, 24
PETITION FOR WRIT OF MANDAMUS PAGE 23
S.W.3d 862, 864 (Tex. App.—El Paso 2000, no pet.) (“Since Arras is not a party to
this action, she could not appeal from a judgment in the case.”); Martin v. Khoury,
843 S.W.2d 163, 165 (Tex. App.—Texarkana 1992, no writ) (“They are not parties
to this action and therefore could not appeal from a judgment in the case.”).
Second, there is no trial date. Indeed, Respondent continued the trial of the
underlying cause for the fifth time over a year ago with no resetting. [R. TAB 7 at
103-09; TAB 12]. Yet Respondent deliberately set payment under the Sanctions
Order to occur before final judgment in this case could be rendered. [R. TAB 7 at 92-
94]. So Relators face the loss of their money and damage to their professional
reputations, all for conduct which is not sanctionable, without any certainty they will
be afforded an opportunity to appeal—this is no adequate remedy. See In re Rusk
Energy, 2008 WL 257019 (no adequate remedy by appeal where deprivation of bond
money during trial without any likelihood of recovering damages for its loss of use).
Moreover, it is questionable whether the errors of the Sanctions Order could be
corrected on appeal from a final judgment absent a showing it “probably caused the
rendition of an improper judgment” or “probably prevented the appellant from
properly presenting the case to the court of appeals.” TEX. R. APP. P. 44.1(a); see In
re Rusk Energy, 2008 WL 257019 at *6.11
11
See also In re Texas Natural Resource Conservation Commission, 85 S.W.3d 201 (Tex. 2002)
(mandamus available to remedy TRO that violates time limitations); In re Long, 984 S.W.2d 623
(Tex. 1999) (mandamus available to review civil contempt order).
PETITION FOR WRIT OF MANDAMUS PAGE 24
Relators thus have no adequate appellate remedy; they are left with either
mandamus review of the Sanctions Order or no review at all. The Sanctions Order
creates a situation that cannot be corrected on appeal and thus makes an appeal
inadequate. See In re Van Waters & Rogers, Inc., 145 S.W.3d 204, 211 (Tex. 2004)
(an appeal is inadequate when an appellate court cannot cure the error). Hence, the
remedy under Rule 215.3 is purely “abstract or formulaic,” and denying mandamus
review of the Sanctions Order would require the Court of Appeals “to turn a blind
eye to blatant injustice.” In re Prudential, 148 S.W.3d at 136.
C. Mandamus is Needed to Give Direction to the Law
Intervention by the Court of Appeals is necessary “to give needed and helpful
direction to the law that would otherwise prove elusive in appeals from final
judgments.” In re Prudential, 148 S.W.3d at 136.
If the attempt to obtain potentially admissible evidence through voluntary
production of documents and a Rule 902 business records affidavit violates the
Texas Rules of Civil Procedure, then a systemic problem exists—a conflict between
the rules of procedure and the rules of evidence—that should be addressed so Texas
judges and lawyers alike have this “needed and helpful direction.”
If, however, the process utilized by Mr. Daugherty and countless other
practitioners does not offend the Texas Rules of Civil Procedure, then the Sanctions
Order was issued “with such disregard for guiding principles of law”Texas
PETITION FOR WRIT OF MANDAMUS PAGE 25
Supreme Court precedent, the Texas Rules of Civil Procedure, and the Local Rules
of Smith Countythat “the harm…becomes irreparable,” In re Masonite Corp., 997
S.W.2d 194, 197 (Tex. 1999) (internal quotations omitted), making this an
exceptional case warranting mandamus review. See In re Ford Motor Co., 2014 WL
2994622 (“[A] clear failure by the trial court to analyze or apply the law correctly
will constitute an abuse of discretion, and may result in appellate reversal by
extraordinary writ.”).
In short, mandamus review here is essential to preserve Relators’ important
substantive and procedural rights from impairment and loss and to give needed and
helpful direction to Respondent in applying the law. See In re Siemens Corp., 153
S.W.3d 694, 699 (Tex. App.—Dallas 2005, no pet.) (discussing elements of “an
exceptional case”). Mandamus relief is appropriate here “to spare the parties and
the public the time and money spent on fatally flawed proceedings.” In re Essex
Insurance Co., 13-1006, 2014 WL 6612590, at *3 (Tex. Nov. 21, 2014).
Conclusion
The Sanctions Order purports to punish Relators for conduct which does not
constitute an abuse of the discovery process, contradicts the evidence presented to
the trial court, disregards controlling law and applicable rules, and puts Relators in
a position where they have no adequate remedy by appeal. This is a case where
“mandamus relief will safeguard important substantive and procedural rights from
PETITION FOR WRIT OF MANDAMUS PAGE 26
impairment or loss…[and] allow the appellate courts to give needed and helpful
direction to the law that would otherwise prove elusive in appeals from final
judgments,” thereby justifying the review and relief sought by Relators. In re
GlobalSanteFe Corp., 275 S.W.3d 477, 483 (Tex. 2008); In re ComplexRx, Ltd., 366
S.W.3d at 321; In re Siemens Corp., 153 S.W.3d at 699.
Prayer
WHEREFORE, premises considered, Relators respectfully request that the
Court of Appeals issue a writ of mandamus ordering Respondent to vacate the
Sanctions Order; and Relators respectfully request such other and further relief to
which they are justly or equitably entitled.
Respectfully submitted,
BEARD & HARRIS, P.C.
& CANTEY HANGER, LLP
By: /s/ Jim E. Bullock
Ty Beard
State Bar No. 00796181
Donald Harris
State Bar No. 00796709
Craig Daugherty
State Bar No. 05404300
BEARD & HARRIS, P.C.
100 Independence Place,
Suite 101
Tyler, Texas 75703
Telephone: (903) 509-4900
Facsimile: (903) 509-4908
ty@beardandharris.com
PETITION FOR WRIT OF MANDAMUS PAGE 27
don@beardandharris.com
craig@beardandharris.com
Jim E. Bullock
Texas Bar No. 00795271
Brian Casper
State Bar No. 24075563
CANTEY HANGER, LLP
1999 Bryan St.
Suite 3300
Dallas, Texas 75201
Telephone: (214) 978-4100
Facsimile: (214) 978-4150
jbullock@canteyhanger.com
bcasper@canteyhanger.com
Attorneys for Relators
PETITION FOR WRIT OF MANDAMUS PAGE 28
Certificate of Service
The undersigned certifies that, on this day, a copy of the foregoing and the
Appendix attached hereto was served in accordance with Texas Rules of Appellate
Procedure 6.3 and 9.5, as follows:
(a) on Respondent by and through Denise Langston, Civil Court
Coordinator for the 241st District Court, via e-mail to dlangston@smith-
county.com and via certified mail;
(b) on Robert H. Patterson, Jr., the real party in interest, by and
through his counsel of record in the underlying action, Mary C.
Burdette (via e-mail to mburdette@cnbwlaw.com) and Brandy Baxter-
Thompson (via e-mail to bbthompson@cnbwlaw.com) of CALLOWAY,
NORRIS, BURDETTE & WEBER, PLLC, and Richard H. Lottmann (via e-
mail to Richard@allenlottmann.com) and Gregory T. Kimmel (via e-
mail to Greg@allenlottmann.com) of ALLENLOTTMANNKIMMEL,
P.C., as well as via certified mail sent to CALLOWAY, NORRIS,
BURDETTE & WEBER, PLLC, Attn: Mary C. Burdette, 3811 Turtle
Creek Blvd., Suite 400, Dallas, Texas 75219, and to
ALLENLOTTMANNKIMMEL, P.C., Attn: Richard Lottmann, 3805 Old
Bullard Road, Tyler, Texas 75701;
and that courtesy copies were served on the other parties who have appeared in the
underlying matter as follows:
(c) on Nina Ruth Patterson Harris by and through her counsel of
record in the underlying action, Deron R. Dacus (via e-mail to
DDacus@dacusfirm.com) of THE DACUS FIRM, P.C.; and
(d) on Dean Bailey by and through his counsel of record in the
underlying action, David M. Pruessner (via e-mail to
DPruessner@higierallen.com) of HIGIER ALLEN & LAUTIN, P.C.
Dated: January 13, 2015 /s/ Jim E. Bullock
Attorney Certifying
PETITION FOR WRIT OF MANDAMUS PAGE 30
Appendix
Tab A: Order Granting Motion for Sanctions
Tab B: Texas Rule of Civil Procedure 215.3
Tab C: Texas Rule of Evidence 902
Tab D: Local Smith County Rules of Civil Trial
Tab E: Affidavit of Pam Miller
PETITION FOR WRIT OF MANDAMUS PAGE 31
Tab A: Order Granting Motion for
Sanctions
,_·_
,. ·,
I
IN RE: THE
DEBORAH PATTERSON HOWARD
TRUST
ORDER GRANTING MOTION FOR SANCTIONS
Came on to be heard on Septen1ber 12, September 19, and November 13, 2013, Robert H.
Patterson, Jr.'s Tv1otion to Quash Subpoena and for Sanctions for Discovery Abuse ("Motion for
Sanctions"). The Court, having considered the Motion, the evidence presented and having heard
arguments of counsel, is of the opinion that the Motion for Sanctions should be GRANTED. The
Court finds that:
l. The attorneys for Deborah Patterson Gough nor, specifically Craig M. Daugherty, Ty
Beard, Donald Harris, Jim E. Bullock and Brian Casper ("Deborah's Attorneys")
prepared, sif:,rned and sent a false trial Subpoena to Central Title Company dated May
28, 2013 (the "'False Trial Subpoena"). The False Trial Subpoena con1manded
Central Title Company to appear before this Court on 1une 25, 201 3 at 1 1:00 a.m. to
give testimony and provide evidence in this case. No hearing or trial was ever set for
June 25, 2013, in this matter.
2. Deborah's Attorneys sent the False Trial Subpoena in order to avoid compliance with
Rules I 76.2, 176.3(b), 199.2(b)(5), 200, and 205, which constitutes an abuse of the
discovery process that is sanctionable under Rule 215.3.
3. An-appropriate sanction for Deborah's Attorneys' abuse of the_discovery process is
a monetary sand ion based on the attorney's fees expended by the Debornti Patter~on
ORDER GRANTI!\G :\-lOTION FOR SANCTIONS- Page 1
Howard Trust (the ''Trust") in preparing and filing the Motion for Sanctions as well
as preparing for and attending the three (3) hearings on the Motion for Sanctions as
authorized by Texas Rule of Civil Procedure 215.2(b )(8) (the "Monetary Sanction").
