ACCEPTED 04-15-00653-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 10/19/2015 4:15:46 PM KEITH HOTTLE CLERK 00653 No. 04-15-___________-CV
FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS In the Court of Appeals 10/19/2015 4:15:46 PM For the Fourth District of Texas KEITH E. HOTTLE Clerk
IN RE ALLEN J. JONES, Relator
From the 150th District Court, Bexar County, Texas Cause No. 2014-CI-16674; Hon. Richard Price, Presiding
PETITION FOR WRIT OF MANDAMUS AND APPENDIX/RECORD
Christine E. Reinhard Kimberly S. Keller SBN: 24013389 SBN: 24014182 Justin Barbour Shane Stolarczyk SBN: 24044152 SBN: 24033242 Schmoyer Reinhard LLP Keller Stolarczyk PLLC 17806 IH 10 West, #400 234 West Bander Rd #120 San Antonio, Texas 78257 Boerne, Texas 78006 Tel: 210.447.8033 Tel: 830.981.5000 Fax: 210.447.8036 Fax: 888.293.8580
Attorneys for Relator
i IDENTITY OF PARTIES AND COUNSEL
Relator certifies this as a list of parties and their counsel:
RELATOR/PETITIONER:
ALLEN J. JONES
COUNSEL FOR RELATOR/DEFENDANT:
Trial: Appellate: Christine E. Reinhard Kimberly S. Keller Justin Barbour Shane J. Stolarczyk Schmoyer Reinhard LLP Keller Stolarczyk PLLC 17806 IH 10 West, Suite 400 234 W. Bandera Rd., Suite 120 San Antonio, Texas Boerne, Texas 78006
REAL PARTY IN INTEREST/RESPONDENT:
CEARTH FAIRE
COUNSEL FOR REAL PARTY IN INTEREST/PLAINTIFF:
Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Texas 78205
RESPONDENT:
Honorable Richard Price Judge, 150th Judicial District, Bexar County
ii TABLE OF CONTENTS
PETITION FOR WRIT OF MANDAMUS AND APPENDIX/RECORD ..... i
IDENTITY OF PARTIES AND COUNSEL............................................ ii
TABLE OF CONTENTS .................................................................... iii
MANDAMUS APPENDIX AND RECORD ........................................... iv
TABLE OF AUTHORITIES ............................................................... ix
STATEMENT OF THE CASE ............................................................. 1
STATEMENT OF JURISDICTION ...................................................... 3
ISSUE PRESENTED ......................................................................... 4
STATEMENT OF THE FACTS ........................................................... 5
SUMMARY OF THE ARGUMENT .................................................... 12
ARGUMENT SUPPORTING MANDAMUS RELIEF ............................ 14
CONCLUSION ................................................................................ 32
RULE 52.3(J) CERTIFICATE OF COMPLLIANCE ............................ 34
CERTIFICATE OF COMPLLIANCE & SERVICE ............................... 34
iii MANDAMUS APPENDIX AND RECORD
Plaintiff’s Reply to Defendants’ Response to Motion to Compel Deposition of Defendant Allen J. Jones (Dated October 12, 2015) ................................................... 1
Plaintiff’s Amended Response to Defendant Kemp’s Rule 91a Motion to Dismiss and Request for Attorney Fees (Dated October 6, 2015) ..................................................... 2
Plaintiff’s Sixth Amended Original Petition (Dated October 6, 2015) ..................................................... 3
Plaintiff’s Second Motion to Compel the Oral and Videotaped Deposition of Defendant Allen J. Jones (Dated October 1, 2015) ..................................................... 4
Plaintiff’s Response to Defendant Jones’ Motion to Disqualify Plaintiff’s Attorney (Dated September 15, 2015)............................................... 5
Defendant Allen J. Jones’ Motion to Disqualify Plaintiff’s Counsel (Dated September 8, 2015) ................................................ 6
Olga Brown’s Vacation Notice (Dated July 21, 2015) ........................................................ 7
Rule 11 Agreement to drop hearings (Dated June 30, 2015) ....................................................... 8
Plaintiff’s Fifth Amended Original Petition (Dated June 19, 2015) ....................................................... 9
Plaintiff’s Response to Defendant Kemp’s Rule 91a Motion to Dismiss and Request for Attorney Fees (Dated June 16, 2015) ..................................................... 10
iv Order Granting Defendants’ First Amended Rule 91a Partial Motion to Dismiss (Dated May 6, 2015)......................................................... 11
Plaintiff’s Objections and First Supplemental Responses to Defendant FMP’s First Set of Interrogatories and Request for Production (Dated May 1, 2015)......................................................... 12
Order Granting Defendants’ First Amended Rule 91a Partial Motion to Dismiss (Dated April 9, 2015)........................................................ 13
Plaintiff’s Fourth Amended Original Petition (Dated March 10, 2015) ................................................... 14
Olga Brown’s Vacation Notice (Dated February 11, 2015) ............................................... 15
Plaintiff’s Third Amended Original Petition (Dated January 30, 2015) ................................................ 16
Plaintiff’s Response to Defendants’ Rule 91a Motion to Dismiss and Request for Attorney Fees (Dated January 28, 2015) ................................................ 17
Plaintiff’s Second Amended Original Petition (Dated January 28, 2015) ................................................ 18
Olga Brown’s Vacation Notice (Dated October 22, 2014) ................................................. 19
Petition for Leave to File Interlocutory Appeal (Dated May 20, 2015)....................................................... 20
Order Denying Petition for Leave (Dated June 3, 2015) ....................................................... 21
Ltr from Justin Barbour to Court re Sealed Documents
v (Dated September 16, 2015)............................................. 22
Ltr from Olga Brown re Competency of Jones Affidavit (Dated September 14, 2015)............................................. 23
Olga Brown’s Vacation Notice (Dated July 21, 2015) ..................................................... 24
Ltr from Olga Brownb re "wrongfully produced" documents (Dated June 22, 2015) .................................................... 25
Ltr from Justin Barbour to Olga Brown re return of privilege documents (Dated June 8, 2015) ...................................................... 26
Ltr from Justin Barbrour to Olga Brown re First Amended Docket Control Order and dropping hearing on Defendant's Motion to Compel (Dated May 27, 2015)....................................................... 27
Ltr from Olga Brown forwarding Petition for Leave to File Interlocutory Appeal re 91a Motion to Dismiss (Dated May 21, 2015)....................................................... 28
