in Re Hugh Larkin

ACCEPTED
01-15-00392-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/27/2015 11:38:31 AM
CHRISTOPHER PRINE
CLERK
01-15-00392-CV
NO.__________________
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS
4/27/2015 11:38:31 AM
FOR THE ______________ DISTRICT OF TEXAS
CHRISTOPHER A. PRINE
AT HOUSTON Clerk
In Re Hugh Larkin,
Relator
Original Proceeding from the
County Civil Court at Law #4 of Harris County, Texas
Trial court Cause No. 1047713
RELATOR HUGH LARKIN’S PETITION FOR WRIT OF MANDAMUS
Famose T. Garner
SBN 24074252
6201 Bonhomme Road, Suite 354-N
Houston, Texas 77036
famosegarner@gmail.com
Phone: (832) 722-0881
Fax: (713) 481-0205
ATTORNEY FOR RELATOR
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Under Texas Rule of Appellate Procedure 52.3(a), a complete list of all parties with the names and
addresses of all trial and appellate counsel follows:
Relator:
Hugh Larkin
Appellate and Trial Counsel for Relator:
Famose T. Garner
SBN 24074252
6201 Bonhomme Road, Suite 354-N
Houston, Texas 77036
famosegarner@gmail.com
Phone: (832) 722-0881
Fax: (713) 481-0205
Respondent:
Honorable Judge Roberta Lloyd
Harris County Judge
Civil County Court at Law Number 4, Harris County, Texas
201 Caroline, 7th Floor
Houston, Texas 77002
Real Parties in Interest:
Holly Rodriguez
Riverwalk Council of Co-Owners, Inc.
Trial Counsel for Real Parties in Interest:
Shawn Robert McKee
LAMBRIGHT & ASSOCIATES
2603 Augusta, Suite 1100
Houston, Texas 77057
srm@lambrightlaw.com
Attorneys for Riverwalk Council of Co-owners, Inc.
Richard Weaver
THE WEAVER LAW FIRM
1800 Bering Drive, Suite 305
Houston, Texas 77057
rweaver@weaverlawyers.com
Attorneys for Holly Rodriguez
i
TABLE OF CONTENTS
LIST OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. The Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. Relator Asserted Privileges Against Discovery Requests by The Real Parties in Interest. . . . . . . . . . . . 1
III. Relator Moves the Trial Court to Reconsider the March 18, 2015 Order
Finding Relator Waived Privilege and Imposing Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. Privilege Is Not Waived When Communications Concerning the Legal Issues of the
Underlying Suit Are Shared Between Whitney Larkin, Acting Under a Valid Power of
Attorney as Relator’s Representative, and Relator’s Attorney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. Relator’s Communications to Whitney Larkin, a Licensed Texas Attorney, Regarding the
Legal Issues Concerning the Underlying Suit Does Not Constitute a Waiver of Privilege. . . . . . . . . 5
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
APPENDIX
January 9, 2015 Order Granting Defendant’s Motion to Compel
Plaintiff’s Responses to Defendant’s Discovery Requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . Tab A
Reporter’s Record of Hearing on Plaintiff’s Motion to Clarify
Court’s January 9, 2015 Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . Tab B
Reporter’s Record of Hearing on Defendant’s Motion for Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . Tab C
ii
February 24, 2015 Letter Regarding Order Disagreement
and Signed February 27, 2015 Conditional Sanctions Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab D
March 18, 2015 Order Overruling Plaintiff’s Assertions of Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab E
March 26, 2015 Plaintiff’s Motion for Reconsideration
of March 18, 2015 Order Overruling Plaintiff’s Assertions of Privilege. . . . . . . . . . . . . . . . . . . . . . . . . Tab F
April 15, 2015 Order Denying Plaintiff’s Motion for Reconsideration. . . . . . . . . . . . . . . . . . . . . . . . . . Tab G
Power of Attorney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab H
Whitney Larkin’s Affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab I
In re McCall, 2002 Tex. App. LEXIS 9373 (Tex. App. El Paso June 20, 2002) . . . . . . . . . . . . . . . . . . . . Tab J
Text of TEX. R. EVID. 503. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab K
iii
TABLE OF AUTHORITIES
CASES PAGE(S)
Bhalli v. Methodist Hosp.,
896 S.W.2d 207 (Tex. App.—Houston [1st Dist.] 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Braden v. Marquez,
950 S.W.2d 191 (Tex. App.—El Paso 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Clark v. Ruffino,
819 S.W.2d 947 (Tex. App.—Houston [14th Dist.] 1991, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . 7
In re McCall,
2002 Tex. App. LEXIS 9373 (Tex. App. El Paso June 20, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 5
Intermedics, Inc. v. Grady,
683 S.W.2d 842 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . 4
Mellon Serv. Co. v. Touche Ross & Co.,
17 S.W.3d 432 (Tex. App—Houston [1st Dist.] 2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Plummer v. Estate of Plummer,
51 S.W.3d 840 (Tex. App.—Texarkana 1994, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Roberts v. Healey,
991 S.W.2d 873 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Stoner v. Massey,
586 S.W.2d 843 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Vinson & Elkins v. Moran,
946 S.W.2d 381 (Tex. App.—Houston [14th Dist.] 1997, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATUTES
TEX. R. EVID. 503(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. R. EVID. 503(a)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5
TEX. R. EVID. 503(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7
iv
STATEMENT OF THE CASE
This petition for mandamus seeks to remedy violations of attorney client privilege that would
require the disclosure of privileged documents. This controversy arises in a civil matter concerning
a breach of contract and fiduciary duty resulting from the encroachment onto Relator’s property by the
Real Parties in Interest. Respondent is the Honorable Judge Roberta Lloyd, Judge of the County Civil Court
at Law No. 4 of Harris County, Texas. Relator seeks relief from the March 18, 2015 order overruling
discovery objections that were based on attorney-client privilege. The Judge reviewed the documents in
camera, and then ordered their disclosure. Relator also seeks relief from the April 15, 2015 order that
denied Relator’s Motion for Reconsideration confirming the previous order and imposing sanctions.
Respondent should be compelled to order that the materials are protected and privileged under Texas
Rule of Evidence 503.
STATEMENT OF JURISDICTION
This Court has jurisdiction to grant this petition for writ of mandamus under Section 22.221(b) of
the Texas Government Code because the orders of the trial court constitute a clear abuse of discretion that
impacts the rights of the parties to the proceedings below for which no adequate remedy exists by
ordinary appeal.
v
ISSUE PRESENTED
Whether the trial court abused its discretion in finding that communications with Whitney Larkin,
acting under a valid power of attorney as Hugh Larkin’s representative and a licensed attorney,
concerning legal issues waived privilege and in overruling Relator’s objections based on assertions of
privilege to discovery requests of the Real Parties in Interest.
vi
STATEMENT OF FACTS1
I. The Parties
Relator, Hugh Larkin, is an individual residing in Harris County, Texas. Relator owns a
condominium located at 2300 Old Spanish Trial, Unit 2070, Houston, Texas 77054. Relator’s
daughter, Whitney Larkin, lives in the condominium. Relator executed a power of attorney to Ms.
Larkin to handle all affairs related to the condominium.2
The Real Parties in Interest are Holly Rodriguez, an individual whose principal residence is 2300
Old Spanish Trail, Unit 2071, Houston, Texas 77054, (the adjacent unit) and Riverwalk Council of Co-
Owners, Inc., a Texas non-profit corporation organized under the laws of the State of Texas that is the
condominium association for Larkin’s and Rodriguez’ units.
II. Relator Asserted Privileges Against Discovery Requests by The Real Parties in Interest.
On May 16, 2014, Relator sued the Real Parties in Interest for breach of contract, breach of
fiduciary duty, trespass to try title, conversion, unjust enrichment, and promissory estoppel for removing
a firewall and encroaching onto Relator’s property. 3 (R. 1-81; 86-93.) On January 29, 2015, Relator
responded to discovery requests and asserted privileges to some of the requests. 4 On February 5, 2015,
Real Party in Interest Rodriguez filed a motion for sanctions. (R. 178-203.) At the February 24, 2015
hearing on the motion for sanctions, Rodriguez argued that communications between Whitney Larkin
and Hugh Larkin should not be privileged. (R. 204-30.) The trial court ordered Relator to produce a
privilege log and to deliver the documents for an in camera inspection, (R. 231-38.), which promptly
1
The Relator’s Record in Support of this Petition for Writ of Mandamus is filed herewith. Each document of the record is
bookmarked. The Power of Attorney and Whitney Larkin’s Affidavit contained in the record are also attached as Appendix H
and I, respectively. References to the record herein are shown as “R. _” with the record page number following the “R.”
2
Relator includes as part of the Appendix the executed Power of Attorney (Tab F).
3
The Plaintiff’s Petition is still pending and presently set for trial on September 14, 2015. (R. 308.)
4
Relator objected to Real Party in Interest Rodriguez’ discovery requests asserting that the responses were due outside the
discovery period. The trial court ordered the responses due on January 29, 2015. Real Party in Interest Rodriguez argued that
the January 5, 2015 Order overruled Relator’s asserted objections, which had not been asserted at the time of rendition of
the January 5, 2015 Order. Relator filed a Motion to Clarify the January 5, 2015 order. (R. 157-75.)
1
occurred.5 On March 18, 2015, the trial court issued an order overruling all of Relator’s objections and
assertions of privilege because none of the communications were between Relator and his attorney of
record and Whitney Larkin was outside of the privilege. 6 (R. 240.)
III. Relator Moves the Trial Court to Reconsider the March 18, 2015 Order Finding Relator Waived
Privilege.
On March 26, 2015, Relator moved for reconsideration of the trial court’s order finding that
Relator waived privilege and ordering Relator to produce the requested documents. (R. 241-306.) On
March 27, 2015, Real Party in Interest Rodriguez moved to compel the discovery and for sanctions
against Relator and Relator’s counsel.7 On April 15, 2015, the trial court affirmed the March 18, 2015
order and ordered Relator to produce the requested documents or be subject to sanctions for $500.00.
