Opinion issued March 17, 2016




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-15-00392-CV
                            ———————————
                        IN RE HUGH LARKIN, Relator



            Original Proceeding on Petition for Writ of Mandamus


                          MEMORANDUM OPINION

      This original proceeding for writ of mandamus arises from a suit concerning

encroachment of a neighboring condominium owner. The suit was filed by by

relator, Hugh Larkin, against real parties in interest, Holly Rodriguez and Riverwalk

Council of Co-Owners, Inc.1 Larkin challenges the trial court’s March 18, 2015



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      The underlying case is Hugh Larkin v. Holly Rodriguez & Riverwalk Council of Co-
      Owners, Inc., cause number 1047713, pending in County Civil Court at Law No. 4
      of Harris County, Texas, the Honorable Roberta Lloyd presiding.
order, which overruled Larkin’s assertion of attorney-client privilege for certain

matters. He also challenges the trial court’s April 15, 2015 order, which denied his

motion for reconsideration of the matter.

      In his petition for a writ of mandamus, Larkin seeks to vacate the trial court’s

orders determining that no attorney-client privilege exists for certain documents. We

conditionally grant the petition.

                                     Background

      Larkin owns a condominium in Houston, Texas. His daughter, Whitney

Larkin, resides in the condominium. In August 2013, Larkin issued a power of

attorney naming his daughter as attorney-in-fact to act on his behalf “in all capacity

for all matters” for the condominium. In 2014, a dispute arose with a neighboring

resident. Larkin’s daughter retained counsel on her father’s behalf to initiate a

lawsuit relating to the matter.     The firm filed suit. During this time, Larkin’s

daughter prepared a document related to the suit, signed an engagement letter on her

father’s behalf, and communicated with the firm about the lawsuit.

      Rodriguez, one of the defendants in the suit, sought discovery from Larkin,

including documents prepared by his daughter and communications between his

daughter and the law firm. Larkin objected to the requests for production about

documents prepared by his daughter and communications between her and Larkin’s

counsel on the grounds that they were privileged. Larkin produced a privilege log.


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      Rodriguez filed a motion to compel, seeking production of the documents

listed on the privilege log. On March 18, 2015, the trial court overruled Larkin’s

objections and required the documents to be produced.              In a motion for

reconsideration, Larkin attached the power of attorney he issued naming his daughter

as his attorney-in-fact for the condominium. On April 15, 2015, the trial court denied

the motion to reconsider.

      This mandamus proceeding followed. We requested a response to the petition

for writ of mandamus. No response was filed.

                                Standard of Review

      Mandamus is an extraordinary remedy, available only when the relator can

show both that: (1) the trial court clearly abused its discretion; and (2) there is no

adequate remedy by way of appeal. In re Ford Motor Co., 165 S.W.3d 315, 317

(Tex. 2005) (orig. proceeding). A clear abuse of discretion occurs when a trial court

“reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding) (internal quotation marks and citation omitted). A trial court has no

discretion in determining what the law is or in applying the law to the particular

facts. Id. at 840. A clear failure by the trial court to analyze or apply the law

correctly constitutes an abuse of discretion. Id.




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      In determining whether an appeal is an adequate remedy, we consider whether

the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am.,

Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding). A party establishes that

no adequate appellate remedy exists by showing it is in real danger of losing its

substantial rights. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.

1994) (orig. proceeding).

                              Attorney-Client Privilege

      Rule 503(b)(1)(A) of the Texas Rules of Evidence provides,

      (1)    . . . . A client has a privilege to refuse to disclose and to prevent
             any other person from disclosing confidential communications
             made to facilitate the rendition of professional legal services to
             the client:

             (A)    between the client or the client’s representative and the
                    client’s lawyer or the lawyer’s representative;”

TEX. R. EVID. 503(b)(1)(A). “A ‘client’s representative’ is . . . a person who has

authority to obtain professional legal services for the client or to act for the client on

the legal advice rendered.” TEX. R. EVID. 503(a)(2)(A).

      It is undisputed that Larkin owns the condominium that his daughter occupies.

Larkin presented proof to the court that he had appointed his daughter as his

attorney-in-fact to act on his behalf for “in all capacity for all matters” for the

condominium. Larkin further presented proof that his daughter, acting “as attorney-

in-fact for” Larkin, hired a law firm to handle the underlying dispute.              She


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corresponded with the attorneys in the firm, and it is the correspondence between

her and that firm that has become the subject of the discovery request at issue.

      “A power of attorney creates an agency relationship.” Plummer v. Estate of

Plummer, 51 S.W.3d 840, 842 (Tex. App.—Texarkana 2001, pet. denied); see also

In re McCall, No. 08-02-00071-CV, 2002 WL 1341104, at *2 (Tex. App.—El Paso

June 20, 2002, orig. proceeding) (citing Plummer). An agent has express authority

to take all actions designated by the principal. Reliant Energy Services, Inc. v.

Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 783 (Tex. App.—Houston [1st

Dist.] 2011, no pet.). An agent has implied authority “to do whatever is necessary

and proper to carry out the agent’s express powers.” Id.

      Here, the power of attorney from Larkin to his daughter expressly gives his

daughter the authority to act on his behalf “in all capacity for all matters” for the

condominium. We hold this necessarily includes the authority to retain legal counsel

and to discuss legal matters with them. Larkin has not challenged his daughter’s

authority to retain counsel and communicate with them on his behalf. Instead, he

has supported it.

      Larkin’s daughter, then, fits within the definition of “client’s representative”

in Rule 503. See TEX. R. EVID. 503(a)(2)(A) (“A ‘client’s representative’ is . . . a

person who has authority to obtain professional legal services for the client or to act

for the client on the legal advice rendered.”). Because she is Larkin’s representative,


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her communications with Larkin’s attorneys are privileged.            TEX. R. EVID.

503(b)(1)(A).

      One of the documents withheld was identified as work product instead of an

attorney-client communication. The privilege log identifies that Larkin’s daughter

prepared the document. “Work product comprises . . . material prepared . . . in

anticipation of litigation or for trial by . . . a party or a party’s representatives,

including the party’s . . . agents.” TEX. R. CIV. P. 192.5(a)(1). Core work product,

the work product of an attorney or an attorney’s representative, is not discoverable.

TEX. R. CIV. P. 192.5(b)(1). All other work product is discoverable if there is a

showing of a substantial need and an inability to obtain substantially equivalent

material by other means. TEX. R. CIV. P. 192.5(b)(2).

      There has been no showing that there is a substantial need for the work product

produced by Larkin’s daughter. Accordingly, the trial court could not require Larkin

to produce this document either.

                               Inadequate Remedy

      “[M]andamus is proper when the trial court has abused its discretion by

committing a clear error of law for which appeal is an inadequate remedy.” In re

Ford Motor Co., 211 S.W.3d 295, 297–98 (Tex. 2006). “If an appellate court cannot

remedy a trial court’s discovery error, then an adequate appellate remedy does not

exist.” In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004). “[A]ppeal is inadequate


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when a trial court erroneously orders the production of confidential information or

privileged documents.” Ford, 211 S.W.3d at 298. Because the trial court’s orders

required production of privileged documents, an appeal would be an in adequate

remedy and mandamus is proper.

                                    Conclusion

      We conditionally grant the mandamus petition and direct the trial court to

vacate its March 18, 2015 and April 15, 2015 orders. Our writ will issue only if the

trial court does not comply within 30 days of the date of this opinion.




                                              Laura Carter Higley
                                              Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.




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