Hearing Transcript re Motion to Partially Dismiss (March 18, 2015) ............................................................. 29
Hearing Transcript re Motion for New Trial (May 6, 2015) ................................................................... 30
EEOC Charge (Dated February 23, 2015) ............................................... 31
TWC Charge (Dated February 10, 2015) ............................................... 32
EEOC Dismissal (Dated October 6, 2015) ................................................... 33
vi TWC Dismissal (Dated August 20, 2015) .................................................. 34
Defendant Allen Jones' First Set of Interrogatories and Requests for Production to Plaintiff Cearth Faire (Dated March 2, 2015) ..................................................... 35
Defendant FMP SA Management Group, LLC d/b/a Food Management Partners' First Set of Interrogatories and Requests for Production to Plaintiff Cearth Faire (Dated March 2, 2015) ..................................................... 36
Plaintiff's Objections and Responses to Defendant's FMP's First Set of Interrogatories and Requests for Production (Dated April 1, 2015)........................................................ 37
Bexar County Online Full Case Information Docket Sheet (Printed October 14, 2015) ............................................... 38
Justin Barbour’s Verification of Mandamus Appendix /Record ........................................................................... 39
Ltr from Olga Brown re Response to Letter dated June 26 Re dropping Motion to Compel hearing (Dated June 26, 2015) ..................................................... 40
Ltr from Olga Brown re not available on Sept. 14, 2015 (Dated September 10, 2015)............................................. 41
First Amended Fiat re Motion to Disqualify (Dated September 10, 2015)............................................. 42
Order on Defendant Allen Jones' Motion to Disqualify Plaintiff's Counsel (Dated October 2, 2015) ................................................... 43
Second Amended Deposition Notice of Allen Jones (Dated August 27, 2015) .................................................. 44
vii Deposition Notice of Jason Kemp (Dated August 27, 2015) .................................................. 45
Chart (Dated August 27, 2015) .................................................. 46
Hearing transcript re Motion to Compel Discovery and Amended Motion to Drop or Amend Docket Control Order (Dated September 16, 2015)............................................. 47
viii TABLE OF AUTHORITIES
Cases In Re Am. Home Prods. Corp., 985 S.W.2d 68 (Tex. 1998) (orig. proceeding) ..................... 3, 15, 32
In re Automated Techs., Inc., 156 S.W.3d 557 (Tex. 2004) (orig. proceeding) ............................. 32
In re Bell Helicopter Textron, Inc., 87 S.W.3d 139 (Tex. App.—Fort Worth 2002) (orig. proceeding) ... 25
In Re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819 (Tex. 2010) (orig. proceeding) ................... 3, 15, 32
In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) (per curiam) (orig. proceeding) ......... 14
In re EPIC Holdings, Inc., 985 S.W.2d 41 (Tex. 1998) (orig. proceeding) ............................... 30
In re Hoar Const., LLC, 256 S.W.3d 790 (Tex. App.—Houston [14th Dist.] 2008) (orig. proceeding).................................................................................. 31
In re Marketing Corp., 80 S.W.3d 44 (Tex. App.—Dallas 1998) (orig. proceeding) ..... passim
In re Marketing, 80 S.W.3d at 52 .................................................................... 22, 28
In re Meador, 968 S.W.2d 346 (Tex. 1998) ................................................. passim
In re Meador, 968 S.W.2d at 351 ...................................................................... 16
In re Meador, 968 S.W.2d at 352 ...................................................................... 29
ix In re Odyssey Healthcare, Inc., 310 S.W.3d 419 (Tex. 2010) (per curiam) (orig. proceeding) ......... 14
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding).......................... 14
In re Reynoso, 361 S.W.3d 719 (Tex. App.—Corpus Christi 2012, no pet.) (orig. proceeding).................................................................................. 15
In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding) ......................... 15
In re XL Specialty Insur. Co., 373 S.W.3d 46 (Tex. 2012) (orig. proceeding) ............................... 21
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) .......................................................... 27
NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398 (Tex. 1989)) ................................................. 16, 32
Prudential, 148 S.W.3d at 136 ..................................................................... 15
Richards v. Jain, 168 F. Supp.2d 1195 (W.D. Wash. 2001)..................................... 28
Vaughan v. Walther, 875 S.W.2d 690 (Tex. 1994)) ....................................................... 32
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding)............................. 14
Walker, 827 S.W.2d at 840 ..................................................................... 14
x Welex Jet Servs. v. Owen, 325 S.W.2d 856 (Tex. Civ. App. –Fort Worth 1959, writ ref’d n.r.e.) ................................................................................................... 27
West v. Solito, 563 S.W.2d 240 (Tex. 1978) .................................................. 21, 26
Statutes Tex. Gov’t Code Ann. § 22.201(e) ...................................................... 3
Tex. Gov’t Code Ann. § 22.221(b)(1).................................................. 3
Rules Tex. R. App. P. 52.1 ......................................................................... 3
TEX. R. EVID. 503(b) ........................................................................ 21
xi STATEMENT OF THE CASE
Nature of the Case: Relator Allen J. Jones filed this original proceeding to challenge the trial court’s denial of his motion to disqualify opposing counsel (order signed on October 2, 2015). Jones contends the trial court abused its discretion in denying this Motion, as each of the six factors set forth by the Texas Supreme Court in In re Meador, 968 S.W.2d 346 (Tex. 1998) support and require disqualification of Ms. Olga Brown, counsel for Real Party in Interest Cearth Faire, who came into possession of, reviewed, and produced during discovery Jones’ privileged documents.