(R. 310.) This petition follows.
ARGUMENT
Mandamus relief is appropriate because the trial court abused its discretion by overruling
Relator’s objections asserting privilege regarding communications between Relator, Relator’s agent
Whitney Larkin, and Relator’s attorney Phillip Silberman. Mandamus relief will lie when a trial court
clearly abuses its discretion and there is no adequate remedy on ordinary appeal. Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992). A trial court’s failure to correctly apply the law constitutes an abuse of
discretion that warrants mandamus relief. Id. at 839; see also Braden v. Marquez, 950 S.W.2d 191, 193-
94 (Tex. App.—El Paso 1997).
To obtain a writ of mandamus, Texas law requires proof of “a legal duty to perform a
nondiscretionary act; a demand for performance and a refusal.” Stoner v. Massey, 586 S.W.2d 843, 846
(Tex. 1997). Here, Relator meets all three: (1) the trial court has a non-discretionary duty to apply the
5
The Relator will provide these documents to the Court in a separate filing.
6
Relator includes as part of the Appendix the March 18, 2015 Order (Tab E).
7
Relator originally set his Motion for Reconsideration for April 22, 2015; however, Real Party in Interest Rodriguez set her
Motion for Sanctions on April 15, 2015. Therefore, Relator reset his Motion for Reconsideration to be heard the same day.
(R. 307.)
2
law to the facts, (2) Relator objected to Rodriguez’ discovery requests by properly asserting privilege and
requested that the trial court reconsider the order, and (3) the trial court refused Relator’s request by
entering an order requiring Relator to produce documents in response to discovery requests and
granting sanctions for $500.00 for Relator’s refusal to do so.
This Petition is proper because Relator has no clear or adequate remedy other than mandamus
relief. Once privileged documents are produced, they cannot be retrieved. The production of those
documents cannot be undone. The Appellate Court cannot cure the trial court’s discovery error by
appeal after trial. Therefore, Relator seeks mandamus relief.
I. Privilege is Not Waived When Communications Concerning the Legal Issues of the Underlying
Suit are Shared Between Whitney Larkin, Acting Under a Valid Power of Attorney as Relator’s
Representative, and Relator’s Attorney of Record.
Mandamus relief is appropriate because the trial court abused its discretion by ordering the
production of communications between Relator’s agent, Whitney Larkin, and Relator’s attorney, Philip
Silberman. The attorney-client privilege attaches to confidential communication made to facilitate the
rendition of professional legal services to the client between a representative of the client and the
client's lawyer or a representative of the lawyer. See Tex. R. Evid. 503(b)(1). A “representative of the
client” is any person “having authority to seek legal services on behalf of the client or any person who
sends or receives confidential information for the purpose of obtaining or effectuating legal services on
behalf of the client.” See Tex. R. Evid. 503(a)(2)(A).
Texas Rules of Evidence 503(a)(5) defines confidential communication as information “not
intended to be disclosed to third persons” unless the disclosure is made in furtherance of legal services
or the third person is necessary to transmit the communication on behalf of the client.
A person with a power of attorney is covered with attorney-client privilege. In In re McCall, 2002
Tex. App. LEXIS 9373 (Tex. App. El Paso June 20, 2002), a stepdaughter sought discovery that the
stepmother claimed was covered by the attorney-client privilege. The trial court held that privilege only
3
attached to the stepmother’s communication and that the stepdaughter was outside of the privilege. Id.
at 6. The Eighth District Court of Appeals granted mandamus and held that an attorney-client
relationship existed among the attorney, the stepmother, and the stepdaughter via a power of attorney.
Id. at 1. The stepdaughter had executed a power of attorney for her stepmother to perform business
transactions. Id. The stepmother consulted and retained an attorney on behalf of the stepdaughter for
certain legal services. Id. at 2. The stepdaughter ultimately severed the agency relationship with the
stepmother and subpoenaed legal invoices between the attorney and the stepmother. Id. The trial
court held that no attorney-client relationship existed between the stepdaughter and the attorney. Id.
at 3. The trial court also held that the invoices between the stepmother and the attorney were
protected from the stepdaughter under the attorney-client privilege. Id. The appellate court overruled
the trial court’s ruling that no attorney-client relationship existed and reasoned that the power of
attorney created an agency relationship between the stepdaughter and the stepmother. Id. at 4. The
court held that, because the stepmother was the stepdaughter’s agent, the attorney-client relationship
existed between the stepdaughter, stepmother, and any firm that the stepmother consulted in her
capacity as agent. Id. at 6.
Like the parties in McCall, Relator executed a power of attorney for his daughter, Whitney Larkin,
to handle his business affairs regarding the property. “A power of attorney creates an agency
relationship.” Id. at 5 (citing Plummer v. Estate of Plummer, 51 S.W.3d 840, 842 (Tex. App.—Texarkana
1994, writ denied). As Relator’s agent, Whitney Larkin is “authorized . . . to transact some business for
[Relator].” Id. at 4 (citing Bhalli v. Methodist Hosp., 896 S.W.2d 207, 210 (Tex. App.—Houston [1st Dist.]
1995). Relator named Whitney Larkin as his agent; therefore, Whitney Larkin had “actual authority . . .
to perform such acts as are necessary and proper to accomplish the purpose for which the agency was
created.” Id. at 5 (citing Intermedics, Inc. v. Grady, 683 S.W.2d 842, 847 (Tex. App.—Houston [1st Dist.]
1984, writ ref’d n.r.e.). Whitney Larkin is Relator’s representative.
4
Because Whitney Larkin contacted and retained an attorney on behalf of Relator in her capacity
as his agent, “an attorney-client relationship was created between [Mr. Larkin] and any law firm that
[Ms. Larkin] consulted in her capacity as [his] agent.” Id. at 6. Similar to the parties in McCall whose
attorney-client privilege extended to the client’s representative, Relator’s attorney-client privilege
extends to Ms. Larkin. Relator shared communications with Ms. Larkin in furtherance of the subject
matter of this suit. Hence, as Relator’s agent, any communications shared with her or from her to an
attorney on Relator’s behalf is confidential and protected by the attorney-client privilege.
Tex. R. Evid. 503(a)(2)(A) and applicable case law clarify that the attorney-client privilege extends
to Whitney Larkin as Relator’s agent and any communications between her and Relator and Relator’s
attorney of record remain privileged. Given that a power of attorney exists naming Whitney Larkin as
Relator’s agent and Whitney Larkin communicated with Relator and Relator’s attorney of record in her
capacity as Relator’s agent regarding matters directly related to this suit, all requested communications
are protected by the attorney-client privilege. The trial court abused its discretion in ordering Relator to
produce documents responsive to Real Party in Interest Rodriguez’ discovery requests and sanctions.
II. Relator’s Communications to Whitney Larkin, a Licensed Texas Attorney, Regarding the Legal
Issues Concerning the Underlying Suit Does Not Constitute a Waiver of Privilege.
Mandamus relief is appropriate because the trial court abused its discretion by finding that
Relator waived privilege by discussing the disputed matter with Whitney Larkin, a licensed Texas
attorney. Relator’s communications with Whitney Larkin regarding the legal issues concerning this suit
are privileged because the parties’ intentions and conduct established an attorney-client relationship.
An attorney-client relationship may be created through contract or implied by the parties’ conduct.
Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 437 (Tex. App—Houston [1st Dist.] 2000, no pet.).
For the relationship to be established, “the parties must explicitly or by their conduct manifest an
5
intention to create it.” Roberts v. Healey, 991 S.W.2d 873, 880 (Tex. App.—Houston [14th Dist.] 1999,
pet. denied). Relator solicited Whitney Larkin’s advice as an attorney regarding his property. Whitney
Larkin’s responses to Relator’s legal inquiries were based on her legal expertise and experience. Based
on the subject of their communications, Relator’s and Whitney Larkin’s communications are privileged
because they intended to create an attorney-client relationship.
In Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex. App.—Houston [14th Dist.] 1997, no pet.),
the Court held that an attorney-client relationship existed, based on the conduct of the parties, despite
their verbal assertions. The attorney and beneficiary agreed that Vinson & Elkins did not represent the
beneficiary, and the beneficiary retained other counsel. Id. at 404. However, the beneficiary and the
attorney for Vinson & Elkins conducted meetings and exchanged communications regarding the
disputed matter. Id. at 405. Even though the parties verbally disputed that there was an attorney-client
relationship, the Court held that the parties conducted themselves as though an attorney-client
relationship existed. Id. at 404-05. Because a client may have an attorney-client relationship with more
than one attorney, the Court held that the evidence legally and factually supported the existence of an
attorney-client relationship. Id. at 405.
Similar to Vinson & Elkins, Relator and Whitney Larkin conducted meetings, and exchanged
communications regarding the disputed matter. Unlike the parties in Vinson & Elkins, Relator and
Whitney Larkin agreed that Whitney Larkin would represent him in matters related to the disputed
property. Relator requested that Whitney Larkin act on his behalf regarding all matters related to the
property. Whitney Larkin extensively assisted Relator with his responses to discovery requests. 8 She
also assisted the attorney of record with case strategy and litigation decisions. All communications
between Relator and Whitney Larkin regarding the matter were intended to be confidential and
8
For example, Whitney Larkin helped draft the interrogatory responses. (R. 196.)
6
privileged.9 Therefore, Relator and Whitney Larkin established an attorney-client relationship, both
express and implied, through their conduct and communications.
No disciplinary rule expressly describes when an attorney-client relationship exists, but the
Preamble of a Lawyer’s Responsibilities to the Disciplinary Rules of Professional Conduct discusses the
various functions an attorney might perform when representing clients. Clark v. Ruffino, 819 S.W.2d
947, 949 (Tex. App.—Houston [14th Dist.] 1991, orig. proceeding). These functions include evaluating a
client's affairs and reporting about them to the client or to others. Id. Relator discussed issues
pertaining to the instant matter with Whitney Larkin. Relator solicited legal advice from Whitney Larkin,
and Whitney Larkin offered legal advice pertaining to Relator’s legal issues. Whitney Larkin’s actions
created an attorney-client relationship because she acted within her responsibilities as a licensed Texas
attorney, which establishes privilege for the communications between Relator and Whitney Larkin.
