In re Aep Texas Central Co.

• Decision Date: 16 July 2003
• Docket Number: No. 04-03-00253-CV.,04-03-00253-CV.
• Parties: In re AEP TEXAS CENTRAL COMPANY and Milton Menking.
• Court: Texas Court of Appeals

128 S.W.3d 687

In re AEP TEXAS CENTRAL COMPANY and Milton Menking.

No. 04-03-00253-CV.

Court of Appeals of Texas, San Antonio.

July 16, 2003.

Original Mandamus Proceeding.¹

Rudy Gonzales, Jr., Catherine D. Tobin, Carlos I. Uresti, Chaves, Gonzales & Hoblit, L.L.P., Corpus Christi, Kenneth C. Raney, Jr., Asst. Gen. Counsel, Dallas, for appellant.

William J. Tinning, Harris Meija & Tinning, LLP, Portland, Timothy Patton, Timothy Patton, P.C., San Antonio, for appellee.

Sitting: ALMA L. LOPEZ, Chief Justice, PAUL W. GREEN, Justice, KAREN ANGELINI, Justice.

Opinion by KAREN ANGELINI, Justice.

This mandamus arises out of a trespass action filed by Terry A. Canales against AEP Texas Central Company ("AEP")² and Milton Menking. Relators AEP and Menking seek a writ of mandamus ordering respondent, the Honorable Rose Vela, to vacate her order of March 12, 2003 and enter an order preventing the use of the legal memorandum at issue. Because we conclude that relators are entitled to the relief sought, we conditionally grant the writ.

BACKGROUND

On February 17, 1999, Milton Lorenz, an attorney with the law firm of Broyles & Pratt, was contacted by an AEP employee who requested Lorenz's help with regard to a dispute between AEP and Terry A. Canales. Canales, angry about what he considered to be illegal electrical poles on his property, was threatening to destroy the poles. After reviewing the appropriate documents provided by AEP, Lorenz informed Canales that in his opinion, AEP had a right to maintain its facilities on Canales's property. That afternoon, Canales burned the electrical poles to the ground with the live wires still attached.

In response, in-house counsel for AEP commissioned the law firm of Broyles & Pratt to analyze the potential claims that AEP could assert against Canales and those claims that Canales could assert against AEP. On June 28, 1999, Richard Houston, also an attorney with Broyles & Pratt, prepared a legal memorandum addressed to Lorenz outlining these issues. On February 14, 2000, Canales brought suit against AEP and Milton Menking, a former employee of AEP, alleging trespass. AEP hired the law firm of Vinson & Elkins to represent it and Menking. On June 24, 2000, AEP and Menking produced documents in response to Canales's requests for production. On November 7, 2000, AEP's attorney, John Neese, an attorney with Vinson & Elkins, realized that he had inadvertently produced the June 28, 1999 legal memorandum.

On November 9, 2000, Neese sent a letter to Canales's attorney, requesting that the memorandum be returned pursuant to Texas Rule of Civil Procedure 193.3(d). According to Neese, the memorandum was protected by the attorney-client and work-product privileges. By letter dated November 10, 2000, counsel for Canales refused to return the memorandum. On November 14, 2000, Neese again requested the return of the memorandum, and Canales's attorney again refused. AEP and Menking filed a motion to compel return of the privileged document inadvertently produced pursuant to Texas Rule of Civil Procedure 193.3(d). After a non-evidentiary hearing, the trial court denied the motion. AEP and Menking then filed a motion to exclude the privileged document inadvertently produced and requested an evidentiary hearing pursuant to Texas Rule of Civil Procedure 193.4. After the evidentiary hearing, the trial court denied the motion. AEP and Menking now seek mandamus.

MANDAMUS

Mandamus is an extraordinary remedy that may be utilized only when there is no adequate appellate remedy. Walker v. Packer, 827 S.W.2d 833, 841 (Tex.1992). With regard to issues of discovery, and particularly a claim of privilege, the Texas Supreme Court has stated:

[A] party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court's discovery error. This occurs when the trial court erroneously orders the disclosure of privileged information which will materially affect the rights of the aggrieved party, such as documents covered by the attorney-client privilege.... As we noted in Crane [v. Tunks, 160 Tex. 182, 190, 328 S.W.2d 434, 439 (1959) ]: "After the [privileged documents] had been inspected, examined and reproduced ... a holding that the court had erroneously issued the order would be of small comfort to relators in protecting their papers."