Respondent/Trial Court: Honorable Richard Price, 150th District Court, Bexar County, Texas
Relief Sought by Relator at Trial Court: Jones seeks mandamus relief to reverse the order denying his motion to disqualify opposing counsel. Real Party in Interest, Cearth Faire, is a former personal assistant to and agent for Jones. Faire came into possession of Jones’ privileged communications and documents while working for Jones, who was CEO of FMP SA Management Group, LLC d/b/a Food Management Partners (a Co-Defendant in the underlying case). These privileged communications pertained to Jones’ prior family law proceedings, in which Ms. Brown represented Jones’ ex-wife, Tetyana Jones. At some point, Faire provided to her counsel (Brown) Jones’ personal, private,
1 and privileged communications. Brown did not return the documents. Rather, Brown thoroughly reviewed, analyzed, and intends to use these documents in the ongoing litigation between Jones and Faire. Because each of the six Meador factors weighed in favor of disqualification, Jones asked the trial court to disqualify Brown from further representation of Faire in her underlying lawsuit.
Respondent: Hon. Richard Price, 150th District Court, Bexar County, Texas.
Respondent’s Action: The trial court denied Jones’ motion on October 2, 2015.
Relief Sought: Jones respectfully requests this Court vacate the trial court’s October 2, 2015 Order and direct the trial court to grant the Motion to Disqualify.
2 STATEMENT OF JURISDICTION
This Court has jurisdiction under Tex. Gov’t Code Ann. §
22.221(b)(1): “Each court of appeals for a court of appeals district may
issue writs of mandamus, agreeable to the principles of law regulating
those writs, against a … judge of a district or county court in the court
of appeals district[.]” See also TEX. R. APP. P. 52.1 et seq. (governing
original proceedings in appellate courts). The 150th District Court,
Bexar County, Texas is within this Court’s district. TEX. GOV’T CODE
ANN. § 22.201(e). This Court’s mandamus authority extends to orders
denying Motions to Disqualify. In Re Am. Home Prods. Corp., 985
S.W.2d 68 (Tex. 1998) (orig. proceeding); In Re Columbia Valley
Healthcare Sys., L.P., 320 S.W.3d 819 (Tex. 2010) (orig. proceeding).
3 ISSUE PRESENTED
One: The trial court erred by denying Relator’s Motion to Disqualify Counsel for Real Party in Interest, based on counsel’s acceptance, review, and production of Relator’s privileged documents.
Two: Relator lacks an adequate remedy by appeal.
4 STATEMENT OF THE FACTS
The case underlying this original proceeding is a quid pro quo
sexual harassment claim arising under Chapter 21 of the Texas Labor
Code. Real Party in Interest Cearth Faire is a former employee of FMP
SA Management Group, LLC d/b/a Food Management Partners
(“FMP”), a corporate co-defendant in the underlying lawsuit. App. 3 at
¶ 22. During the term of her employment with Defendant FMP, Faire
worked as a personal assistant to Relator Allen J. Jones, FMP’s Chief
Executive Officer. Id. at ¶ 7. As Jones’ personal assistant, Faire was
responsible for handling and assisting with various personal and
business matters for Jones. App. 6, Ex. D at ¶ 3. Faire remained
employed with FMP until August 31, 2014, when she was terminated
due to erratic behavior and suspected drug use while on the job, which
included caring for Jones’ small children. Id. at ¶ 6.
During the term of Faire’s employment, Jones was involved in
multiple family law disputes, which included divorce and child
custody proceedings. 1 Faire’s sworn testimony admits her “attorney,
1 App. 5, Ex. B at ¶ 4. These family law cases are styled Tetyana Jones v. Allen J. Jones, No. 2013-CI-04328 (in the 57th District Court, Bexar County) and In the Interest of Allen Jones, et al., No. 2013-CI-11046 (in the 407 District Court, Bexar County). While Cause No. 2013-CI-11046 has been closed, Cause No. 2013-CI- 04328 remains pending. See App. 38.
5 Olga Brown, represented Mr. Jones’ third wife, Tetyana Jones, in [this]
international child custody case.” App. 5, Ex. B at ¶ 4. In her capacity
as Jones’ personal assistant, Faire was copied on and came into
possession of numerous privileged communications to, from, and
between Jones, his counsel Mr. Sam Bashara, and Mr. Bashara’s
agents and representatives. Id. ¶ 8 (admitting she was in possession
of Jones’ privileged “emails both sent directly to my personal account,
and those I forwarded to my work account”); App. 6, Ex. D at ¶ 5 (noting
“Faire was copied on or had access to emails and other confidential
and privileged documents of [Jones] in connection with the family law
proceedings”).
Faire’s pleadings in the trial court, as well as before this Court,
acknowledge she participated in and assisted Jones with his defense
in those family law proceedings. App. 2 at 4 (“… Plaintiff [worked] for
approximately five months to assist him in his divorce defense …”);
App. 5, Ex. B at ¶ 6 (“As Mr. Jones’ personal assistant, I was to gather
personal information and forward it to his legal team …”); App. 16 at
¶ 24 (Jones allegedly promised to gift Faire a house “in consideration
for her loyal efforts in assisting [him] in the defense of his suit for
divorce”); App. 18, 2d Am. Pet. ¶ 24 (same); App. 20 at 1 (Faire
6 “assist[ed] administratively in his defense in Jones’ divorce
proceedings pending in Bexar County, Texas during 2013 and 2014”);
App. 29 at 29:21-23 (“She had been working, like I said, 24/7 helping
him defend in the divorce pending here in Bexar County”). The trial
court record demonstrates Jones did not authorize or have any
knowledge that Faire had retained possession of his confidential and
privileged communications beyond her August 31, 2014 termination
of employment. App. 6, Ex. D at ¶ 8.
Brown, counsel for Faire in proceeding below (and for Jones’ ex-
wife in the family law proceedings), has repeatedly attempted to
intermingle these distinct lawsuits. For example, Brown has
repeatedly accused Jones of holding “hostage his infant son in the
Dominican Republic … to gain financial advantage in the” underlying
family law proceedings. App. 1 at 1-2; App. 5 at 3, Ex. B ¶ 4. Similarly,
Brown has repeatedly cited sworn testimony offered before the Hon.
Cathleen Stryker in the family law proceedings for the proposition that
Jones allegedly “admitted to human trafficking.” App. 1 at 1; App. 2 at
3, 4; App. 3 at ¶ 41; App. 4 at ¶¶ 7-8; App. 9 at ¶ 29; App. 10 at 2; App.
