                                                                             ACCEPTED
                                                                         03-17-00735-CV
                                                                               21672076
                                                               THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                        1/8/2018 1:27 PM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                       NO. 03-17-00735-CV
__________________________________________________________________
                                                         FILED IN
                                                  3rd COURT OF APPEALS
                  IN THE COURT OF APPEALS             AUSTIN, TEXAS
             FOR THE THIRD DISTRICT OF TEXAS      1/8/2018 1:27:44 PM
__________________________________________________________________
                                                    JEFFREY D. KYLE
                                                          Clerk

                 IN RE CATHERINE TOWER LLC
                                                           Relator
__________________________________________________________________


               On Petition for Writ of Mandamus
     from the 261st District Court of Travis County, Texas,
  Cause No. D-1-GN-16-002929, The Hon. Amy Clark Meachum,
                        Judge Presiding
__________________________________________________________________

         REAL PARTY IN INTEREST TRAVIS CENTRAL
            APPRAISAL DISTRICT’S SUR-REPLY


Tammy White-Chaffer                 OLSON & OLSON, L.L.P.
State Bar No. 24008273              Wortham Tower, Suite 600
serv.tchaffer@olsonllp.com          2727 Allen Parkway
Eric Farrar                         Houston, Texas 77019
State Bar No. 24036549              Telephone:(713) 533-3800
efarrar@olsonllp.com                Facsimile:(713) 533-3888
Jenny M. Rogers
State Bar No. 24060155              ATTORNEYS FOR REAL
jrogers@olsonllp.com                PARTY IN INTEREST
                                  TABLE OF CONTENTS

TABLE OF CONTENTS ...........................................................................ii

INDEX OF AUTHORITIES .................................................................... iii

APPENDIX ............................................................................................... iv

SUR-REPLY .............................................................................................. 1

PRAYER .................................................................................................... 4

CERTIFICATE OF COMPLIANCE.......................................................... 6

CERTIFICATE OF SERVICE................................................................... 6




                                                     ii
                               INDEX OF AUTHORITIES

CASES

In re ExxonMobil Corp., 97 S.W.3d 353 (Tex. App.—Houston [14th Dist.]
  2003, orig. proceeding) ........................................................................... 4

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ......................................... 4

STATUTES, RULES AND OTHER AUTHORITIES

Tex. R. Civ. P. 193.3 .............................................................................. 1, 3

Tex. R. Civ. P. 193.4 .............................................................................. 2, 3




                                                   iii
                                   APPENDIX

APPENDIX                                                                          TAB

  SECOND SUPPLEMENTAL RECORD .......................................................... K




                                          iv
TO THE HONORABLE THIRD COURT OF APPEALS:

     Pursuant to this Court’s order granting leave to file a sur-reply,

Real Party in Interest Travis Central Appraisal District submits the

following:

                               SUR-REPLY

     1.      In its Reply, Relator for the first time asserts that “there is

no evidence that TCAD ever actually served Prudential with a

subpoena duces tecum.” Relator’s Reply at 12. However, the record

reveals at the oral hearing on its Motion to Quash held on August 3,

2017, Relator’s counsel acknowledged a subpoena had been issued.

             Ms. Michel: They issued a subpoena to Prudential
             as well. And I spoke with Prudential’s counsel
             regarding these matters, and we had already filed the
             motion to quash and we were already in a position to
             defend it, and they felt that they would rest on our
             efforts. Tab 9 at 12, lines 6-11 (emphasis added).

     A copy of the subpoena duces tecum, with a notarized officer’s

return, is attached hereto as a supplement to the Record at Tab 26.

     2.      In its Reply, Relator incorrectly asserts that TCAD did not

object in the trial court that its trade secret arguments and evidence

were untimely. In violation of Texas Rules of Civil Procedure 193.3 and

193.4, by Relator’s own admission, the first time Relator even
attempted to assert confidentiality1 was in in its reply in support of its

motion to quash filed August 2, 2017—one day prior to the oral hearing

on said motion. Reply at 13. Relator did not attach to its reply an

affidavit or any other evidence in support of its contention that the

appraisal was confidential, nor did Relator assert that the appraisal

was a trade secret. 2 At the oral hearing on its motion to quash, Relator

presented testimony from Mr. Fredrick Butt regarding confidentiality.