4. The monetmy sanction is calculated at thirty-five (35) hours at the rate of$400 per
hour. which is reasonable and necessaty to sanction Deborah's Attorneys' for their
abuse of the discovety process.
IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that Craig M. Daugherty,
Ty Beard, Donald 1-:Iarris, Jim E. Bullock, and Brian Casper, jointly and severally, are hereby liable
Lo the Deborah Patterson Howard Trust (the "Trust") for the sum of$14,000. in atton1ey's fees and
SIGNED this~ day of w ,
shall pay this atnount to the ~ust no later than July 21, 2014.
2014.
SIDI``#-
·--- ..
....... ,~
\'
•,•
. ·...
. •).If•.•• -
ORDER GRANTING !\'lOTION FOR SANCTIONS- Page 2
.... ·- '- t·_
STATE OF TEXAS
COUNTY OF SMITH
I, Lot<. P t•Jers, District Clerk of Smith County,
TexJ:. '" '``re bf certify tNt the foregoing IS a
true .1nu rorrect co., o( !tie original •P.rord. now
in'"' ·w1ul custody and possess iO'' J " 1coears
of 1ec ,~ 1n Vol. , Page _ _ _
M1 r u~> 11 said court on file-in my offocp
W1tness , ``n-d)~seal of ot'1ce this
Lois Rogers, District Clerk
Q:"j~
Tab B: T.R.C.P. 215.3
215.3. Abuse of Discovery Process in Seeking, Making, or..., TX R RCP Rule 215.3
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 9. Evidence and Discovery (Refs & Annos)
B. Discovery
Rule 215. Abuse of Discovery; Sanctions (Refs & Annos)
TX Rules of Civil Procedure, Rule 215.3
215.3. Abuse of Discovery Process in Seeking, Making, or Resisting Discovery
Currentness
If the court finds a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any
interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or
answer is unreasonably frivolous or made for purposes of delay, then the court in which the action is pending may, after notice
and hearing, impose any appropriate sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8) of Rule 215.2(b). Such
order of sanction shall be subject to review on appeal from the final judgment.
Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999.
Notes of Decisions (74)
Vernon's Ann. Texas Rules Civ. Proc., Rule 215.3, TX R RCP Rule 215.3
Current with amendments received through August 15, 2014
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Tab C: T.R.E. 902
Rule 902. Self-Authentication, TX R EVID Rule 902
Vernon's Texas Rules Annotated
Texas Rules of Evidence (Refs & Annos)
Article IX. Authentication and Identification (Refs & Annos)
TX Rules of Evidence, Rule 902
Rule 902. Self-Authentication
Currentness
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be
admitted:
(1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any
State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of
the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an
attestation or execution.
(2) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in the official capacity of an
officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having
official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official
capacity and that the signature is genuine.
(3) Foreign Public Documents. A document purporting to be executed or attested in an official capacity by a person, authorized
by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the
genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose
certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates
of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a
secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or
consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to
all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that
they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary
with or without final certification. The final certification shall be dispensed with whenever both the United States and the foreign
country in which the official record is located are parties to a treaty or convention that abolishes or displaces such requirement,
in which case the record and the attestation shall be certified by the means provided in the treaty or convention.
(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by
law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as
correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2)
or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority.
(5) Official Publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and Periodicals. Printed materials purporting to be newspapers or periodicals.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Rule 902. Self-Authentication, TX R EVID Rule 902
(7) Trade Inscriptions and the Like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business
and indicating ownership, control, or origin.
(8) Acknowledged Documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided
by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, signatures thereon, and documents relating thereto to
the extent provided by general commercial law.
(10) Business Records Accompanied by Affidavit. The original or a copy of a record that meets the requirements of Rule
803(6) or (7), if the record is accompanied by an affidavit that complies with subparagraph (B) of this rule and any other
requirements of law, and the record and affidavit are served in accordance with subparagraph (A). For good cause shown,
the court may order that a business record be treated as presumptively authentic even if the proponent fails to comply with
subparagraph (A).
(A) Service Requirement. The proponent of a record must serve the record and the accompanying affidavit on each other
party to the case at least 14 days before trial. The record and affidavit may be served by any method permitted by Rule of
Civil Procedure 21a.
(B) Form of Affidavit. An affidavit is sufficient if it includes the following language, but this form is not exclusive:
1. I am the custodian of records [or I am an employee or owner] of __________ and am familiar with the manner in which
its records are created and maintained by virtue of my duties and responsibilities.
2. Attached are ___ pages of records. These are the original records or exact duplicates of the original records.
3. The records were made at or near the time of each act, event, condition, opinion, or diagnosis set forth. [or It is the
regular practice of __________ to make this type of record at or near the time of each act, event, condition, opinion, or
diagnosis set forth in the record.]
4. The records were made by, or from information transmitted by, persons with knowledge of the matters set forth. [or It
is the regular practice of __________ for this type of record to be made by, or from information transmitted by, persons
with knowledge of the matters set forth in them.]
5. The records were kept in the course of regularly conducted business activity. [or It is the regular practice of __________
to keep this type of record in the course of regularly conducted business activity.]
6. It is the regular practice of the business activity to make the records.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Rule 902. Self-Authentication, TX R EVID Rule 902
(11) Presumptions Under Statutes or Other Rules. Any signature, document, or other matter declared by statute or by other
rules prescribed pursuant to statutory authority to be presumptively or prima facie genuine or authentic.
Credits
Eff. March 1, 1998. Amended by orders of Feb. 12, 2013, and March 26, 2013, eff. March 1, 2013. Amended by orders of
Supreme Court and Court of Criminal Appeals April 14, 2014, and August 19, 2014, eff. Sept. 1, 2014.
Editors' Notes
COMMENT--2013
Rule 902(10)(c) is added to provide a form affidavit for proof of medical expenses. The affidavit is intended to
comport with Section 41.0105 of the Civil Practice and Remedies Code, which allows evidence of only those medical
expenses that have been paid or will be paid, after any required credits or adjustments. See Haygood v. Escabedo, 356
S.W.3d 390 (Tex. 2011). The records attached to the affidavit must also meet the admissibility standard of Haygood,
356 S.W.3d at 399-400 (“[O]nly evidence of recoverable medical expenses is admissible at trial.”).
COMMENT--2014
At the direction of the Legislature, the requirement that records be filed with the court before trial has been removed.
See Act of May 17, 2013, 83rd Leg., R.S., ch. 560, § 3, 2013 Tex. Gen. Laws 1509, 1510 (SB 679). The word
“affidavit” in this rule includes an unsworn declaration made under penalty of perjury. TEX. CIV. PRAC. & REM.
CODE § 132.001. The reference to “any other requirements of law” incorporates the requirements of Sections 18.001
and 18.002 of the Civil Practice and Remedies Code for affidavits offered as prima facie proof of the cost or necessity
of services or medical expenses. The form medical expenses affidavit that was added to this rule in 2013 has been
removed as unnecessary. It can now be found in Section 18.002(b-1) of the Civil Practice and Remedies Code.
Notes of Decisions (767)
Rules of Evid., Rule 902, TX R EVID Rule 902
Current with amendments received through August 15, 2014
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Tab D: Local Smith County Rules
LOCAL SMITH COUNTY RULES OF CIVIL TRIAL
JUDICIAL DISTRICT COURTS AND COUNTY COURTS AT LAW
SMITH COUNTY, TEXAS
The following local rules of civil trial are adopted for use in non-family law civil
trials in the 7th Judicial District Court, 114th Judicial District Court, 241st Judicial District
Court, 321st Judicial District Court, County Court at Law, County Court at Law No. 2,
County Court at Law No. 3 and the County Court of Smith County, Texas.
It is ORDERED that these rules shall be published, in a manner reasonably
calculated to bring the rules to the attention of attorneys practicing before the Smith County
courts, on or before November 23, 1998.
These rules shall be interpreted in a manner consistent with the Texas Rules of
Civil Procedure and any rule of the First Administrative Judicial Region.
The Smith County District Clerk and the Smith County Court Clerk shall make
the Local Smith County Rules of Civil Trial available, upon request, for review to citizens and
members of the bar.
It is ORDERED that these rules are effective beginning on April 1, 1999 or upon
their approval by the Texas Supreme Court pursuant to T.R.C.P.3a, whichever occurs later.
RULE 1. The objective of the Rules of Civil Trial is to obtain a just, fair, equitable and
impartial adjudication of the rights of litigants under established principles of
substantive law and established rules of procedural law. To the end that this
objective may be attained with as great expedition and dispatch and at the least
expense both to the litigants and to the state as may be practicable, the rules shall be
applied to ensure that, so far as reasonably possible, all matters are brought to trial or
final disposition in conformity with the rules established by the Texas Supreme Court
and laws of the State of Texas.
RULE 2. MOTIONS.
2.1 Certification of Conference. Before filing a motion, counsel for a moving party must
confer or certify that a reasonable effort has been made to confer with the counsel, if
known, of all parties affected by the requested relief to determine whether or not the
contemplated motion will be opposed. Such a conference is required for all motions
except motions to dismiss the entire action, motions to quash, motions for protection,
temporary restraining orders, motions for judgment on the pleadings, motions for
summary judgment, and motions for new trial.
The purpose of the conference requirement is to promote a frank exchange between
counsel to resolve issues by agreement or to at least narrow and focus the matters in
controversy before judicial resolution is sought.
1
If a motion to compel or for sanctions is sought, the Court will not consider the
motion unless the movant certifies that the movant has conferred with or made a
reasonable effort to confer with opposing counsel in an effort to resolve the dispute
without the necessity of Court intervention and that the attempt has failed.
2.2 Form. Motions shall be in writing and shall be accompanied by a proposed order
granting the relief sought. The proposed order shall be a separate instrument. All
pleadings, motions, orders and other papers filed with the Court shall be
consecutively numbered at the bottom of the page.
2.3 Submission. Motions shall state a date of submission at which time the Motion will
be considered without a hearing, unless both a request for oral argument and a
response are filed. The movant shall select the date of submission which shall be no
sooner than the Monday following fifteen (15) days from date of filing, except on
leave of Court. The motion will be submitted to the Court for ruling on that date or
later.