14 at ¶ 29. Brown has made similar claims in correspondence between
counsel. See App. 23 (enclosing purported transcript from prior family
7 law proceedings and alleging, based on testimony in that prior family
law matter, Jones’ “credibility in this motion and in the entire [Chapter
21] lawsuit is at issue”). 2 A chart tracking the numerous instances in
which Brown has attempted to conflate the earlier family law
proceedings and this instant lawsuit, as well as relevant excerpts from
such documents, is attached at Appendix 46.
In the underlying litigation, Faire has alleged a Chapter 21 claim
for quid pro quo sexual harassment against Jones.3 As part of this
litigation, Jones, FMP, and other Defendants served on Faire standard
discovery requests, seeking documents, emails, and other
communications that evidenced or supported such claims. See App.
35; App. 36. Faire provided her responses and objections to these
Interrogatories and Requests for Production on April 1, 2015. App. 37.
2 Brown’s statements are utterly untrue and inflammatory. They were made to sully Jones’ reputation, credibility, and integrity in an effort to gain leverage at the underlying proceeding. Moreover, these allegations are irrelevant to the factual and legal questions within Faire’s claim for Chapter 21 sexual harassment in the underlying proceeding. Brown’s statements evidence an intent to relitigate the Jones family law proceedings vis a vis the instant lawsuit. 3 Previously, Faire alleged claims for promissory estoppel and “oral gift” of real estate, stemming from Jones’ purported promise to gift her a home, as well as a claim for civil conspiracy against Jones and certain other co-Defendants in the District Court litigation. See App. 14 at ¶¶ 25-46; App. 16 at ¶¶ 20-42. Jones’ Rule 91a Partial Motion to Dismiss was granted (and reaffirmed) as to these claims. App. 13; App. 11; App. 21. As such, the lone claim remaining against Jones in the trial court arises under Chapter 21 of the Labor Code.
8 Notably, nowhere within these discovery responses did Faire indicate
(i) she was in possession of communications to, from, or between
Jones, his representatives, and his legal counsel in the prior family
law litigation or (ii) that she had disclosed and provided such
privileged communications to Brown, her attorney in this matter and
counsel for Jones’ ex-wife in the prior family law matter. Id.
Thereafter, Faire produced 279 pages of documents, ostensibly
in response to Jones’ Requests for Production. On review of these
documents, it was discovered Faire had retained possession of, shown
to Brown, and then produced back in the underlying litigation nearly
100 pages of Jones’ privileged communications in the prior family law
litigation (they were labeled FAIRE 015-16, 068-71, 149-204, 213-
230, 237-241, and 246-255). These documents included emails
between Jones’ family law counsel (Mr. Sam Bashara) and Jones,
discussing pleadings, hearings, and litigation strategy in the family
law proceedings. Before Faire’s production of these documents in the
underlying proceeding, Jones was unaware Faire had retained these
emails or that these emails were ever provided to Brown. App. 6, Ex. D
at ¶ 8; App. 39.
9 On June 8, 2015, Jones’ counsel addressed Faire’s wrongful
conduct and demanded Brown take remedial action, including:
• Immediately return Jones’ privileged documents and communications;
• Provide an accounting and detailed description of any other of Jones’ privileged information and documents not yet disclosed during discovery but in the possession of Faire or Brown; and
• Brown’s withdrawal from representation of Faire in this lawsuit.
App. 26.
Brown responded to this demand, disputing whether “all
documents” were in fact privileged, though her correspondence
implicitly acknowledges that some, if not many, of the documents were
such. App. 25. Brown refused to take any of the other actions
requested therein. Id. Brown instead contended that, because the
documents were responsive to Jones’ discovery requests, she was
allowed to retain them and use them in litigation despite their status
as privileged documents. Id.
Days later, Brown communicated with Jones’ counsel and asked
that the parties “make attempts to resolve the discovery issues before
going to court.” App. 40. As a demonstration of their good faith and
10 willingness to confer in an attempt to resolve the parties’ disputes
without seeking intervention by the trial court, Defendants agreed to
such. Defendant’s counsel attempted to schedule a conferral meeting
to discuss all pending matters, but Brown never responded.
Nonetheless, there was a de facto stay of this matter, with no further
filings, discovery, or other substantive action was taken in the trial
court until August 27, 2015, when Faire noticed the depositions of
Jones and Jason Kemp, FMP’s Chief Financial Officer.
As Faire refused to take any actions to return the privileged
documents or otherwise mitigate the prejudice to Jones, Jones filed
his Motion to Disqualify on September 8, 2015, days after Faire
restarted the proceedings and lifted the de facto stay. App. 6. This
Motion was initially set for hearing on September 14, 2015. Id. Brown
indicated she had a conflicting setting on that date, App. 41, so the
hearing was reset to September 16, 2015. App. 42.
Plaintiff’s Response to the Motion to Disqualify was filed the day
before the hearing. App. 5. In the response, Brown does not deny she
came into possession of, reviewed, or intended to utilize Jones’
privileged communications in the underlying lawsuit. Id. Instead, the
response contends the facts in the family law and Chapter 21 claims
11 were distinct, somehow absolving Brown’s invasion and violation of
Jones’ attorney-client privilege. Id. at 3. Moreover, the response
repeatedly invokes facts and allegations from the prior family law
dispute, including allegations of purported “violation of human
rights.” Id. at 9.
The Motion to Disqualify was argued before the Hon. Richard
Price on September 16, 2015. 4 During this hearing, Judge Price
requested that the privileged communications reviewed by Brown be
submitted in a sealed format for the Court’s inspection. Id. That same
day, Jones’ counsel submitted the documents in sealed form for Judge
Price’s review. App. 39; App. 22.5 On October 2, 2015, Judge Price
denied Jones’ Motion. App. 43. Jones now seeks mandamus relief from
this Court.
SUMMARY OF THE ARGUMENT
Faire wrongfully and surreptitiously retained privileged attorney-
client communications obtained while she was Jones’ personal
assistant. After she was let go from her employment, she,
4 The transcript of the parties’ September 16, 2015 hearing on the Motion to Disqualify is attached at Appendix 47. 5 Jones has provided these documents to this Court in hard copy format in an
envelope with a cover page entitled, Relator’s Sealed Mandamus Appendix.
