in Re Vernon Veldekens ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-22-00335-CV
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IN RE VERNON VELDEKENS, ET AL
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Original Proceeding
284th District Court of Montgomery County, Texas
Trial Cause No. 22-05-06903-CV
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MEMORANDUM OPINION
Relators, Vernon Veldekens; Marcel Town Center Cross Creek, LLC; Marcel
Town Center Riverstone, LLC; Marcel Boulevard, LLC; Apex Suites 1, LLC; Apex
Suites 2, LLC; Apex Suites 3, LLC; Atelier Salon Suites, 1, LLC; Atelier Salon
Suites 2, LLC; The Perfect Round 1, LLC; The Perfect Round 2, LLC; and The
Perfect Round 3, LLC, filed a petition for a writ of mandamus and a motion for
temporary relief. See Tex. R. App. P. 52.1, 52.10. Relators seek to compel the trial
court to vacate a September 11, 2022 order disqualifying their counsel in a lawsuit
where Real Party in Interest Bowerman Contracting, LLC. asserted quantum meruit,
promissory estoppel, and fraud claims in connection with an alleged agreement for
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Bowerman Contracting to perform commercial construction superintendent services
and other services for Veldekens on the Relators’ commercial real estate projects.
See Tex. Gov’t Code Ann. § 22.221.
Bowerman Contracting’s motion to disqualify claimed Relator’s trial counsel
represented both Bowerman Contracting and the Relators “on an ongoing basis
concerning all aspects of their business relationship.” Relators argue Bowerman
Contracting failed to establish that the current lawsuit is the same as or substantially
related to two subcontractor payment disputes, where Relators’ counsel represented
Bowerman Contracting, or a fishing boat dispute where Relators’ counsel
represented Bowerman Contracting’s principal. See Tex. Disciplinary Rules Prof’l
Conduct R. 1.09(a)(3), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A
(“Without prior consent, a lawyer who personally has formerly represented a client
in a matter shall not thereafter represent another person in a matter adverse to the
former client: . . . if it is the same or a substantially related matter.”). Relators argue
Bowerman Contracting failed to provide any evidence that Bowerman Contracting
disclosed to Relators’ counsel any confidential information that relates to Bowerman
Contracting’s agreement with Veldekens.
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The trial court granted Bowerman Contracting’s motion to disqualify
Relators’ counsel after holding two evidentiary hearings1 and examining documents
in camera, but the documents that the trial court examined in camera have been
omitted from the mandamus record. The trial court noted that the documents
included discussions that pertained to the business separation between Plaintiff and
Defendants and related to events that occurred at a time when counsel represented
both Plaintiff and Defendants. The trial court found “counsel was involved in the
business and litigation aspects of the arrangement between Plaintiff and Defendants,
and that arrangement is central to the issues in this case.” The trial court found that
the “evidence meets the burden of showing a prior attorney/client relationship with
defense counsel, as well as a substantial relationship between the two
representations.” The trial court also found that counsel could have acquired
confidential information concerning his prior client that could be used either to that
prior client’s disadvantage or for the advantage of his current client.
The relators have the burden of providing this Court with a sufficient record
to establish their right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837
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Bowerman testified at the hearing that he had discussed and disclosed
information to the attorney about the compensation and business arrangement
between the Plaintiff and Defendants which is at issue in the underlying suit, and
Bowerman produced for in camera review to the court certain documents
representing communications between the parties and the attorney. Bowerman also
alleged at the hearing that the attorney should be disqualified because he is a fact
witness.
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(Tex. 1992) (orig. proceeding). After reviewing the mandamus petition and the
record that Relators submitted with their petition, and based upon the mandamus
record, we conclude that Relators have not shown they are entitled to the relief
sought in their mandamus petition. Accordingly, we deny the petition for a writ of
mandamus and the motion for temporary relief. See Tex. R. App. P. 52.8(a).
PETITION DENIED.
PER CURIAM
Submitted on November 16, 2022
Opinion Delivered November 17, 2022
Before Golemon, C.J., Kreger and Johnson, JJ.
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