Submission date on motions for summary judgment shall be no sooner than the
expiration of thirty (30) days from the date of filing of the motion for summary
judgment. A response, if any, to a motion for summary judgment shall be filed and
served seven (7) days before the submission date pursuant Tex. R. Civ. Proc. Rule
166a. However, the Court will not actually hear oral argument on a motion for
summary judgment unless (i) properly requested pursuant to Local Rule 2.7., and (ii)
the Court determines that oral argument will substantially aid the Court in ruling on
the motion for summary judgment. Counsel are encouraged to include citations and
copies of any cases believed to be controlling as part of the motion or response.
2.4 Opposed Motions. All opposed motions must include either (i) a certificate which
states that a conference was held and indicates the date of the conference and the
attorneys who conferred, or (ii) a certificate explaining why it was not possible to
hold the conference. Each contested motion must be accompanied by a separate
proposed order and by a brief setting forth the movant's contentions of fact and law,
unless a brief or proposed order is not required.
The clerk of the court is directed not to submit opposed motions to the judge
unless there has been compliance with this rule.
2.5 Unopposed Motions. All unopposed motions must be accompanied by agreed
proposed orders, signed by the parties or their attorneys. Motions without opposition
and their orders must be captioned "Agreed."
2.6 Responses and Replies. Failure to respond to a motion is deemed to be a
representation of no opposition unless objections are already on file. Responses to
motions must be filed at least two working days before the date of submission, be in
writing and supported by authority, and be accompanied by a separate form order
denying the relief sought, unless the Texas Rules of Civil Procedure provide
otherwise.
2
2.7 Oral Argument. The motion or response shall include a request for oral argument, if
desired, in the requesting party's motion or response. A request for an oral argument
alone is not a response under Rule 2.6.
2.8 Motions for Continuance or Postponement.
(1) All Motions for Continuance or Postponement must be filed in writing with
the Court at least seven (7) days prior to the hearing in the cause, except for
good cause shown, and a copy properly served upon opposing counsel or
unrepresented opposing parties.
(2) No request to continue, pass, postpone or reset any trial, pretrial or other
hearing shall be granted unless counsel for all parties involved consent, or
unless all parties not joining in such request or their counsel have been
notified and have had opportunity to object. It is discretionary with the Court
as to whether or not to grant any requested continuance or postponement even
if such request is unopposed.
(3) All second or subsequent Motions for Continuance must be personally
approved and signed by the client for whom a postponement is requested, or
if the client is unavailable or out of state, counsel may certify that his client
has been mailed a copy of the motion by certified mail, return-receipt
requested with a cover letter stating in a separate paragraph in bold face type,
The postponement is being sought by (attorney's name) for (the party's
name).
RULE 3. PRETRIAL.
3.1 Civil Case Joint Questionnaire
The Court orders that the Civil Case Joint Questionnaire, provided by the Smith
County District or County Clerk’s office, be completed and filed by the Plaintiff after
conferring with all counsel and pro se parties. The questionnaire must be filed within
ninety (90) days of the date of the filing of the case.
3.2 Discovery Control Plan and Scheduling Order. The Court will enter a discovery
control plan and scheduling order which will control the course of litigation and may
not be amended without leave of Court.
Level 1 Discovery Control Plan shall apply to any suit as provided by 190.2 of the
Texas Rules of Civil Procedure.
Level 2 Discovery Control Plan shall apply to any suit as provided by 190.3 of the
Texas Rules of Civil Procedure.
The plaintiff or defendant may certify to the Court in writing at the time of the filing
3
of plaintiff's pleading or the defendant's answer that the litigation is complex and
should proceed under a 190.4 (Level 3) Discovery Control Order. If the Court
concurs, the Court will enter a scheduling order to accommodate complex litigation
as provided by 190.4 of the Texas Rules of Civil Procedure.
The Court may modify a discovery control plan at any time and shall do so when the
interest of justice requires or when required under 190.5 of the Texas Rules of Civil
Procedure. The date for the discovery deadline may be extended by Agreed Motion
signed by all parties, so long as the proposed extension does not adversely affect the
other dates or deadlines on the Scheduling Order.
3.3 Exhibits.
(1) Each counsel will file a list of all potential exhibits to be offered, provide a
copy to opposing counsel, and make all such exhibits available for examination by
opposing counsel, and do so before the Pre-Trial Conference or at least seven (7)
days before trial, whichever occurs first. The only exceptions to this rule are rebuttal
exhibits which cannot be anticipated. Designation of substantially more documents
than an attorney or party reasonably expects to actually introduce at trial will subject
the offending party to sanctions and/or contempt of Court. Failure to comply with
this rule will subject the offending party to sanctions and/or contempt of Court.
(2) A party’s production of a document in response to written discovery is self-
authenticated as provided by Section 193.7 of the Texas Rules of Civil Procedure.
Any counsel requiring authentication of any other exhibits not covered by Section
193.7, must so notify in writing the offering counsel at least fifteen (15) days before
trial or pre-trial conference, whichever is earlier, except on leave of Court for good
cause. Failure to do so is an admission of authenticity.
(3) Any other objections to admissibility of exhibits must, where possible, be
made at least fifteen (15) days before trial or pre-trial conference, whichever is
earlier, except on leave of Court for good cause, and the Court notified in writing
with copies to all counsel accompanied by supporting legal authorities and copies of
the exhibits in dispute. All objections will normally be ruled upon by the Court prior
to trial.
(4) The offering party must pre-mark and pre-number his or her own exhibits
prior to trial and must provide a list of exhibits to be offered at trial to the court
reporter before jury selection.
(5) All exhibits will be offered and received in evidence as the first item of
business at the trial.
3.4 Joint Pretrial Order.
(1) Filing. A joint pretrial order shall be filed by the Plaintiff's attorney at least
fifteen (15) days before the scheduled date of trial unless specified otherwise in the
4
Scheduling Order. If an attorney for either party does not participate in the
preparation of the joint pretrial order, the opposing attorney shall file a separate
pretrial order with an explanation of why the joint order was not submitted.
(2) Contents. The pretrial order must contain; (1) a summary of the claims and
defenses of each party; (2) pending motions needing resolution; (3) a statement of the
stipulated facts; (4) a list of the contested issues of fact; (5) a list of those legal
propositions not in dispute; (6) a list of contested issues of law; (7) names and
addresses of witnesses and each party shall designate whether the witness will testify
by deposition or in person; subject to change only upon good cause affirmatively
established to the Court; (8) a statement that settlement efforts have been exhausted;
(9) an estimate of the length of trial; (10) the signature of each attorney; and (11) a
place for the date and signature of the Court.
(3) Video Presentations. Attorneys proposing to use video presentations must
present the page and line numbers to opposing counsel at the time assigned for the
entry of the joint pretrial order. Objections by opposing counsel must be presented to
the Court and the offering attorney prior to the joint pretrial conference. Any edited
video depositions shall be presented for exhibition to opposing counsel to examine
any piecemeal editing, relocation of testimony, exhibition out of context, etc.
Opposing counsel shall be entitled to assert the rule of Optional Completeness and
have portions of the deposition proposed by opposing counsel or the entire deposition
introduced after the initial presentation unless counsel agree to have a single
presentation whether edited or in its unedited entirety. Any objections to the
proposed video depositions shall be made prior to the pretrial conference and rulings
will be made by the Court at the pretrial conference so that the video presentation of a
party may be made uninterrupted.
(4) Objections. Objections to any matters set forth in the pretrial order shall be
filed with the Court prior to the pretrial conference. All such objections will be ruled
upon by the Court at the pretrial conference.
3.5 Exclusion. The parties may file, within twenty (20) days of the date of the scheduling
order, an agreed motion and proposed order requesting exclusion of certain cases, i.e.
collection suits, worker's compensation, simple car wrecks, slip and fall, etc., from
the requirements of a joint pretrial order and pretrial conference and the Court will
consider and rule upon such motion.
3.6 Pretrial Conference. A pretrial conference will be held according to the scheduling
order entered by the Court which will normally be ten (10) days prior to the case's
trial setting or at such other dates as set by the trial Court.
RULE 4. TRIALS.
4.1 Manner of Setting. Cases shall be set for trial by order of the Court.
4.2 Date of Setting. Cases shall be set for trial for a date certain. If a case is not tried by
5
the second Friday after the date it was set, whether because of a continuance or
because it was not reached, the Court shall reset the case to a date certain. Unless all
parties agree otherwise, the new setting must comply with all requisites of T.R.C.P.
245.
4.3. Witness Attendance. Each party is responsible for the attendance at trial of its
proposed witnesses, and may not rely on another party's list for attendance of a
witness. Witnesses under subpoena are not affected by this rule.
4.4 Witness Numbers. Each party or parties with the same alignment on a disputed issue
will be allowed up to two (2) witnesses on any disputed issue, such as expert
witnesses, character witnesses, etc., except on good cause shown.
RULE 5. SUBMISSION OF ORDERS, DECREES AND JUDGMENTS.
Within ten (10) days after rendition of an order, an agreed order, decision,
judgment or an announced settlement by counsel, counsel for the moving party
shall cause, unless ordered otherwise, all such orders, decisions, or judgments,
or documents to be reduced to writing and delivered to opposing counsel with
an appropriate signature line to allow opposing counsel to acknowledge
"approved as to form" or "approved as to form and substance," as appropriate.
Opposing counsel must then return such order, decision, judgment, or
document to the originating counsel within ten (10) days either with signature
subscribed thereon or with objections in writing. Once attorneys for all parties
have signed the document, it should be forwarded to the court coordinator for
signature by the trial judge. If objections to the form or the substance of the
order are made, the moving counsel is required to either amend the order to
alleviate the objections and resubmit it to opposing counsel or forward it to the
Court with a request for a hearing. If a response as required herein is not
provided within ten (10) days of receipt of the proposed order, originating
counsel may present the order and evidence of opposing counsel's receipt to the
Court for signature and rendition.
If either counsel or a party cause or require a hearing that a reasonable and
prudent party or attorney in the same or similar circumstances would not have
caused or required, the Court shall award attorney's fees against such party or
attorney in favor of the other party including any reasonable fees or expenses
incurred as a result of causing or requiring the hearing. If counsel for the
moving party or alternate counsel ordered by the Court to prepare the order,
decision, judgment or other document fail to comply with the provisions of this
rule, the Court shall award attorney's fees against the failing party in favor of
the other party for fees and expenses incurred reasonably by the other party's
counsel in preparing the order or document. The Court may consider any
requests for extensions of time under this rule for good cause shown only.