Relator’s and Whitney Larkin’s conduct and communications created the existence of an
attorney-client relationship that attached to their confidential communications that were made to
facilitate the rendition of professional legal services to the client between a representative of the client
and the client's lawyer or a representative of the lawyer. See Tex. R. Evid. 503(b)(1). Therefore,
Relator’s communications with Whitney Larkin did not waive attorney-client privilege. The trial court
abused its discretion by finding that Relator waived privilege by discussing the disputed matter with
Whitney Larkin, a licensed Texas attorney.
PRAYER FOR RELIEF
Relator has no adequate remedy other than mandamus, and is entitled to relief from respondent’s
actions. Relator respectfully requests that:
1. This petition for writ of mandamus be filed and set for oral argument.
9
Relator includes as part of the Appendix Whitney Larkin’s Affidavit filed in support of Relator’s Motion for Reconsideration
of the March 18, 2015 Order (Tab E).
7
2. Notice of filing of this petition and the date of oral argument be given to all parties.
3. Following the oral argument, this Court grant Relator a writ of mandamus directed to Respondent,
Honorable Roberta Lloyd, commanding Respondent to vacate the orders of March 18, 2015, and
April 15, 2015, entered in Cause No. 1047713, Hugh Larkin vs. Holly Rodriguez and Riverwalk Council
of Co-Owners, Inc., in their entirety.
4. This Court grant such other and further relief to which Hugh Larkin, Relator, may be justly entitled.
Respectfully submitted,
/s/Famose T. Garner
Famose T. Garner
SBN 24074252
6201 Bonhomme Road, Suite 354-N
Houston, Texas 77036
famosegarner@gmail.com
Phone: (832) 722-0881
Fax: (713) 481-0205
Attorney for Relator Hugh Larkin
8
CERTIFICATE OF SERVICE
I certify that a true copy of the above Petition for Writ of Mandamus has been served to the
following parties on in compliance with Tex. R. App. P. 9.5(b) on April 27, 2015:
Respondent:
Honorable Judge Roberta Lloyd
Harris County Judge
Civil County Court at Law Number 4, Harris County, Texas
201 Caroline, 7th Floor
Houston, Texas 77002
Via Hand Delivery
Counsel for Real Parties in Interest:
Shawn Robert McKee
Shawn Robert McKee
LAMBRIGHT & ASSOCIATES
2603 Augusta, Suite 1100
Houston, Texas 77057
srm@lambrightlaw.com
Attorneys for Riverwalk Council of Co-owners, Inc.
Via Efile and Email
Richard Weaver
THE WEAVER LAW FIRM
1800 Bering Drive, Suite 305
Houston, Texas 77057
rweaver@weaverlawyers.com
Attorneys for Holly Rodriguez
Via Efile and Email
/s/Famose T. Garner
Famose T. Garner
10
1
Hearing February 18, 2015
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2
3 TRIAL COURT CAUSE NO. 1047713
4 HUGH LARKIN ) IN THE COUNTY CIVIL COURT
)
5 vs. ) AT LAW NUMBER FOUR (4)
)
6 HOLLY RODRIGUEZ & )
RIVERWALK COUNCIL OF )
7 CO-OWNERS, INC. ) HARRIS COUNTY, T E X A S
8
9
10 PLAINTIFF'S MOTION TO CLARIFY JUDGE'S JANUARY 5,
2015, ORDER
11
12
13
14 On the 18thh day of February, 2015, the
15 following proceedings came on to be held in the
16 above-entitled and numbered cause before the
17 Honorable Roberta A. Lloyd, Judge Presiding, held in
18 Houston, Harris County, Texas.
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
2
Hearing February 18, 2015
1 APPEARANCES
2 FAMOSE T. GARNER
SBOT NO. 24074252
3 Attorney at Law
10101 Southwest Freeway, Suite 400
4 Houston, Texas 77074
Telephone: (832) 722-0881
5 Fax: (713) 481-0205
E-mail: Famosegarner@gmail.com
6 Attorney for Plaintiff, Hugh Larkin
7 JAMES HAMILTON FOLEY
SBOT NO. 24059764
8 The Weaver Law Firm
1800 Bering Drive, Suite 305
9 Houston, Texas 77057
Telephone: (713) 572-4900
10 Fax: (713) 626-9708
E-mail: Rweaver@weaverlawyers.com
11 Attorney for Defendant, Holly Rodriguez
12 SHAWN ROBERT MCKEE
SBOT NO. 24049403
13 Lambright & Associates
2603 Augusta, Suite 1100
14 Houston, Texas 77057
Telephone: (713) 840-1515
15 Fax: (713_ 840-1521
E-mail: Srm@lambrightlaw.com
16 Attorney for Defendant, Riverwalk Council of
Co-Owners, Inc.
17
18
19
20
21
22
23
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
3
1 CHRONOLOGICAL INDEX
2 VOLUME 1
3 PLAINTIFF'S MOTION TO CLARIFY JUDGE'S JANUARY 5,
4 2015, ORDER
5 February 18, 2015
6 PAGE VOL.
7 Adjournment ...............................14 1
8 Reporter's Certificate .....................15 1
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
4
1 THE COURT: The record doesn't know
2 who you are.
3 MR. GARNER: My name is Famose Garner
4 for the plaintiff.
5 MR. FOLEY: James Foley for defendant
6 Holly Rodriquez.
7 MR. MCKEE: Shawn McKee for Defendant
8 Riverwalk Council.
9 THE COURT: Okeydoke.
10 MR. GARNER: Your Honor, before we get
11 started, will the Court take judicial notice of a
12 couple of pleadings filed in this case?
13 THE COURT: Just argue your motion,
14 please.
15 MR. GARNER: Yes, Your Honor.
16 The Court issued an order that the
17 defendant was supposed to respond by a date certain.
18 The defendant responded -- I mean, the plaintiff --
19 the plaintiff responded to the defendant's written
20 discovery by a date certain -- the defendant asserts
21 that this Court had already overruled all objections
22 and assertions of privilege with that order.
23 The way the order reads, it reads more
24 like it was granting -- I'll say granting a
25 protective order because the only relief that the
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
5
1 plaintiff asked for was to be able to respond by a
2 date certain. The objection was to the timeliness of
3 the request for production. There were no responses
4 raised. There were no objections to responses
5 raised, no assertions of privilege raised in either
6 the motion to compel or the response. To overrule
7 all those assertions that had not been raised yet
8 would be granting relief; one, outside the scope of
9 the motion; and two, would not allow the plaintiff
10 his due process rights to assert different levels of
11 privilege.
12 So we would, therefore, ask the Court
13 if the Court would clarify if that was the relief
14 more along the terms of protective order rather than
15 overruling substantive objections and assertions of
16 privilege?
17 THE COURT: What do you have to say?
18 MR. FOLEY: I just read the motion
19 this morning. There was an issue with having been
20 served with notice. I checked the docket, found out
21 about it online, and contacted him yesterday.
22 THE COURT: Did you give him notice?
23 MR. GARNER: Yes, Your Honor. In
24 fact --
25 MR. FOLEY: That being said, they had
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
6
1 one objection back in November, and it was that it
2 was 30 days prior to trial. And then, we filed our
3 motion to compel. Court granted it. They overruled
4 their single objection. They were required to
5 respond by the 29th. Then they asserted all these
6 brand new objection privileges.
7 THE COURT: Did you answer any of
8 them?
9 MR. GARNER: Yes, Your Honor. We
10 answered all the ones that did not delve into
11 privileged information or were objectionable.
12 MR. FOLEY: I have a motion for
13 sanctions set for next Wednesday that identifies
14 every single one of the responses --
15 THE COURT: How many did he answer?
16 MR. FOLEY: I would say probably, if I
17 had to guess, probably 25 percent of them. Half of
18 them are nonresponsive. I'll read one as an example.
19 "Please provide detailed description of the facts
20 asserted basis --"
21 THE COURT: You can read faster than
22 she can type.
23 MR. FOLEY: "Please provide a detailed
24 description of the facts that serve a --"
25 THE COURT: You're still --
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
7
1 MR. FOLEY: -- "Larkin's basis for
2 requesting damages and punitive damages."
3 Ms. Rodriquez had committed several
4 torts. At the time defendant has essentially stolen
5 space from the plaintiff. She has done it in a way
6 that's egregious, shocks the conscience." That's
7 just the standard nonresponsive answer I'm getting to
8 discovery requests.
9 We're trying to figure out what their
10 complaint is.
11 THE COURT: Would you like to say
12 anything?
13 MR. MCKEE: Your Honor, I think the
14 order was pretty clear, and I think that plaintiff's
15 responses to discovery are at best pretty useless.
16 They have no substantive weight in them at all given
17 we're two weeks out from trial.
18 MR. FOLEY: Set for trial March 9th.
19 MR. GARNER: May I respond to two
20 things?
21 THE COURT: Uh-huh.
22 MR. GARNER: First, as far as service,
23 Your Honor, I move to --
24 THE COURT: He said he got service, so
25 let's move on.
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
8
1 MR. FOLEY: We're moving past that.
2 MR. MCKEE: We're here.
3 THE COURT: Stop. Stop. So, I mean,
4 they had to come here and ask me to enter an order
5 making your client respond to discovery, and then it
6 sounds like what percentage do you believe you
7 responded to?
8 MR. GARNER: Well, Your Honor, if I
9 had to put a ballpark, it was about half. The rest
10 of the -- I'll give you --
11 THE COURT: Okay. The one he read,
12 the one he read that just asked, kind of, for give us
13 a ballpark of what damages you're seeking, I mean,
14 egregious is not a number. Why didn't you answer
15 that?
16 MR. GARNER: Your Honor, the question
17 asked for what happened, not necessarily the numbers.
18 THE COURT: Can I see that again?
19 MR. FOLEY: Absolutely (tenders
20 document.) Take a look at number two while you're at
21 it.