Tab 9 at 33-34. Prior to Mr. Butt’s testimony, TCAD objected that the

witness had not been previously disclosed and that his testimony

constituted unfair surprise and prejudice. Tab 9 at 19, lines 6-7, 14-20.

Regardless of whether Relator meant for Mr. Butt’s testimony to

address confidentiality or to address the trade secret privilege, TCAD

objected at the time of the hearing that the testimony was unfair

surprise.

      3.    In attempting to assert CBRE’s trade secret privilege,

Relator continued in its tactic of unfair surprise. In violation of Texas

Rules of Civil Procedure 193.3 and 193.4, Relator again waited until


1 “Confidentiality” is not a privilege. Relator did not reference a trade secret
privilege in its August 2, 2017 reply. Tab 21 (attached to Relator’s Reply).
2 This first time Relator specifically identifies a trade secret privilege is in its

Motion to Reconsider. Tab 17.
                                         2
September 27, 2017—one day prior to the trial court’s submission date

on its motion to reconsider—to file its reply to TCAD’s response.

Attached to the reply, Relator for the first time presented the affidavit

testimony of Mr. David Thibodeaux who testified regarding CBRE’s

alleged trade secret. Tab 14 at 16. The following day, the trial court

issued its order.   Tab 15.   TCAD barely had 24-hours notice of the

affidavit, so there was no time for TCAD to complain that the

Thibodeaux affidavit was not timely.

     4.    Finally, there is no evidence in the record that Prudential

intends to assert any privilege whether on its own or by way of Relator.

As stated above, Relator’s counsel at the oral hearing on Relator’s

motion to quash stated that Prudential had elected not to participate in

the proceedings and would rely on Relator’s efforts in arguing Relator’s

motion to quash. Tab 9 at 12, lines 6-11. There was nothing for TCAD

to object to in this regard. The first time TCAD became aware that

CBRE would attempt to assert a privilege was one day before the

court’s submission date on Relator’s motion to reconsider. With less

than 24-hours notice, TCAD did not have sufficient time to object or to

respond to Relator’s untimely assertion of CBRE’s privilege. This Court


                                   3
“must uphold the trial court’s order on any ground supported by the

mandamus record.” In re ExxonMobil Corp., 97 S.W.3d 353, 358 (Tex.

App.—Houston [14th Dist.] 2003, orig. proceeding). When factual

matters are within the trial court’s discretion, “the reviewing court may

not substitute its judgment for that of the trial court.”      Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992). It was within the trial court’s

discretion to consider what, if any, weight to afford the affidavits

Relator presented in support of its assertion of privilege.

                                PRAYER

     To determine whether the trial court clearly abused its discretion,

this Court must examine the specific facts of this case in light of the

actual law. Relator presents broad, nonspecific arguments of facts and

law. Relator relies on a one-sided version of facts, without regard to the

entire record. Relator provides overly broad, mistaken statements of

cases to support its argument.      The complete record and a correct

reading of the court opinions cited show that the trial court did not

commit a clear abuse of discretion. Therefore, Real Party in Interest,

Travis Central Appraisal District, respectfully requests this Court deny




                                     4
Relator’s petition for writ of mandamus and prays for such other relief

as it may show itself justly entitled.

                                         Respectfully submitted,

                                         OLSON & OLSON, L.L.P.

                                   By:   /s/ Tammy White-Chaffer
                                         Tammy White-Chaffer
                                         State Bar No. 24008273
                                         serv.tchaffer@olsonllp.com
                                         Eric C. Farrar
                                         State Bar No. 24036549
                                         EFarrar@olsonllp.com
                                         Jenny M. Rogers
                                         State Bar No. 24060155
                                         jrogers@olsonllp.com
                                         Wortham Tower, Suite 600
                                         2727 Allen Parkway
                                         Houston, Texas 77019
                                         Telephone: (713) 533-3800
                                         Facsimile: (713) 533-3888
                                         ATTORNEYS          FOR     REAL
                                         PARTY IN INTEREST




                                     5
                 CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Real Party in Interest’s Sur-Reply

has a word count of 865.