12 unbeknownst to Jones, forwarded those privileged communications to
her counsel, Brown. Brown did not contact Jones or his counsel to
inform him of the unauthorized retention and disclosure. Nor did
Brown return the privileged documents to Jones. Rather, Brown held
onto the privileged documents, analyzed them, and subsequently
produced them as “responsive” to certain of Jones’ discovery requests
in the underlying case. Brown further has made it clear through
various pleadings and correspondence that she intends to use these
privileged documents to attack Jones’ credibility and integrity in the
underlying case. Despite these facts, the trial court denied Jones’
Motion to Disqualify Brown.
In another employee-employer case with strikingly similar facts,
the Dallas Court of Appeals reversed a trial court’s denial of the motion
to disqualify and granted mandamus relief. In re Marketing Corp., 80
S.W.3d 44 (Tex. App.—Dallas 1998) (orig. proceeding). There, the
Dallas Court of Appeals applied the six-factor test enunciated by the
Texas Supreme Court in In re Meador to hold that the conduct by the
opposing attorney required disqualification. In re Marketing Corp., 80
S.W.3d at 51; accord In re Meador, 968 S.W.2d 346 (1998). Jones
respectfully asks this Court to grant his mandamus petition, vacate
13 the trial court’s order denying his Motion to Disqualify, and instruct
the trial court to enter an order disqualifying Brown.
ARGUMENT SUPPORTING MANDAMUS RELIEF
I. Standard Governing Mandamus Proceeding
The standard governing mandamus proceedings is well-
established. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–
36 (Tex. 2004) (orig. proceeding). Mandamus relief is warranted
where: (1) the trial judge has committed a clear abuse of discretion;
and (2) there is no adequate remedy on appeal. In re Odyssey
Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (per curiam) (orig.
proceeding). As to the first prong, a “clear abuse of discretion”
occurs when the challenged ruling is “so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.”
In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam) (orig.
proceeding); see Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)
(orig. proceeding). It is well-established, however, that the “review of a
trial court’s determination of the legal principles controlling its
ruling is much less deferential.” Walker, 827 S.W.2d at 840.
According to the Texas Supreme Court, “[a] trial court has no
14 ‘discretion’ in determining what the law is or applying the law to the
facts.” Id. Thus, the trial court abuses its discretion if there is “a clear
failure by the trial court to analyze or apply the law correctly[.]” Id.
As to the second prong of the mandamus standard, “the
adequacy of an appellate remedy must be determined by balancing
the benefits of mandamus review against the detriments.” In re
Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.
proceeding). An appellate remedy is only adequate if the detriments
to issuing mandamus relief outweigh the benefits; but if the
detriments are outweighed by the benefits, “courts must consider
whether the appellate remedy is adequate.” Prudential, 148 S.W.3d
at 136; accord In re Reynoso, 361 S.W.3d 719, 723 (Tex. App.—
Corpus Christi 2012, no pet.) (orig. proceeding).
Texas law provides that mandamus relief is available to set
aside an improperly denied Motion to Disqualify. In re Am. Home
Prods. Co., 985 S.W.2d 68, 72 (Tex. 1998) (orig. proceeding); In re
Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 823 & n.2 (Tex.
2010) (orig. proceeding) (“[m]andamus is available where a motion to
disqualify is inappropriately denied, as there is no adequate remedy
15 on appeal”) (citing NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 400
(Tex. 1989)).
II. Brown Should be Disqualified Based on her Possession, Review, and Analysis of Jones’ Privileged Emails
In In re Meador, Chief Justice Tom Phillips instructed:
Without doubt, there are situations where a lawyer who has been privy to privileged information improperly obtained from the other side must be disqualified, even though the lawyer was not involved in obtaining the information. Discovery privileges are an integral part of our adversary system.
In re Meador, 968 S.W.2d at 351. Chief Justice Phillips went on to
state:
Thus, a lawyer who uses privileged information improperly obtained from an opponent potentially subverts the litigation process.
Id. In this case, Brown falls into the category of lawyers described by
Chief Justice Phillips. Accordingly, this Court should grant Jones’
Petition for Writ of Mandamus, vacate the trial court’s order, and
instruct the trial court to grant Jones’ Motion to Disqualify Brown.
A. The Six-Factor Analysis
The Texas Supreme Court established a six-factor analysis to
guide trial court’s during the consideration of disqualification motions
16 based on the review of privileged information. See In re Meador, 968
S.W.2d 346 (Tex. 1998). These factors include:
(1) whether the attorney knew or should have known that the material was privileged;
(2) the promptness with which the attorney notifies the opposing side that he or she has received its privileged information;
(3) the extent to which the attorney reviews and digests the privileged information;
(4) the significance of the privileged information; i.e., the extent to which its disclosure may prejudice the movant’s claim or defense, and the extent to which return of the documents will mitigate that prejudice;
(5) the extent to which movant may be at fault for the unauthorized disclosure;
(6) the extent to which the nonmovant will suffer prejudice from the disqualification of his or her attorney.”
Id. 351-352. 6
6 At the trial court, Jones moved to disqualify Brown based on multiple grounds: (1) based on Faire’s membership on his “litigation team” in the prior family law proceedings; (2) based on Brown’s participation in Faire’s breach of her fiduciary duties owed to Jones; and (3) based on the Meador six-factor analysis. Jones maintains his position that all grounds raised below constitute valid grounds for Brown’s disqualification; however, Jones’ Petition focuses on only one ground: the trial court’s failure to disqualify Brown based on the Meador six-factor test.
17 B. In re Marketing mirrors this case.
One case applying the Meador six-factor analysis mirrors the
case before this Court. In In re Marketing Corp., 80 S.W.3d 44 (Tex.
App.—Dallas 1998) (orig. proceeding), the Dallas Court of Appeals
addressed a similar situation -- an employee’s retention and his
counsel’s review and use of wrongfully retained privileged
communications during litigation by the employee against his
employer. Id. at 46-47. In that case, after the employee was
terminated, he concealed from the employer that he was in possession
of confidential and privileged communications. Id. After litigation was
initiated, the employee’s counsel produced the privileged documents
during discovery. Id. at 47. The employer requested that all documents
be returned, but the employee refused to do so. Id. The employer then
sought and was denied disqualification of the employee’s counsel. Id.