22 THE COURT: No. The one that you
23 read. I see. I think that in looking at the
24 response that was used as an example of one of the
25 answers you did give, it says, "Give us some facts."
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
9
1 I mean, they're entitled to at least a rudimentary
2 sketch of what's the basis of this. I mean, what are
3 your claims based upon? Facts? And you just have
4 said they're egregious, and there are a lot of torts.
5 There are a lot of torts. So why -- that doesn't
6 help them.
7 MR. GARNER: Yes, Your Honor. But
8 there were other requests that did narrate that
9 answer.
10 THE COURT: Then why didn't you say,
11 "See response to question blah, blah"?
12 MR. GARNER: I did for some of them,
13 Your Honor. I probably should have for that one as
14 well.
15 MR. FOLEY: Your Honor, another
16 example, I served seven interrogatories. Number two
17 objects because --
18 THE COURT: I saw it.
19 MR. FOLEY: Exceeds minimum amount of
20 allowable interrogatories. Turn to Texas Rules of
21 Civil Procedure. That includes sub parts and lists.
22 THE COURT: That's okay.
23 So here we are under 30 days out.
24 MR. FOLEY: Right. Well, we do have a
25 motion for sanctions set next Wednesday which we're
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
10
1 going to ask for the attorney's fees for showing up
2 today as part of that motion.
3 THE COURT: Well, I didn't prepare the
4 order on the Motion to Compel. I think that if a
5 Motion to Compel is entered, Counselor, I think that
6 it's presumed you're going to use your best faith
7 efforts to answer questions that they're having to
8 compel you to answer in the first place. I'm not
9 going to sit and take the time to count what
10 percentage. You say 25. You say 50.
11 So at least half of them have gone
12 unanswered, which means now we're coming back for
13 another we're doing today. So now we're having three
14 hearings on discovery. The one question I've looked
15 at I don't believe is sufficient. I don't believe
16 that's a sufficient answer. I'll withhold judgment
17 on the others, but what has now happened is, by
18 virtue of this, we're not going to be able to keep
19 this trial date. So that by the actions of your
20 client, now my docket is going to have to be adjusted
21 to accommodate somebody that has not complied with
22 just basic -- I mean -- I don't know why you thought
23 that was a good answer or he thought it was a good
24 answer, whomever.
25 I would say that I think that the
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
11
1 order traditionally where I see orders on that in the
2 future, if you think that I have signed orders in the
3 past that have said, you know, that there are
4 objections or they're late, that they've waived all
5 objections and they must answer blah, blah, blah. I
6 don't think that that says that. So I don't think
7 that I really hold him accountable for that. I can't
8 say that I think that this is a good way to do this,
9 and I really do not appreciate the fact that just to
10 get discovery that we're going to dance this dance
11 because it's costing everybody money.
12 So what I would suggest is -- when is
13 the motion for sanctions set?
14 MR. FOLEY: I believe it's next
15 Wednesday.
16 THE COURT: Next Wednesday? I would
17 suggest, Counsel, that between now and next
18 Wednesday -- I'll clarify that I don't think that the
19 order that was signed -- I don't think it waived all
20 the objections. By the same token, I would say
21 between now and next Wednesday, I would get with them
22 and figure out what you can answer.
23 MR. GARNER: Yes, ma'am.
24 THE COURT: Particularly, with the
25 admissions at least admitted or denied.
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
12
1 MR. FOLEY: I don't think admissions
2 were the main problem.
3 THE COURT: I would get with them.
4 MR. FOLEY: But, Your Honor, I would
5 say the compel motion, the reason we didn't address
6 privileges and all the other objections was because
7 none of them was asserted. There was only one
8 objection. So the order addresses, it says it
9 overrules the objection. There was one.
10 THE COURT: I understand.
11 MR. FOLEY: It's hard to address all
12 the ones he didn't want to assert at that time.
13 THE COURT: I guess what -- I'm not
14 saying -- look, I'm not trying -- I'm just saying, I
15 think that what people have done in the past is they
16 have anticipated. And once somebody is compelled to
17 answer, they have anticipated -- possibly from past
18 experiences -- they have anticipated they might be
19 met when the answers come with a lot of objections or
20 claims. And so they have prophylactically put in
21 this -- and by the way, and sometimes I sign it.
22 Sometimes I don't, depending on the nature of the
23 motion to compel.
24 So I'm not saying I do it all the
25 time, but I just think on the face of it at this
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
13
1 point, the objection is overruled because you just
2 objected to all the discovery because you said it was
3 decided that we have a new trial. It wasn't really
4 inside because it reopened the Rules of Civil
5 Procedure if I recall correctly.
6 MR. FOLEY: Correct. We asked for you
7 to extend the discovery period.
8 THE COURT: It's not extended. Once I
9 set -- once a new trial date is set, the rules say up
10 to 30 days before and that's the policy of this
11 Court. It's opened up 30 days before. I think I
12 wrote it in.
13 MR. FOLEY: I think it's in the order
14 that says that the discovery period is reopened and
15 that --
16 THE COURT: Oh, 30 days before the
17 trial date of this cause. Boom. So now guess what?
18 Now we're going to have to have a new trial date.
19 It's going to reopen it. Here we go.
20 MR. MCKEE: May I interject slightly?
21 THE COURT: Yeah.
22 MR. MCKEE: To the extent it took more
23 than 30 days for them to provide responses to the
24 discovery that was previously filed, wouldn't those
25 objections all have been overruled by operation of
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
14
Reporter's Certificate
February 18, 2015
1 law anyway?
2 THE COURT: I don't want to go to
3 that. I've done what I can do today, which I don't
4 think it was a blanket -- I don't think it was a
5 blanket overruling objections. I would suggest
6 strongly that you talk.
7 MR. GARNER: Yes, Your Honor.
8 THE COURT: Thank you. See you next
9 week.
10 MR. GARNER: Thank you, Your Honor.
11 (Proceedings adjourn).
12
13
14
15
16
17
18
19
20
21
22
23
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
15
Reporter's Certificate
February 18, 2015
1 STATE OF TEXAS
2 COUNTY OF HARRIS
3
4 I, Karen S. Bernhardt, Official Court Reporter
in and for the County Civil Court at Law No. 4 of
5 Harris County, State of Texas, do hereby certify that
the above and foregoing contains a true and correct
6 transcription of all portions of evidence and other
proceedings requested in writing by counsel for the
7 parties to be included in this volume of the
Reporter's Record in the above-styled and numbered
8 cause, all of which occurred in open court or in
chambers and were reported by me.
9
10 I further certify that this Reporter's Record of
the proceedings truly and correctly reflects the
11 exhibits, if any, offered by the respective parties.
12
13 I further certify that the total cost for the
preparation of this Reporter's Record is $97.50
14 and was paid by Whitney Larkin.
15
16 WITNESS MY OFFICIAL HAND this the 20th day of
17 April, 2015.
18
/s/Karen S. Bernhardt
19 KAREN S. BERNHARDT
Texas CSR 1601
20 Official Court Reporter
County Civil Court at Law No. 4
21 Harris County, Texas
201 Caroline, Room 740
22 Houston, Texas 77002
Telephone: (713) 368-6678
23 Expiration: 12/31/16
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2
3 TRIAL COURT CAUSE NO. 1047713
4 HUGH LARKIN ) IN THE COUNTY CIVIL COURT
)
5 vs. ) AT LAW NUMBER FOUR (4)
)
6 HOLLY RODRIGUEZ & )
RIVERWALK COUNCIL OF )
7 CO-OWNERS, INC. ) HARRIS COUNTY, T E X A S
8
9
10 DEFENDANT'S MOTION FOR SANCTIONS AGAINST PLAINTIFF
AND PLAINTIFF'S ATTORNEY
11
12
13
14 On the 24thh day of February, 2015, the
15 following proceedings came on to be held in the
16 above-entitled and numbered cause before the
17 Honorable Roberta A. Lloyd, Judge Presiding, held in
18 Houston, Harris County, Texas.
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
2
1 APPEARANCES
2 FAMOSE T. GARNER
SBOT NO. 24074252
3 Attorney at Law
10101 Southwest Freeway, Suite 400
4 Houston, Texas 77074
Telephone: (832) 722-0881
5 Fax: (713) 481-0205
E-mail: famosegarner@gmail.com
6 Attorney for Plaintiff, Hugh Larkin
7 JAMES HAMILTON FOLEY
SBOT NO. 24059764
8 The Weaver Law Firm
1800 Bering Drive, Suite 305
9 Houston, Texas 77057
Telephone: (713) 572-4900
10 Fax: (713) 626-9708
E-mail: rweaver@weaverlawyers.com
11 Attorney for Defendant, Holly Rodriguez
12 SHAWN ROBERT MCKEE
SBOT NO. 24049403
13 Lambright & Associates
2603 Augusta, Suite 1100
14 Houston, Texas 77057
Telephone: (713) 840-1515
15 Fax: (713_ 840-1521
E-mail: Srm@lambrightlaw.com
16 Attorney for Defendant, Riverwalk Council of
Co-Owners, Inc.
17
18
19
20
21
22
23
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
3
1 CHRONOLOGICAL INDEX
2 VOLUME 1
3 DEFENDANT'S MOTION FOR SANCTIONS AGAINST PLAINTIFF
4 AND PLAINTIFF'S ATTORNEY
5 February 24, 2015
6 PAGE VOL.
7 Adjournment ...............................26 1
8 Reporter's Certificate .....................27 1
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
4
1 THE COURT: 1047713. Identify
2 yourself so Ms. Bernhardt will know who is talking.
