in Re: 462 Thomas Family Properties, LP

Opinion

ACCEPTED

05-15-00607-CV

05-15-00607-CV FIFTH COURT OF APPEALS DALLAS, TEXAS

5/13/2015 9:16:55 AM

LISA MATZ

CLERK

No. _____

FILED IN

IN THE FIFTH DISTRICT COURT OF APPEALS 5th COURT OF APPEALS

DALLAS, TEXAS DALLAS, TEXAS 5/13/2015 9:16:55 AM

LISA MATZ

Clerk

IN RE 462 THOMAS FAMILY PROPERTIES, LP, ET AL.,

Relators.

Original Proceeding

From the Probate Court No. 1, Dallas, County, Texas Cause No. PR 10-00877-1

EMERGENCY MOTION TO STAY THE PROBATE COURT’S ORDER COMPELLING THE PRODUCTION OF CERTAIN DOCUMENTS

Alan S. Loewinsohn Douglas W. Alexander State Bar No. 12481600 State Bar No. 00992350 alan@lfdlaw.com dalexander@adjtlaw.com Kerry Schonwald Amy Warr State Bar No. 24051301 State Bar No. 00795708 kerry@lfdlaw.com awarr@adjtlaw.com LOEWINSOHN FLEGLE DEARY, LLP Melanie Plowman 12377 Merit Drive, Suite 900 State Bar No. 24002777 Dallas, Texas 75251 mplowman@adjtlaw.com Telephone: (214) 572-1700 ALEXANDER DUBOSE JEFFERSON & Facsimile: (214) 571-1717 TOWNSEND LLP 515 Congress Avenue, Suite 2350 Mary Elizabeth Conlon Austin, Texas 78701 State Bar No. 24045691 Telephone: (512) 482-9300 marybeth@theconlonlawfirm.com Facsimile: (512) 482-9303 THE CONLON LAW FIRM, P.C. 8333 Douglas Ave., Suite 1414 Mary C. Burdette Dallas, Texas 75225 State Bar No. 04268800 Telephone: (214) 750-1200 mburdette@cnbwlaw.com Facsimile: (214) 890-9920 CALLOWAY, NORRIS, BURDETTE & WEBER, PLLC 3811 Turtle Creek Blvd., Suite 400 Dallas, TX 75219 Telephone: (214) 521-1520 Facsimile: (214) 521-2201

COUNSEL FOR RELATORS

Relators, 462 Thomas Family Properties, LP, et al., seek an emergency stay

of the attached probate court Order in order to preserve for mandamus review by this

Court their claim to attorney-client privilege of three documents ordered to be

produced by the probate court. See Order Denying Defendants’ Objections to Dan

Brittain Subpoenas Duces Tecum, Probate Court No. One of Dallas County (May

11, 2015) (attached as Ex. A). The probate court issued the Order yesterday

afternoon, May 11, 2015. Relators seek an emergency stay from this Court because

though the Order includes a temporary stay of the compelled production of the

documents, that stay expires this Friday, May 15, 2015 at noon. The probate court

granted this temporary stay in order to give Relators time to request, and this Court

time to consider, the granting of a further stay pending resolution of the Petition for

Writ of Mandamus filed contemporaneously with this motion. Relators have also

contemporaneously submitted under seal to this Court the documents at issue for in

camera review.

The challenged Order compels the production of certain documents that

Relators demonstrate in their mandamus petition are attorney-client privileged under

Texas Rule of Evidence 503. These documents are: (1) a memorandum prepared

by an attorney for Relators that embodies and reflects legal advice and counseling

to Relators; and (2) two versions of a draft amendment to a Partnership Agreement

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prepared by Relators’ counsel that were never executed. The documents have been

described as follows:

1. Amended and Restated Agreement of Limited Partnership of 462 Thomas Family Properties, L.P. (version 1) (undated) (in camera Ex. 1) 2. Amended and Restated Agreement of Limited Partnership of 462 Thomas Family Properties, L.P. (version 2) (undated) (in camera Ex. 2) 3. Memo to Self from T. Daniel Brittain regarding A&R 462 Thomas Family Properties, LP Agreement (September 4, 2012) (in camera Ex. 7)

As described in the Motion to File Part of Mandamus Record under Seal, these three

documents have been submitted to this Court for in camera view, together with three

other redlined documents that Relators prepared to facilitate analysis of the attorney-

client privilege claim. Following a hearing and in camera review of the documents

at issue, the probate court decided the documents were not protected by the privilege

under the exceptions to the privilege that appear in Rule 503(d)(2) and (d)(5).

