in Re: Mary Linda McCall

• Court: Court of Appeals of Texas
• Decided: June 20, 2002
• Docket: 08-02-00071-CV
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

                                                                              )

                                                                              )             No.  08-02-00071-CV

IN RE:  MARY LINDA McCALL                        )     AN ORIGINAL PROCEEDING

                                                                              )               IN MANDAMUS

O P I N I O N

This mandamus originates from Judge John G. Hyde=s order granting the motion to quash Relator Mary Linda McCall=s subpoena for invoices submitted to Dolores McCall (ADolores@) by the law firm of Cotton, Bledsoe, Tighe & Dawson, P.C. (ACotton Bledsoe@).  Mary Linda McCall (ALinda@) brings two issues complaining that she is entitled to examine the invoices, because Cotton Bledsoe rendered legal services on her behalf and she paid for her proportion of the services.  We conditionally grant the writ of mandamus.

After Jack O. McCall Sr.=s death in October 1991, Dolores, his second wife, and Linda and J.O. McCall Jr. (AJ.O. Jr.@), his two children from his first marriage, became co-tenants in certain oil and gas properties.  In order to facilitate the administration of the properties, Cotton Bledsoe suggested that the three form a partnership and authorize Dolores to handle daily operations.  Upon criticism from Linda=s CPA, Cotton Bledsoe set up a limited power of attorney to transfer authority to Dolores without any changes in the properties= ownership.  Both Linda and J.O. Jr. executed the limited and revocable power of attorney for Dolores to administer real property transactions only, and Dolores operated the properties under the names of McCall Family Partnership or McCall Family Properties.

In January 1998, Linda decided to end the relationship with Dolores and also filed suit for proper division of property under her mother=s will and for breach of fiduciary duty against Dolores individually and as independent executrix of the Estate of Jack O. McCall Sr., Jack O. McCall Jr., and McCall Family Partnership a.k.a. McCall Family Properties.  During discovery, she sought from Cotton Bledsoe all billing invoices for legal work done for McCall Family Partnership a.k.a. McCall Family Properties for the years 1992-1999.  Linda also requested that Cotton Bledsoe withdraw from representing Dolores because of possible conflict of interest due to the firm=s representation of the Estate of Mary Jane McCall, Estate of Jack McCall Sr., and the McCall Family Partnership.  Linda then moved to subpoena the invoices and to disqualify Cotton Bledsoe from representing Dolores.  Dolores, still represented by Cotton Bledsoe, sought protection from the subpoena from the trial court, asserting the invoices from Cotton Bledsoe were protected under the attorney-client privilege.  The trial court granted Dolores=s motion to quash the subpoena and ruled that the invoices were covered by the attorney-client privilege and Cotton Bledsoe had no attorney-client relationship with Linda.

Mandamus will lie only to correct a clear abuse of discretion and when there is no adequate remedy at law, or by normal appeal.  Braden v. Marquez, 950 S.W.2d 191, 193-94 (Tex.App.‑‑El Paso 1997, orig. proceeding).  A trial court abuses discretion when its decision lacks basis or guiding principles of law.  Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)(orig. proceeding).  While a higher standard of review applies to a trial court=s decision on factual issues, a trial court has no discretion in determining what the law is or applying the law to the facts.  Braden, 950 S.W.2d at 193.  Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ.  Id.  When the trial court disallows discovery and the missing discovery cannot be made part of the appellate record, thereby precluding appellate review, mandamus is a proper remedy.  Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992) (orig. proceeding); In re Braden, 960 S.W.2d 834, 837 (Tex.App.--El Paso 1997, orig. proceeding).  Before granting mandamus, the reviewing court should consider Aall relevant circumstances, such as the claims and defenses asserted, the type of discovery sought, what it is intended to prove, and the presence or lack of other discovery . . . .@  Walker, 827 S.W.2d at 844.

It is undisputed that Linda and Cotton Bledsoe did not expressly contract for legal services.  However, in the absence of an express agreement, an attorney‑client relationship may be implied in some cases from the conduct of the parties.  Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 437 (Tex.App.--Houston [1st Dist.] 2000, no pet.); Duval County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627, 633 (Tex.App.‑‑Amarillo 1983, writ ref=d n.r.e.). 