3 MR. FOLEY: James Foley for Holly
4 Rodriquez. This is Holly Rodriquez's Motion for
5 Sanctions.
6 MR. MCKEE: Shawn McKee for Riverwalk
7 Council of Co-Owners.
8 MR. GARNER: Famose Garner,
9 G-A-R-N-E-R, for plaintiff Hugh Larkin.
10 THE COURT: Okay.
11 MR. FOLEY: We were here last week,
12 and we're back. We've made substantially zero
13 progress. Yesterday after 5:00 o'clock Mr. Garner
14 supplemented Hugh Larkin's responses to
15 Ms. Rodriquez's interrogatories containing
16 substantially the same invalid objections and
17 essentially refusals to respond to the questions
18 asked as before; specifically, number two objects
19 because it states it exceeds the minimum amount of
20 allowable interrogatories under Texas Rules of Civil
21 Procedures.
22 THE COURT: Well, what's your response
23 to that? I'm asking him, what do you say whether
24 he --
25 MR. FOLEY: Well, Your Honor, there
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
5
1 were only seven interrogatories in total. This
2 one -- first of all --
3 THE COURT: Let me -- stop just a
4 second. Let me catch up with you. These are
5 requests for production?
6 MR. FOLEY: Those are in the same
7 condition. Nothing has changed in the production at
8 all.
9 THE COURT: So sorry. So number two.
10 MR. FOLEY: Here are the supplemental.
11 MR. MCKEE: It's unlikely you have the
12 copy of the supplement.
13 THE COURT: Do you have a copy?
14 MR. GARNER: I do, Your Honor.
15 THE COURT: I don't want the e-mail.
16 I want the supplemental response you filed. Do you
17 have an extra copy?
18 MR. FOLEY: You can have this copy.
19 THE COURT: Okay.
20 MR. FOLEY: "A discreet sub parts" --
21 THE REPORTER: Slow down.
22 MR. FOLEY: I'm sorry. A discreet sub
23 part asks for information not logically or factually
24 related to the primary interrogatory. And every
25 single one of these sub parts is specifically related
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
6
1 to the square footage in the attic space at issue.
2 Further there are only seven. There
3 are seven interrogatories in total and based on their
4 level two discovery pleadings, I'm entitled to 25
5 interrogatories. So even if these were discreet sub
6 parts, I still haven't achieved 25 interrogatories to
7 Mr. Larkin. I mean, there is no basis for the
8 objection at all. The same objection was made to
9 number four. This interrogatory exceeds the minimum
10 amount of allowable interrogatories under the Texas
11 Rules of Civil Procedure.
12 This one, if you divided it into sub
13 parts, which I'm not sure that these even qualify;
14 but if you did, there would be only four. So if you
15 add everything up, the most interrogatories you could
16 come up with would be 15, even though --
17 THE COURT: Thank you.
18 MR. GARNER: Your Honor, of the
19 interrogatories, every one asks for lists and each
20 list is a sub part, Your Honor.
21 THE COURT: Well, that's not exactly
22 what the rule says, Counsel, as we know. If it's
23 related somewhat, then it's not -- I mean, it's
24 considered -- you can have more than one area in a
25 question. I mean, but I object for the sake of
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
7
1 argument, let's assume for the sake of argument that
2 your theory is correct, he's still, each sub part if
3 you count it, doesn't go over the number.
4 MR. GARNER: Your Honor, it's -- so
5 for two, there are seven and two, seven in --
6 THE COURT: Well, okay. One, two,
7 three, four, five, seven -- okay. There is seven.
8 There is number three would be -- so seven numbered
9 one would be just one. So that's eight. Number
10 three is just one. That's nine. Number four a
11 description of the property, ten. Estimated value,
12 11. Estimated reduction, 12. That would be 13. Six
13 would be 14. Seven, 15, I mean -- assuming --
14 MR. GARNER: To the extent that the
15 objection is overruled, the plaintiff has answered
16 the questions to the best of the plaintiff's ability.
17 For example, the response to number two gives -- I
18 don't know -- what else could be said to that
19 question other than we need somebody to -- an
20 engineer, to take actual measurements of the floor
21 space.
22 I'm not entirely sure you could have a
23 diameter of a wall partition. I think, the term
24 there is cross section. But the proper -- we've
25 complied to the extent that the --
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
8
1 THE COURT: I don't believe you have.
2 I don't believe you have. You just raised objection.
3 So with regards to your objection that they exceed,
4 that is -- your objection is overruled. So with --
5 you've made the answer there is encroachment of
6 approximately 4 feet, so if you can figure that out,
7 then I think you can figure the others out. You're
8 going to figure them out.
9 I don't think you need an engineer. I
10 mean, I think you can go up in the attic. If you can
11 go up in the attic to know if there is that much
12 encroachment, somebody can go up and measure. It
13 takes a tape measure or your plans will tell you how
14 big your attic is or something.
15 MR. GARNER: Well, we did submit the
16 real property records and the --
17 THE COURT: You need to answer the
18 questions.
19 MR. GARNER: Very well, Your Honor.
20 THE COURT: I think we talked about
21 that last week. So here we are again.
22 MR. FOLEY: Your Honor, on number
23 four, the response is, "Plaintiff has not taken a
24 detailed inventory..."
25 THE COURT: You're reading.
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
9
1 MR. FOLEY: "Plaintiff has not taken
2 a --"
3 THE COURT: I can read. Just tell me
4 what part you want me to focus on.
5 MR. FOLEY: The response I asked for a
6 list of the property that was damaged and how it was
7 reduced in value. The response is, "I have not taken
8 a detailed inventory of the list because an
9 inspection has not been performed on the items."
10 THE COURT: Right.
11 MR. FOLEY: That's not responsive at
12 all.
13 THE COURT: Thank you. Your action,
14 so -- correct me if I'm wrong, but it seems to me if
15 you're bringing an action, then you have to know what
16 you're seeking remedies for. If you know what you're
17 seeking remedies for, you don't enter, generally
18 people, I don't think, file an action where they just
19 like, let's get the action on file. Then we'll
20 decide what it is that was damaged.
21 So why doesn't your client know what
22 relief is being sought in order to respond? I mean,
23 isn't that the gist of it? Am I missing something?
24 MR. GARNER: No, Your Honor. You're
25 not.
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1 THE COURT: So where is the list?
2 MR. GARNER: I will work with my
3 client to get the list, Your Honor.
4 THE COURT: But, Mr. Garner, your
5 client is the plaintiff, correct?
6 MR. GARNER: Yes, Your Honor.
7 THE COURT: And I understand -- this
8 isn't your residence. Right?
9 MR. GARNER: Yes, Your Honor.
10 THE COURT: So you don't know -- I
11 understand that part, but your client -- how do you
12 know what you're seeking? I'm not trying to be
13 facetious, but how do you know what you want if your
14 client hasn't told you what was harmed, doesn't know
15 the space, that's involved, doesn't know the items
16 involved? What did your client know except that he
17 believes he was harmed?
18 MR. GARNER: Well, as we said in our
19 response to number two, the client believes 4-foot of
20 his attic space has been encroached and the fire wall
21 has been moved.
22 THE COURT: Well, then if he knows
23 that, then he's been up there and must have measured
24 around to know that. That's a logical conclusion.
25 MR. GARNER: Very well, Your Honor.
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1 THE COURT: Well, I mean it seems kind
2 of self-evident. Anything else that you want me --
3 MR. FOLEY: Yes, Your Honor. On
4 number five, we ask for, "Please provide detailed
5 description of -- "
6 THE COURT: Slow down please. Please.
7 MR. FOLEY: Sorry.
8 THE COURT: You've got to slow down.
9 On we go.
10 MR. FOLEY: "Please provide a detailed
11 description of the facts that serve as Larkin's basis
12 for asserting that Rodriquez is likely to repeat the
13 acts related to removing and rebuilding a wall in the
14 attic space."
15 He objects because, "It's vague and is
16 unable to discern what the plaintiff is -- unable to
17 discern what it is asking."
18 And you would be able to discern it if
19 you read your pleadings which state --
20 THE COURT: It's not time to argue
21 with him. You're not going to talk to him directly.
22 You're talking to me.
23 MR. FOLEY: Yes, Your Honor.
24 THE COURT: So what --
25 MR. FOLEY: Paragraph 25 on
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1 Plaintiff's First Amended Pleading states that,
2 "Punitive damages in an amount that will sufficiently
3 punish defendant Rodriquez for her willful and
4 malicious conduct and will serve as an example to
5 prevent a repetition of such conduct in the future."
6 So I'm specifically asking why is it likely it would
7 be repeated in the future.
8 THE COURT: Okay.
9 MR. GARNER: May I respond?
10 THE COURT: You can.
11 MR. GARNER: That section is not
12 speaking strictly to Holly Rodriquez. That's a
13 punitive damages requirement to deter conduct for
14 others. Punitive damage are deterrent not only for
15 the defendant but society at large. To --
16 THE COURT: Society at large?
17 MR. GARNER: I mean --
18 THE COURT: Okay, look. Come on.
19 Let's be practical about this. You need to answer
20 these questions. I mean, you're the one that's
21 asserted that there is likely to be a repeated act of
22 removing and rebuilding. Correct?
23 MR. GARNER: No, Your Honor. We did
24 not assert she's going to remove or rebuild the wall.
25 We're saying for --
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1 THE COURT: Give me the file.
2 MR. FOLEY: I have a copy.
3 THE COURT: So where do you think
4 that -- where do you get the repeated alleged acts?
5 Where do you get that from?
6 MR. FOLEY: In the prayer section
7 Paragraph 25, Subsection D.
8 THE COURT: Thank you. That's not
9 what he means there. Yeah. Five, I would grant
10 that. I would grant his objection. I think that
11 maybe not necessarily as clearly stated as possible.
12 I think kind of in the general punitive, which is to
13 punish the person so that nobody will ever think of
14 doing this again. In general, not that they're going
15 to do it again.
16 MR. FOLEY: I would like to limit the
17 facts, if he would respond with some sort of a
18 factual response.
19 THE COURT: Well, then you do
20 exceptions or something like that, if that's what you
21 need to do. Well, you know, these responses are
22 under oath. So you got Mr. Larkins tied in to what
23 his responses are as far as the next one on six. You
24 know, I'm looking. I don't know if you have looked
25 at the response that was given. I guess that you
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1 must have written this response or somebody wrote it,
2 Mr. Garner.
3 But, in fact, in number seven it says
4 plaintiff has measured the attic space. So it kind
5 of contradicts your fact that, well, he can't measure
6 when he says he has.
