in Re Vernon Veldekens

• Court: Court of Appeals of Texas
• Decided: November 17, 2022
• Docket: 09-22-00335-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00335-CV __________________

IN RE VERNON VELDEKENS, ET AL

__________________________________________________________________

Original Proceeding 284th District Court of Montgomery County, Texas Trial Cause No. 22-05-06903-CV __________________________________________________________________

MEMORANDUM OPINION

Relators, Vernon Veldekens; Marcel Town Center Cross Creek, LLC; Marcel

Town Center Riverstone, LLC; Marcel Boulevard, LLC; Apex Suites 1, LLC; Apex

Suites 2, LLC; Apex Suites 3, LLC; Atelier Salon Suites, 1, LLC; Atelier Salon

Suites 2, LLC; The Perfect Round 1, LLC; The Perfect Round 2, LLC; and The

Perfect Round 3, LLC, filed a petition for a writ of mandamus and a motion for

temporary relief. See Tex. R. App. P. 52.1, 52.10. Relators seek to compel the trial

court to vacate a September 11, 2022 order disqualifying their counsel in a lawsuit

where Real Party in Interest Bowerman Contracting, LLC. asserted quantum meruit,

promissory estoppel, and fraud claims in connection with an alleged agreement for

1 Bowerman Contracting to perform commercial construction superintendent services

and other services for Veldekens on the Relators’ commercial real estate projects.

See Tex. Gov’t Code Ann. § 22.221.

Bowerman Contracting’s motion to disqualify claimed Relator’s trial counsel

represented both Bowerman Contracting and the Relators “on an ongoing basis

concerning all aspects of their business relationship.” Relators argue Bowerman

Contracting failed to establish that the current lawsuit is the same as or substantially

related to two subcontractor payment disputes, where Relators’ counsel represented

Bowerman Contracting, or a fishing boat dispute where Relators’ counsel

represented Bowerman Contracting’s principal. See Tex. Disciplinary Rules Prof’l

Conduct R. 1.09(a)(3), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A

(“Without prior consent, a lawyer who personally has formerly represented a client

in a matter shall not thereafter represent another person in a matter adverse to the

former client: . . . if it is the same or a substantially related matter.”). Relators argue

Bowerman Contracting failed to provide any evidence that Bowerman Contracting

disclosed to Relators’ counsel any confidential information that relates to Bowerman

Contracting’s agreement with Veldekens.

2 The trial court granted Bowerman Contracting’s motion to disqualify

Relators’ counsel after holding two evidentiary hearings1 and examining documents

in camera, but the documents that the trial court examined in camera have been

omitted from the mandamus record. The trial court noted that the documents

included discussions that pertained to the business separation between Plaintiff and

Defendants and related to events that occurred at a time when counsel represented

both Plaintiff and Defendants. The trial court found “counsel was involved in the

business and litigation aspects of the arrangement between Plaintiff and Defendants,

and that arrangement is central to the issues in this case.” The trial court found that

the “evidence meets the burden of showing a prior attorney/client relationship with

defense counsel, as well as a substantial relationship between the two

representations.” The trial court also found that counsel could have acquired

confidential information concerning his prior client that could be used either to that

prior client’s disadvantage or for the advantage of his current client.

The relators have the burden of providing this Court with a sufficient record

to establish their right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837

1 Bowerman testified at the hearing that he had discussed and disclosed information to the attorney about the compensation and business arrangement between the Plaintiff and Defendants which is at issue in the underlying suit, and Bowerman produced for in camera review to the court certain documents representing communications between the parties and the attorney. Bowerman also alleged at the hearing that the attorney should be disqualified because he is a fact witness. 3 (Tex. 1992) (orig. proceeding). After reviewing the mandamus petition and the

record that Relators submitted with their petition, and based upon the mandamus

record, we conclude that Relators have not shown they are entitled to the relief

sought in their mandamus petition. Accordingly, we deny the petition for a writ of

mandamus and the motion for temporary relief. See Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM

Submitted on November 16, 2022 Opinion Delivered November 17, 2022

Before Golemon, C.J., Kreger and Johnson, JJ.