Case Information

*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/27/2015 11:38:31 AM CHRISTOPHER A. PRINE Clerk

*1 ACCEPTED 01-15-00392-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/27/2015 11:38:31 AM CHRISTOPHER PRINE

CLERK NO.__________________ IN THE COURT OF APPEALS

FOR THE ______________ DISTRICT OF TEXAS AT HOUSTON 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

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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, 7 th 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

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TABLE OF CONTENTS

*3 L IST OF P ARTIES AND C OUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i T ABLE OF C ONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii I NDEX OF A UTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv S TATEMENT OF THE C ASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v S TATEMENT OF J URISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v I SSUE P RESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi S TATEMENT OF F ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 A RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 P RAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 V ERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 C ERTIFICATE OF S ERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 A PPENDIX

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 *4 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 T EX . R. E VID . 503. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab K

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TABLE OF AUTHORITIES

*5

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

T EX . R. E VID . 503(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 T EX . R. E VID . 503(a)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5 T EX . R. E VID . 503(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

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STATEMENT OF THE CASE

*6 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.

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ISSUE PRESENTED

*7 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 *8 STATEMENT OF FACTS ^[1] 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 *9 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 *10 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 *11 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 *12 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 *13 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 *14 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. *15 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

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CERTIFICATE OF SERVICE

*17 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, 7 th 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 *19 1 Hearing February 18, 2015 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME TRIAL COURT CAUSE NO. 1047713 HUGH LARKIN ) IN THE COUNTY CIVIL COURT ) vs. ) AT LAW NUMBER FOUR (4) ) HOLLY RODRIGUEZ & ) RIVERWALK COUNCIL OF )

CO-OWNERS, INC.

) HARRIS COUNTY, T E X A S

PLAINTIFF'S MOTION TO CLARIFY JUDGE'S JANUARY 5, 2015, ORDER On the 18thh day of February, 2015, the following proceedings came on to be held in the above-entitled and numbered cause before the Honorable Roberta A. Lloyd, Judge Presiding, held in Houston, Harris County, Texas.

Proceedings reported by computerized stenotype machine. *20 23 24 25

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 2 Hearing February 18, 2015 APPEARANCES FAMOSE T. GARNER SBOT NO. 24074252 Attorney at Law 10101 Southwest Freeway, Suite 400 Houston, Texas 77074 Telephone: (832) 722-0881 Fax: (713) 481-0205 E-mail: Famosegarner@gmail.com Attorney for Plaintiff, Hugh Larkin JAMES HAMILTON FOLEY SBOT NO. 24059764 The Weaver Law Firm 1800 Bering Drive, Suite 305 Houston, Texas 77057 Telephone: (713) 572-4900 Fax: (713) 626-9708 E-mail: Rweaver@weaverlawyers.com Attorney for Defendant, Holly Rodriguez SHAWN ROBERT MCKEE SBOT NO. 24049403 Lambright & Associates 2603 Augusta, Suite 1100 Houston, Texas 77057 Telephone: (713) 840-1515 Fax: (713_ 840-1521 E-mail: Srm@lambrightlaw.com Attorney for Defendant, Riverwalk Council of Co-Owners, Inc.

*21 23 24 25

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 3 CHRONOLOGICAL INDEX VOLUME 1 PLAINTIFF'S MOTION TO CLARIFY JUDGE'S JANUARY 5, 2015, ORDER February 18, 2015

PAGE VOL.

Adjournment ............................... 14 1 Reporter's Certificate ..................... 15 1

*22 23 24 25

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 4 THE COURT: The record doesn't know who you are. MR. GARNER: My name is Famose Garner for the plaintiff. MR. FOLEY: James Foley for defendant Holly Rodriquez. MR. MCKEE: Shawn McKee for Defendant Riverwalk Council. THE COURT: Okeydoke. MR. GARNER: Your Honor, before we get

started, will the Court take judicial notice of a couple of pleadings filed in this case?

THE COURT: Just argue your motion, please. MR. GARNER: Yes, Your Honor. The Court issued an order that the

defendant was supposed to respond by a date certain. The defendant responded -- I mean, the plaintiff -- the plaintiff responded to the defendant's written discovery by a date certain -- the defendant asserts that this Court had already overruled all objections and assertions of privilege with that order.

*23 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 plaintiff asked for was to be able to respond by a date certain. The objection was to the timeliness of the request for production. There were no responses raised. There were no objections to responses raised, no assertions of privilege raised in either the motion to compel or the response. To overrule all those assertions that had not been raised yet would be granting relief; one, outside the scope of the motion; and two, would not allow the plaintiff his due process rights to assert different levels of privilege.

So we would, therefore, ask the Court if the Court would clarify if that was the relief more along the terms of protective order rather than overruling substantive objections and assertions of privilege?

THE COURT: What do you have to say? MR. FOLEY: I just read the motion

this morning. There was an issue with having been served with notice. I checked the docket, found out about it online, and contacted him yesterday.