RULE 6. DISMISSAL DOCKETS.
6
The following cases are eligible for dismissal for want of prosecution pursuant to
T.R.C.P. 165a:
(a) Cases on file for more than 180 days in which no answer has been
filed or is required by law;
(b) Cases which have been on file for more than twelve (12) months and
are not set for trial;
(c) Cases in which any party seeking affirmative relief fails to appear for
any hearing or trial of which the party has notice.
RULE 7. SETTLEMENT.
Counsel is to notify the Court immediately of settlements that obviate Court settings
as unnecessarily summoned jury panels are disruptive to the Court and jurors.
RULE 8. VACATIONS OF COUNSEL.
An attorney may designate not more than four (4) weeks during the year as vacation,
during which time he will not be assigned to trial or required to engage in any pretrial
proceedings. A separate written designation in each cause must be filed with the
Court Coordinator at least 45 days in advance of the vacation period unless the
case has been set for trial prior to counsel's vacation designation. This rule
operates only where lead counsel, as defined by T.R.C.P. 8 is affected, unless the
Court expands coverage to other counsel.
If a case is set by the Court during the designated vacation period, counsel must
timely file with the Court a written Motion for Continuance to bring to the Court’s
attention the filed vacation designation.
RULE 9. APPEARANCES.
Attorneys must make court appearances in person unless all matters to be
considered in the hearing have been agreed by all parties and such agreement is
reflected in a letter or fax, signed by all affected attorneys, to the Court through
its court coordinator. If a fax is sent to manifest such agreement, the court
coordinator should be notified by telephone when the fax is actually
transmitted.
The Court may allow, upon request, counsel to appear by telephone conference
call. This, however, is discretionary with each individual Court.
RULE 10. EFFECTIVE DATE.
These rules shall become effective upon their approval by the Texas Supreme Court
pursuant to T.R.C.P.3a or April 1, 1999, whichever occurs later.
7
ORDERED AND SIGNED on this the ____ day of ___________________, 1999.
_______________________________________ ____________________________________
LOUIS B. GOHMERT, JR. CYNTHIA STEVENS KENT
Judge, 7th Judicial District Court Judge, 114th District Court
Smith County, Texas Smith County, Texas
_______________________________________ ____________________________________
DIANE DEVASTO CAROLE CLARK
Judge, 241st District Court Judge, 321st District Court
Smith County, Texas Smith County, Texas
_______________________________________ ____________________________________
THOMAS DUNN RANDALL ROGERS
Judge, County Court at Law Judge, County Court at Law No. 2
Smith County, Texas Smith County, Texas
_______________________________________ ____________________________________
FLOYD GETZ LARRY CRAIG
Judge, County Court at Law No. 3 Judge, Smith County Court
Smith County, Texas Smith County, Texas
8
Tab E: Affidavit of Pam Miller
State ofTexas §
§
County of Cherokee § Mfidavit of Pam Miller
Before me, the undersigned Notary Public, personally appeared Pam Miller, who,
being duly sworn, deposed as follows:
1. My name is Pam Miller. I am an adult and I have personal knowledge of the facts
stated herein. These facts are true and correct.
2. I am the founder and owner of Records & Review, a legal records service located in
Jacksonville, TX. I am also a certified Legal Assistant and have been since 1988. I have
operated Records & Review since 1992.
3. I am the custodian of records of Records & Review. Attached hereto are 81 pages of
records from Records & Review.
4. The attached records are kept by Records & Review in the regular course of its
business.
5. It was in the regular course of business of Records & Review for an employee or
representative of Records & Review, with knowledge of the act, event, condition, opinion,
or diagnosis recorded to make the record or to transmit information thereof to be included
in such records.
6. The records were made at or near the time or reasonably soon thereafter.
7. The attached records are exact duplicates of the original records.
8. From my many years of practice in the legal records industry I have personal
knowledge of the procedures of Records & Review as well as those of many other records
services that operate in the State of Texas. Based upon that knowledge, I know it is an
industry wide practice to transmit to third party record custodians, by mail, email or fax, a
request for the voluntary production of documents in conjunction with the completion of a
deposition on written questions, the execution of a Rule 902 business records affidavit, or
both. In each such instance of which I am aware this request is accompanied by a draft form
of a subpoena essentially identical to those found in the attached records. This practice
encourages these non-party records custodians to produce documents without the necessity
of being formally subpoenaed and having to give an oral deposition to authenticate the
documents.
The draft form subpoena that accompanies the requ est is not formally served under
the Rules of Civil Procedure; it is just sent with the deposition on written questions or the
Rule 902 business records affidavit, whichever has been selected by the attorney requesting
the service. The purpose of the draft subpoena is simply to give the records custodian an
advance copy and the option to complete and return the deposition on written questions or
the Rule 902 business records affidavit, as may be the case, or to indicate that their policies
require that formal service of a subpoena is necessary. (Some records custodians prefer to
have a subpoena for their files, even if it is not formally served.)
9. Based upon my knowledge of the industry practices these requests for voluntary
production of documents accompanied by these draft subpoena forms are sent to hundreds
or more third party records custodians each and every business day in Texas.
Pam Miller
n~
Subscribed to and sworn before me this _'--'\
__ day of October, 2014.
··-····
•••.~e sc , re,-.··
•·.~e.,.".••••••.e~ ·.
. . ``
Notary Public for the State ofTexas
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••• •• ·1 1-07-«-v
····``\1 ••
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DEPOSITION SUBPOENA DUCES TECUM
THE STATE OF TEXAS
TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE
SUBPOENAS UNDER RULE 176 T.R.C.P.
GREETINGS:
YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUMMON the following witnesses:
Custodian of Pharmacy Records for
Brookshire's Pharmacy
Via Email: rx@brookshires.com
to be and appear before a Notary Public of my designation for
Records & Review
190 County Road 4204
Jacksonville, TX 75766
Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer
authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce
for inspection and photocopying ANY&ALL MEDICAL RECORDS including, BUT NOT LIMITED TO: Patient information
sheet, medical file, medical records, any photographs (color if available), chiropractic records, physical therapy records,
pharmacy records, insurance treatment notes, insurance records, psychiatric records, counseling notes, prescriptions, x-ray
films, radiology· reports, lab reports, pathology reports, narrative reports, rehabilitation notes, office notes (handwritten or typed),
any correspondence from other doctors or attorneys, and anything else reduced to writing in the possession, custody or control
of the said witness pertaining to:
KATHERINE WILLIAMS; DOB: SS#:
This Subpoena is being issued at the instance of the Defendants in that certain Cause No. 2013-505-CCL2 in the County Court
At Law No. 2 of Gregg County, Texas, styled
KATHERINE WILLIAMS VS. TIANA BETH BALES and JOHN BALES
and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule
176. T.R.C.P., and falls under exception to confidentiality, Rule 509(e)(4). Rule 176.8(a) Contempt: Failure by any person without
adequate excuse to obey a subpoena served upon that person may be deemed in contempt ofthe court from which the subpoena is
issued or a district court in the coun in which the sub oena is served and rna be unishable b fine or confinement or both.
'2014.
Reply to:
Records & Review
190 County Road 4204
Jacksonville, TX 75766
(903) 586-2182 I (903) 586-5901 FAX
Attorney requesting subpoena:
CLAY WHITE/AMY MILLS
WHITE SHAVER LAW FIRM
CAUSE NO. 2013-505-CCL2
KATHERINE ¥liLLIAMS § IN THE COUNTY COURT
§ G~ !PI{
VS. § ATLAWN0.20F Grscof.l~yfC
§ JUt "·
TIANA BETH BALES and JOHN BALES § GREGG COUNTY, ~oc,l1 (Of4
c~ oclf
NOTICE OF INTENTION TO TAKE ' 01s;-~
DEPOSITION BY WRITTEN QUESTIONS ---o~2ft.,J~
TO: Marty Young, GOUDARZI & YOUNG, LLP, PO Drawer 910, Gilmer, TX 75644
PLEASE TAKE NOTICE that after twenty (20) days from the service of a copy hereof: and of the attached questions, a deposition by written
questions will be taken of the CUSTODIAN(S) OF MEDICAL RECORDS FOR:
East Texas Medical Center, 830 S. Beckham, Tyler, TX 75701
Good Shepherd Medical Center, 700 E. Marshall Avenue, Longview, TX 75601
Titus Regional Medical Center, 2001 N~ Jefferson, Mt. Pleasant, TX 75455
AK Fitness Therapy Center, 2903 Judson Rd., Longview, TX 75605
Daingerfield Family Medical Clinic, 213 W Scurry St, Daingerfield, TX 75638
Damascus Horne of Redwater, Inc., P.0. Box 583, Redwater, TX 75573
Family Health Care Center, 302 S Central St Suite A, Hallsville, TX 75650
Dr. Martin Hilton, 709 Hollybrook, Suite 3401, Longview, TX 75605
Dr. Larry Huffman and/or Family Healthcare Center, 2010 Bill Owens Parkway, Longview, TX 75604
Lewis Chiropractic, 1412 Linda Drive, Daingerfield, TX 75638
Open Imaging of Longview, P.O. Box 100, Paris, TX 75460
Precision Spine Care, PO Box 6605, Tyler, TX 75711
Psychiatric Associates of McKinney, 5900 S. Lake Forest Dr, Ste. 300, McKinney, TX 75070
Dr. Barry Rath, 826 S Fleishel, Tyler, TX 75701
Texas Pain, 1814 Roseland Blvd., Suite 200, Tyler, Texas 75701
Women's Clinic, 1903 Mulberry Ave, Mt. Pleasant, TX 75455
Brookshire's Pharmacy, P.O. Box 1411, Tyler, TX 75711
Walgreen's Pharmacy, 1901 E. Voorhees St., Mail Stop 735, Danville, IL 61834
before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766. Which deposition
with attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in the above-named court.
Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to take this
deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and photocopying ANY &
ALL MEDICAL RECORDS including, BUT NOT LIMITED TO: Patient information sheet, medical file, medical records, any photographs (color
if available), chiropractic records, physical therapy records, pharmacy records, insurance treatment notes, insurance records, psychiatric records,
counseling notes, prescriptions, x-ray films, radiology reports, lab reports, pathology reports, narrative reports, rehabilitation notes, office notes
(handwritten or typed), any correspondence from other doctors or attorneys, and anything else reduced to writing in the possession, custody or
control of the said witr1ess pertaining to:
KATHERINE WILLIAMS; DOB:
and turn all such records over to the Notruy Public authorized to take this deposition for inspection and photocopying of the same may be
made and attached to said deposition.
Respectfully submitted,
CLAY WHITE/ AMY MILLS
WHITE SHAVER LAW FIRM
ATTORNEYS FOR DEFENDANTS
STATE BAR N0.21292220 I 00784607
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Notice of Intention to Take Deposition by Written Questions has been delivered to the
individuals listed below, by oortifiod mail, postage prepoid, h ndel~ ~'by 127a
GARLAND
(972) 27 f ·1428
Period Endbig: a/26/2(Y
TotaJ extralintertm Unit Ohargils 2120 S971~
$Hi9,50 $714.00
Totar Lease Charges 2120 $714.00
JX·9900 sa a.;
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LEON CHANDLER
7.D!3 SEP 23 A!~ II: q6
vs. HARRISON COUNTY, TEXAS
SPRING VALLEY CARTAGE, Individually
and d/b/a K-TOO ENTERPRISES, INC.,
Individually, LABARBA BROTHERS, LTD.
and JOAQUIN CRUZ FIGUEROA 71 ST JUDICIAL DISTRICT
AMENDED NOTICE OF INTENTION TO TAKE
DEPOSITION BY WRITTEN QUESTIONS
TO: Michael D. Antalan, ANTALAN & ASSOCIATES, 2211 Norfolk, Suite 600, Houston, TX, 77098
PLEASE ']['AKE NOTICE that after twenty (20) days from the service of a copy hereof; and of the attached
questions, a deposition by written questions will be taken of the CUSTODIAN(S) OF RECORDS FOR:
Corporation Service Company, 211 East 7th St., Ste 620, Austin, TX 78701; Registered Agent for Penske Truck
Leasing Company
before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville,
TX, 75766 . Which deposition with attached questions may be used in evidence upon the trial of the above-styled
and numbered cause pending in the above-named court. ·
Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the
Officer authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the
witness to answer the attached Direct Questions and as they relate to Exhibit "A" attached hereto and made· a part
hereof pertaining to:
LABARBA BROTHERS, LTD. dba SPRING VLY CARTAGE I JIMMY LABARBA
and turn all such records over to the Notary Public authorized to take this deposition for inspection and
photocopying of the same may be made and attached to said deposition.
Respectfully submitted,
CLAY WillTE/ AMY MILLS
WillTE SHAVERLAW FIRM
ATTORN'EYS FOR DEFENDANT
STATE BAR N0.21292220 I 00784607
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Notice oflntention to Take Deposition by Written Questions
has been delivered to the individuals listed below, by certified mail, osta prepaid, hand delivered or by telephonic
document transfer, on this the 18• day of September, 20 1~ .
RECORDS & REVIEW
cc: Michael D. Antalan
5EP-05-20\3(THU) ''A" lnvolce 0002938455
p. 003/004
AuguGt ~. 2011
Lease 1nvoice
Ptlga:
Cu:~tmrrilr:
1 or:=
GS681101·G2'nl
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DGiiOOOIO lli":t1!1!dt1111l3f NNhiNNNI:r111 JIOO:JIJ:I~
I.AI3AFII!IA SAO'rt·IEAS LiD DBA,
LABAffiBA.BROTHERS LTD DBA. JIMMY LASAABA
SPF!JNG V.LY. CARTAGE 1801 COMMSACE Sif:I!:J::I'
JIMMY: LASARSA GIARI.AND. TX 75040
'ISD1 COMMERCE SIREET
GARLAND. iX 7E040-a"l1, CJ~:Jtlonll?
Canlllelt
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lease Ch~rge Summary
~ptlan • unna ·lAllfll rUiftllJ•
mlnteilm unlbs , . !li9'f1.913
1 ~971.95 $971.96
Total lease Charges
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ln11!71crtJ: 00D2.S354S5
$9n.sa Dllto: Augum3Q, 2011
Cuc!omsr: S5001,01..S27:'!
Amount c:mCloBcd LABARBA SROTHeRS LTD 06111..
JIMMY LAE!ARSA
1801 COMMEACE STAEl:l'
PJf)Q.SO wrltB th& /nvoJr::e numt;ler on .::1 r;h6ck p!Jy.Jbio ro Ptmskc GARI..ANO,TX 75040
PEN$KETRUCK LEI\SING CO., L. P.
?.0. sox 802577
CHICAGO, IL 60680·2577
- ··Re.ceTved Time Sep.· 5... 201r12:50PM No. 2016
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Notary Public In and for The State of _ _ _ __
My Commission Expires:_ _ _ _ _ _ _ __
5EP-05-2013(THU) "A'' Invoice 0002:933455
P. 003/004
Auguetao, 2.011
Lease ilnvoice JLIPI J!-r;!J-J~j(
Poga; 1 of:3 '0'" ·= == gjg J1
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Cuatmr1r1r: ES68111l1--ti:2.'ni
OOIJ!lOO(O Al":t1~\illttl1 NIIIWNNNI:IIll DCO:IIl:IOO!l2
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LASAffiBA.BAOTHE~S LTD DI3A. JIMMY LASARBA
SPFIIN$ V.LY. CARTAGE 1801 COMMERCe STFIEET
JIMM\1 LA.8AR8A GAI1l.ANO, TX 75040
1801 COMMERCt: S'fREEi
GARlAND, TX 75040-6711 CJoo:JdorM(
Conlur:t:
dII nil lh``~lll UJl.lfhu "li•UI mill "11 It'U'I' 1hI Jl
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lriira/lnteHm"u'n'its 1 $91'1.86
Total Lease Charges 1 '$971.9S $971.95
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ln~cc: 0002938455
Totnt t:lllc by 9/911 '1 !j)971..S6 Palo; Augu:lt31), 201'1
~om111r; 65001'i01.S2'73
I..A.BARBA. E;IROTHeRS LiD DBA..
JIMMY LABAFlBA
'lllCl1 COMMERCE STREl:T
PloaSQ wrlre tho lmrolr=t:J numbsr on~ t;h9ck pll}r.J.blo co Pcmsko GA.Rl.ANO, TIC 75104.0
?ENSKETRUCKLEP.SINGi CO,, L. P.
P.O. aox eo2s77
CH\CASO, !L 60680-2577
f"'a';/fl.; .j QJ .J
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(B72)27H42a
Period Eodh'@ ~5/20
arges
2t20 t6'9,60 7l4.(}{) SB8;36 S971.~
: Totar Lease Charges
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lease Ghargs Ts>: REK:ap
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NOTICEOFINTENTIONTOTAKE \\ ``~
0oro
~
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DEPOSITION BY WRITTEN OUESTIONS 1 ~.~i;; -o
. I ::=:trnn 3.:
TO: Geoffrey E. Schorr, SCHORR LAW FIRM, P.C., 328 W. Interstate 30, Suite 2, Garland, TX 750~ ``~
• -;ry --i,.........---! .;._
PLEASE TAKE NOTICE that after twenty (20) days from the service of a copy hereof: and of the attach~ questions, ao
deposition by written questions will be taken of the CUSTODIAN(S) OF BILLING FOR: -< co
Navarro Regional Hospital, 3201 W. Hwy. 22, Corsicana, TX 75110
American Imaging, Inc., 127 N.W. 13th St., Suite Cl3, Boca Raton, Fl 33432
Dallas Wellness Center at Blue Lake, 4141 Blue Lake Circle, Ste.200, Dallas, TX 75244
DFW Prescriptions, 2701 Osler Drive, Ste. 1, Grand Prairie, TX 75051
Ennis Chiropractic & Wellness, 109 NW Main St., Ennis, TX 75119 .
Dr. James Laughlin, 651 S Great Southwest Pkwy, Grand Prairie, TX 75051
Medical and Surgical Associates of Corsicana, 3500 W. 7th Ave., Corsicana, TX 75110
Navarro Emergency Physicians, PO Box 731926, Dallas, TX 75373
National Radiology Group, P.O. Box2787, Columbus, Ga 31902
Prime Diagnostic Imaging, 9603 White Rock Trail #110, Dallas, TX 75032
before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, .TX,
75766. Which deposition with attached questions may be used in evidence upon the trial of the above-styled and
numbered cause pending in the above-named court.
Notice is :further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer
authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to
produce for inspection ?Ud photocopying THE FOLLOWING BILLING BEGINNING 03/07112 TO PRESENT
including, BUT NOT LIMITED TO: itemized billing statements, all billing reflecting reductions or discounts made by
Carmen Sardina's healthcare providers pursuant to agreements with Medicare, Medicaid or any health insurance provider
for the period March 7, 2012 to date, and anything else reduced to writing in the possession, custody or control of the
said witness pertaining to:
·CARMEN L. (MARQUEZ, SOLIS) SARDINA; DOB:
and tum all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of
the same may be made and attached to said deposition.
Respectfully submitted,
Peter J. Rutter
RUTTER LAW FIRM, P.C.
ATTORNEYS FOR Shelly Alejandre
STATE BARNO. 00791586
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Notice oflntentio to Take Deposition by Written Questions has
been delivered to the individuals listed below, by certiti ail, o prepaid, hand delivered or by telephonic
document transfer, on this the.26TH day ofJune; 2014.
cc: Geoffrey E. Schorr
CAUSE NO. C14-23032-CV
CARMEN SARDINA § IN THE COUNTY COURT
§
vs. § ATLAWOF
§
SHELLY ALEJANDRE and §
CHARLOTTE CALLAWAY § NAVARRO COUNTY, TEXAS
DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS,
CUSTODIAN OF BILLING FOR:
NAVARRO REGIONAL HOSPITAL
1. Please state your full name, occupation, and official title.
Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
2. Are you the custodian of the billing ofNAVARRO REGIONAL HOSPITAL or do you have authority to
re.Iease these records?
Answ~=----------------------------------
3. Are you among those who have possession, custody, control of or access to billing (BEGINNING 03107112
TO PRESENT) pertainingto·CARMEN SARDINA?