                                  /s/ Tammy White-Chaffer
                                  Tammy White-Chaffer



                     CERTIFICATE OF SERVICE

     I hereby certify that on January 8, 2018, a true and correct copy of

the foregoing Real Party in Interest’s Sur-Reply was served on the

following parties:

Lorri Michel                           Via electronic service
MICHEL GRAY, LLP
812 W. 11th Street, Suite 301
Austin, Texas 78701
lorri@michelgray.com

Ryan D. Clinton                        Via electronic service
DAVIS, GERALD & CREMER
600 Congress Avenue, Suite 3100
Austin, Texas 78701-2984
rdclinton@dgclaw.com

                                  /s/ Tammy White-Chaffer
                                  Tammy White-Chaffer




                                   6
APPENDIX K
TAB 26
P.G.A.
P.O. Box 460446, Houston, Texas   77056-8446                            Litigation Support Service
(713)62r-070s
                                                        6n6t2017
The Prudential Insurance Co. of America
c/o Prudential Asset Resources
Attn: Custodian of Records/Subpoena Processing
2100 Ross Ave., Suite 2500
Dallas, Texas 75201
By and through its
Registered Agent
CT Corp.
1999 Bryan St., Suite 900
Dallas, TX 75201

Re:     Catherine Tower LLC vs. Travis Central Appraisal District;   See   Attached Exhibit $A" &
338)'


Greetings,

YOU ARE HEREBY SERVED with a State of Texas Subpoena. All afforneys of record and the
Court have been notified according to due process of law.

The attached subpoena is a summons for the release of specific records pertaining to the
individual or entity named in the subpoena. Please read it carefully, these records are being
requested because they contain information that relates to the named judicial proceedings. The
subpoena also requires the custodian of records to answer the attached written questions and
affidavit under oath.
Ifyou are located in the general Houston area, please contact our office as soon as the records are
ready. We may also be contacting your office to make arrangements to send a courier to pick up
these records. If you are out of town, please call prior to mailing. We may request that you
overnight the records to us via our overnight account.

Please be sure to complete and sign the enclosed questions and affidavit and include them with
the requested records.
We must have the completed deposition in our office no later than July 15r2017,

If the fee for these records is above $35.00, please call our office prior to copying for a fee
approval. If you have any questions regarding this request or need further information, please do
not hesitate to call us. We appreciate your courteous and prompt attention to this very important
matter.




                                                         ll*
                                                        Sincerely.


                                                        Cissy Smither
Enclosures:
Subpoena
                                                     Cause No. D-l -GN- I 6-002929

CATHEzuNE'TOWER LLC                                                             $                         IN THE ruDICIAL COURT OF
                                                                                N

VS.                                                                             $                         TRAVIS COUNTY. TEXAS
                                                                                $
TRAVIS CENTRAL APPRAISAL DISTRICT                                               li                        26   lTH ruDICIAL DISTRICT'


                   \OTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN OUESI'IONS
'to: Plaintiff. Catherine   J'olver   LLC. by      and through it's attomey             of   record. Mr. Lorri Michel, Michel Gray. LLP,
812 W. 1l'h Street. Suite 301. Austin" texas 78701.

         You will please take notice that after twenty (20) days from the service of a copy hereof with attached
qucstlons. a deposition by u,ritten questions will be taken ol the Custodian of Records for:

l'o: The Prudential Insurance Company of America c/o Prudential Asset Resources, Inc.; by and through it's
registered agent: C'l'Corp. " 1999 Rryant St.. Suite 900. Dallas. Texas 75201.


See Attached   Exhibit A & B

Betbre a Notary Public. an Officer of the State of Texas and an employee of PCA., 1770 Saint James Place, Suite
615. Houston. Texas 77056 (713) 621-0705 or their designated agentl which deposition with attached questions may
be used in evidence upon the trial of the above styled and numbered cause pending in the above named court.
          Notice is further given that request is here made as authorized under revised Rule 201 . Texas Rules of Civil
Procedure, to the officer authorized to take this deposition to issue a SUBPOENA DEUCES TECUM and cause it to be
served on the u,itnesses to produce all items as listed above and to turn all such records over to the officer authorized to
take this deposition so that photographic reproductions of the same may be made by him and attached to the said
deposition.