THE COURT: Did you give him notice? *24 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 one objection back in November, and it was that it was 30 days prior to trial. And then, we filed our motion to compel. Court granted it. They overruled their single objection. They were required to respond by the 29th. Then they asserted all these brand new objection privileges.

THE COURT: Did you answer any of them? MR. GARNER: Yes, Your Honor. We answered all the ones that did not delve into privileged information or were objectionable.

MR. FOLEY: I have a motion for sanctions set for next Wednesday that identifies every single one of the responses --

THE COURT: How many did he answer? MR. FOLEY: I would say probably, if I

had to guess, probably 25 percent of them. Half of them are nonresponsive. I'll read one as an example. "Please provide detailed description of the facts asserted basis --"

THE COURT: You can read faster than she can type. *25 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 MR. FOLEY: -- "Larkin's basis for requesting damages and punitive damages." Ms. Rodriquez had committed several torts. At the time defendant has essentially stolen space from the plaintiff. She has done it in a way that's egregious, shocks the conscience." That's just the standard nonresponsive answer I'm getting to discovery requests.

We're trying to figure out what their complaint is. THE COURT: Would you like to say anything? MR. MCKEE: Your Honor, I think the order was pretty clear, and I think that plaintiff's responses to discovery are at best pretty useless. They have no substantive weight in them at all given we're two weeks out from trial.

MR. FOLEY: Set for trial March 9th. MR. GARNER: May I respond to two

things? THE COURT: Uh-huh. MR. GARNER: First, as far as service,

*26 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 MR. FOLEY: We're moving past that. MR. MCKEE: We're here. THE COURT: Stop. Stop. So, I mean,

they had to come here and ask me to enter an order making your client respond to discovery, and then it sounds like what percentage do you believe you responded to?

MR. GARNER: Well, Your Honor, if I had to put a ballpark, it was about half. The rest of the -- I'll give you --

THE COURT: Okay. The one he read, the one he read that just asked, kind of, for give us a ballpark of what damages you're seeking, I mean, egregious is not a number. Why didn't you answer that?

MR. GARNER: Your Honor, the question asked for what happened, not necessarily the numbers. THE COURT: Can I see that again? MR. FOLEY: Absolutely (tenders

document.) Take a look at number two while you're at it.

THE COURT: No. The one that you *27 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 I mean, they're entitled to at least a rudimentary sketch of what's the basis of this. I mean, what are your claims based upon? Facts? And you just have said they're egregious, and there are a lot of torts. There are a lot of torts. So why -- that doesn't help them.

MR. GARNER: Yes, Your Honor. But there were other requests that did narrate that answer.

THE COURT: Then why didn't you say, "See response to question blah, blah"? MR. GARNER: I did for some of them, Your Honor. I probably should have for that one as well.

MR. FOLEY: Your Honor, another example, I served seven interrogatories. Number two objects because --

THE COURT: I saw it. MR. FOLEY: Exceeds minimum amount of

allowable interrogatories. Turn to Texas Rules of Civil Procedure. That includes sub parts and lists.

THE COURT: That's okay. *28 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 going to ask for the attorney's fees for showing up today as part of that motion.

THE COURT: Well, I didn't prepare the order on the Motion to Compel. I think that if a Motion to Compel is entered, Counselor, I think that it's presumed you're going to use your best faith efforts to answer questions that they're having to compel you to answer in the first place. I'm not going to sit and take the time to count what percentage. You say 25. You say 50.

So at least half of them have gone unanswered, which means now we're coming back for another we're doing today. So now we're having three hearings on discovery. The one question I've looked at I don't believe is sufficient. I don't believe that's a sufficient answer. I'll withhold judgment on the others, but what has now happened is, by virtue of this, we're not going to be able to keep this trial date. So that by the actions of your client, now my docket is going to have to be adjusted to accommodate somebody that has not complied with just basic -- I mean -- I don't know why you thought

*29 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 order traditionally where I see orders on that in the future, if you think that I have signed orders in the past that have said, you know, that there are objections or they're late, that they've waived all objections and they must answer blah, blah, blah. I don't think that that says that. So I don't think that I really hold him accountable for that. I can't say that I think that this is a good way to do this, and I really do not appreciate the fact that just to get discovery that we're going to dance this dance because it's costing everybody money.

So what I would suggest is -- when is the motion for sanctions set? MR. FOLEY: I believe it's next Wednesday. THE COURT: Next Wednesday? I would suggest, Counsel, that between now and next Wednesday -- I'll clarify that I don't think that the order that was signed -- I don't think it waived all the objections. By the same token, I would say between now and next Wednesday, I would get with them and figure out what you can answer.

*30 23 MR. GARNER: Yes, ma'am. 24 THE COURT: Particularly, with the 25 admissions at least admitted or denied.

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(713) 368-6678 12 MR. FOLEY: I don't think admissions were the main problem. THE COURT: I would get with them. MR. FOLEY: But, Your Honor, I would

say the compel motion, the reason we didn't address privileges and all the other objections was because none of them was asserted. There was only one objection. So the order addresses, it says it overrules the objection. There was one.