Under the present facts, we believe that an attorney-client relationship existed by virtue of Dolores consulting Cotton Bledsoe in her capacity as Linda=s agent.  An agent is one who is authorized by another to transact some business for the principal.  Bhalli v. Methodist Hosp., 896 S.W.2d 207, 210 (Tex.App.--Houston [1st Dist.] 1995, writ denied); Neeley v. Intercity Mgmt. Corp., 732 S.W.2d 644, 646 (Tex.App.‑‑Corpus Christi 1987, no writ).  A power of attorney creates an agency relationship.  Plummer v. Estate of Plummer, 51 S.W.3d 840, 842 (Tex.App.‑‑Texarkana 2001, pet. denied); Sassen v. Tanglegrove Townhouse Condo. Assoc., 877 S.W.2d 489, 492 (Tex.App.‑‑Texarkana 1994, writ denied).  An agent has actual authority either expressly or impliedly to perform such acts as are necessary and proper to accomplish the purpose for which the agency was created.  Intermedics, Inc. v. Grady, 683 S.W.2d 842, 847 (Tex.App.--Houston [1st Dist.] 1984, writ ref=d n.r.e.); Houston Packing Co. v. Spivey, 333 S.W.2d 423, 426 (Tex.Civ.App.--Eastland 1960, no writ). 

To expedite the administration of the oil and gas property interests in which she was

co-tenants with Linda and J.O. Jr., Linda granted Dolores a limited, revocable power of attorney in March 1995, which created an agency relationship between Linda, as the principal, and Dolores, as the agent.  In her capacity as Linda=s agent, Dolores=s ultimate purpose was to carry out oil and gas transactions, performing any necessary and proper acts to accomplish this.  Seeking legal advice in the commission of the service was a necessary and proper act, and an attorney-client relationship was created between Linda and any law firm that Dolores consulted in her capacity as her agent.  Cotton Bledsoe had certainly rendered legal service to Dolores, as Linda=s agent, and had imputed knowledge of the agency relationship, since they had advised Linda and Dolores to execute the power of attorney and also ultimately assisted in dissolving the agency.  See, e.g., Broughton v. Humble Oil & Ref. Co., 105 S.W.2d 480, 484 (Tex.Civ.App.--El Paso 1937, writ ref=d)(Non-appearing defendant had attorney-client relationship with the law firm appearing on her behalf in a suit for adverse possession.  Law firm had been hired by her agent, whom she had appointed to manage and look after the property.).^[1]

We agree that Linda is entitled to inspect the invoices from Cotton Bledsoe, because attorney-client relationship existed between Cotton Bledsoe and Linda by the virtue of power of attorney she granted to Dolores.  We conclude that the trial judge erred as a matter of law in finding no attorney-client relationship existed.  Further, Linda has no adequate remedy at law from the trial court=s order barring her from discovery of the invoices from Cotton Bledsoe, because the invoices will not be a part of the appellate record.  The invoices from Cotton Bledsoe are highly relevant to Linda=s claim for breach of fiduciary duty against Dolores and for her motion to disqualify Cotton Bledsoe from representing Dolores in the suit.  Dolores consulted Cotton Bledsoe in connection with the operation of the jointly owned properties and proportionately charged legal expenses to Linda.  Whether the charges were properly made can only be determined from the invoices themselves, and their exclusion from the record would deprive Linda of adequate remedy at law. 

Finding that Linda and Cotton Bledsoe had an attorney-client relationship, we vacate the trial court=s order quashing the discovery of the invoices.  However, it appears that Cotton Bledsoe also rendered some legal services to Dolores outside of her capacity as Linda=s agent, and the portions of the invoices relating to these legal services rendered exclusively for Dolores individually and outside of her capacity as an agent are not subject to be discovered by Linda.  We therefore instruct the trial court to review in-camera the invoices in the light of this opinion and allow discovery of the invoices relevant to the services Cotton Bledsoe rendered to Dolores in her capacity as Linda=s agent.  The writ is conditionally granted.  The writ will issue only in the event the trial court should fail to act in accordance with this opinion.

We conditionally grant the writ of mandamus.

June 20, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

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^[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 paid the attorney.).