The employer sought mandamus, arguing that counsel “did not
notify the Corporation of his receipt of the documents in question or
tender their return as required by Texas law.” Id. at 51. Applying the
six Meador factors, the Court of Appeals noted that “[m]any of the
documents refer directly to the status of litigation and strategy for
future action” in such litigation and were thus privileged. Like with
18 Brown in the instant matter, the In re Marketing decision noted it was
“undisputed that [counsel] has extensively reviewed the documents,
… and has shown an intent to use them in the future.” Id. Thus,
because the documents were “kept by a terminated employee,” not
returned upon demand, and because the “questions arise” at a point
when the “case is neither well developed nor ready for trial,”
disqualification was warranted. As a result, the Court of Appeals held
the trial court erred, in relevant part, in not disqualifying counsel for
his conduct, and conditionally granted the writ.
C. The six-factor analysis requires Brown’s disqualification.
In re Marketing bears stunning factual similarities to the instant
case. There, the Meador factors weighed in favor of disqualification.
Here, as demonstrated in more detail below, the Meador factors, when
applied to the facts, also weigh in favor of disqualification. As such,
the trial court clearly erred in denying Relator’s Motion to Disqualify
and, as in In re Marketing, mandamus is warranted.
1. Brown knew or should have known the documents were privileged.
The first factor asks whether Brown “knew or should have
known” the documents provided by Faire were privileged. Id. In the
19 prior family law proceedings, Brown represented Jones’ ex-wife. App.
5, Ex. B at ¶ 4. For her part, Faire admits Jones was represented by
Bashara & Schwartz, P.C. Id. at 3-4, id. Ex. B at ¶ 6. As Brown had
direct and adversarial involvement with Jones’ family law counsel
(Bashara), she cannot now disclaim knowledge of such. See id. at 3-4
(admitting “Jones was represented by Sam Bashara and his office …”).
A simple review of the privileged documents produced at FAIRE
015-16, 068-71, 149-204, 213-230, 237-241, and 246-255 7 reveals
that nearly all communications were sent to or from Bashara,
Bashara’s paralegal (Melinda Flores), or Jones’ counsel in the
Dominican Republic (Elvis Roque). These documents contain detailed
description of legal and factual issues underlying the family law
proceedings (FAIRE 254-255), correspondence to and from Brown as
opposing counsel (FAIRE 189-192, 195-196, 217-222),
correspondence regarding payment of Jones’ legal fees (FAIRE 223-
230), and the discussion of legal strategy, fact investigation, and
counsel regarding same (FAIRE 68-71, 149-156, 158-175, 181-188,
193-194, 197-204). These emails constitute “[c]onfidential
7 Supra n.5.
20 communications between client and counsel made to facilitate legal
services …” In re XL Specialty Insur. Co., 373 S.W.3d 46, 49 (Tex. 2012)
(orig. proceeding) (citing TEX. R. EVID. 503(b), noting the Rule “protects
not only confidential communications between the lawyer and the
client, but also discourse among their representatives”). Therefore,
pursuant to Rule 503(b), these emails are protected by the attorney-
client privilege, which has never been waived by Jones.
Brown admitted she was aware Bashara and his office
represented Jones. App. 5 at 3-4. She does not deny she failed to
recognize these documents were privileged upon her review of them.
Instead, in her response to Jones’ Motion, Faire contended, without
support, that “[e]mails are not private and after six months lose
confidentiality if any existed.” App. 5 at 5. Case law reveals, however,
that the attorney-client privilege is not subject to a statute of
limitations. See, e.g., West v. Solito, 563 S.W.2d 240, 244-45 (Tex.
1978) (attorney-client privilege belongs to holder of privilege unless
and until it is expressly waived). Thus, because the admissions of
Faire and Brown, coupled with a reading of the privileged documents
themselves, plainly evidence that these items are privileged, this factor
weighs in favor of disqualification.
21 2. Brown failed to notify Jones she had received his privileged communications.
The record demonstrates Faire and Brown failed to notify Jones
they were in possession of and had reviewed his privileged
communications. See App. 6, Ex. D at ¶¶ 7-8. Jones was first made
aware of this fact when reviewing the documents turned over by Faire
as responsive to Jones’ discovery requests. Id. This fact is tacitly
acknowledged by Ms. Brown’s June 22, 2015 correspondence, App.
25, and Faire’s failure to address this factor within her Response to
Jones’ Motion to Disqualify. App. 5.
In an identical factual circumstance, the In re Marketing court
determined this factor weighed in favor of disqualification. There, the
“attorney did not notify the [company] that he had these documents.
Rather, [plaintiff] produced the documents in response to a discovery
request.” In re Marketing, 80 S.W.3d at 52. In such a circumstance,
where no notice is given in advance of the review and production of
the opposing party’s own privileged documents, this factor weighs in
favor of disqualification. Id.
22 3. Extent to which Brown reviewed or digested the privileged information.
The third factor considers the extent the opposing lawyer
reviewed or digested the privileged information. Notably, Brown — the
person with most knowledge relevant to this inquiry — failed to
provide any sworn evidence or testimony to the trial court.
Significantly, she did not disavow that she had reviewed or digested
the 95 pages of privileged communications. Moreover, the content of
Faire’s Response to the Motion to Disqualify, which was signed by
Brown, demonstrates Brown has thoroughly reviewed, digested, and
analyzed these privileged communications.
Indeed, the Response indicates that Brown not only reviewed the
privileged documents, but also found it acceptable to discuss their
content within Faire’s Response. For example, the Response argues
(in conclusory fashion) that the emails “are not privileged
information,” represents that the emails were previously housed on
“[Faire’s] personal and business phone,” and “were those that
remained in the electronically stored communications on [Faire’s]
personal email account.” App. 5 at 4. Such representations could only
be made based on a review of the underlying emails themselves, thus
23 proving the extent to which Brown analyzed the 95 pages of privileged
documents and, by extension, invaded Jones’ attorney-client privilege.
Given Brown’s detailed discussion and analysis of the
documents in Faire’s Response, as well as the fact she represented
Faire during the document production, it is “undisputed that [Faire’s]
attorney has extensively reviewed the documents, … and has shown
an intent to use them in the future.” See In re Marketing, 80 S.W.3d at
51. Additionally, Brown gave the trial court no evidence or testimony
to dispute such a conclusion. As such, this factor also weighs in favor
of disqualification.