THE COURT: I understand. MR. FOLEY: It's hard to address all

the ones he didn't want to assert at that time. THE COURT: I guess what -- I'm not saying -- look, I'm not trying -- I'm just saying, I think that what people have done in the past is they have anticipated. And once somebody is compelled to answer, they have anticipated -- possibly from past experiences -- they have anticipated they might be met when the answers come with a lot of objections or claims. And so they have prophylactically put in this -- and by the way, and sometimes I sign it. Sometimes I don't, depending on the nature of the

*31 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 point, the objection is overruled because you just objected to all the discovery because you said it was decided that we have a new trial. It wasn't really inside because it reopened the Rules of Civil Procedure if I recall correctly.

MR. FOLEY: Correct. We asked for you to extend the discovery period. THE COURT: It's not extended. Once I set -- once a new trial date is set, the rules say up to 30 days before and that's the policy of this Court. It's opened up 30 days before. I think I wrote it in.

MR. FOLEY: I think it's in the order that says that the discovery period is reopened and that --

THE COURT: Oh, 30 days before the trial date of this cause. Boom. So now guess what? Now we're going to have to have a new trial date. It's going to reopen it. Here we go.

MR. MCKEE: May I interject slightly? THE COURT: Yeah. MR. MCKEE: To the extent it took more

*32 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 law anyway? THE COURT: I don't want to go to that. I've done what I can do today, which I don't think it was a blanket -- I don't think it was a blanket overruling objections. I would suggest strongly that you talk.

MR. GARNER: Yes, Your Honor. THE COURT: Thank you. See you next

week. MR. GARNER: Thank you, Your Honor. (Proceedings adjourn).

*33 23 24 25

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 15 Reporter's Certificate February 18, 2015 STATE OF TEXAS COUNTY OF HARRIS

I, Karen S. Bernhardt, Official Court Reporter in and for the County Civil Court at Law No. 4 of Harris County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

I further certify that the total cost for the preparation of this Reporter's Record is $97.50 and was paid by Whitney Larkin.

WITNESS MY OFFICIAL HAND this the 20th day of April, 2015. /s/Karen S. Bernhardt KAREN S. BERNHARDT Texas CSR 1601 Official Court Reporter County Civil Court at Law No. 4 Harris County, Texas 201 Caroline, Room 740 Houston, Texas 77002 *34 Telephone: (713) 368-6678 Expiration: 12/31/16

23 24 25

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME TRIAL COURT CAUSE NO. 1047713 HUGH LARKIN ) IN THE COUNTY CIVIL COURT ) vs. ) AT LAW NUMBER FOUR (4) ) HOLLY RODRIGUEZ & ) RIVERWALK COUNCIL OF )

CO-OWNERS, INC.

) HARRIS COUNTY, T E X A S

DEFENDANT'S MOTION FOR SANCTIONS AGAINST PLAINTIFF AND PLAINTIFF'S ATTORNEY On the 24thh day of February, 2015, the following proceedings came on to be held in the above-entitled and numbered cause before the Honorable Roberta A. Lloyd, Judge Presiding, held in Houston, Harris County, Texas.

Proceedings reported by computerized stenotype machine. *35 23 24 25

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 2 APPEARANCES FAMOSE T. GARNER SBOT NO. 24074252 Attorney at Law 10101 Southwest Freeway, Suite 400 Houston, Texas 77074 Telephone: (832) 722-0881 Fax: (713) 481-0205 E-mail: famosegarner@gmail.com Attorney for Plaintiff, Hugh Larkin JAMES HAMILTON FOLEY SBOT NO. 24059764 The Weaver Law Firm 1800 Bering Drive, Suite 305 Houston, Texas 77057 Telephone: (713) 572-4900 Fax: (713) 626-9708 E-mail: rweaver@weaverlawyers.com Attorney for Defendant, Holly Rodriguez SHAWN ROBERT MCKEE SBOT NO. 24049403 Lambright & Associates 2603 Augusta, Suite 1100 Houston, Texas 77057 Telephone: (713) 840-1515 Fax: (713_ 840-1521 E-mail: Srm@lambrightlaw.com Attorney for Defendant, Riverwalk Council of Co-Owners, Inc.

*36 23 24 25

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 3 CHRONOLOGICAL INDEX VOLUME 1 DEFENDANT'S MOTION FOR SANCTIONS AGAINST PLAINTIFF AND PLAINTIFF'S ATTORNEY February 24, 2015

PAGE VOL.

Adjournment ............................... 26 1 Reporter's Certificate ..................... 27 1

*37 23 24 25

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 4 THE COURT: 1047713. Identify yourself so Ms. Bernhardt will know who is talking. MR. FOLEY: James Foley for Holly Rodriquez. This is Holly Rodriquez's Motion for Sanctions.