                                                                Respectfu   lly submitted.
                                                               -l?t u i : ,. '\*               (- l''--*--
                                                            --           "r
                                                            "l   ammy White-Chaffer
                                                                TBN: 24008273
                                                                Olson & Olson
                                                                Wortham Toiver
                                                                2727 Allen Parkway. Suite 600
                                                                Houston. I'exas.77019
                                                                (7 I 3 )533-3800
                                                                Attorney for Defendant
                                                                Iravis Central Appraisal District


                                                    CERTIT'ICATE OF SERVICE

I certify that a true and exacl copy of the tbregoing Notice of Intention to Take Deposition by Written Questions was
delivered via mail to the respectir,e parties or attomeys of record:

Mr. Lorri Michel. Michel Grav,.tLP,.,8l}q. l1'h Street, Suite 301. Austin. Texas 78701.
       /              ,                        ,   /1       I




                                          rj
                                                                                                 'I   -
Srvorn to and subscribed before me on this the

                                FATi'llCiA StvilTHER
                                 N';ary lD # 3660844
                              h,lv
                                fxPites june 4,    2rr2'1
                                                       STATE OF TEXAS
                                                         SUBPOENA
                                                        DUCES TECUM
THE STATE OF TEXAS:
To any duly authorized Office of the State of Texas-GREETING:

YOU ARE HEREBY COMMANDED TO SUBPOENA AND SLIMMON the following witness:

Custodian of Records:
The Prudential Insurance Co. of America
c/o Prudential Asset Resources
Attn: Subpoena Legal Processing
2100 Ross Ave.,Suite 2500
Dallas, Texas 75201
By and through it's
Registered agent - C.T. Corp
1999 Bryan St., Suite 900
Dallas, Texas 75201

to be and appear and provide answers before a Notary Public or Certified Court Reporter in and for the State of Texas with P.C.A., 1770 St
James Place. Suite 615, Houston, Texas 77 056, or their designated agent on the forthwith day of instanter, then and there to give evidence
the instance of the Defendant in that certain Cause No. D-I-GN-16-002929 now pending in the 261't Judicial District Court of Travis
County, Texas, in which:
CATIIERINE TOWERLLC

v.

TRAVIS CENTRAL APPRAISAL DISTRICT

And bring and produce the following things to wit:
See Attached Exhibit '6A" & '68"
 including but not limited to any type documents in the possession, custody , or control of said witness
then and there to remain from day to day and term to term until discharged according to the law.

Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt ofcourt from which
the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement or both.

wITNESS MY HANDtt',i.tt.        /'1   ouvo
Issued at the Request of:
Tammy White-Chaffer
TBN:24008273
OLSON & OLSON
600 Wortham Tower
2727 AllenParkway                                                                                                       fu{res   June 4, 2021
Houston. Texas 77019
(7 I 3)533-3 800 - Telephone



          Came to hand this the       laa^v a ?t, ,r9:Ft!f,1,:,TlH.--f.l,r,                                           and executed,nl,      *:
                                      Z,Ou,,u--S]cU
                                               r4o-O.M.                     in the following manner: by       delivering.        Q-,Le-c>            rp oS
                                                       g),). -Hi',xt**-]'},,              J##'L."J               I   t*     i="-4 e       X      '




          Returned this    the .%            duy   of (Y*vq vq                 2U7.


                                                                              PATRIChSilTTHER
                                                                            My Nohry lD # 3660S44
                                                                             Expirea June 4,   E2i
                                          Exhibit ,{

                              I) EPOS IT  ION Oir' WRITT'EN
                                         QUnS IrONS

L'ausc         \tr. I) - l-Cr \ - l6-0()2919. Ltrthct'trtt''l owc't' LI-C. t f ruyr.t ('cutrtti
                                                                                              -l
    lit7tt'trt.tLtt' l)r.vit'ttt. in the I tr i s i C'rr rl I)rstnct L'ourt. Iravrs C'ount1.'. exas



I   .      ,,\nr rippi'aisirls" r.aluatit)ns or csllnlatcs ()l value ircrlorureri rn comection u'ith
           the loan b1' lhe Prucientral Irrsurancc L'onrDauv ot'Amenca to Cathcrine'forver.
           l.l-C. secured 111 pan l-ru the propcrt)'localed at ll4llartou Sprrngs Road.,\ustin.
            lexas. said propcrtl berng iurthcr detlncd iu that Dccd ot"l rusr. Assrgumerlt o1
           l.cases urd Rents SecLLrrty,\sreement datect April 19. 1016. a copy ot'rvhich rs
           altached as frrhibrt "8".
ELECTRONICALLY             RECORDED 2016066492
                               TRV 23 PGS




                                               CATIIERINETOWER, LLC,           as grantor
                                                                (Borrower)

                                                                    to

                                                     KELLEY H. BUTLEFI" asmrsteg
                                                                 (Trustee)