4. The privileged information is significant to Jones.
The fourth factor examines the significance of the privileged
information to the party seeking disqualification. As discussed above,
the 95 pages of privileged communications contain detailed timelines
developed for counsel’s use and reference, discussion of legal strategy,
and intimate, confidential discussions regarding Jones’ legal
proceedings. As such, these documents go to the very heart of the
protections afforded by the attorney-client privilege.8 Brown, who has
8 The documents retained by Faire, reviewed by Brown, and produced in the trial court have varying levels of confidentiality and importance to Jones. However, Brown and Faire have made the conclusory assertion that, because some of these
24 been adverse to Jones on two different, unrelated matters, is now in a
position to utilize Jones’ privileged, private, and confidential
communications against him in adversarial proceedings. There is no
way to effectively “screen” out her knowledge of or reliance on these
privileged communications. Instead, disqualification is the sole
remedy to eliminate prejudice to Jones. As such, this factor also
weighs in favor of disqualification. In re Marketing Invest. Corp., 80
S.W.3d 44, 51 (Tex. App.—Dallas 1998) (orig. proceeding) (documents
may be deemed to have “significance” to the privilege’s holder if the
“return of the documents will [not] mitigate that prejudice”).
5. Jones was not responsible for the disclosure of privileged communications to Brown.
Quite simply, Jones bears no responsibility for Brown’s receipt
of his privileged communications. This is not a case where Jones
inadvertently produced documents in litigation, left documents
exposed to third parties’ eyes, or otherwise took actions that
documents are not, in their opinion, significant, that fact, by itself, eliminates the need for disqualification. Brown’s speculative statements are irrelevant to this analysis, however. By her own admissions, Faire was actively involved in and assisted with Jones’ defense in his divorce proceedings. Thus, her newly-alleged “bald assertions do not controvert … specific evidence that [she] was privy to many of [Jones’] legal strategies in suits …” In re Bell Helicopter Textron, Inc., 87 S.W.3d 139, 147 (Tex. App.—Fort Worth 2002) (orig. proceeding).
25 voluntarily or negligently endangered his attorney-client privilege.
Instead, Faire’s sworn testimony acknowledges she received these
privileged communications in her capacity as Jones’ personal
assistant and for the purpose of aiding him in the defense of his
divorce suit. App. 5, Ex. B at ¶ 6 (“As Mr. Jones’ personal assistant, I
was to gather personal information and forward it to his legal team
…,” “Some [emails] were duplicates in that I produced emails both sent
directly to my personal account, and those I forwarded to my work
account”); App. 18 at¶ 24 (Jones promised a home to Faire “in
consideration for her loyal efforts in assisting [him] in the defense of
his suit for divorce”); App. 20 at 1 (Faire “assist[ed] administratively in
his defense in Jones’ divorce proceedings pending in Bexar County,
Texas during 2013 and 2014.”); App. 29 at 29:21-23 (“She had been
working, like I said, 24/7 helping him defend in the divorce pending
here in Bexar County”).
Jones was entitled to rely upon the assumption that Faire, his
former personal assistant and agent, who owed him fiduciary duties,
would keep his privileged communications secure. See, e.g., West v.
Solito, 563 S.W.2d 240, 244-45 (Tex. 1978) (attorney-client privilege
belongs to holder of privilege unless and until it is expressly waived);
26 see also Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 202 (Tex.
2002) (agents owe fiduciary duty to principal and employee is
obligated to actin employer’s best interest); Welex Jet Servs. v. Owen,
325 S.W.2d 856, 858 (Tex. Civ. App. –Fort Worth 1959, writ ref’d n.r.e.)
(“[c]onfidential information secured by reason of fiduciary
relationships may not be used or disclosed to [employer’s] detriment
…”). As in In re Marketing, Brown came into possession of Jones’
privileged communications because her own client wrongfully
provided them to her. Thus, in this case, as in In re Marketing, this
factor weighs in favor of disqualification.
6. Faire will not be prejudiced by Brown’s disqualification.
Finally, Faire will not be unfairly prejudiced should Brown be
disqualified. This proceeding is in an early stage of litigation. No
depositions have been taken. Dispositive briefing deadlines are many
months away. App. 39. Additionally, this matter is not set for trial until
March 7, 2016. Id. Thus, in the event Brown is disqualified, Faire’s
substitute counsel has ample time to learn the case and provide
competent representation. Faire has only one claim against Relator
Jones: Chapter 21 of the Texas Labor Code. Brown does not specialize
27 in employment litigation, 9 eliminating any risk of unique prejudice to
Ms. Faire. Accordingly, Faire has minimal, if any, risk of prejudice
from disqualification, further warranting disqualification. Cf. In re
Marketing, 80 S.W.3d at 52 (trial court erred in not disqualifying
counsel, as disqualification arose relatively early in litigation, case was
not well-developed, and there was no indication former employee
could not obtain alternate counsel).
A federal district court has guided that, in determining whether
to exercise discretion in disqualifying counsel under the Meador
analysis, “the Court should resolve any doubts in favor of
disqualification.” Richards v. Jain, 168 F. Supp.2d 1195, 1209 (W.D.
Wash. 2001) (applying Meador factors and analysis). Here, the
mandamus record demonstrates that all Meador factors weigh in favor
of disqualification. As such, it was a clear abuse of discretion for the
trial court to deny Jones’ Motion to Disqualify.
https://www.texasbar.com/AM/Template.cfm?Section=Find_A_Lawyer&template =/Customsource/MemberDirectory/MemberDirectoryDetail.cfm&ContactID=16158 8 (designating Brown’s practice areas as “Business, Family, Litigation: Commercial, Litigation: Personal Injury).
28 III. Faire Cannot Establish Waiver
At the trial court level, Faire contended Jones’ disqualification
motion should be denied based on waiver. App. 5. First, many of
Faire’s “waiver” arguments assume disqualification should have been
sought immediately upon suit being filed in the trial court. However,
disqualification is only warranted under the six-factor analysis once
the movant becomes aware that “a lawyer receives [his] privileged
materials …” In re Meador, 968 S.W.2d at 352.