MR. MCKEE: Shawn McKee for Riverwalk Council of Co-Owners. MR. GARNER: Famose Garner, G-A-R-N-E-R, for plaintiff Hugh Larkin. THE COURT: Okay. MR. FOLEY: We were here last week,

and we're back. We've made substantially zero progress. Yesterday after 5:00 o'clock Mr. Garner supplemented Hugh Larkin's responses to Ms. Rodriquez's interrogatories containing substantially the same invalid objections and essentially refusals to respond to the questions asked as before; specifically, number two objects because it states it exceeds the minimum amount of allowable interrogatories under Texas Rules of Civil Procedures.

THE COURT: Well, what's your response *38 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 were only seven interrogatories in total. This one -- first of all --

THE COURT: Let me -- stop just a second. Let me catch up with you. These are requests for production?

MR. FOLEY: Those are in the same condition. Nothing has changed in the production at all.

THE COURT: So sorry. So number two. MR. FOLEY: Here are the supplemental. MR. MCKEE: It's unlikely you have the

copy of the supplement. THE COURT: Do you have a copy? MR. GARNER: I do, Your Honor. THE COURT: I don't want the e-mail.

I want the supplemental response you filed. Do you have an extra copy?

MR. FOLEY: You can have this copy. THE COURT: Okay. MR. FOLEY: "A discreet sub parts" -- THE REPORTER: Slow down. MR. FOLEY: I'm sorry. A discreet sub

*39 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 to the square footage in the attic space at issue. Further there are only seven. There are seven interrogatories in total and based on their level two discovery pleadings, I'm entitled to 25 interrogatories. So even if these were discreet sub parts, I still haven't achieved 25 interrogatories to Mr. Larkin. I mean, there is no basis for the objection at all. The same objection was made to number four. This interrogatory exceeds the minimum amount of allowable interrogatories under the Texas Rules of Civil Procedure.

This one, if you divided it into sub parts, which I'm not sure that these even qualify; but if you did, there would be only four. So if you add everything up, the most interrogatories you could come up with would be 15, even though --

THE COURT: Thank you. MR. GARNER: Your Honor, of the

interrogatories, every one asks for lists and each list is a sub part, Your Honor.

THE COURT: Well, that's not exactly what the rule says, Counsel, as we know. If it's *40 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 argument, let's assume for the sake of argument that your theory is correct, he's still, each sub part if you count it, doesn't go over the number.

MR. GARNER: Your Honor, it's -- so for two, there are seven and two, seven in -- THE COURT: Well, okay. One, two, three, four, five, seven -- okay. There is seven. There is number three would be -- so seven numbered one would be just one. So that's eight. Number three is just one. That's nine. Number four a description of the property, ten. Estimated value, 11. Estimated reduction, 12. That would be 13. Six would be 14. Seven, 15, I mean -- assuming --

MR. GARNER: To the extent that the objection is overruled, the plaintiff has answered the questions to the best of the plaintiff's ability. For example, the response to number two gives -- I don't know -- what else could be said to that question other than we need somebody to -- an engineer, to take actual measurements of the floor space.

I'm not entirely sure you could have a *41 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 THE COURT: I don't believe you have. I don't believe you have. You just raised objection. So with regards to your objection that they exceed, that is -- your objection is overruled. So with -- you've made the answer there is encroachment of approximately 4 feet, so if you can figure that out, then I think you can figure the others out. You're going to figure them out.

I don't think you need an engineer. I mean, I think you can go up in the attic. If you can go up in the attic to know if there is that much encroachment, somebody can go up and measure. It takes a tape measure or your plans will tell you how big your attic is or something.

MR. GARNER: Well, we did submit the real property records and the -- THE COURT: You need to answer the questions. MR. GARNER: Very well, Your Honor. THE COURT: I think we talked about

that last week. So here we are again. MR. FOLEY: Your Honor, on number *42 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 MR. FOLEY: "Plaintiff has not taken a --" THE COURT: I can read. Just tell me what part you want me to focus on. MR. FOLEY: The response I asked for a list of the property that was damaged and how it was reduced in value. The response is, "I have not taken a detailed inventory of the list because an inspection has not been performed on the items."

THE COURT: Right. MR. FOLEY: That's not responsive at

all. THE COURT: Thank you. Your action, so -- correct me if I'm wrong, but it seems to me if you're bringing an action, then you have to know what you're seeking remedies for. If you know what you're seeking remedies for, you don't enter, generally people, I don't think, file an action where they just like, let's get the action on file. Then we'll decide what it is that was damaged.

So why doesn't your client know what relief is being sought in order to respond? I mean, *43 23 isn't that the gist of it? Am I missing something? 24 MR. GARNER: No, Your Honor. You're 25 not.

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 10 THE COURT: So where is the list? MR. GARNER: I will work with my

client to get the list, Your Honor. THE COURT: But, Mr. Garner, your client is the plaintiff, correct? MR. GARNER: Yes, Your Honor. THE COURT: And I understand -- this

isn't your residence. Right? MR. GARNER: Yes, Your Honor. THE COURT: So you don't know -- I

understand that part, but your client -- how do you know what you're seeking? I'm not trying to be facetious, but how do you know what you want if your client hasn't told you what was harmed, doesn't know the space, that's involved, doesn't know the items involved? What did your client know except that he believes he was harmed?

