                                                                                               ACCEPTED
                                                                                           05-15-00607-CV
                                05-15-00607-CV                                  FIFTH COURT OF APPEALS
                                                                                           DALLAS, TEXAS
                                                                                      5/13/2015 9:16:55 AM
                                                                                                LISA MATZ
                                                                                                    CLERK
                                       No. _____

                                                       FILED IN
                IN THE FIFTH DISTRICT COURT OF APPEALS
                                                 5th COURT OF APPEALS
                             DALLAS, TEXAS           DALLAS, TEXAS
                                                                 5/13/2015 9:16:55 AM
                                                                       LISA MATZ
                                                                         Clerk
                IN RE 462 THOMAS FAMILY PROPERTIES, LP, ET AL.,

                                       Relators.


                                  Original Proceeding
                   From the Probate Court No. 1, Dallas, County, Texas
                               Cause No. PR 10-00877-1


           EMERGENCY MOTION TO STAY THE PROBATE COURT’S ORDER
             COMPELLING THE PRODUCTION OF CERTAIN DOCUMENTS


Alan S. Loewinsohn                         Douglas W. Alexander
State Bar No. 12481600                     State Bar No. 00992350
alan@lfdlaw.com                            dalexander@adjtlaw.com
Kerry Schonwald                            Amy Warr
State Bar No. 24051301                     State Bar No. 00795708
kerry@lfdlaw.com                           awarr@adjtlaw.com
LOEWINSOHN FLEGLE DEARY, LLP               Melanie Plowman
12377 Merit Drive, Suite 900               State Bar No. 24002777
Dallas, Texas 75251                        mplowman@adjtlaw.com
Telephone: (214) 572-1700                  ALEXANDER DUBOSE JEFFERSON &
Facsimile: (214) 571-1717                  TOWNSEND LLP
                                           515 Congress Avenue, Suite 2350
Mary Elizabeth Conlon                      Austin, Texas 78701
State Bar No. 24045691                     Telephone: (512) 482-9300
marybeth@theconlonlawfirm.com              Facsimile: (512) 482-9303
THE CONLON LAW FIRM, P.C.
8333 Douglas Ave., Suite 1414              Mary C. Burdette
Dallas, Texas 75225                        State Bar No. 04268800
Telephone: (214) 750-1200                  mburdette@cnbwlaw.com
Facsimile: (214) 890-9920                  CALLOWAY, NORRIS, BURDETTE & WEBER, PLLC
                                           3811 Turtle Creek Blvd., Suite 400
                                           Dallas, TX 75219
                                           Telephone: (214) 521-1520
                                           Facsimile: (214) 521-2201

                                COUNSEL FOR RELATORS
      Relators, 462 Thomas Family Properties, LP, et al., seek an emergency stay

of the attached probate court Order in order to preserve for mandamus review by this

Court their claim to attorney-client privilege of three documents ordered to be

produced by the probate court. See Order Denying Defendants’ Objections to Dan

Brittain Subpoenas Duces Tecum, Probate Court No. One of Dallas County (May

11, 2015) (attached as Ex. A). The probate court issued the Order yesterday

afternoon, May 11, 2015. Relators seek an emergency stay from this Court because

though the Order includes a temporary stay of the compelled production of the

documents, that stay expires this Friday, May 15, 2015 at noon. The probate court

granted this temporary stay in order to give Relators time to request, and this Court

time to consider, the granting of a further stay pending resolution of the Petition for

Writ of Mandamus filed contemporaneously with this motion. Relators have also

contemporaneously submitted under seal to this Court the documents at issue for in

camera review.

      The challenged Order compels the production of certain documents that

Relators demonstrate in their mandamus petition are attorney-client privileged under

Texas Rule of Evidence 503. These documents are: (1) a memorandum prepared

by an attorney for Relators that embodies and reflects legal advice and counseling

to Relators; and (2) two versions of a draft amendment to a Partnership Agreement
prepared by Relators’ counsel that were never executed. The documents have been

described as follows:

        1. Amended and Restated Agreement of Limited Partnership of 462 Thomas
           Family Properties, L.P. (version 1) (undated) (in camera Ex. 1)
        2. Amended and Restated Agreement of Limited Partnership of 462 Thomas
           Family Properties, L.P. (version 2) (undated) (in camera Ex. 2)
        3. Memo to Self from T. Daniel Brittain regarding A&R 462 Thomas Family
           Properties, LP Agreement (September 4, 2012) (in camera Ex. 7)

As described in the Motion to File Part of Mandamus Record under Seal, these three

documents have been submitted to this Court for in camera view, together with three

other redlined documents that Relators prepared to facilitate analysis of the attorney-

client privilege claim. Following a hearing and in camera review of the documents

at issue, the probate court decided the documents were not protected by the privilege

under the exceptions to the privilege that appear in Rule 503(d)(2) and (d)(5).

