                                                                        ACCEPTED
                                                                    05-18-00269-CV
                                                          FIFTH COURT OF APPEALS
                                                                    DALLAS, TEXAS
                                                                  3/27/2018 2:49 PM
                                                                         LISA MATZ
                                                                             CLERK

             No. 05-18-00269-CV

                                                    FILED IN
                                             5th COURT OF APPEALS
          In the Fifth Court of Appeals          DALLAS, TEXAS
                  Dallas, Texas              3/27/2018 2:49:41 PM
                                                   LISA MATZ
                                                     Clerk

              IN RE TONY RAMJI
                   Relator


      ORIGINAL PROCEEDING FROM THE
  ST
191 DISTRICT COURT OF DALLAS COUNTY, TEXAS
     Hon. Gena Slaughter, Presiding Judge


  RELATOR’S MOTION FOR REHEARING


        PLATT CHEEMA RICHMOND PLLC

             William S. Richmond
            Texas Bar No. 24066800
       1201 N. Riverfront Blvd., Suite 150
              Dallas, Texas 75207
           Telephone: 214.559.2700
               Fax: 214.559.4390
           brichmond@pcrfirm.com

        Counsel for Relator Tony Ramji



       ORAL ARGUMENT REQUESTED
TO THE HONORABLE FIFTH COURT OF APPEALS:
      Relator Tony Ramji (“Relator” or “Ramji”) hereby submits this Motion for

Rehearing in response to the Memorandum Opinion issued by this Court on March

15, 2018 of the above captioned mandamus proceeding (the “Opinion”).

      1.     On March 13, 2018, Relator filed his Petition for Writ of Mandamus

(the “Petition”) in this Court and requested that the Court instruct the trial court to

vacate its order dated February 23, 2018 disqualifying William S. Richmond and

Michael J. Lang (and their respective law firms) from representing Relator in

litigation before the trial court (the “Disqualification Order”). Plaintiffs JMR Future,

LLC, Raw Law Firm P.C., and Allen Rad’s (“Real Parties in Interest” or “Plaintiffs”)

sought the disqualification. Prior to issuing its Disqualification Order, the trial court

held the related hearing on February 21, 2018 (the “Hearing”).

      2.     This Court denied Relator’s Petition in its Opinion due to an incomplete

record to support mandamus relief.

      3.     Contemporaneously with this Motion, Relator filed a Supplement to

Petition for Mandamus and Appendix to Relator’s Motion for Rehearing (the

“Supplement”), which included the Hearing transcript (the “Transcript”), as well as

the pleadings that the trial court took judicial notice of during the Hearing. As the

Transcript shows, no exhibits were entered into evidence nor was any witness

testimony put into the record at the Hearing. See, e.g., Supp. App’x, Ex. K.

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      4.      Relator submits this Motion in response to the Court’s Opinion and

requests that the Court withdraw its Opinion and order the trial court to vacate its

Disqualification Order.

      5.      Relator incorporates all arguments raised in his Petition. See In Re

Ramji, No. 05-18-00269-CV (Tex. App.–Dallas Mar. 13, 2018)

                     ARGUMENT #1: GRANT REHEARING

      6.      This Court should grant a rehearing of Relator’s Petition because (a)

the Mandamus record is now complete given the filing of the Hearing Transcript and

the pleadings of which the trial court took notice at the hearing; and (b) as reflected

in the Transcript, no evidence was admitted nor any testimony given to support the

motion to disqualify.

      7.      In its Opinion, the Court stated that Relator had the “burden of

providing the Court with a sufficient mandamus record to establish his right to

mandamus relief” (citing Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig.

proceeding)). The Court found that Relator had not established his right to relief

because Relator had not provided a sufficient record. The applicable portion of the

Court’s Opinion states as follows:

           The disqualification order states that the trial court considered “the
           evidence,” the motion, relator’s response, the applicable law, the
           pleadings, and the arguments of counsel. But neither the motion nor
           the response has evidence attached, and relator has not provided a
           copy of the transcript of the hearing on the motion to disqualify. We


                                           3
           must, therefore, presume that evidence was presented at the hearing
           or in pleadings not included in the mandamus record. Without a
           record of the hearing or any pleadings filed with accompanying
           evidence, we must also presume that the evidence referenced in the
           disqualification order supports the trial court’s ruling.