MR. GARNER: Well, as we said in our response to number two, the client believes 4-foot of his attic space has been encroached and the fire wall has been moved.

THE COURT: Well, then if he knows *44 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.

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 11 THE COURT: Well, I mean it seems kind of self-evident. Anything else that you want me -- MR. FOLEY: Yes, Your Honor. On number five, we ask for, "Please provide detailed description of -- "

THE COURT: Slow down please. Please. MR. FOLEY: Sorry. THE COURT: You've got to slow down.

On we go. MR. FOLEY: "Please provide a detailed description of the facts that serve as Larkin's basis for asserting that Rodriquez is likely to repeat the acts related to removing and rebuilding a wall in the attic space."

He objects because, "It's vague and is unable to discern what the plaintiff is -- unable to discern what it is asking."

And you would be able to discern it if you read your pleadings which state -- THE COURT: It's not time to argue with him. You're not going to talk to him directly. You're talking to me.

*45 23 MR. FOLEY: Yes, Your Honor. 24 THE COURT: So what -- 25 MR. FOLEY: Paragraph 25 on

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 12 Plaintiff's First Amended Pleading states that, "Punitive damages in an amount that will sufficiently punish defendant Rodriquez for her willful and malicious conduct and will serve as an example to prevent a repetition of such conduct in the future." So I'm specifically asking why is it likely it would be repeated in the future.

THE COURT: Okay. MR. GARNER: May I respond? THE COURT: You can. MR. GARNER: That section is not

speaking strictly to Holly Rodriquez. That's a punitive damages requirement to deter conduct for others. Punitive damage are deterrent not only for the defendant but society at large. To --

THE COURT: Society at large? MR. GARNER: I mean -- THE COURT: Okay, look. Come on.

Let's be practical about this. You need to answer these questions. I mean, you're the one that's asserted that there is likely to be a repeated act of removing and rebuilding. Correct?

*46 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 --

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 13 THE COURT: Give me the file. MR. FOLEY: I have a copy. THE COURT: So where do you think

that -- where do you get the repeated alleged acts? Where do you get that from?

MR. FOLEY: In the prayer section Paragraph 25, Subsection D. THE COURT: Thank you. That's not what he means there. Yeah. Five, I would grant that. I would grant his objection. I think that maybe not necessarily as clearly stated as possible. I think kind of in the general punitive, which is to punish the person so that nobody will ever think of doing this again. In general, not that they're going to do it again.

MR. FOLEY: I would like to limit the facts, if he would respond with some sort of a factual response.

THE COURT: Well, then you do exceptions or something like that, if that's what you need to do. Well, you know, these responses are under oath. So you got Mr. Larkins tied in to what

*47 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

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 14 must have written this response or somebody wrote it, Mr. Garner.

But, in fact, in number seven it says plaintiff has measured the attic space. So it kind of contradicts your fact that, well, he can't measure when he says he has.

MR. GARNER: Well, may I respond? THE COURT: No. Answer it. Answer

it, answer it, answer it. He's locked in on these facts, Counsel, for now. So do with that what you will. If there's not a basis, there's not a basis.

MR. FOLEY: Right. We're set for trial March 9th. THE COURT: Is it jury or non-jury? MR. FOLEY: Jury. THE COURT: I don't know that you're

going to make it. I don't think so. How old is the case?

THE COORDINATOR: No, it's not preferentially set. THE COURT: So you're not going on the *48 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,

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 15 that's the most recent response. Do you want those back?

MR. FOLEY: No. You can keep those, Your Honor. THE COURT: I just think it's problematic. I think it's problematic, Mr. Garner, because this is the most recent, right, that I've been filing through?

MR. FOLEY: Yes, Your Honor. THE COURT: What's your basis for

sanctions, sir? MR. FOLEY: Just that they were -- the sole objection was overruled and the Court ordered him to respond and everything was non-responsive. We were here last week. He said he would make a good faith effort. He didn't make a good faith effort. The same objections, invalid objections, are there. Says he can't understand any of the questions that we asked.

For example, on seven he says that it's vague and he's not able to discern what we're asking. It's not. It's not vague.

*49 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.

(713) 368-6678 16 but -- MR. FOLEY: So on request for production is a separate issue. I went back and actually counted last week because you asked how many did he respond to. There is a total of 52 requests for production and he did not respond to 29 of them. So it was slightly over half. On this one, I'll just bring your attention, number seven asks for written rental agreement between Whitney Larkin and Hugh Larkin, and he says it's irrelevant. Not going to produce it.

THE COURT: Number seven you said? MR. FOLEY: Seventeen, Your Honor. THE COURT: You know I think a copy of

the lease, if any. If there's no lease, there is no lease. Is there a lease or not? Just answer that.