7 MR. GARNER: Well, may I respond?
8 THE COURT: No. Answer it. Answer
9 it, answer it, answer it.
10 He's locked in on these facts,
11 Counsel, for now. So do with that what you will. If
12 there's not a basis, there's not a basis.
13 MR. FOLEY: Right. We're set for
14 trial March 9th.
15 THE COURT: Is it jury or non-jury?
16 MR. FOLEY: Jury.
17 THE COURT: I don't know that you're
18 going to make it. I don't think so. How old is the
19 case?
20 THE COORDINATOR: No, it's not
21 preferentially set.
22 THE COURT: So you're not going on the
23 docket. I've set four and five jury trials a week.
24 I'll answer that; but the sanctions, look, we talked
25 about this last week. And I don't know -- I mean,
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1 that's the most recent response. Do you want those
2 back?
3 MR. FOLEY: No. You can keep those,
4 Your Honor.
5 THE COURT: I just think it's
6 problematic. I think it's problematic, Mr. Garner,
7 because this is the most recent, right, that I've
8 been filing through?
9 MR. FOLEY: Yes, Your Honor.
10 THE COURT: What's your basis for
11 sanctions, sir?
12 MR. FOLEY: Just that they were -- the
13 sole objection was overruled and the Court ordered
14 him to respond and everything was non-responsive. We
15 were here last week. He said he would make a good
16 faith effort. He didn't make a good faith effort.
17 The same objections, invalid objections, are there.
18 Says he can't understand any of the questions that we
19 asked.
20 For example, on seven he says that
21 it's vague and he's not able to discern what we're
22 asking. It's not. It's not vague.
23 THE COURT: Well, he's answered. I
24 mean, I think -- I guess. I think the first sentence
25 is the answer. I don't know that it's detailed
KAREN S. BERNHARDT, C.S.R.
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1 but --
2 MR. FOLEY: So on request for
3 production is a separate issue. I went back and
4 actually counted last week because you asked how many
5 did he respond to. There is a total of 52 requests
6 for production and he did not respond to 29 of them.
7 So it was slightly over half. On this one, I'll just
8 bring your attention, number seven asks for written
9 rental agreement between Whitney Larkin and Hugh
10 Larkin, and he says it's irrelevant. Not going to
11 produce it.
12 THE COURT: Number seven you said?
13 MR. FOLEY: Seventeen, Your Honor.
14 THE COURT: You know I think a copy of
15 the lease, if any. If there's no lease, there is no
16 lease. Is there a lease or not? Just answer that.
17 MR. GARNER: Yes, Your Honor.
18 THE COURT: Then give it to him.
19 MR. GARNER: Yes. I don't know if
20 there is a lease or not. I will give it to him.
21 THE COURT: Mr. Garner, with all due
22 respect, I mean, that's just -- it worries me the
23 answer to so many things are, "I don't know that
24 yet." I've got -- I'm on my second file. A lot of
25 paper's been flowing, and that concerns me. You knew
KAREN S. BERNHARDT, C.S.R.
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1 this was going -- we talked about this last week, and
2 the answer -- I think there is some stone walling on
3 the answers. I'll be perfectly honest with you.
4 MR. GARNER: Yes, Your Honor.
5 THE COURT: Here's what I'm going to
6 do --
7 MR. FOLEY: Your Honor?
8 THE COURT: Yes?
9 MR. FOLEY: Sorry to interrupt. I
10 asked him if there was a written lease in requests
11 for admissions, and he admitted that there was. So
12 that's how I know that it exists, and I want it.
13 THE COURT: I understand. You're
14 indignant and just distressed about this, and I get
15 that. Mr. Garner, you know, you're the face of the
16 plaintiff here. So your client's not here, I don't
17 think. So I can't say, Mr. Larkin, you're not
18 helping your attorney here. That's what I would be
19 saying though to him.
20 MR. GARNER: Yes, Your Honor.
21 THE COURT: It's now time -- as an
22 attorney, we all face that time where you have to
23 have that discussion which is, you're hurting me now.
24 We have got -- now, if we have this, we've got to do
25 this. He admits he took measurements, and yet you
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1 say shouldn't you take the measurement. You need an
2 engineer. Well, he took the measurements so
3 apparently he knows how to do this.
4 MR. FOLEY: One more issue.
5 THE COURT: What?
6 MR. FOLEY: It has to do with
7 attorney/client privilege. I requested documents
8 between Mr. Larkin and his daughter, Whitney Larkin;
9 and she's a licensed attorney, and also the tenant.
10 So I received a blanket objection that anything they
11 say or do is covered by the attorney/client
12 privilege. And therefore he's refusing to produce
13 any of those documents. That's specific to requests
14 for production --
15 THE COURT: Thank you. Mr. Garner?
16 MR. GARNER: May I respond to that?
17 THE COURT: Uh-huh.
18 MR. GARNER: Your Honor, Mr. Larkin
19 talked to Ms. Larkin about this building in
20 preparation for litigation. There is a privilege
21 with that if --
22 THE COURT: She's not his attorney of
23 record.
24 MR. GARNER: He went to her for legal
25 advice, Your Honor. And, in turn --
KAREN S. BERNHARDT, C.S.R.
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1 THE COURT: To his tenant?
2 MR. GARNER: Yes, Your Honor.
3 THE COURT: Well, what we're going to
4 do on that, then, if you want, Mr. Garner, is you're
5 going to get me -- to have assert a privilege log
6 then. You don't get to just say privilege. You're
7 going to produce every one of those documents that
8 allegedly is privileged, and I'm going to do an in
9 camera viewing of every one of those documents, and I
10 will determine what is privileged and what is not,
11 under the Rules of Civil Procedure.
12 So get your privilege log ready.
13 MR. GARNER: Absolutely, Your Honor.
14 THE COURT: And read the rules maybe
15 again to ascertain what privilege attaches.
16 MR. GARNER: Yes, Your Honor.
17 THE COURT: So you're not going to
18 trial in March or whenever, March 9th. You're not
19 making that, but -- okay. Court is going to do the
20 following; the Court hereby is going to treat motion
21 for sanctions as a motion. I know there's already
22 been one motion to compel, but I assume -- is it,
23 from what I hear, you're basing the sanctions on the
24 failure to comply with the motion to compel?
25 MR. FOLEY: Correct, Your Honor. It's
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1 that and just Rule 215.1(b) that you don't have to
2 have a violation and order to award sanctions.
3 THE COURT: I know. Have you done a
4 motion to compel already?
5 MR. FOLEY: Yes, Your Honor, I have.
6 And it was granted.
7 THE COURT: Okay.
8 MR. GARNER: Not for the responses,
9 Your Honor. He has not.
10 THE COURT: What was it for? To
11 answer discovery?
12 MR. GARNER: Yes, Your Honor.
13 THE COURT: And did I do what? The
14 350 carry over, did I impose that?
15 MR. FOLEY: That, I don't recall.
16 There's only one objection at that time. So the
17 Court overruled the one objection. All the new ones
18 appeared January 29th.
19 THE COURT: Here we are on this a
20 month later.
21 MR. FOLEY: Right. So we had from
22 October until now to get this fixed.
23 THE COURT: I guess what is of
24 interest to me, before I make a decision, is how much
25 conversation -- Mr. Garner, how much have you talked
KAREN S. BERNHARDT, C.S.R.
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1 to -- Counsel, your last name?
2 MR. FOLEY: Foley, Your Honor.
3 THE COURT: Foley. So sorry.
4 Mr. Foley, how much have you talked to him about
5 this? Are you just sending these objections and
6 that's that? I answered?
7 MR. GARNER: Well, Your Honor, I came
8 into the case on the 27th.
9 THE COURT: Of January?
10 MR. GARNER: Yes, Your Honor.
11 THE COURT: Who was the attorney of
12 record before then?
13 MR. GARNER: Timothy Rodman, I believe
14 is his name.
15 THE COURT: So -- but Ms. Larkin's
16 never been the attorney of record in here?
17 MR. GARNER: Not of record, no, Your
18 Honor, but --
19 THE COURT: You take it on the way you
20 found it.
21 MR. GARNER: Understood, Your Honor.
22 THE COURT: You haven't responded.
23 I'm disturbed. I'm disturbed by the lack of
24 communication. I'm disturbed by the blanket
25 privilege, privilege, privilege I think that's being
KAREN S. BERNHARDT, C.S.R.
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1 thrown out.
2 MR. GARNER: Well, Your Honor --
3 THE COURT: Yeah? Yes?
4 MR. GARNER: I've had two telephone
5 conversations with Mr. Foley, one of which was I
6 think he was letting me know his position on the
7 previous objections. I let him know I disagreed, let
8 him know that we would be seeking motion to clarify
9 that previous order because we thought it was
10 protected.
11 The second conversation we had was in
12 relation to the Motion to Clarify and the Motion for
13 Sanctions. So --
14 THE COURT: These are pretty easy
15 questions. And the responses, I don't find to be --
16 I mean, I think you're just -- again, just kind of
17 saying, that he's measured the space, but I'm not
18 going to tell you in contradiction to tell me the
19 various spaces. Unaware of the answer to the other
20 questions, an engineer or expert to evaluate the
21 space. You said you took measurements.
22 It is things like that lead me to
23 believe road blocks are being thrown up. That's not
24 the essence of discovery. It's costing money to come
25 down here to get these answers. If your client
KAREN S. BERNHARDT, C.S.R.
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1 doesn't have the answers, then, well, that raises
2 another interesting thing that you have to say that
3 versus it's privilege. It's too long. It's too
4 many.
5 So allegedly you're not going to let
6 them see any basis of the daughter talking to her
7 father about that because it's privileged, every
8 communication they had about this? Is that your
9 general theory?
10 MR. GARNER: That is my theory.
11 THE COURT: That's your theory. Okay.
12 Then here's my theory, here's my response and
13 judgment in this case; the Court does grant
14 sanctions, conditional sanctions, which is, you will
15 fully respond to these. If there is a privilege, you
16 will produce a privilege log as required by the Rules
17 of Civil Procedure. You will do that on or before
18 noon on Wednesday, March the 4th. That is one week's
19 time to answer these.
