in Re Hugh Larkin

Opinion issued March 17, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00392-CV
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IN RE HUGH LARKIN, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
This original proceeding for writ of mandamus arises from a suit concerning
encroachment of a neighboring condominium owner. The suit was filed by by
relator, Hugh Larkin, against real parties in interest, Holly Rodriguez and Riverwalk
Council of Co-Owners, Inc.1 Larkin challenges the trial court’s March 18, 2015
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The underlying case is Hugh Larkin v. Holly Rodriguez & Riverwalk Council of Co-
Owners, Inc., cause number 1047713, pending in County Civil Court at Law No. 4
of Harris County, Texas, the Honorable Roberta Lloyd presiding.
order, which overruled Larkin’s assertion of attorney-client privilege for certain
matters. He also challenges the trial court’s April 15, 2015 order, which denied his
motion for reconsideration of the matter.
In his petition for a writ of mandamus, Larkin seeks to vacate the trial court’s
orders determining that no attorney-client privilege exists for certain documents. We
conditionally grant the petition.
Background
Larkin owns a condominium in Houston, Texas. His daughter, Whitney
Larkin, resides in the condominium. In August 2013, Larkin issued a power of
attorney naming his daughter as attorney-in-fact to act on his behalf “in all capacity
for all matters” for the condominium. In 2014, a dispute arose with a neighboring
resident. Larkin’s daughter retained counsel on her father’s behalf to initiate a
lawsuit relating to the matter. The firm filed suit. During this time, Larkin’s
daughter prepared a document related to the suit, signed an engagement letter on her
father’s behalf, and communicated with the firm about the lawsuit.
Rodriguez, one of the defendants in the suit, sought discovery from Larkin,
including documents prepared by his daughter and communications between his
daughter and the law firm. Larkin objected to the requests for production about
documents prepared by his daughter and communications between her and Larkin’s
counsel on the grounds that they were privileged. Larkin produced a privilege log.
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Rodriguez filed a motion to compel, seeking production of the documents
listed on the privilege log. On March 18, 2015, the trial court overruled Larkin’s
objections and required the documents to be produced. In a motion for
reconsideration, Larkin attached the power of attorney he issued naming his daughter
as his attorney-in-fact for the condominium. On April 15, 2015, the trial court denied
the motion to reconsider.
This mandamus proceeding followed. We requested a response to the petition
for writ of mandamus. No response was filed.
Standard of Review
Mandamus is an extraordinary remedy, available only when the relator can
show both that: (1) the trial court clearly abused its discretion; and (2) there is no
adequate remedy by way of appeal. In re Ford Motor Co., 165 S.W.3d 315, 317
(Tex. 2005) (orig. proceeding). A clear abuse of discretion occurs when a trial court
“reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.
proceeding) (internal quotation marks and citation omitted). A trial court has no
discretion in determining what the law is or in applying the law to the particular
facts. Id. at 840. A clear failure by the trial court to analyze or apply the law
correctly constitutes an abuse of discretion. Id.
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In determining whether an appeal is an adequate remedy, we consider whether
the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am.,
Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding). A party establishes that
no adequate appellate remedy exists by showing it is in real danger of losing its
substantial rights. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.
1994) (orig. proceeding).
Attorney-Client Privilege
Rule 503(b)(1)(A) of the Texas Rules of Evidence provides,
(1) . . . . A client has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential communications
made to facilitate the rendition of professional legal services to
the client:
(A) between the client or the client’s representative and the
client’s lawyer or the lawyer’s representative;”
TEX. R. EVID. 503(b)(1)(A). “A ‘client’s representative’ is . . . a person who has
authority to obtain professional legal services for the client or to act for the client on
the legal advice rendered.” TEX. R. EVID. 503(a)(2)(A).
It is undisputed that Larkin owns the condominium that his daughter occupies.
Larkin presented proof to the court that he had appointed his daughter as his
attorney-in-fact to act on his behalf for “in all capacity for all matters” for the
condominium. Larkin further presented proof that his daughter, acting “as attorney-
in-fact for” Larkin, hired a law firm to handle the underlying dispute. She
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corresponded with the attorneys in the firm, and it is the correspondence between
her and that firm that has become the subject of the discovery request at issue.
“A power of attorney creates an agency relationship.” Plummer v. Estate of
Plummer, 51 S.W.3d 840, 842 (Tex. App.—Texarkana 2001, pet. denied); see also
In re McCall, No. 08-02-00071-CV, 2002 WL 1341104, at *2 (Tex. App.—El Paso
June 20, 2002, orig. proceeding) (citing Plummer). An agent has express authority
to take all actions designated by the principal. Reliant Energy Services, Inc. v.
Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 783 (Tex. App.—Houston [1st
Dist.] 2011, no pet.). An agent has implied authority “to do whatever is necessary
and proper to carry out the agent’s express powers.” Id.
Here, the power of attorney from Larkin to his daughter expressly gives his
daughter the authority to act on his behalf “in all capacity for all matters” for the
condominium. We hold this necessarily includes the authority to retain legal counsel
and to discuss legal matters with them. Larkin has not challenged his daughter’s
authority to retain counsel and communicate with them on his behalf. Instead, he
has supported it.
Larkin’s daughter, then, fits within the definition of “client’s representative”
in Rule 503. See TEX. R. EVID. 503(a)(2)(A) (“A ‘client’s representative’ is . . . a
person who has authority to obtain professional legal services for the client or to act
for the client on the legal advice rendered.”). Because she is Larkin’s representative,
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her communications with Larkin’s attorneys are privileged. TEX. R. EVID.
503(b)(1)(A).
One of the documents withheld was identified as work product instead of an
attorney-client communication. The privilege log identifies that Larkin’s daughter
prepared the document. “Work product comprises . . . material prepared . . . in
anticipation of litigation or for trial by . . . a party or a party’s representatives,
including the party’s . . . agents.” TEX. R. CIV. P. 192.5(a)(1). Core work product,
the work product of an attorney or an attorney’s representative, is not discoverable.
TEX. R. CIV. P. 192.5(b)(1). All other work product is discoverable if there is a
showing of a substantial need and an inability to obtain substantially equivalent
material by other means. TEX. R. CIV. P. 192.5(b)(2).
There has been no showing that there is a substantial need for the work product
produced by Larkin’s daughter. Accordingly, the trial court could not require Larkin
to produce this document either.
Inadequate Remedy
“[M]andamus is proper when the trial court has abused its discretion by
committing a clear error of law for which appeal is an inadequate remedy.” In re
Ford Motor Co., 211 S.W.3d 295, 297–98 (Tex. 2006). “If an appellate court cannot
remedy a trial court’s discovery error, then an adequate appellate remedy does not
exist.” In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004). “[A]ppeal is inadequate
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when a trial court erroneously orders the production of confidential information or
privileged documents.” Ford, 211 S.W.3d at 298. Because the trial court’s orders
required production of privileged documents, an appeal would be an in adequate
remedy and mandamus is proper.
Conclusion
We conditionally grant the mandamus petition and direct the trial court to
vacate its March 18, 2015 and April 15, 2015 orders. Our writ will issue only if the
trial court does not comply within 30 days of the date of this opinion.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
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