MR. GARNER: Yes, Your Honor. THE COURT: Then give it to him. MR. GARNER: Yes. I don't know if

there is a lease or not. I will give it to him. THE COURT: Mr. Garner, with all due respect, I mean, that's just -- it worries me the *50 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.

(713) 368-6678 17 this was going -- we talked about this last week, and the answer -- I think there is some stone walling on the answers. I'll be perfectly honest with you.

MR. GARNER: Yes, Your Honor. THE COURT: Here's what I'm going to

do -- MR. FOLEY: Your Honor? THE COURT: Yes? MR. FOLEY: Sorry to interrupt. I

asked him if there was a written lease in requests for admissions, and he admitted that there was. So that's how I know that it exists, and I want it.

THE COURT: I understand. You're indignant and just distressed about this, and I get that. Mr. Garner, you know, you're the face of the plaintiff here. So your client's not here, I don't think. So I can't say, Mr. Larkin, you're not helping your attorney here. That's what I would be saying though to him.

MR. GARNER: Yes, Your Honor. THE COURT: It's now time -- as an

attorney, we all face that time where you have to *51 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

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 18 say shouldn't you take the measurement. You need an engineer. Well, he took the measurements so apparently he knows how to do this.

MR. FOLEY: One more issue. THE COURT: What? MR. FOLEY: It has to do with

attorney/client privilege. I requested documents between Mr. Larkin and his daughter, Whitney Larkin; and she's a licensed attorney, and also the tenant. So I received a blanket objection that anything they say or do is covered by the attorney/client privilege. And therefore he's refusing to produce any of those documents. That's specific to requests for production --

THE COURT: Thank you. Mr. Garner? MR. GARNER: May I respond to that? THE COURT: Uh-huh. MR. GARNER: Your Honor, Mr. Larkin

talked to Ms. Larkin about this building in preparation for litigation. There is a privilege with that if --

THE COURT: She's not his attorney of *52 23 record. 24 MR. GARNER: He went to her for legal 25 advice, Your Honor. And, in turn --

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 19 THE COURT: To his tenant? MR. GARNER: Yes, Your Honor. THE COURT: Well, what we're going to

do on that, then, if you want, Mr. Garner, is you're going to get me -- to have assert a privilege log then. You don't get to just say privilege. You're going to produce every one of those documents that allegedly is privileged, and I'm going to do an in camera viewing of every one of those documents, and I will determine what is privileged and what is not, under the Rules of Civil Procedure .

So get your privilege log ready. MR. GARNER: Absolutely, Your Honor. THE COURT: And read the rules maybe

again to ascertain what privilege attaches. MR. GARNER: Yes, Your Honor. THE COURT: So you're not going to

trial in March or whenever, March 9th. You're not making that, but -- okay. Court is going to do the following; the Court hereby is going to treat motion for sanctions as a motion. I know there's already been one motion to compel, but I assume -- is it,

*53 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

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 20 that and just Rule 215.1(b) that you don't have to have a violation and order to award sanctions.

THE COURT: I know. Have you done a motion to compel already? MR. FOLEY: Yes, Your Honor, I have. And it was granted. THE COURT: Okay. MR. GARNER: Not for the responses,

Your Honor. He has not. THE COURT: What was it for? To answer discovery? MR. GARNER: Yes, Your Honor. THE COURT: And did I do what? The

350 carry over, did I impose that? MR. FOLEY: That, I don't recall. There's only one objection at that time. So the Court overruled the one objection. All the new ones appeared January 29th.

THE COURT: Here we are on this a month later. MR. FOLEY: Right. So we had from October until now to get this fixed. *54 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.

(713) 368-6678 21 to -- Counsel, your last name? MR. FOLEY: Foley, Your Honor. THE COURT: Foley. So sorry.

Mr. Foley, how much have you talked to him about this? Are you just sending these objections and that's that? I answered?

MR. GARNER: Well, Your Honor, I came into the case on the 27th. THE COURT: Of January? MR. GARNER: Yes, Your Honor. THE COURT: Who was the attorney of

record before then? MR. GARNER: Timothy Rodman, I believe is his name. THE COURT: So -- but Ms. Larkin's never been the attorney of record in here? MR. GARNER: Not of record, no, Your Honor, but -- THE COURT: You take it on the way you found it. MR. GARNER: Understood, Your Honor. THE COURT: You haven't responded.

*55 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.

(713) 368-6678 22 thrown out. MR. GARNER: Well, Your Honor -- THE COURT: Yeah? Yes? MR. GARNER: I've had two telephone

conversations with Mr. Foley, one of which was I think he was letting me know his position on the previous objections. I let him know I disagreed, let him know that we would be seeking motion to clarify that previous order because we thought it was protected.

The second conversation we had was in relation to the Motion to Clarify and the Motion for Sanctions. So --

THE COURT: These are pretty easy questions. And the responses, I don't find to be -- I mean, I think you're just -- again, just kind of saying, that he's measured the space, but I'm not going to tell you in contradiction to tell me the various spaces. Unaware of the answer to the other questions, an engineer or expert to evaluate the space. You said you took measurements.