20 Mr. Garner, the Court tentatively
21 awards attorney's fees which this Court finds to be
22 reasonable and necessary in the sum of $500 for the
23 preparation of yet another motion to try to get these
24 responses. The Court finds that many of the
25 objections are just repeated over and over again,
KAREN S. BERNHARDT, C.S.R.
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1 which leads this Court to believe that there's not
2 really an objection specific to the production
3 request -- the interrogatory -- that they're just
4 being repeated over and over again. And no
5 information is being repeated.
6 This is discovery. I'm sure you're
7 aware of that, Mr. Garner, that discovery -- it
8 doesn't necessarily mean it's admissible; but they
9 get to discover. So if you produce answers to these,
10 then I'm not going to impose the $500. If you do not
11 respond, if it comes down to these are the same
12 responses over again, then I will allow the $500 as a
13 sanction. So you've got a week. Tell your clients
14 time is now.
15 MR. GARNER: Yes, Your Honor.
16 THE COURT: Okay? Keep me advised.
17 Get me an order to that effect. Yes?
18 MR. MCKEE: Would defendants -- would
19 you allow defendants to reurge their Motion for
20 Summary Judgment you previously denied?
21 THE COURT: No.
22 MR. MCKEE: Thank you, Your Honor.
23 THE COURT: No. But what I need is, I
24 need you to fax in an order to that effect, by noon
25 you will have it delivered to them either in person
KAREN S. BERNHARDT, C.S.R.
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1 by noon on Wednesday March the 4th, sir, or you will
2 have a fax receipt that shows that it was received by
3 facsimile. Or if you scan them and send them, I need
4 something.
5 If not, if you fail to respond by that
6 time and/or if the responses are similar to the
7 responses that are on file now, the latest responses,
8 then I will -- then the $500 will no longer be
9 prospective. That will be an award. Okay?
10 MR. GARNER: Yes, Your Honor.
11 THE COURT: That will be paid within
12 30 days of the date. So that would be paid by
13 Friday, April the 3rd. It will be due, if in fact
14 you don't comply with this Court's order.
15 MR. GARNER: Okay. May I ask one
16 question?
17 THE COURT: Yes, sir.
18 MR. GARNER: Is e-mail okay?
19 THE COURT: Talk with him, whichever
20 is the best because it's not to me. It's to him.
21 MR. GARNER: Understood, Your Honor.
22 THE COURT: So you all talk. It's an
23 electronic age. I think that we're not electronic
24 here because Mr. Stanart doesn't have the ability
25 apparently to do that. But I would prefer
KAREN S. BERNHARDT, C.S.R.
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Reporter's Certificate
February 24, 2015
1 electronic. It's just easier for me to work with.
2 It's easier for you to prepare and accept. You talk
3 about that.
4 (Proceedings adjourn).
5
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KAREN S. BERNHARDT, C.S.R.
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Reporter's Certificate
February 24, 2015
1 STATE OF TEXAS
2 COUNTY OF HARRIS
3
4 I, Karen S. Bernhardt, Official Court Reporter
in and for the County Civil Court at Law No. 4 of
5 Harris County, State of Texas, do hereby certify that
the above and foregoing contains a true and correct
6 transcription of all portions of evidence and other
proceedings requested in writing by counsel for the
7 parties to be included in this volume of the
Reporter's Record in the above-styled and numbered
8 cause, all of which occurred in open court or in
chambers and were reported by me.
9
10 I further certify that this Reporter's Record of
the proceedings truly and correctly reflects the
11 exhibits, if any, offered by the respective parties.
12
13 I further certify that the total cost for the
preparation of this Reporter's Record is $175.50
14 and was paid by Whitney Larkin
15
16 WITNESS MY OFFICIAL HAND this the 20th day of
17 April, 2015.
18
/s/Karen S. Bernhardt
19 KAREN S. BERNHARDT
Texas CSR 1601
20 Official Court Reporter
County Civil Court at Law No. 4
21 Harris County, Texas
201 Caroline, Room 740
22 Houston, Texas 77002
Telephone: (713) 368-6678
23 Expiration: 12/
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 368-6678
In re McCall
Court of Appeals of Texas, Eighth District, El Paso
June 20, 2002, Decided
No. 08-02-00071-CV
Reporter
2002 Tex. App. LEXIS 9373; 2002 WL 1341104
law firm as the stepdaughter's agent. The stepdaughter
IN RE: MARY LINDA McCALL had no adequate remedy at law from the trial court's
order barring her from discovery of the invoices
Case Summary because the invoices would not be part of an appellate
record. The invoices were highly relevant to the
Procedural Posture stepdaughter's claim for breach of fiduciary duty and
for her motion to disqualify the law firm from
In an action against her stepmother for division of
representing the stepmother.
property and breach of fiduciary duty, relator
stepdaughter filed a petition for a writ of mandamus, Outcome
seeking discovery of invoices for legal work done on
behalf of a partnership. Respondent trial court had The court vacated the trial court's order quashing the
granted the stepmother's motion to quash the discovery of the invoices. However, the portions of the
stepdaughter's subpoena and ruled that the invoices invoices relating to legal services rendered for the
were covered by the attorney-client privilege. stepmother individually and outside of her capacity as
an agent were not subject to be discovered by the
Overview stepdaughter. The trial court was to review the
invoices in-camera and allow discovery of the relevant
The stepmother and her two stepchildren became
invoices.
cotenants in oil and gas properties. The stepdaughter
later filed suit for division of property and for breach
of fiduciary duty against the stepmother. During
LexisNexis® Headnotes
discovery, the stepdaughter sought from the law firm
Civil Procedure > ... > Writs > Common Law Writs >
all billing invoices for legal work done on behalf of Mandamus
the partnership. The stepdaughter moved to subpoena
the invoices and to disqualify the law firm from Civil Procedure > Appeals > Standards of Review >
Abuse of Discretion
representing the stepmother. The trial court granted
the stepmother's motion to quash the subpoena and HN1 Mandamus will lie only to correct a clear abuse
ruled that the invoices were covered by the attorney- of discretion and when there is no adequate remedy at
client privilege and the law firm had no attorney-client law, or by normal appeal. A trial court abuses
relationship with the stepdaughter. The stepdaughter discretion when its decision lacks basis or guiding
sought mandamus relief. The court found that an principles of law. While a higher standard of review
attorney-client relationship existed by virtue of the applies to a trial court's decision on factual issues, a
stepmother consulting the trial court has no discretion in
2002 Tex. App. LEXIS 9373, *9373
determining what the law is or applying the law to the
facts. Thus, a clear failure by a trial court to analyze or Opinion
apply the law correctly will constitute an abuse of
discretion and may result in appellate reversal by AN ORIGINAL PROCEEDING IN MANDAMUS
extraordinary writ.
OPINION
Civil Procedure > ... > Writs > Common Law Writs >
This mandamus originates from Judge John G. Hyde's
Mandamus
order granting the motion to quash Relator Mary
HN2 When a trial court disallows discovery and the Linda McCall's subpoena for invoices submitted to
missing discovery cannot be made part of the Dolores McCall ("Dolores") by the law firm of
appellate record, thereby precluding appellate review, Cotton, Bledsoe, Tighe & Dawson, P.C. ("Cotton
mandamus is a proper remedy. Before granting Bledsoe"). Mary Linda McCall ("Linda") brings two
mandamus, a reviewing court should consider all issues complaining that she is entitled to examine the
relevant circumstances, such as the claims and invoices, because Cotton Bledsoe rendered legal
defenses asserted, the type of discovery sought, what it services on her behalf and she paid for her proportion
is intended to prove, and the presence or lack of other of the services. We conditionally grant the writ of
discovery. mandamus.
Legal Ethics > Client Relations > General Overview After Jack O. McCall Sr.'s death in October 1991,
Dolores, his second wife, and Linda and J.O. McCall
HN3 In the absence of an express agreement, an Jr. ("J.O. Jr."), his two children from his first marriage,
attorney-client relationship may be implied in some became co-tenants in certain oil and gas properties. In
cases from the conduct of the parties. order to facilitate the administration of the properties,
Cotton Bledsoe suggested that the three form a
Business & Corporate Law > Agency Relationships > partnership and authorize Dolores to handle daily
Establishment > Definitions operations. Upon criticism from Linda's CPA, Cotton
Estate, Gift & Trust Law > Estate Planning > Powers of Bledsoe set up a limited power of attorney to transfer
Attorney > General Overview authority to Dolores without any changes in the
properties' ownership. Both Linda and J.O. Jr.
HN4 An agent is one who is authorized by another to executed [*2] the limited and revocable power of
transact some business for the principal. A power of attorney for Dolores to administer real property
attorney creates an agency relationship. transactions only, and Dolores operated the properties
under the names of McCall Family Partnership or
Business & Corporate Law > ... > Authority to Act >
Actual Authority > General Overview McCall Family Properties.
In January 1998, Linda decided to end the relationship
HN5 An agent has actual authority either expressly or
with Dolores and also filed suit for proper division of
impliedly to perform such acts as are necessary and
proper to accomplish the purpose for which the property under her mother's will and for breach of
agency was created. fiduciary duty against Dolores individually and as
independent executrix of the Estate of Jack O. McCall
Judges: [*1] Before Panel No. 1 Larsen, McClure, Sr., Jack O. McCall Jr., and McCall Family
and Chew, JJ. Partnership a.k.a. McCall Family Properties. During
discovery, she
Opinion by: DAVID WELLINGTON CHEW
2002 Tex. App. LEXIS 9373, *2
sought from Cotton Bledsoe all billing invoices for circumstances, such as the claims and defenses
legal work done for McCall Family Partnership a.k.a. asserted, the type of discovery sought, what it is
McCall Family Properties for the years 1992-1999. intended to prove, and the presence or lack of other
Linda also requested that Cotton Bledsoe withdraw discovery . . . ." Walker, 827 S.W.2d at 844.
from representing Dolores because of possible conflict
of interest due to the firm's representation of the Estate It is undisputed that Linda and Cotton Bledsoe did not
of Mary Jane McCall, Estate of Jack McCall Sr., and expressly contract for legal services. However, HN3
the McCall Family Partnership. Linda then moved to in the absence of an express agreement, an attorney-
subpoena the invoices and to disqualify Cotton client relationship may be implied in some cases from
Bledsoe from representing Dolores. Dolores, still the conduct of the parties. Mellon Serv. Co. v. Touche
represented by Cotton Bledsoe, sought protection Ross & Co., 17 S.W.3d 432, 437 (Tex.App.--Houston
from the subpoena from the trial court, asserting [1st Dist.] 2000, no pet.); Duval County Ranch Co. v.
