in Re Zak Nakhoda, James Wesselski, Kenneth Chambers, Philip Spotts, the Structural Alliance, Wesgroup Consulting, LLC, and the Mission Group

• Court: Court of Appeals of Texas
• Decided: August 14, 2015
• Docket: 01-15-00695-CV
• Status: Published

Opinion

ACCEPTED 01-15-00695-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 8/14/2015 9:17:38 AM CHRISTOPHER PRINE CLERK

No. 01-15-00695-CV FILED IN IN THE COURT OF APPEALS 1st COURT OF APPEALS HOUSTON, TEXAS FOR THE FIRST DISTRICT OF TEXAS 8/14/2015 9:17:38 AM CHRISTOPHER A. PRINE Clerk IN RE ZAK NAKHODA, JAMES WESSELSKI, KENNETH CHAMBERS, PHILIP SPOTTS, THE STRUCTURAL ALLIANCE, WESGROUP CONSULTING, LLC, AND THE MISSION GROUP, Relators.

Original Mandamus Proceeding from the 80th District Court, Harris County, Texas; Rankin Road, Inc. v. Underwriters at Lloyds of London, Gulf Coast Claims Service, Pat Donovan, and John Andres Trial Court Cause 2010-25885

RELATORS’ MOTION FOR EMERGENCY RELIEF

TO THE HONORABLE COURT:

Relators Zak Nakhoda, James Wesselski, Kenneth Chambers, Philip Spotts,

The Structural Alliance, Wesgroup Consulting, LLC, and The Mission Group

(“Relators”) seek an emergency stay of a discovery order compelling them to

produce confidential tax records that have nothing to do with the claims in the

underlying lawsuit pursuant to Texas Rule of Appellate Procedure 52.01. Relators

file this motion concurrently with their Petition for Writ of Mandamus. FACTUAL BACKGROUND

Rankin Road, Inc. (“Rankin”), formerly represented by the Mostyn Law Firm

(“the Law Firm”), sued Underwriters at Lloyds of London, Gulf Coast Claims

Service, Pat Donovan, and John Andres (“the Insurer Parties”) in connection with

their handling of a claim for Hurricane-Ike related property damage. Rankin

designated Relators as experts to testify in support of its claims. Relators are not

parties to the underlying lawsuit.

The Insurer Parties counter-claimed for fraud and breach of contract, alleging

that Rankin knowingly misrepresented the cause of the property damage. Rankin

non-suited its claims, and the Mostyn Law Firm withdrew from the representation.

Only the Insurer Parties’ counter-claims remain at issue, and new counsel is handling

Rankin’s defense.

Rankin’s experts were designated to testify about claims that have now been

non-suited, and the Mostyn Law Firm is no longer part of the case. Nevertheless,

the Insurer Parties served Relators with subpoenas and depositions on written

questions, requesting all W-2 and 1099 forms showing income from the Mostyn Law

Firm from 2005 to 2015.

Relators moved for protection and to quash the subpoenas, asserting that this

highly intrusive discovery violates Texas Rule of Civil Procedure 195 and the Texas

Supreme Court’s recent decision in In re Ford Motor Co., 427 S.W.3d 396 (Tex. 2014); has no conceivable bearing on the Insurer Parties’ claims against Rankin; and

amounts to an impermissible fishing expedition into the relationship between

Rankin’s former counsel and its experts.

After hearing on July 30, 2015, the 80th District Court of Harris County,

Texas, the Honorable Larry Weiman presiding, denied the motion to quash and for

protection and ordered Relators to produce 1099 or W-2 forms received from the

Law Firm from 2008 to present by August 14, 2015. The Insurer Parties submitted

a proposed order the following day, which the Court signed on August 12, 2015.

Relators filed a Petition for a Writ of Mandamus concurrently with this

motion, seeking to overturn the trial court’s order. Relators now seek an emergency

stay of the trial court’s production order to preserve this Court’s jurisdiction and

protect Relators from discovery that clearly offends the Texas Rules of Civil

Procedure.

ARGUMENT

The Rules specifically contemplate temporary relief pending action by this

Court. TEX. R. APP. P. 52.10. A temporary stay is necessary to protect Relators from

patently irrelevant, overbroad, and harassing discovery and for the purpose of

protecting the court’s jurisdiction so that it can consider the merits of the mandamus

action. See In re Reed, 901 S.W.2d 605, 609 (Tex. App.—San Antonio 1995, orig. proceeding). Mandamus review of interlocutory rulings can be “essential to preserve

important substantive and procedural rights from impairment or loss, allow the

appellate courts to give needed and helpful direction to the law that would otherwise

prove elusive in appeals from final judgments, and spare private parties and the

public the time and money utterly wasted enduring eventual reversal of improperly

conducted proceedings.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36

(Tex. 2004).

Only by granting a stay of the trial court’s production order can this Court

preserve its jurisdiction to consider Relators’ meritorious complaints about the trial

court’s order. Thus, Relators ask the Court to stay the order pending the Court’s

ruling on the merits of Relator’s mandamus action.

PRAYER

Relators ask this Court to grant this motion for temporary relief, and issue an

order staying the trial court’s order compelling production of all W-2 and IRS Form

1099s from 2008 to present by August 14th, and any other relief to which it may be

entitled. CERTIFICATE OF COMPLIANCE

The undersigned certifies that all parties have been notified by expedited

means that this emergency motion to stay the effect of the trial court’s order has been

filed in compliance with TEX. R. APP. P. 52.10.

FOGLER, BRAR, FORD, O’NEIL & GRAY LLP

By: /s/ Murray Fogler Murray Fogler State Bar No. 07207300 mfogler@beckredden.com Jas Brar State Bar No. 00797258 Robin O’Neil State Bar No. 24079075 1221 McKinney, Suite 4500 Houston, Texas 77010 (713) 951-3700 (713) 951-3720 (Fax)

ATTORNEYS FOR RELATORS CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was forwarded to all counsel of record by the Electronic Filing Service Provider, if registered; a true and correct copy of this document was forwarded to all counsel of record not registered with an Electronic Filing Service Provider and to all other parties as follows:

Counsel for Real-Parties-In-Interest:

Ms. Tamara M. Madden Mr. Casey T. Wallace JOHNSON, TRENT, WEST & TAYLOR, LLP 919 Milam Street, Suite 1700 Houston, Texas 77002 Via TexFile

Ronald E. Tigner Gregory S. Hudson COZEN & O’CONNOR 1221 McKinney Suite 2900 Houston, Texas 77010 (832) 214-3900 (832) 214-3905 (fax) Via TexFile

Respondent:

The Honorable Larry Weiman 80th Judicial District Court 201 Caroline, 9th Floor Houston, Texas 77002 713-368-6100 Via US Mail /s/ Murray Fogler Murray Fogler Counsel for Relators Dated: August 13, 2015