It is things like that lead me to *56 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.

(713) 368-6678 23 doesn't have the answers, then, well, that raises another interesting thing that you have to say that versus it's privilege. It's too long. It's too many.

So allegedly you're not going to let them see any basis of the daughter talking to her father about that because it's privileged, every communication they had about this? Is that your general theory?

MR. GARNER: That is my theory. THE COURT: That's your theory. Okay.

Then here's my theory, here's my response and judgment in this case; the Court does grant sanctions, conditional sanctions, which is, you will fully respond to these. If there is a privilege, you will produce a privilege log as required by the Rules of Civil Procedure. You will do that on or before noon on Wednesday, March the 4th. That is one week's time to answer these.

Mr. Garner, the Court tentatively awards attorney's fees which this Court finds to be reasonable and necessary in the sum of $500 for the

*57 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.

(713) 368-6678 24 which leads this Court to believe that there's not really an objection specific to the production request -- the interrogatory -- that they're just being repeated over and over again. And no information is being repeated.

This is discovery. I'm sure you're aware of that, Mr. Garner, that discovery -- it doesn't necessarily mean it's admissible; but they get to discover. So if you produce answers to these, then I'm not going to impose the $500. If you do not respond, if it comes down to these are the same responses over again, then I will allow the $500 as a sanction. So you've got a week. Tell your clients time is now.

MR. GARNER: Yes, Your Honor. THE COURT: Okay? Keep me advised.

Get me an order to that effect. Yes? MR. MCKEE: Would defendants -- would you allow defendants to reurge their Motion for Summary Judgment you previously denied?

THE COURT: No. MR. MCKEE: Thank you, Your Honor.

*58 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.

(713) 368-6678 25 by noon on Wednesday March the 4th, sir, or you will have a fax receipt that shows that it was received by facsimile. Or if you scan them and send them, I need something.

If not, if you fail to respond by that time and/or if the responses are similar to the responses that are on file now, the latest responses, then I will -- then the $500 will no longer be prospective. That will be an award. Okay?

MR. GARNER: Yes, Your Honor. THE COURT: That will be paid within

30 days of the date. So that would be paid by Friday, April the 3rd. It will be due, if in fact you don't comply with this Court's order.

MR. GARNER: Okay. May I ask one question? THE COURT: Yes, sir. MR. GARNER: Is e-mail okay? THE COURT: Talk with him, whichever

is the best because it's not to me. It's to him. MR. GARNER: Understood, Your Honor. THE COURT: So you all talk. It's an

*59 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.

(713) 368-6678 26 Reporter's Certificate February 24, 2015 electronic. It's just easier for me to work with. It's easier for you to prepare and accept. You talk about that.

(Proceedings adjourn). *60 23 24 25

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 27 Reporter's Certificate February 24, 2015 STATE OF TEXAS COUNTY OF HARRIS

I, Karen S. Bernhardt, Official Court Reporter in and for the County Civil Court at Law No. 4 of Harris County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties.

I further certify that the total cost for the preparation of this Reporter's Record is $175.50 and was paid by Whitney Larkin

WITNESS MY OFFICIAL HAND this the 20th day of April, 2015. /s/Karen S. Bernhardt KAREN S. BERNHARDT Texas CSR 1601 Official Court Reporter County Civil Court at Law No. 4 Harris County, Texas 201 Caroline, Room 740 Houston, Texas 77002 *61 Telephone: (713) 368-6678

23 Expiration: 12/ 24 25

KAREN S. BERNHARDT, C.S.R.

(713) 368-6678 *156 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 *157 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

LexisNexis® Headnotes of fiduciary duty against the stepmother. During 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 Civil Procedure > Appeals > Standards of Review > the invoices and to disqualify the law firm from 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 Opinion facts. Thus, a clear failure by a trial court to analyze or apply the law correctly will constitute an abuse of

AN ORIGINAL PROCEEDING IN MANDAMUS

discretion and may result in appellate reversal by 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 Linda McCall's subpoena for invoices submitted to

HN2 When a trial court disallows discovery and the Dolores McCall ("Dolores") by the law firm of missing discovery cannot be made part of the Cotton, Bledsoe, Tighe & Dawson, P.C. ("Cotton appellate record, thereby precluding appellate review, Bledsoe"). Mary Linda McCall ("Linda") brings two mandamus is a proper remedy. Before granting issues complaining that she is entitled to examine the mandamus, a reviewing court should consider all invoices, because Cotton Bledsoe rendered legal relevant circumstances, such as the claims and *158 services on her behalf and she paid for her proportion defenses asserted, the type of discovery sought, what it of the services. We conditionally grant the writ of is intended to prove, and the presence or lack of other mandamus. discovery. After Jack O. McCall Sr.'s death in October 1991, Legal Ethics > Client Relations > General Overview 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 Bledsoe set up a limited power of attorney to transfer Estate, Gift & Trust Law > Estate Planning > Powers of 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 > McCall Family Properties. Actual Authority > General Overview 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 property under her mother's will and for breach of proper to accomplish the purpose for which the fiduciary duty against Dolores individually and as agency was created. independent executrix of the Estate of Jack O. McCall Sr., Jack O. McCall Jr., and McCall Family