        As previously noted, the probate court has granted a stay of its order until

Friday, May 15, 2015 at noon. See Ex. A (granting stay). If, however, this Court

does not rule on Relator’s mandamus petition prior to the expiration of the probate

court’s stay order, the Relators face the prospect of being compelled to produce the

documents while the mandamus petition remains pending. In the absence of a stay

from this Court, Relator could be compelled to relinquish their attorney-client

privilege and the issues raised in Relators’ mandamus petition could be rendered

moot.

                                          2
      Once a privileged document is produced, the privilege cannot be restored. See

Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding); see also,

e.g., Mem. Hosp.—The Woodlands v. McCown, 927 S.W.2d 1, 12 (Tex. 1996) (orig.

proceeding) (“It is well settled that an erroneous order requiring the production of

privileged documents leaves the party claiming privilege without an adequate

remedy by appeal.”). Thus, Relators respectfully request that a stay be issued until

the Court rules on Relators’ mandamus petition. This Court has jurisdiction to stay

an order of a trial court to protect its jurisdiction. TEX. R. APP. P. 52.10; see also,

e.g., In re Tex. Farmers Ins. Co., No. 02-13-00449-CV, 2014 WL 345677, at *4

(Tex. App.—Fort Worth Jan. 30, 2014, orig. proceeding) (noting that order

compelling production was stayed to permit consideration of relators’ mandamus

petition); In re Rogers, 200 S.W.3d 318, 321 (Tex. App.—Dallas 2006, orig.

proceeding) (noting the issuance of a stay of order compelling production of

documents pending resolution of mandamus petition asserting privilege).

      A trial is currently set in the probate court for May 18, 2015. Relators do not

seek a stay of the May 18, 2015 trial setting, but only a stay of the Order of May 11,

2015 compelling production of the documents at issue. Counsel for Real Parties in

Interest indicated during yesterday’s hearing in the probate court that Real Parties in

Interest intend to keep the trial date.




                                          3
                                      PRAYER

      Relators respectfully request a stay of the probate court’s order compelling

production of certain documents pending the conclusion of all proceedings

addressing Relators’ Petition for Writ of Mandamus. Relators also request any other

relief to which they may be entitled at law or in equity.

                                       Respectfully submitted,

                                         /s/ Douglas W. Alexander
                                         Douglas W. Alexander
                                         State Bar No. 00992350
                                         alexander@adjtlaw.com
                                         Amy Warr
                                         State Bar No. 00795708
                                         awarr@adjtlaw.com
                                         Melanie Plowman
                                         State Bar No. 24002777
                                         mplowman@adjtlaw.com
                                         ALEXANDER DUBOSE JEFFERSON &
                                         TOWNSEND LLP
                                         515 Congress Avenue, Suite 2350
                                         Austin, Texas 78701-3562
                                         Telephone: (512) 482-9300
                                         Facsimile: (512) 482-9303

                                         Alan S. Loewinsohn
                                         State Bar No. 12481600
                                         alan@lfdlaw.com
                                         Kerry Schonwald
                                         State Bar No. 24051301
                                         kerry@lfdlaw.com
                                         LOEWINSOHN FLEGLE DEARY, LLP
                                         12377 Merit Drive, Suite 900
                                         Dallas, Texas 75251
                                         Telephone: (214) 572-1700
                                         Facsimile: (214) 571-1717

                                          4
                                          Mary Elizabeth Conlon
                                          State Bar No. 24045691
                                          marybeth@theconlonlawfirm.com
                                          The Conlon Law Firm, P.C.
                                          8333 Douglas Ave., Suite 1414
                                          Dallas, Texas 75225
                                          Telephone: (214) 750-1200
                                          Facsimile: (214) 890-9920

                                          Mary C. Burdette
                                          State Bar No. 04268800
                                          mburdette@cnbwlaw.com
                                          CALLOWAY, NORRIS, BURDETTE &
                                          WEBER, PLLC
                                          3811 Turtle Creek Blvd., Suite 400
                                          Dallas, TX 75219
                                          Telephone: (214) 521-1520
                                          Facsimile: (214) 521-2201

                                          COUNSEL FOR RELATORS



                           CERTIFICATE OF CONFERENCE

      On May 12, 2015, I communicated with Wes Holmes, counsel for Real Parties

in Interest. He stated that his clients oppose this motion for stay.


                                               /s/ Kerry Schonwald
                                               Kerry Schonwald




                                           5
                             CERTIFICATE OF SERVICE

      On May 12, 2015, I electronically filed this Emergency Motion to Stay the

Probate Court’s Order Compelling the Production of Certain Documents with the

Clerk of the Court using eFile.TXCourts.gov electronic filing system which will

send notification of such filing to the following:


 Wes Holmes                                   Larry A. Flournoy, Jr.
 Texas Bar No. 09908495                       State Bar No. 00795348
 wes@wesholmes.com                            lflournoy@jhflegal.com
 Susan Shelton                                JORDAN, HOUSER & FLOURNOY, LLP
 Texas Bar No. 08996750                       10000 North Central Expressway
 susan@wesholmes.com                          Suite 800
 THE HOLMES LAW FIRM                          Dallas, Texas 75231
 10000 North Central Expressway               Telephone: (214) 369-0361
 Suite 400                                    Facsimile: (214) 242-2170
 Dallas, Texas 75231
 Telephone: (214) 890-9266
 Facsimile: (214) 890-9295