[*3] the invoices from Cotton Bledsoe were protected Alamo Lumber Co., 663 S.W.2d 627, 633 (Tex.App.--
under the attorney-client privilege. The trial court Amarillo 1983, writ ref'd n.r.e.).
granted Dolores's motion to quash the subpoena and Under the present facts, we believe that an attorney-
ruled that the invoices were covered by the attorney- client relationship existed by virtue of Dolores
client privilege and Cotton Bledsoe had no attorney- consulting Cotton Bledsoe in her capacity as Linda's
client relationship with Linda. agent. HN4 An agent is one who is authorized by
HN1 Mandamus will lie only to correct a clear abuse another to transact some business for the principal.
of discretion and when there is no adequate remedy at Bhalli v. Methodist Hosp., 896 S.W.2d 207, 210
law, or by normal appeal. Braden v. Marquez, 950 (Tex.App.--Houston [1st Dist.]
S.W.2d 191, 193-94 (Tex.App.--El Paso 1997, orig. 1995, writ denied); [*5] Neeley v. Intercity Mgmt.
proceeding). A trial court abuses discretion when its Corp., 732 S.W.2d 644, 646 (Tex.App.--Corpus
decision lacks basis or guiding principles of law. Christi 1987, no writ). A power of attorney creates an
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, agency relationship. Plummer v. Estate of Plummer,
917 (Tex. 1985)(orig. proceeding). While a higher 51 S.W.3d 840, 842 (Tex.App.--Texarkana 2001, pet.
standard of review applies to a trial court's decision on denied); Sassen v. Tanglegrove Townhouse Condo.
factual issues, a trial court has no discretion in Assoc., 877 S.W.2d 489, 492 (Tex.App.--Texarkana
determining what the law is or applying the law to the 1994, writ denied). HN5 An agent has actual authority
facts. Braden, 950 S.W.2d at 193. Thus, a clear failure either expressly or impliedly to perform such acts as
by the trial court to analyze or apply the law correctly are necessary and proper to accomplish the purpose
will constitute an abuse of discretion and may result in for which the agency was created. Intermedics, Inc. v.
appellate reversal by extraordinary writ. Id. HN2 Grady, 683 S.W.2d 842, 847 (Tex.App.--Houston [1st
When the trial court disallows discovery and the Dist.] 1984, writ ref'd n.r.e.); Houston Packing Co. v.
missing discovery cannot be made part of the Spivey, 333 S.W.2d 423, 426 (Tex.Civ.App.--Eastland
appellate record, thereby precluding 1960, no writ).
[*4] appellate review, mandamus is a proper remedy. To expedite the administration of the oil and gas
Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. property interests in which she was co-tenants with
1992) (orig. proceeding); In re Braden, 960 S.W.2d Linda and J.O. Jr., Linda granted Dolores a limited,
834, 837 (Tex.App.--El Paso 1997, orig. proceeding). revocable power of attorney in March 1995, which
Before granting mandamus, the reviewing court created an agency relationship
should consider "all relevant
2002 Tex. App. LEXIS 9373, *5
between Linda, as the principal, and Dolores, as the Dolores in the suit. Dolores consulted Cotton Bledsoe
agent. In her capacity as Linda's agent, Dolores's in connection with the operation of the jointly owned
ultimate purpose was to carry out oil and gas properties and proportionately charged legal expenses
transactions, performing any necessary and proper acts to Linda. Whether the charges were properly made
to accomplish this. Seeking legal can only be determined from the invoices themselves,
advice in the commission [*6] of the service was a and their exclusion from the record would deprive
necessary and proper act, and an attorney-client Linda of adequate remedy at law.
relationship was created between Linda and any law
firm that Dolores consulted in her capacity as her Finding that Linda and Cotton Bledsoe had an
agent. Cotton Bledsoe had certainly rendered legal attorney-client relationship, we vacate the trial
service to Dolores, as Linda's agent, and had imputed court's order quashing the discovery [*8] of the
knowledge of the agency relationship, since they had invoices. However, it appears that Cotton Bledsoe also
advised Linda and Dolores to execute the power of rendered some legal services to Dolores outside of her
attorney and also ultimately assisted in dissolving the capacity as Linda's agent, and the portions of the
agency. See, e.g., Broughton v. Humble Oil & Ref. invoices relating to these legal services rendered
Co., 105 S.W.2d 480, 484 (Tex.Civ.App.--El Paso exclusively for Dolores individually and outside of her
1937, writ ref'd) (Non-appearing defendant had capacity as an agent are not subject to be discovered
attorney-client relationship with the law firm by Linda. We therefore instruct the trial court to
appearing on her behalf in a suit for adverse review in-camera the invoices in the light of this
possession. Law firm had been hired by her agent, opinion and allow discovery of the invoices relevant to
whom she had appointed to manage and look after the the services Cotton Bledsoe rendered to Dolores in her
property.). 1 capacity as Linda's agent. The writ is conditionally
granted. The writ will issue only in the event the trial
We agree that Linda is entitled to inspect the invoices court should fail to act in accordance with this
from Cotton Bledsoe, because attorney-client opinion.
relationship existed between Cotton Bledsoe and
Linda by the virtue of power of attorney she granted to We conditionally grant the writ of mandamus.
Dolores. We conclude that the trial judge erred as a June 20, 2002
matter of law in finding no attorney-client relationship
existed. Further, Linda has no adequate remedy at law DAVID WELLINGTON CHEW, Justice
from the trial court's order barring her from discovery
of the invoices from Cotton Bledsoe, because the Before Panel No. 1
invoices will not be a part of the appellate record. The Larsen, McClure, and Chew, JJ.
invoices from Cotton Bledsoe are highly relevant to
Linda's claim for breach of fiduciary duty against (Do Not Publish)
Dolores and for her motion to disqualify Cotton
Bledsoe from representing
1 See also Clarke v. Ruffino, 819 S.W.2d 947, 949-50 (Tex.App.--Houston [14th Dist.] 1991, orig. proceeding)(Although the defendant had never
asked the attorney to represent him in connection with the refinancing of his property, an attorney-client relationship existed. The attorney had
investigated Mr. Lehtonen and reported the evaluation to the financing bank, he had billed Mr. Lehtonen, and Mr.
Lehtonen had [*7] paid the attorney.).
Tex. Evid. R. 503
This document is current through March 10, 2015
Rule 503 Lawyer-Client Privilege
(a) Definitions. --In this rule:
(1) A "client" is a person, public officer, or corporation, association, or other organization or
entity - whether public or private - that:
(A) is rendered professional legal services by a lawyer; or
(B) consults a lawyer with a view to obtaining professional legal services from the lawyer.
(2) A "client's representative" is:
(A) a person who has authority to obtain professional legal services for the client or to act for the
client on the legal advice rendered; or
(B) any other person who, to facilitate the rendition of professional legal services to the client,
makes or receives a confidential communication while acting in the scope of employment for
the client.
(3) A "lawyer" is a person authorized, or who the client reasonably believes is authorized, to
practice law in any state or nation.
(4) A "lawyer's representative" is:
(A) one employed by the lawyer to assist in the rendition of professional legal services; or
(B) an accountant who is reasonably necessary for the lawyer's rendition of professional legal
services.
(5) A communication is "confidential" if not intended to be disclosed to third persons other than
those:
(A) to whom disclosure is made to further the rendition of professional legal services to the
client; or
(B) reasonably necessary to transmit the communication.
(b) Rules of Privilege.
(1) General Rule. --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;
(B) between the client's lawyer and the lawyer's representative;
(C) by the client, the client's representative, the client's lawyer, or the lawyer's representative
to a lawyer representing another party in a pending action or that lawyer's representative, if
the communications concern a matter of common interest in the pending action;
(D) between the client's representatives or between the client and the client's representative; or
(E) among lawyers and their representatives representing the same client.
(2) Special Rule in a Criminal Case. --In a criminal case, a client has a privilege to prevent a
lawyer or lawyer's representative from disclosing any other fact that came to the knowledge of
the lawyer or the lawyer's representative by reason of the attorney-client relationship.
(c) Who May Claim. --The privilege may be claimed by:
(1) the client;
(2) the client's guardian or conservator;
(3) a deceased client's personal representative; or
(4) the successor, trustee, or similar representative of a corporation, association, or other organization
or entity - whether or not in existence.
The person who was the client's lawyer or the lawyer's representative when the communication was
made may claim the privilege on the client's behalf - and is presumed to have authority to do so.
(d) Exceptions. --This privilege does not apply:
(1) Furtherance of Crime or Fraud. --If the lawyer's services were sought or obtained to enable or
aid anyone to commit or plan to commit what the client knew or reasonably should have known
to be a crime or fraud.
(2) Claimants Through Same Deceased Client. --If the communication is relevant to an issue
between parties claiming through the same deceased client.
(3) Breach of Duty By a Lawyer or Client. --If the communication is relevant to an issue of breach
of duty by a lawyer to the client or by a client to the lawyer.
(4) Document Attested By a Lawyer. --If the communication is relevant to an issue concerning an
attested document to which the lawyer is an attesting witness.
(5) Joint Clients. --If the communication:
(A) is offered in an action between clients who retained or consulted a lawyer in common;
(B) was made by any of the clients to the lawyer; and
(C) is relevant to a matter of common interest between the clients.