Answ~: ________________________________________________
4. Are the aforementioned records kept in the regular course of business of your employer?
Answ~:
·-------------------------------------------------
5. Was it in the regular course ofbusiness ofNAVARRO REGIONAL HOSPITAL for a person with
personal knowledge of the act, even~ condition or opinion recorded to make the record or to transmit
information thereof to be included in such record?
Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
6. Please state wheth~these records were made at the time or shortly after the time of the transaction or
service recorded.
Answer:__________________________________________
7. Have you received a subpoena duces tecum (including this one) for the billing (BEGINNING 03107/12 TO
PRESENT> pertaining to CARMEN SARDINA?
Answ~:.___________________________________
8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals
thereof, for photocopying for attachment to this deposition. Have you done as requested? Ifnot, why not?
Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
9. Have any of the charges in questions been paid?
..A..nswer:_______________________________________
10. If any such charges have been paid, please state the following:
a. Who paid the charges; a n d - - - - - - - - - - - - - - - - - - - - - - -
b.. The amount paid by each such person or entity making any such payment of the charge. _ __
11. Has any portion of the charges been adjusted down?
Answer:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
12. If any of the charges have been adjusted down, please state the amount of the adjustment.
Answ~=·----------------------------------------------
13. Has any portion of the charges been written off? ·
Answer:. _______________________________________________
14. If any of the charges have been written off, state the amount written off.
Answ~: ______________________________________
15. Vilb.at is the current balance of the charges?
Answ~=-·------------------------------------
WITNESS (Custodian ofBilling)
Sworn to and subscribed before me on the ____ day of ______________ ,2014.
Notary Public In and for The State of - - - - - - -
My Commission Expires:
Direct Questions 2
·············-· . . . . . . ., l. . .. -· .. .. .... . ..
. .
CAUSE NO. C14~23032~CV
CARMEN SARDINA § INTHECOUNTYCOURT AT LAW
§ ~{t
~
Plaintiff, § ~
v.
§
§ ~
i
§
l
SHELLY ALEJANDRE and § :;
;
CHARLOTTE CALLAWAY §
§
Defendants. § OF NAVARRO COUNTY, TEXAS
CR~SS QUESTIONS TO BE PROPOUNDED TO
THE WITNESS, CUSTODIAN OF RECORDS FOR:
NAVARRO REGIONAL HOSPITAL (BILLING)
COMES NOW CARMEN SARDINA, Plaintiff herein, and submits the following cross
questions to the records custodian for NAVARRO REGIONAL HOSPITAL (BILLING):
1. Please state your full name, address, telephone number, occupation and title.
ANSWER: ______________________________________________
2. Have you been served with a subpoena duces tecum for the production of all
records and other documents pertaining to CARMEN SARDINA?
ANSWER=---------------------------------------------
3. Are you the custodian of the records that you have produced?
ANSWER: ________________________________________________
4. Are the records that you have produced kept by your employer in the regular course
of business?
ANSWER: ______________________________________
5. Vvas it the regular course of business for an employee or representative, with
personal knowledge of the act, event or condition recorded to make the
memorandum or record or to transmit information to be included in the
memorandum of record?
CROSS QUESTIONS/ NAVARRO REGIONAL HOSPITAL (BILLING) PAGE10F3
'
!
..
ANSWER=--------------------~-------------------------
6. V'las the memorandum or record made at or near the time of the act, event, '
condition, opinion or diagnosis recorded or reasonably soon thereafter? :·
~
I~
ANSWER: _____________________________________________ f``
I·
I
7. Are the records that you have produced and attached hereto, duplicate copies of the I.
I
original?
ANSWER: _____________________________________________
8. Is it a rule of your employer to not permit the originals to leave the premises?
AN~R=-----------------------------------------------
9. Do you have an itemized statement of the services and/or supplies and/or
prescription drugs that shows the amount of charges made by your employer for the
services, supplies andfor prescription drugs provided to or for CARMEN SARDINA?
· If so, please hand a copy of the itemized statement to the person who is taking your
deposition by written question who is asked to mark the statement as an exhibit to
your deposition. Have you done as requested? If not, why not?
ANSWE~---------------------------------------------
10. .Are you a person in charge of billing records of your employer?
AN~ER: ______________________________________
1L Is the itemized statement a record kept by you in the regular course of business of
your employer?
AN~E~--------------------------------------
12. Was the information contained in the itemized statement transmitted to you in the
regular course of business of your employer or an employee or representative of
your employer who had personal knowledge of the information?
ANSWER: _______________________________________
13. Was the itemized statement made at or near the time that the services, supplies
and/ or prescription drugs were supplied?
ANSWER=-----------------------------------------------
CROSS QUESTIONS f NAVARRO REGIONAL HOSPITAL (BILLING) PAGE2 OF3
. 1
14. Was it in the regular course of business of NAVARRO REGIONAL HOSPITAL
(BILLING) for an employee with personal knowledge of the acts, events, condition,
diagnoses, or consultations recorded to make these bills and then transmit this
information directly over to the patient's account where it is maintained and kept
until billing?
AN~R=--------------------------------------------
15. What is the total amount of charges for the services rendered to the patient?
· ANSWE~---------------------------------------------
16. Does the source of the information and the method and circumstance of its
preparation establish the trustworthiness of the records?
;mswE~----------------------------------------------
Signature (Custodian of Records)
THESTATEOF _ _ _ _ §
COUNTY OF _ _ _ _ _ §
SUBSCRIBED AND SWORN TO BEFORE ME1 the undersigned authority, by the said
witness,, Custodian of Records for NAVARRO
REGIONAL HOSPITAL (BILLING) being duly sworn, acknowledged to me that the
answers to the foregoing questions are true and correct as stated. The records attached
hereto are exact duplicates of the original records.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the ____ day of
_ _ _ _ __, 20_ _.
Notary Public in and for the
State of County of _ _ ___
Printed Name of Notary:
My Commission Expires:
CROSS QUESTIONS J NAVARRO REGIONAL HOSPITAL (BILLING) PAGE30F3
CAUSE NO. C14-23032-CV
CARMEN SARDINA § IN THE COUNTY COURT
§
vs. § ATLAWOF
§
SHELLY ALEJANDRE and §
CHARLOTTE CALLAWAY § NAVARRO COUNTY, TEXAS
RE-DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS,
CUSTODIAN OF BILLING FOR:
NAVARRO REGIONAL HOSPITAL
1. Describe your educational background including all college degrees.
Answer. __________~-------------------------------------------------------------------------
2. List all professional licenses (e.g., medical or nursing) you have obtained, including the date the
license was issued and the state issuing the license.
Aillswer.
--------------------------------------------------------``-----------
3. If you have testified the charges for the service described in the records you have produced
pertaining to CARMEN SARDINA were reasonable, are you qualified to give an expert opinion
on the reasonableness of the charges.of services rendered by your office?
An.swer:____________________________________________________________________________
4. If you have testified the charges for the service described in the records you have produced
pertaining to CARMEN SARDINA were reasonable, state your qualifications for offering this
opinion.
Answer:.__________________________________________________________________________________
5. If you have testified the charges for the services described in the records you have produced
pertaining to CARMEN SARDINA were reasonable, at the time and place that the services were
provided, are you qualified to give an expert opinion on the reasonableness of the charges of
services rendered by your office?
Answer:
---------------------------------------------------------------
6. If you have testified the charges for the service described in the records you have produced
pertaining to CARMEN SARDINA were reasonable at the time and place that the service were
provided, please state your qualifications for offering this opinion.
Answer: _________________________________________
7. Was the treatment or service rendered by this health care provider to CAR.lY.[EN SARDINA
necessary?
Answer:, ________________________________________________________________
8. If you have testified that any treatment or service rendered to CARMEN SARDINA was
"necessary," are you qualified to give an expert opinion on the necessity of any treatment or
service rendered to CARMEN SARDINA ?
Answer:.___________________________________________________________
9. If you have testified that any treatment or service rendered to CARMEN SARDINA was
"necessary," state your qualifications for offering this opinion.
Answer:
·----~---------------------------------------------------
10. Are you aware of any prior accidents or pre-existing medical conditions suffered by CARMEN
SARDINA?
Answer:
-----------------------------------------------------------
11. In relation to question 10 above, have you considered whether or not those prior accidents or pre-
existing conditions in any way contributed to the medical care given to CARMEN SARDINA
by your offices?
Answer: _____________________________________________________
12. If the answer to the previous question is in the affirmative, please state what records or other
documentation you have reviewed or any person with whom you have spoken concerning the
pre-existing conditions or prior accidents CARMEN SARDINA has been involved in to render
such an opinion.
AnsweL ________________________________________________________
WITNESS (Custodian ofBilling)
I, a Notary Public in and for the State of do
hereby certify that the foregoing answers ofthe witness were made by the said witness and sworn to and
subscribed before me. The records attached hereto are exact duplicates of the original records.
GNEN UNDER MY HAND AND SEAL OF OFFICE on this the _ _ _ day of _ _ _ _, 2014.
Notary Public in and for The State of _ __
My Commission Expires:. _________
Redirect Questions 2
BILLING AFFIDAVIT OF RECORDS CUSTODIAN OF
I
I
I
l
STATE OF TEXAS
COUNTY OF _ _ __
§
§
§ l
Records pertaining to: Cannen Sardina
Before me, the undersigned authority, personally appeared _ _ _ _ _ _ _ ___, who, being by
I
me duly sworn, deposed as follows: \·
My name is . I am of sound mind and capable of making this affidavit, and
personally acquainted with the facts herein stated.
1 am a custodian of records for . Attached to this affidavit are records that · i
proVided an itemized statement of the service and the charge for the service that provided 1
to on . The·attached records are a part of this affidavit
·I
i
I
The attached records are kept by in the regular course of business, and it
was the regular course of business of for an employee or representative of
-----------'with knowledge of the service provided, to make the record or to transmit
information to be included in the record. The records were made in the regular course of business at m: near
I
I
the time or reasonably soon after the time the service was provided. The records are the original or a
duplicate of the original.
I·
i
The services provided were necessary and the amount charged for the services was reasonable at the
time and place that the services were provided.
The total amount paid for the services was$ and the amount currently unpaid but which
_ _ _ _ _ has a right to be paid after any adjustments or credits is$_ _ ___.