As previously noted, the probate court has granted a stay of its order until

Friday, May 15, 2015 at noon. See Ex. A (granting stay). If, however, this Court

does not rule on Relator’s mandamus petition prior to the expiration of the probate

court’s stay order, the Relators face the prospect of being compelled to produce the

documents while the mandamus petition remains pending. In the absence of a stay

from this Court, Relator could be compelled to relinquish their attorney-client

privilege and the issues raised in Relators’ mandamus petition could be rendered

moot.

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Once a privileged document is produced, the privilege cannot be restored. See

Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding); see also,

e.g., Mem. Hosp.—The Woodlands v. McCown, 927 S.W.2d 1, 12 (Tex. 1996) (orig.

proceeding) (“It is well settled that an erroneous order requiring the production of

privileged documents leaves the party claiming privilege without an adequate

remedy by appeal.”). Thus, Relators respectfully request that a stay be issued until

the Court rules on Relators’ mandamus petition. This Court has jurisdiction to stay

an order of a trial court to protect its jurisdiction. TEX. R. APP. P. 52.10; see also,

e.g., In re Tex. Farmers Ins. Co., No. 02-13-00449-CV, 2014 WL 345677, at *4

(Tex. App.—Fort Worth Jan. 30, 2014, orig. proceeding) (noting that order

compelling production was stayed to permit consideration of relators’ mandamus

petition); In re Rogers, 200 S.W.3d 318, 321 (Tex. App.—Dallas 2006, orig.

proceeding) (noting the issuance of a stay of order compelling production of

documents pending resolution of mandamus petition asserting privilege).

A trial is currently set in the probate court for May 18, 2015. Relators do not

seek a stay of the May 18, 2015 trial setting, but only a stay of the Order of May 11,

2015 compelling production of the documents at issue. Counsel for Real Parties in

Interest indicated during yesterday’s hearing in the probate court that Real Parties in

Interest intend to keep the trial date.

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PRAYER

Relators respectfully request a stay of the probate court’s order compelling

production of certain documents pending the conclusion of all proceedings

addressing Relators’ Petition for Writ of Mandamus. Relators also request any other

relief to which they may be entitled at law or in equity.

Respectfully submitted,

/s/ Douglas W. Alexander Douglas W. Alexander State Bar No. 00992350 alexander@adjtlaw.com Amy Warr State Bar No. 00795708 awarr@adjtlaw.com Melanie Plowman State Bar No. 24002777 mplowman@adjtlaw.com ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Telephone: (512) 482-9300 Facsimile: (512) 482-9303

Alan S. Loewinsohn State Bar No. 12481600 alan@lfdlaw.com Kerry Schonwald State Bar No. 24051301 kerry@lfdlaw.com LOEWINSOHN FLEGLE DEARY, LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251 Telephone: (214) 572-1700 Facsimile: (214) 571-1717

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Mary Elizabeth Conlon State Bar No. 24045691 marybeth@theconlonlawfirm.com The Conlon Law Firm, P.C. 8333 Douglas Ave., Suite 1414 Dallas, Texas 75225 Telephone: (214) 750-1200 Facsimile: (214) 890-9920

Mary C. Burdette State Bar No. 04268800 mburdette@cnbwlaw.com CALLOWAY, NORRIS, BURDETTE & WEBER, PLLC 3811 Turtle Creek Blvd., Suite 400 Dallas, TX 75219 Telephone: (214) 521-1520 Facsimile: (214) 521-2201

COUNSEL FOR RELATORS

CERTIFICATE OF CONFERENCE

On May 12, 2015, I communicated with Wes Holmes, counsel for Real Parties

in Interest. He stated that his clients oppose this motion for stay.

/s/ Kerry Schonwald Kerry Schonwald

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CERTIFICATE OF SERVICE

On May 12, 2015, I electronically filed this Emergency Motion to Stay the

Probate Court’s Order Compelling the Production of Certain Documents with the

Clerk of the Court using eFile.TXCourts.gov electronic filing system which will

send notification of such filing to the following:

Wes Holmes Larry A. Flournoy, Jr. Texas Bar No. 09908495 State Bar No. 00795348 wes@wesholmes.com lflournoy@jhflegal.com Susan Shelton JORDAN, HOUSER & FLOURNOY, LLP Texas Bar No. 08996750 10000 North Central Expressway susan@wesholmes.com Suite 800 THE HOLMES LAW FIRM Dallas, Texas 75231 10000 North Central Expressway Telephone: (214) 369-0361 Suite 400 Facsimile: (214) 242-2170 Dallas, Texas 75231 Telephone: (214) 890-9266 Facsimile: (214) 890-9295