Judges: [*1] Before Panel No. 1 Larsen, McClure, Partnership a.k.a. McCall Family Properties. During and Chew, JJ. 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

It is undisputed that Linda and Cotton Bledsoe did not of interest due to the firm's representation of the Estate expressly contract for legal services. However, HN3 of Mary Jane McCall, Estate of Jack McCall Sr., and in the absence of an express agreement, an attorney- the McCall Family Partnership. Linda then moved to client relationship may be implied in some cases from subpoena the invoices and to disqualify Cotton the conduct of the parties. Mellon Serv. Co. v. Touche Bledsoe from representing Dolores. Dolores, still Ross & Co., 17 S.W.3d 432, 437 (Tex.App.--Houston represented by Cotton Bledsoe, sought protection [1st Dist.] 2000, no pet.); Duval County Ranch Co. v. from the subpoena from the trial court, asserting Alamo Lumber Co., 663 S.W.2d 627, 633 (Tex.App.-- [*3] the invoices from Cotton Bledsoe were protected Amarillo 1983, writ ref'd n.r.e.). under the attorney-client privilege. The trial court *159 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 another to transact some business for the principal.

HN1 Mandamus will lie only to correct a clear abuse Bhalli v. Methodist Hosp., 896 S.W.2d 207, 210 of discretion and when there is no adequate remedy at (Tex.App.--Houston [1st Dist.] law, or by normal appeal. Braden v. Marquez, 950 1995, writ denied); [*5] Neeley v. Intercity Mgmt. S.W.2d 191, 193-94 (Tex.App.--El Paso 1997, orig. Corp., 732 S.W.2d 644, 646 (Tex.App.--Corpus proceeding). A trial court abuses discretion when its Christi 1987, no writ). A power of attorney creates an decision lacks basis or guiding principles of law. agency relationship. Plummer v. Estate of Plummer, Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 51 S.W.3d 840, 842 (Tex.App.--Texarkana 2001, pet. 917 (Tex. 1985)(orig. proceeding). While a higher denied); Sassen v. Tanglegrove Townhouse Condo. standard of review applies to a trial court's decision on Assoc., 877 S.W.2d 489, 492 (Tex.App.--Texarkana factual issues, a trial court has no discretion in 1994, writ denied). HN5 An agent has actual authority determining what the law is or applying the law to the either expressly or impliedly to perform such acts as facts. Braden, 950 S.W.2d at 193. Thus, a clear failure are necessary and proper to accomplish the purpose by the trial court to analyze or apply the law correctly for which the agency was created. Intermedics, Inc. v. will constitute an abuse of discretion and may result in Grady, 683 S.W.2d 842, 847 (Tex.App.--Houston [1st appellate reversal by extraordinary writ. Id. HN2 Dist.] 1984, writ ref'd n.r.e.); Houston Packing Co. v. When the trial court disallows discovery and the Spivey, 333 S.W.2d 423, 426 (Tex.Civ.App.--Eastland missing discovery cannot be made part of the 1960, no writ). appellate record, thereby precluding [*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

Finding that Linda and Cotton Bledsoe had an firm that Dolores consulted in her capacity as her attorney-client relationship, we vacate the trial agent. Cotton Bledsoe had certainly rendered legal court's order quashing the discovery [*8] of the service to Dolores, as Linda's agent, and had imputed invoices. However, it appears that Cotton Bledsoe also knowledge of the agency relationship, since they had rendered some legal services to Dolores outside of her advised Linda and Dolores to execute the power of capacity as Linda's agent, and the portions of the attorney and also ultimately assisted in dissolving the *160 invoices relating to these legal services rendered agency. See, e.g., Broughton v. Humble Oil & Ref. exclusively for Dolores individually and outside of her Co., 105 S.W.2d 480, 484 (Tex.Civ.App.--El Paso capacity as an agent are not subject to be discovered 1937, writ ref'd) (Non-appearing defendant had by Linda. We therefore instruct the trial court to attorney-client relationship with the law firm review in-camera the invoices in the light of this appearing on her behalf in a suit for adverse opinion and allow discovery of the invoices relevant to possession. Law firm had been hired by her agent, the services Cotton Bledsoe rendered to Dolores in her whom she had appointed to manage and look after the capacity as Linda's agent. The writ is conditionally property.). 1 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

We conditionally grant the writ of mandamus. Linda by the virtue of power of attorney she granted to 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

Before Panel No. 1 of the invoices from Cotton Bledsoe, because the 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 *161 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 *162 (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.

NOTES

[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

[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

[8] For example, Whitney Larkin helped draft the interrogatory responses. (R. 196.) 6

[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