Affiant
SWORN TO AND SUBSCRIBED before me on the _ _ day of _ _ _ _ _ __, 20_
Notary Printed Name: - - - - - - - - - My Commission Expires: _ _ _ __
INSTRUCTI
FOR COMPLETING RE UEST
IF THERE ARE LEGALS WITH THIS REQUEST DO NOT
USE WHITE OUT TO CORRECT ANY ERRORS. See #4.
1. IF the TOTAL COST OF PROCESSING this request exceeds
$75.00 please call our office BEFORE processing them for
1
attorney approvar.
2. IF the request includes any legal documents, the legal documents
are to be completed by the Custodian. PLEASE PRINT YOUR
NAME CLEARLY.
3. Please READ and ANSWER each question, and SIGN on the
Witness/Affiant line. Your signature must be notarized. The
NOTARY must SIGN on the notary line as well as provide the
notary SEAL to the LEFT of the signature.
4. WHITE OUT IS NOT allowed on legal documents. It renders the
document inadmissible in court. If you happen to make a mistake
on the legals, please call and we will send you another one, or we
can assist you in making a correction.
PLEASE MAIL TO
RECORDS & REVIE
190 County Road 4204
Jacksonville, TX 75766
Phone: (903) 586-2182 Fax: (903) 586-5901
DEPOSITION SUBPOENA DUCES TECUM
THE STATE OF TEXAS
TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE
SUBPOENAS UNDER RULE 176 T.R.C.P.
GREETINGS:
YOU ARE HEREBY COMMANDED TO SUBPOENA AND SU!vii\10N the following witnesses:
Custodian of Employment Records for
Aramark Campus LLC
Via Fax: 215-238-3282
to be and appear before a Notary Public of my designation for
Records & Review
190 County Road 4204
Jacksonville, TX 75766
Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer
authorized to take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce
for inspection and photocopying ANY AND ALL EMPLOYMENT RECORDS including, BUT NOT LIMITED TO: Pre-
employment records, payroll records, personnel records, applications for employment, disciplinary records, evaluation records,
supervisor reports, W-2's, employment contracts, independent contractor agreements, appointment logs, appointment books,
wage records, ti!me cards, claim file, disability applications, worker's compensation records, all group health insurance records,
medical files, attendance records, office notes (handwritten or typed), any correspondence from other employers or attorneys,
and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:
LYNDELL MOSBY; DOB:
This Subpoena is being issued at the instance of the Plaintiffin that certain Cause No. CV-1313251 in the County Court At Law
ofNacogdoches County, Texas, styled
LYNDELL MOSBY VS. ALLSTATE COUNTY MUTUAL INSURANCE CO.
and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in accordance to Rule
176. T.R.C.P•. and falls under exception to confidentiality, Rule 509{e)(4). Rule 176.8(a) Contempt: Failure by any person without
adequate excuse to obey a subpoena served upon that person may be deemed in contempt ofthe court from which the subpoena is
issued or a district court in the county in which the subpoena is served, and may be punishable by fine or confinement. or both.
Witness my hand, this the \ IJ?~ day of~ ,2014.
Reply to:
Records & Review
190 County Road 4204
Jacksonville, TX 75766
(903) 586-2182 I (903) 586-5901 FAX
Attorney requesting subpoena:
JEFF B. BADDERS
BADDER LAW FIRM
CAUSE NO. CV-13113251
LYNDELL MOSBY §
§
vs. §
§
ALLSTATE COUNTY MUTUAL INSURANCE CO. §
NOTICE OF INTENTION TO TAKE
DEPOSITION BY WRITTEN QUESTIONS
TO: Kelly B. Lea, WILSON, ROBERTSON & CORNELIUS, 909 ESE Loop 323, Suite 400, Tyler;TX 75701
PLEASE T .A.KE NOTICE that after twenty (20) days from the service of a copy hereof; and of the attached questions, a
deposition by written questions will be taken of the CUSTODIAN(S) OF Elv!PLOYMENT RECORDS FOR:
Aramark Campus, LLC, PO Box 8118, Philadelphia, PA 19101
before a Notary Public or an authorized officer for RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX,
75766. Which deposition with attached questions may be .used in evidence upon the trial of the above-styled and
numbered cause pending in the above-named court.
Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer
authorized to take this deposition to issue a SUBPOENA DUCES TECUM ·and cause it to be served on the witness to
produce for inspection and photocopying ANY AND ALL EMPLOYMENT RECORDS including, BUT NOT LIMITED
TO: Pre-employment records, ·payroll records, personnel records, applications for employment, disciplin.aty records,
evaluation records, supervisor reports, W-2's, employment contracts, independent contractor agreements, appointment
logs, appointment books, wage records, time cards, claim file, disability applications, worker's compensation records, .all
group health insurance records, medical files, attendance records, office notes (handwritten or typed), any
correspondence :from other employers or .attorneys, and anything else reduced to writing in the possession, custody or
control oftb.e said witness pertaining to:
LYNDELL MOSBY; DOB: .
and tum all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of
the same may be made and attached to said deposition.
Respectfully submitted,
JEFF B. BADDERS
BADDERS LAW FIRM
ATTORNEYSFORPL~
STATE BARNO. 01496850
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Notice of Intention to Take Deposition by Written Questions has
been delivered to the individuals listed below, by certified mail, postage prepaid, hand delivered or by telephonic
document transfer, on this the 27Tff. day of June, 2014.
RECORDS & REVIEW
cc: Kelly B. Lea
CAUSE NO. CV-1313251
LYNDELL MOSBY § IN THE COUNTY COURT
§
vs. § ATLAWOF
§
ALLSTATE COUNTY MUTUAL INSURANCE CO. § NACOGDOCHESCOUNTY,TX
DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS,
CUSTODIAN OF EMPLOYMENT RECORDS FOR:
ARAMARK CAMPUS LLC
1. Please: state your full name, occupation, and official title.
Answer:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
2. Are you the custodian of the employment records of ARAMARK CAMPUS LLC or do you have authority to
release these records?
Answ~:. ____________________________________________
3. Are you among those who have possession, custody, control of or access to all employment records pertaining to
LYNDELL MOSBY?
Answer._______________________________________________
4. Are the aforementioned records kept in the regular course of business of your employer?
Answ~:. ___________________________________________
5. Was it in the regular course ofbusiness of ARAMARK CAMPUS LLC for a person with personal knowledge of
the act, event, condition or opinion recorded to make the record or to transmit information thereof to be included in
such record?
Answer:_________________________________________________
6. Please state whether these records were made at the time or shortly after the time of the transaction or service
recorded.
Answ~:. _______________________________________________
7. Have you received a subpoena duces tecum (including this one) for records pertaining to LYNDELL MOSBY?
Answ~:.______________________________________________
8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals thereof: for
photocopying for attachment to this deposition. Have you done as requested? If not, why not?
Answ~:. ____________________________________________
WITNESS (Custodian ofRecords)
Sworn to and subscribed before me on the _ _ _ day of _____________, 2014.
Notary Public In and for The State of _ _ _ __
My Commission Expires:._ _ _ _ _ _ _ __
CAUSE NO. CV-1313251
LYNDELL MOSBY § IN THE COUNTY COURT
§
vs. § ATLAWOF
§
ALLSTATE COUNTY MUTUAL INSURANCE CO. § NACOGDOCHESCOUNT~TX
RECORDS AFFIDAVIT
STATE OF _ _ _ __
COUNTY OF _______
Before me, the undersigned authority, personally a p p e a r e d - - - - - - - - - - - - - ' who,
being by me duly sworn, deposed as follows:
My name is . I am of sound mind, capable of making this
affidavit, and personally acquainted with the facts herein stated:
I am the custodian of records for ARAMARK CAMPUS LLC. Attached hereto are pages and
_ _ CD/DVD(s) of records from ARAMARK CAMPUS LLC concerning LYNDELL MOSBY.
These said pages and _ _ CD/DVD(s) of records are kept by ARAMARK CAMPUS LLC in
the regular course of business, and it was the regular course of business of ARAMARK CAMPUS LLC
for an employee or representative of ARAMARK CAMPUS LLC, with knowledge of the act, event,
condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be
included in such record; and the record was made at or near the time or reasonably soon thereafter. The
records attached hereto are the original or exact duplicates of the original.
AFFIANT
SUBSCRIBED AND SWORN TO before me this the _ _ day of _ _ _ _ _ _ _., 2014.
Notary Public in and for the State of _ _ _ __
INSTRUCTI
FOR COMPLETING RE EST
1. IF the TOTAL COST OF PROCESSING this request exceeds
$75.00, please call our office BEFORE processing them for
attorney approval.
2. IF the request includes any legal documents, the legal documents
are to be completed by the Custodian. PLEASE PRINT YOUR
NAME CLEARLY.
3. Please READ and ANSWER each question, and SIGN on the
Witness/Affiant line. Your si nature must be notariz . The
NOTARY must SIGN on the notary line as well as provide the
notary SEAL to the LEFT of the signature.
4. WHITE OUT IS NOT allowed on legal documents. It renders the
document inadmissible in court. If you happen to make a mistake
on the legals, please call and we will send you another one, or we
can assist you in making a correction.
PLEASE MAIL TO
RECORDS & REVIE
190 County Road 4204
Jacksonville, TX 75766
Phone: (903) 586-2182 Fax: (903) 586-5901
THE STATE OF TEXAS
TO ANY SHERIFF, CONSTABLE, OR ANY OTHER PERSON AUTHORIZED TO SERVE
SUBPOENAS UNDER RULE 176 T.R.C.P.