                                                           forthe bcnefit of

                     TI{E PRUDENTIAL INSURA}.ICE COMPAhIY OF AMERICd                         as   beneficiary
                                                                 (Lender)



                                                       DEED OF TRUST AI\D
                                                      SECI]RITY AGREEMENT



                                                        Dated:           As of April29,2016
                                                        Location:        214 Barton Springs Road
                                                                         Austin, Texas
                                                        Count5t          Travis Couaty

                                                        PRETARED BYAND UPON
                                                        RECORDATION RETT]RN TO:

                                                        Lockc   I-rd   LLP
                                                        111 S. Wackcr Drive
                                                        Chicago, Illinois 60606
                                                        Attention: Gina M. Gamal
                                                        Ioan Number: 7061W847 and 7061 I 0097




    Pnd€r*i8l Lou No. 7O6109t47     d   7061 1009?
    ltcCelhcrinc
    DGcd of Trult ald S€curity Agr!.t tcnt


                                                                                                          ExHlBlT"Ei"
                                                 Cause No. D-l-GN- 16-002929

CATHERINE TOWER                   LLC                                             IN THE JUDICIAL COT]RT OF

vs.                                                               $
                                                                  $               TRAVISCOUNTY,TEXAS
TRAVIS CENTRAL               APPRAISAL                            S
DISTRTCT                                                          $               261" JUDICIAL DISTRICT


                           DEPOSITION UPON WRTTTEN QUESTTONS PROPOTTNDED TO
                                     THE CUSTODIAN OF RECORDS FOR:

                                 THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
                                      C/O PRUDENTIAL ASSET RESOI.JRCES, INC.

RECORDS PERTAINING                   TO:   See Attached   Exhibit "A" &   "8"
1.    Please state your   full   name.

           Answer:

2.    Please state by whom you are employed and the business address.

           Answer:

3. What is the title of your position      or job?

           Answer:


4,.Please provide to the Officer taking this deposition photostatic copies of the complete records outlined in the
subpoena duces tecum. Have you complied? If not, why not?

           Answer:




                                                                      Witness, Custodian of Records

Before me, a notary public, on this day personally appeared                                    , known to me
to be the person whose name is subscribed and has personal knowledge to the foregoing document and, being by
me first duly sworn, declared that the statements therein contained are true and correct.

Given under my hand and seal of ofhce this           _day        of                                   A.D.20




                                                                      NotaryPublic
                                                                      in and for the State of
                                                                      My Commission Expires:
                                       Cause No. D-l-GN-16-002929

CATHERINE TOWER LLC                                              $                  I},i THE   JUDICIAL COURT OF
                                                                 $

vs.                                                              $
                                                                 $                  TRAVIS COLINTY, TEXAS
                                                                 $
TRAVIS CENTRAL                                                   $
APPRAISAL DISTRICT                                               $                  26lst JUDICIAL DISTRICT

                                                 AFFIDAVIT

RECORDS PERTAINING          TO:    SEE ATTACHED EXHIBIT                      *A* & *8"


              Beforeme,theundersignedauthority,personal1yappeared-who,
being by me duly sworn, deposed as follows:

           "1, the undersigned, am over 18 years      of   age,      of   sound mind, capable   of making this affidavit   and
personally acquainted with the facts herein stated:

              I am the Custodian of Business Records for: The Prudential Insurance Company of America c/o
              Prudential Asset Resources. Inc.

           Attached hereto are                 pages of records. These said records are kept in the regular course of
business, at the offices of The Prudential lnsurance Company of America c/o Prudential Asset Resources" Inc. and it
was in the regular course of business at the offices ofThePrudentiallnsuranceCompanyofAmericac/oPrudential
Asset Resources, Inc. or an employee and/or representative with personal knowledge of the act, event or
condition, opinion, or documents recorded to make the records or to transmit information thereof to be included in
such records; and the records were made at or near the time of the act, event or condition or reasonably soon
thereafter.

         The records attached hereto are the original or exact duplicates of the original file or files and
nothing has been removed from the original file or files in my possession pertaining to the aforementiotred
party before making these copies.




                                                                                  AFFIANT/CUSTODIAN OF RECORDS


Before me,        a notary public, on this day             personally        appeared
, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly
swom, declared that the statements therein contained are true and correct.

Given under my hand and seal of office   this              day   of                                      A.D., 20




                                                                                 Notary Public in and for
                                                                                 The State ofTexas
