in Re: Wendell Reeder

Court of Appeals of Texas·Decided August 26, 2015·No. 12-15-00206-CV·Published

Opinion

ACCEPTED 12-15-00206-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 8/26/2015 8:29:44 AM CATHY LUSK CLERK

No. 12-15-00206-CV

In the

TWELFTH COURT OF APPEALS

In re Wendell Reeder

Motion to Reconsider Order Granting Temporary Relief

J. Bennett White State Bar No. 21309800 jbw@jbwlawfirm.com Laura S. Severt State Bar No. 24051886 lsevert@jbwlawfirm.com J. Bennett White, P.C. P.O. Box 6250 Tyler, TX 75711 (903) 597-4300 Telephone (903) 597-4330 Telephonic

Attorneys for Respondent No. 12-15-00206-CV

IN THE COURT OF APPEALS FOR THE TWELFTH JUDICIAL DISTRICT OF TEXAS TYLER, TEXAS

IN RE WENDELL REEDER, Relator

From the 402nd Judicial District of Wood County, Texas

Motion of J. Bennett White, P.C. To Reconsider Temporary Relief

TO THE HONORABLE COURT OF APPEALS:

Comes now J. Bennett White, P.C., filing this Motion is order to that the Court

may reconsider the temporary relief granted in favor of Relator for the reasons set forth

below.

The temporary relief sought by Relator is for purely tactical purposes and should

be reconsidered. Relator’s actions are simply part of a transparent strategy designed

solely to delay collection of a just debt.

I. The Urgency Relied upon for Emergency Relief Was Manufactured by Relator in Order to Unjustly Exploit this Court

The case below is for collection of legal fees owed J. Bennett White, P.C.

(“Respondent”), plaintiff below and a party-in-interest in this proceeding. Relator’s

initial counsel (“Mayo”) was disqualified on June 23, 2015 because of a former employee

of the plaintiff and of plaintiff’s counsel where the former employee was already working

for Mayo at the time he undertook Relator’s representation. At that hearing, Mayo informed the Court that he (Mayo) was aware that Relator was already inclined to have

Mayo’s disqualification reviewed. R. 122 (Tr. pp. 12:25-13:3 “… I understand Mr.

Reeder is going to ask me to have this decision reviewed, I feel confident.”1). At that

hearing, the court below allowed thirty days before Mayo’s disqualification became

effective. Tr. p. 12:20-24. The court below urged Relator’s counsel to proceed with

mandamus, “if you feel like that’s what needs to be done.” Tr. p. 12:6-8.

Inexplicably, Relator waited 58 days – until efforts to continue a pending

summary judgment hearing failed – before seeking review. Yet, the tragedy sought to be

averted by emergency temporary relief is the possibility that Relator’s defense could not

withstand a traditional summary judgment motion. Respondent submits that the

temporary relief granted Relator should be reconsidered for multiple reasons.

II. Mandamus Relief to Preserve Relator’s Choice of Counsel Could Have Been Brought Well Before Now

The unexplained delay between Mayo’s disqualification and the filing of Relator’s

petition for mandamus proves that preserving Relator’s choice of counsel was not of

paramount importance. Relator commenced this proceeding on August 20, 2015, 58 days

after the disqualification hearing. This proceeding could easily have been commenced

during the thirty day interval before Mayo’s disqualification became effective. Relator

could easily have sought this stay well prior to the date when his response to

Respondent’s summary judgment motion was due. Instead, Relator waited until the

summary judgment hearing was imminent so as to unnecessarily and arbitrarily allow the

1 The transcript mistakenly attributes that comment to the undersigned; however, the speaker from page 12, line 25 to page 13, line 3, was actually Keith Mayo, representing Relator. urgency to ripen simply to claim an emergency in order to get the immediate attention of

this Court. Choosing to wait until a threat materializes does not an emergency make.

III. The Real Reason Relator Seeks Temporary Relief Is To Delay Collection of a Just Debt

Relator’s actions below show that this proceeding is intended solely to obstruct the

collection of a justly owed debt. On May 1, 2015, Mayo wrote counsel for Respondent to

inform on his being retained as Relator’s counsel and agreeing to accept service. JBW-

001. In a response dated May 4, 2015, Mayo was made aware of the conflict presented

by his employment of a potential fact witness and that his disqualification would be

sought if he proceeded to answer for Relator. JBW-002. Therefore, Relator cannot claim

any surprise in that Mayo’s disqualification would be sought, and Relator has had ample

opportunity to plan for the possibility that substitute counsel could be necessary, along

with the possibility of having to seek extraordinary relief before this Court.

On July 15, 2015, during the period before Mayo’s disqualification became

effective, counsel for Respondent sent a letter to Mayo in order to address the summary

judgment hearing that had been scheduled for August 10, 2015. JBW-007. In that letter,

Mayo was informed that adequate time existed for responding to the summary judgment

motion and it was requested that he (Mayo) inform Relator’s new attorney not to expect

that the summary judgment hearing would be reset by agreement. JBW-007.

On July 23, 2015, Relator’s new counsel (“Walker”) entered an appearance (R.

0093), filed a motion for continuance of the summary judgment hearing (R. 0095), and

inquired by email about postponing the summary judgment hearing (JBW-005). The motion for continuance implies that Relator desired the deposition of Respondent’s

principal. R. 0096 (“Defendant is entitled to …, at a minimum obtain the deposition of

… White”). By email response later that day, Walker was provided with six possible

deposition dates prior to the time when Relator’s summary judgment response would be

due. JBW-005.

The court below, of its own volition, reset the summary judgment hearing to

August 25, 2015. R. 0098. Relator’s motion for continuance was heard on August 20,

2015. R. 0099-0100. On August 18, 2015, Relator’s summary judgment response was

filed. R. 0103. That response is supported by a two page affidavit by Relator. R. 0115-

116. Relator’s affidavit contends that there were instances when his instructions and

strategies were not followed, but that no specific instances of any such occasions could

be provided due to his lack of complete billing records. R. 0115-0116.

At the hearing on Relator’s motion for continuance, Respondent showed that all

billing records requested by Relator in order to fully reconcile the account balance had

been provided on February 4, 2015 and February 5, 2015 (JBW-008, JBW-011), and that

Respondent and Relator had completely reconciled all account balances, both paid and

unpaid, by March 26, 2015 (JBW-013, JBW-014), preceding the April 14, 2015 filing of

Respondent’s original petition. R. 0003. The trial court was provided the July 15th letter

to Mayo (JBW-007) and the July 23rd offer of deposition dates for Respondent to Walker

(JBW-005) and was informed that despite Relator’s insistence that discovery was

essential, to date no attempt had been made to schedule any deposition and no written discovery had even been served. Relator’s motion to continue the summary judgment

hearing was denied.

Relator has commenced this proceeding strictly to postpone consideration of

plaintiff’s summary judgment motion by the court below, not to preserve his right to

counsel of his choice. The affidavit filed by Relator in opposition to Respondent’s

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