 Jim Hartnett, Jr.
 State Bar No. 09169200
 jim@hartnettlawfirm.com
 THE HARTNETT LAW FIRM
 2920 N. Pearl Street
 Dallas, Texas 75201
 Telephone: (214) 742-4655
 Facsimile: (214) 855-7857

                      Attorneys for Real Parties in Interest




                                          6
Hon. John Peyton, Jr.
Old Criminal Court Building
501 Main Street, 4th Floor
Dallas, Texas 75202
Telephone: (214) 653-7236
john.peyton@dallascounty.org

Respondent




                                   /s/ Douglas W. Alexander
                                   Douglas W. Alexander




                               7
                                         CAUSE NO. PR-1 0-00877-1

ROBERT K. THOMAS, as Trustee of the ROBERT K.
THOMAS TRUST, as Trustee of the TABATHA D.
THOMAS EXEMPT TRUST, as Trustee of the TYLER
J. THOMAS EXEMPT TRUST, as Trustee of the
ROBERT T. THOMAS EXEMPT TRUST, as Trustee of
the TIERNEY G. THOMAS EXEMPT TRUST, as
Trustee of the TIERNEY G. THOMAS GST-EXEMPT
TRUST A, as Trustee of the ROBERT T. THOMAS
GST-EXEMPT TRUST A, as Trustee of the TYLER J.
THOMAS GST-EXEMPT TRUST A, and as Trustee of
the TABATHA D. THOMAS GST-EXEMPT TRUST A,

                Plaintiffs,
                                                                IN PROBATE COURT NO. ONE

                                                                            OF
462 THOMAS FAMILY  PROPERTIES, LP, 462
THOMAS FAMILY PROPERTIES MANAGEMENT,                              DALLAS COUNTY, TEXAS
LLC, DONALD T. CONLON, ROBYN THOMAS
CONLON, Individually, as Executor of the Estate of
Howard Gillis Thomas, Deceased, and as Trustee of the
KEVIN T. CONLON EXEMPT TRUST, as Trustee of
the KEVIN T. CONLON GST-EXEMPT TRUST A, as
Trustee of the WILLIAM K. CONLON EXEMPT
TRUST, as Trustee of the PATRICK C. CONLON
EXEMPT TRUST, as Trustee of the ROBYN THOMAS
CONLON TRUST, as Trustee of the PATRICK C.
CONLON GST-EXEMPT TRUST A, and as Trustee of
the WILLIAM K. CONLON GST-EXEMPT TRUST A,

                Defendants




                       ORDER DENYING DEFENDANTSO OBJECTIONS
                       TO DAN BRITTAIN SUBPOENAS DUCES TECUM


        ON THIS DAY, came on to be considered Defendants' objections to the two subpoenas

duces tecum to Dan Brittain for testimony on      May 17,2015 and May 18, 2015. Defendants have

objected on the basis of the attorney-client privilege to the production of documents in these

categories: "The unsigned Amendment to the Agreement of Limited Partnership of 462 Thomas

Family Properties, LP ('the Unsigned Amendment') identified by you at your deposition on

April 30, 2015," "All drafts of the Unsigned Amendment," and "All         correspondence, email



                                                        I
communications, and memoranda related       to the Unsigned Amendment." The documents
requested have been submitted to the Court for in camera review.

       The Court hereby OVERRULES Defendants' objections to the production of the in

camera documents pursuant to Texas Rule      of Evidence 503(dX2) and 503(d)(5). The   Court

orders the in camera documents be produced to Plaintiff, provided however, that the order to

produce the documents is stayed until Friday, May 15,2015 at noon.

       So ORDERED.

       SIGNED AND ENTERED:                                  2015.




                                                    ON. JO   PE        JR.
                                                   E PRESIDING

                                               JTJDGE STTITNC BY ASSIGNMENT

AGREED AS TO FORM ONLY                             AGREED AS TO FORM:
AND NOT SUBSTANCE:

LOE\ilINSOHN FLEGLE DEARY, LLP                     THE HOLMES LAW FIRM
Alan S. Loewinsohn
                                                   Wes Holmes
Texas Bar No. 12481600
                                                   Texas Bar No. 09908495
alanl@lfdlaw.com
Kerry Schonwald                                    wes@wesholmes.com
Texas Bar No. 24051301                             Susan Shelton
kenys@lfdlaw.com                                   Texas Bar No. 08996750
12377 Merit Drive, Suite 900                       susan@wesholmes.com
Dallas, Texas 75251                                10000 North Central Expressway,
(214) 572-1700 - Telephone                         Suite 400
(21 4) 572-17 17'- Telecopier                      Dallas, Texas 75231
                                                   214-890-9266
COUNSEL FOR DEFENDANTS
                                                    COUNSEL FOR ROBERT THOMAS




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