Here, the mandamus record reveals Jones was unaware Faire
had retained his privileged communications, App. 6, Ex. D. ¶¶ 7-8, let
alone that Faire had divulged those documents to Brown for review.
Id. Jones first became aware of this fact upon Faire’s discovery
production, which included the privileged documents. Id. at ¶ 7. Thus,
because Jones had no knowledge of the invasion of his attorney-client
privilege until discovery production in the underlying case, he had no
basis to seek disqualification previously.
In this way, Faire’s waiver claim may be disposed of by reference
to the Texas Supreme Court’s decision in In re EPIC Holdings, Inc.,
which found no waiver. There, the party seeking disqualification
29 “waited almost eleven months after they first knew or should have
known” of the basis for disqualification before filing such a motion. In
re EPIC Holdings, Inc., 985 S.W.2d 41, 57 (Tex. 1998) (orig. proceeding)
(Baker, J., dissenting). Epic Holdings’ delay was on account of the
parties attempting to confer resolving resolution of their dispute and,
once such conferral efforts became futile, submitting the matter to the
trial court. Id. at 52-53. Moreover, it is probative that, during the
timeframe relevant to the waiver analysis, “no discovery was
conducted …” Id. at 53.
Similarly, in the instant matter, the parties reached an
agreement to delay further hearings, including those pertaining to
discovery disputes, via their June 30, 2015 Rule 11 Agreement. App.
8. This Rule 11 Agreement was requested by Faire just four days after
she responded to Jones’ demand that she return the privileged
documents and Brown withdraw as counsel. App. 25; App. 40. During
the ensuing conferral period, no further discovery was taken and no
depositions were noticed, making the matter subject to a de facto stay.
On August 27, 2015, Faire served deposition notices for Jones and
Kemp, at which time it became clear conferral efforts would be
30 unsuccessful. App. 44; App. 45. Accordingly, just twelve days later,
Jones filed his instant Motion to Disqualify on September 18, 2015.
As in In re EPIC Holdings, to the extent any “delay” occurred in
seeking disqualification, it was solely necessitated by the parties’
conferral attempts. Importantly, like in In re EPIC Holdings, no
discovery was conducted during the intervening period, thereby
eliminating any risk of further prejudice to Jones at that time. Instead,
only once it became apparent conferral efforts were unsuccessful did
Jones have a duty to file his Motion to Disqualify, which he promptly
did. In sum, whereas nearly eleven months passed in In re EPIC
Holdings, only five total months did in the instant matter. There was
no finding of waiver by the Supreme Court in the former matter, nor
should there be any such finding in the instant case before this Court.
In re EPIC Holdings, Inc., 985 S.W.2d at 57; see also In re Hoar Const.,
LLC, 256 S.W.3d 790, 796-97 (Tex. App.—Houston [14th Dist.] 2008)
(orig. proceeding) (finding no waiver of right to seek disqualification
based, in part, on parties’ efforts to “resolve any conflict” during
intervening period of time). 10
Notably, to the trial court, Faire did not identify any case holding that a five 10
month period would constitute waiver. Instead, she argued a seven-month delay
31 IV. Relator Lacks an Adequate Appellate Remedy
An improperly denied Motion to Disqualify is subject to
mandamus review and relief. This Court’s mandamus authority
extends to orders denying meritorious motions to disqualify. In re Am.
Home Prods. Co., 985 S.W.2d 68, 72 (Tex. 1998) (orig. proceeding); In
re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 823 n.2,
829 (Tex. 2010) (orig. proceeding) (“[m]andamus is available where a
motion to disqualify is inappropriately denied, as there is no adequate
remedy on appeal”) (citing NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d
398, 400 (Tex. 1989)).
CONCLUSION
Jones meets both prongs of the mandamus standard and is
entitled to mandamus relief. Relator respectfully asks this Court to
would constitute such. See App. 5 at 8 (citing Vaughan v. Walther, 875 S.W.2d 690, 692 (Tex. 1994)). In Vaughan, the party seeking disqualification waited not just five months, without any apparent excuse, but also sought disqualification on the final day of a hearing on a child custody dispute. In this case, there was no such lengthy period of delay, and disqualification was sought well in advance of trial. Moreover, no other discovered cases provide for waiver of a right to seek disqualification on account of a five-month period, during which conferral efforts and negotiations were ongoing, and when the Motion to Disqualify was filed well in advance of trial. In different contexts, the Supreme Court has held that “a delay of five months” is “not sufficient” to constitute waiver. In re Automated Techs., Inc., 156 S.W.3d 557, 559 (Tex. 2004) (orig. proceeding) (analyzing enforcement of forum selection clause).
32 grant the Petition for Writ of Mandamus and vacate the trial court’s
Order denying his Motion to Disqualify.
Respectfully submitted, KELLER STOLARCZYK PLLC 234 West Bandera Road #120 Boerne, Texas 78006 Tele: 830.981.5000 Facs: 888.293.8580 /s/Kimberly S. Keller Kimberly S. Keller SBN: 24014182 Email: kim@kellsto.com
Christine Reinhard SBN: 24013389 Email: creinhard@sr-llp.com Justin Barbour SBN: 24055142 Email: jbarbour@sr-llp.com Schmoyer Reinhard LLP 17806 IH 10 West, Suite 400 San Antonio, Texas 78257 Tele: 210.447.8033 Facs: 210.447.8036
RELATOR’S COUNSEL
33 RULE 52.3(J) CERTIFICATE OF COMPLLIANCE
I certify I have reviewed this Petition for Writ of Mandamus and
concluded that every factual statement in the Petition is supported by
competent evidence included in the Mandamus Appendix/Record.
/s/Justin Barbour
CERTIFICATE OF COMPLLIANCE & SERVICE
I certify this Petition for Writ of Mandamus contains 5,604 words.
I certify this Petition for Writ of Mandamus and Mandamus
Appendix/Record were, on October 19, 2015, served on the following
via e-mail/first class mail:
Olga Brown Law Office of Olga Brown 111 Soledad, Suite 1725 San Antonio, Texas 78205
/s/Kimberly S. Keller Kimberly S. Keller