Jim Hartnett, Jr. State Bar No. 09169200 jim@hartnettlawfirm.com THE HARTNETT LAW FIRM 2920 N. Pearl Street Dallas, Texas 75201 Telephone: (214) 742-4655 Facsimile: (214) 855-7857

Attorneys for Real Parties in Interest

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Hon. John Peyton, Jr. Old Criminal Court Building 501 Main Street, 4th Floor Dallas, Texas 75202 Telephone: (214) 653-7236 john.peyton@dallascounty.org

Respondent

/s/ Douglas W. Alexander Douglas W. Alexander

CAUSE NO. PR-1 0-00877-1

ROBERT K. THOMAS, as Trustee of the ROBERT K. THOMAS TRUST, as Trustee of the TABATHA D. THOMAS EXEMPT TRUST, as Trustee of the TYLER J. THOMAS EXEMPT TRUST, as Trustee of the ROBERT T. THOMAS EXEMPT TRUST, as Trustee of the TIERNEY G. THOMAS EXEMPT TRUST, as Trustee of the TIERNEY G. THOMAS GST-EXEMPT TRUST A, as Trustee of the ROBERT T. THOMAS GST-EXEMPT TRUST A, as Trustee of the TYLER J. THOMAS GST-EXEMPT TRUST A, and as Trustee of the TABATHA D. THOMAS GST-EXEMPT TRUST A,

Plaintiffs,

IN PROBATE COURT NO. ONE

OF

462 THOMAS FAMILY PROPERTIES, LP, 462 THOMAS FAMILY PROPERTIES MANAGEMENT, DALLAS COUNTY, TEXAS LLC, DONALD T. CONLON, ROBYN THOMAS CONLON, Individually, as Executor of the Estate of Howard Gillis Thomas, Deceased, and as Trustee of the KEVIN T. CONLON EXEMPT TRUST, as Trustee of the KEVIN T. CONLON GST-EXEMPT TRUST A, as Trustee of the WILLIAM K. CONLON EXEMPT TRUST, as Trustee of the PATRICK C. CONLON EXEMPT TRUST, as Trustee of the ROBYN THOMAS CONLON TRUST, as Trustee of the PATRICK C. CONLON GST-EXEMPT TRUST A, and as Trustee of the WILLIAM K. CONLON GST-EXEMPT TRUST A,

Defendants

ORDER DENYING DEFENDANTSO OBJECTIONS TO DAN BRITTAIN SUBPOENAS DUCES TECUM

ON THIS DAY, came on to be considered Defendants' objections to the two subpoenas

duces tecum to Dan Brittain for testimony on May 17,2015 and May 18, 2015. Defendants have

objected on the basis of the attorney-client privilege to the production of documents in these

categories: "The unsigned Amendment to the Agreement of Limited Partnership of 462 Thomas

Family Properties, LP ('the Unsigned Amendment') identified by you at your deposition on

April 30, 2015," "All drafts of the Unsigned Amendment," and "All correspondence, email

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communications, and memoranda related to the Unsigned Amendment." The documents requested have been submitted to the Court for in camera review.

The Court hereby OVERRULES Defendants' objections to the production of the in

camera documents pursuant to Texas Rule of Evidence 503(dX2) and 503(d)(5). The Court

orders the in camera documents be produced to Plaintiff, provided however, that the order to

produce the documents is stayed until Friday, May 15,2015 at noon.

So ORDERED.

SIGNED AND ENTERED: 2015.

ON. JO PE JR. E PRESIDING

JTJDGE STTITNC BY ASSIGNMENT

AGREED AS TO FORM ONLY AGREED AS TO FORM: AND NOT SUBSTANCE:

LOE\ilINSOHN FLEGLE DEARY, LLP THE HOLMES LAW FIRM Alan S. Loewinsohn Wes Holmes

Texas Bar No. 12481600 Texas Bar No. 09908495

alanl@lfdlaw.com Kerry Schonwald wes@wesholmes.com Texas Bar No. 24051301 Susan Shelton kenys@lfdlaw.com Texas Bar No. 08996750 12377 Merit Drive, Suite 900 susan@wesholmes.com Dallas, Texas 75251 10000 North Central Expressway, (214) 572-1700 - Telephone Suite 400 (21 4) 572-17 17'- Telecopier Dallas, Texas 75231 214-890-9266

COUNSEL FOR DEFENDANTS COUNSEL FOR ROBERT THOMAS