Id. at 843 (citations omitted); see also Huie v. DeShazo, 922 S.W.2d 920, 928 (Tex.1996) (orig.proceeding).

According to Canales, the trial court's order denying AEP and Menking's motion is not reviewable by mandamus, because it is an evidentiary ruling, not a discovery ruling. Thus, Canales argues that as an evidentiary ruling, relators have an adequate remedy by appeal. See Reveal v. West, 764 S.W.2d 8 (Tex.App.-Houston [1st Dist.] 1988, no writ) (holding that trial court's evidentiary ruling is like a motion in limine and that relator may reoffer evidence at trial; thus trial court's determination is reviewable by appeal).

In response, relators argue that their motion was brought pursuant to Texas Rule of Civil Procedure 193.4, a discovery rule. In their "Motion to Exclude Privileged Document Inadvertently Produced," relators argued that the memorandum inadvertently produced by Neese was protected by attorney-client and work-product privileges. Further, relators contended that pursuant to rule 193.3(d), they had not waived their privilege. Thus, at the hearing on the motion, relators requested the trial court, pursuant to rule 193.4, conduct an evidentiary hearing regarding whether the legal memorandum at issue was privileged.

We agree with relators that the trial court's order is reviewable by mandamus. Relators sought a hearing pursuant to rule 193.4. Rule 193.4(a) authorizes either the requesting or objecting party to request a hearing on objections to discovery. Tex.R. Civ. P. 193.4(a). If a hearing is held, the party who has objected or asserted a privilege must present any evidence necessary to support the objection or privilege. Id. Relators presented such evidence, and the trial court determined that the legal memorandum was not privileged.

What makes this case unusual is Canales's possession of the memorandum due to Neese's inadvertent production of the document. Rule 193.3(d) clearly states that a party can assert a claim of privilege to material or information that the party, without intending to waive the privilege, produced inadvertently. Tex.R. Civ. P. 193.3(d), cmt. 4. Thus, even though Canales had possession of the document, relators were still entitled to assert their claim of privilege. As Canales already had possession of the document, relators asked the trial court to prevent Canales from using the memorandum during the course of the case, the only relief at that point in time that would protect relators' claim of privilege. We disagree with Canales that merely because relators asked the trial court to prevent Canales from using the memorandum during the course of the case, the trial court's ruling was converted from a discovery ruling into an evidentiary one. At the hearing, relators clearly requested the trial court to conduct an evidentiary hearing on their claim of privilege pursuant to rule 193.4, a discovery rule. The trial court's order is, therefore, reviewable by mandamus. See Walker, 827 S.W.2d at 843.

LACHES

Even if the trial court's order is reviewable by mandamus, Canales argues that relators are barred from seeking mandamus by the doctrine of laches. Ordinarily a petition for writ of mandamus should be brought promptly. However, we have held that mandamus recovery should not be denied based on delay if no harm has occurred. Shearson Lehman Hutton, Inc. v. McKay, 763 S.W.2d 934, 939 (Tex.App.-San Antonio 1989, orig. proceeding); see also In re Bahn, 13 S.W.3d 865, 871 (Tex.App.-Fort Worth 2000, orig. proceeding); Sanchez v. Hester, 911 S.W.2d 173, 177 (Tex.App.-Corpus Christi 1995, orig. proceeding [leave denied]) (citing Rogers v. Ricane Enters., 772 S.W.2d 76, 80 (Tex.1989)). In this case, there is nothing in the record to indicate any harm to Canales. Relators' request for mandamus relief is, therefore, not barred by laches.

PRIVILEGE

In their motion, relators asserted that the legal memorandum was protected by both attorney-client and work-product privileges. Texas Rule of Evidence 503(b)(1) provides for privileged communications between clients and their attorneys:

A client has the privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer;

(B) between the lawyer and the lawyer's representative;

(C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;

(D) between representatives of the client or between the client and a representative of the client; or

(E) among lawyers and their representatives representing the same client.

Tex.R. Evid. 503(b)(1). A "representative of the lawyer" for purposes of the attorney-client privilege includes "one employed by the lawyer to assist the lawyer in the rendition of professional legal services." Id. 503(a)(4)(A).

Work product comprises (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or (2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties,...