GREETINGS:
YOU ARE HEREBY COMMANDED TO SUBPOENA AND SUl\1MON the following witnesses:
Custodian of Records for:
Wells Fargo Bank Acct#:
4150 Mockingbird Lane
Dallas, TX 75205
to be and appear before a Notary Public of my designation for
Records & Review
190 County Road 4204
Jacksonville, TX 75766
on the forthwith day instanter at the office of the custodian or other agreed upon time and/or place and there to make answers under oath
of certain written questions to be propounded to the custodian of records. The witness is to bring and produce for inspection and
photocopying THE FOLLOWING RECORDS BEGINNING JANUARY 1, 2012 THROUGH PRESENTMAINTAINED WITH YOUR
FINANCIAL INSTITUTION PERTAINING TO CURTIS REASON ENOS, JR., GLENNA ENOS, ENOS TRUCKING CO.,
ATTORNEY-CLIENT,JACKN.BARBEEATTORNEY-TTE,rl/blaJACKN.BARBEEincluding,BUTNOTLIMITEDTO: !)Copies
of all signature cards, deposit-box rental agreements, deposit-box entry records, and records of assets in safekeeping in the name of Curtis
Reason Enos, Jr., Glenna Enos, and Enos Trucking Co., on which Curtis Enos or Glenna Enos had or has signatory authority for the period
of January 1, 2012 to present; and 2) Copies of all bank statements, deposit records, withdrawal records, transfer records, and cancelled
checks for all checking accounts, savings accounts, certificates of deposit, and any other types ofaccounts maintained in the name of Curtis
Reason Enos, Jr., Glenna Enos, and Enos Trucking Co. On which Curtis Enos or Glenna Enos had or has the right to withdraw for the
period from January 1, 2012 to present; and anything else reduced to writing in the possession, custody or control of the said witness
pertaining to:
CURTIS REASON ENOS, JR., GLENNA ENOS, ENOS TRUCKING CO.,
ATTORNEY-CLIENT, JACK N. BARBEE ATTORNEY-TTE, d/b/a JACK N. BARBEE
This Subpoena is being issued at the instance of the Attorney for Jennifer Gribble in that certain Cause No. 09269 in the
County Court at Law of Houston County, Texas.
IN THE ESTATE OF CURTIS REASON ENOS, JR., DECEASED
and there remain from day to day and time to time until discharged by me according to law. This subpoena is issued in
accordance to Rule 176, T.R.C.P., and falls under exception to confidentiality,Rule509(e)(4). Rule 176.8(a) Contempt:
Failure by any person without adequate excuse to oby a subpoena served upon that person may be deemed in contempt
of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and
may be punishable bv fine or confinement, or both.
Witness my hand, this the dO~ day of J L..LD..g.__ ,2014.
Officer's Return
CAME TO HAND ON THE _ _ day of _ _ _ _ _ 2014, and executed same by delivering this subpoena to
__J
the witness named, on the _ _ day of 2014,
accepting the tender of all legal fees.
By: ___________~---------
CAUSE NO. 09269
IN THE ESTATE OF § IN THE COUNTY COURT
§
CURTIS REASON ENOS, JR. § ATLAWOF
§
DECEASED § HOUSTON COUNTY, TEXAS
NOTICE OF INTENTION TO TAKE
DEPOSITION BY WRITTEN QUESTIONS ..::::- :r.
co ..,. nc:.
-t.. CJC::
:::Q· > cc.n
TO: William R. Pemberton, ATTORNEY AT LAW, 306 N. 71h Street, Crockett, TX 75835 Cl -< z
LynnE. Markham, ATTORNEY AT LAW, 608 E. Houston Ave., Crockett, TX 75835 f;; -~ -;
-i - -<
PLEASE TAKE NOTICE that after twenty-four (24) days from the service of a copy hereof, and ofthe~ached"questmns, i'- ··
deposition by written questions will be taken of the CUSTODIAN(S) OF RECORDS FOR: ~ ~=
Citizens National Bank flk/a East Texas National Bank, Attn: Betty Germany, 207 W. Spring St, Pale~, TX 75801 r:,~.
Citizens National Bank, 1320 Texas 304 Loop, Crockett, TX 75835 ·- (..;.,)
Crockett Bank, 617 E. Houston Ave., Crockett, TX 75835
First Community Bank, 415 E. Goliad Ave., Crockett, TX 75835
Grapeland State Bank, 122 Main St., Grapeland, TX 75844
Lovelaqy State Bank, 910 S. Commerce St., Lovelady, TX 75851
Southland Federal Credit Union, 2601 S. John Redditt Dr., Lufkin, TX 75904
Corporation Service Co.; Reg. Agent for Wells Fargo Bank, 211 East 7th St., Ste 620, Austin, TX 78701 (ACCT#: 7117814850)
before a Notary Public or an authorized officer for·RECORDS & REVIEW, 190 County Road 4204, Jacksonville, TX, 75766.
Which deposition \Vith attached questions may be used in evidence upon the trial of the above-styled and numbered cause pending in
the above-named court. ·
Notice is further given that request is hereby made as authorized under the Texas Rules of Civil Procedure, to the Officer authorized to
take this deposition to issue a SUBPOENA DUCES TECUM and cause it to be served on the witness to produce for inspection and
photocopying THE FOLLOWING RECORDS BEGINNING JANUARY 1. 2012 THROUGH PRESENT MAINTAINED WITH
YOUR FINANCIAL INSTITUTION PERTAINING TO CURTIS REASON ENOS, JR., GLENNA ENOS, AND ENOS
TRUCKING CO. including, BUT NOT LIMITED TO: 1) Copies ofall signature cards, deposit-box rental agreements, deposit-box
entry records, and records of assets in safekeeping in the name of Curtis Reason Enos, Jr., Glenna Enos, and Enos Trucking Co., on
which Curtis Enos or Glenna Enos had or has signatory authority for the period ofJanuazy 1, 2012 to present; and 2) Copies of all
bank statements, deposit records, withdrawal records, transfer records, and cancelled checks for all checking accounts, savings
accounts, certificates of deposit, and any other types of accounts maintained in the name of Curtis Reason Enos, Jr., Glenna Enos, and
Enos Trucking Co. On which Curtis Enos or Glenna Enos had or has the right to withdraw for the period from January 1, 2012 to
present; and anything else reduced to writing in the possession, custody or control of the said witness pertaining to:
CURTIS REASON ENOS, JR., GLENNA ENOS, and/or ENOS TRUCKING CO.
and tum all such records over to the Notary Public authorized to take this deposition for inspection and photocopying of the same may
be made and attached to said deposition.
Respectfully submitted,
JIM PARSONS
LAW OFFICES OF JIM PARSONS
ATTORNEY FOR Jennifer Gribble
STATE BAR NO. 00000065
CERTIFICATE OF SERVICE
dayofMay,2014 !(``
t
I certify that a true and correct copy of the foregoing Notice of Intention t Take Deposition by Written Questions has been delivered
to the individrulls !isred below, by certified mail, po~d, 'vered or by telephonic document transfer, on this the 13•
RECORDS & REVIEW
cc: William R. Pemberton
Lynn E. Markham
CAUSE NO. 09269
IN THE ESTATE OF § IN THE COUNTY COURT
§
CURTIS REASON ENOS, JR. § ATLAWOF
§
DECEASED § HOUSTON COUNTY, TEXAS
DIRECT QUESTIONS TO BE PROPOUNDED TO THE WITNESS,
CUSTODIAN OF RECORDS FOR:
WELLS FARGO BANK
1. Please state your full name, occupation, and official title.
Answer:'------------------------'-----------
2. Are you the custodian of the records ofWELLS FARGO BANK or do you have authority to release these records?
hlsw~:. _______________________________________________
3. Are you among those who have possession, custody, control of or access to records pertaining to THOSE ITEMS
LISTED ON THE NOTICE?
hlswer:______________________________________________________
4. Are the aforementioned records kept in the regular course ofbusiness of your employ~?
Answ~=·---------------------------------------------------
5. Was it in the regular course ofbusiness ofWELLS FARGO BANK for a p~son with personal knowledge of the act,
event, condition or opinion recorded to make the record or to transmit information thereof to be included in such
record?
Answ~=·------------------------------------------------
6: Please state whether these records were made at the time or shortly after the time of the transaction or service
recorded.
Answ~:. _______________________________________
7. Have you received a subpoena duces tecum (including this one) for records pmaining to THOSE ITEMS LISTED
ON THE NOTICE?
Answer..________________________________________
8. Please release exact duplicates of the records as requested on the deposition subpoena, or the originals th~eof, for
photocopying for attachment to this deposition. Have you done as requested? If not, why not?
Answ~:. ___________________________________________________________
WITNESS (Custodian ofRecords)
Sworn to and subscribed before me on the _____ day of ___________________; 2014.
· Notary Public In and for The State of________
My Commission Expires:.___________
CAUSE NO. 09269
IN THE ESTATE OF § IN THE COUNTY COURT
§
CURTIS REASON ENOS, JR. § ATLAWOF
§
DECEASED § HOUSTON COUNTY, TEXAS
AFFIDAVIT
STATE OF _ __
COUNTY OF ________
Before me, the undersigned authority, personally a p p e a r e d - - - - - - - - - -
_ _ _ _ _ _ _ _ _ _ _ _:,who, being by me duly sworn, deposed as follows:
I, the undersigned, am over 18 years of age, of sound mind, capable of making this
affidavit, and personally acquainted with the facts herein stated:
I am the CUSTODIAN OF RECORDS for WELLS FARGO BANK
Attached hereto are pages and CD/DVD(s) of records concerning CURTIS
ENOS, JR. These said records are kept in the regular course of business at the office of the
above, and it was in the regular course of business, at the office of the above, for an employee,
representative, or a doctor, with personal knowledge of the act, event or condition, opinion, or
diagnosis recorded to make the memorandum or record, or to transmit information hereof to be
included in such memorandum or record. The memorandum or record was made at or near the
time of the act, event or condition recorded or reasonably soon thereafter.
The records attached hereto are the originals or exact copies of the originals and nothing
has been removed or deleted from the original file before making these copies.
AFFIANT
SUBSCRIBED AND SWORN to before me on the _ _ day of _ _ _ _ _ _ _, 2014.
Notary Public in and for the State of _ __
INSTRUCTI
FOR COMPLETING RE UEST
IF THERE ARE LEGALS WITH THIS REQUEST DO NOT
USE WHITE OUT TO CORRECT ANY ERRORS. See #4.
~II
1. IF the TOTAL COST OF PROCESSING this request exceeds
$75.0n, please call our office BEFORE processing them for
attorney approvaL
2. IF the request includes any legal documents, the ~egal documents
are to be completed by the Custodian. PLEASE PRINT YOUR
NAME CLEARLY.
3. P~ease READ and ANSWER each question, and SIGN on the
Witness/Affiant line. Your signature must be notarized. The
NOTARY must SIGN on the notary line as well as provide the
notary SEAL to the LEFT of the signature.
4. WHITE OUT IS NOT allowed on legal documents. It renders the
document inadmissible in court. If you happen to make a mistake
on the legals, please call and we will send you another one, or we
can assist you in making a correction.
PLEASE MAIL TO
RECORDS & REVIE
190 County Road 4204
Jacksonville, TX 75766
Phone: (903) 586-2182 Fax: (903) 586-5901