      8.      This Court held in In Re Priester that if the Court is subsequently

provided with a “more developed record and clarified arguments,” it is appropriate

for the Court to grant a motion on rehearing to reconsider a relator’s petition that had

been previously denied. See In re Priester, 2016 Tex. App. LEXIS 12439, at *5-6

(Tex. App.–Dallas, Nov. 21, 2016).

           When relators filed this original proceeding, the arguments were not
           fully developed and the full record was not before the Court. On
           rehearing, relators clarified their position and arguments, and
           Deutsche Bank's response brief provided the Court with a more
           complete factual background and procedural history… By liberally
           construing the petition and taking into account the motion for
           rehearing, we have determined that relators now seek a writ ordering
           the trial court to grant the motion to vacate and not simply a writ
           directing the trial court to rule. In light of the more developed record
           and clarified arguments, we are now able to make a determination
           on the merits of relators' arguments, namely, whether the trial court
           had a mandatory duty to grant relators' motion to vacate the
           expedited foreclosure order.

      9.      Adhering to Priester, the Court should grant Relator’s Motion for

Rehearing since Relator, through the Supplement and arguments presented in this

Motion, has provided a more complete factual background and procedural history,

as well as clarity to his original position and arguments, which therefore presents

this Court with a sufficient record by which to consider Relator’s Petition.



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                    ARGUMENT #2: GRANT MANDAMUS

      10.    With the complete record now before this Court, Relator’s Petition for

Mandamus should be granted and the trial court’s disqualification order vacated for

four reasons: (i) Plaintiffs unreasonably delayed in filing the motion and seeking a

ruling; (ii) Plaintiffs presented no evidence of a conflicted attorney-client

relationship between Mr. Richmond and 8001 LBJ; (iii) Plaintiffs presented no

evidence that there was a genuine threat of confidences being revealed; and (iv)

Plaintiffs presented no evidence of actual harm.

A.    PLAINTIFFS WAIVED DISQUALIFICATION BY DELAYING THE FILING AND
      HEARING OF THE MOTION.

      11.    Plaintiffs substantially and unnecessarily delayed the filing of their

Motion to Disqualify and setting the Hearing date, which should have resulted in a

dismissal of the motion as a matter of law. As shown in the Petition (pp. 7-9): (1)

Plaintiffs waited four months to file for disqualification and an additional eight

months to have the motion heard; and (2) Plaintiffs set other substantive motions for

hearing prior to the disqualification hearing, in addition to engaging in other

substantive acts. As shown in the Transcript, Plaintiffs entered no evidence

justifying this unreasonable delay. For these reasons, the trial court erred in granting

the disqualification.

      12.    Despite their arguments to the contrary, Plaintiffs had ample

opportunity to file their Motion to Disqualify much earlier on in the proceedings.


                                           5
Their untimeliness, along with their post-disqualification rush to obtain injunctive

relief against Relator, plainly reveals their improper motives in filing the motion. As

shown in the Petition, Plaintiffs’ motion was untimely and should have been denied

as a matter of law on that ground alone.

B.    NO ATTORNEY-CLIENT RELATIONSHIP OR THREAT OF REVEALED
      CONFIDENCES.

      13.    This Court holds that a party seeking disqualification must show “(1)

prior existence of an attorney-client relationship involving factual matters related

to the present litigation; and (2) that there is a genuine threat that confidences

revealed to the attorney will be revealed to the present adversary.” Suntech

Processing Systems, LLC v. Sun Communications, Inc., 2000 Tex. App. LEXIS 8094,

*21 (Tex. App.—Dallas, Dec, 5, 2000, pet. denied) (citing National Bank v. Coker,

765 S.W.2d 398, 400 (Tex. 1989) (emphasis added)). At the outset, as shown in the

Petition, Plaintiffs failed to carry their burden to show an attorney-client relationship

between 8001 LBJ and Mr. Richmond; thus, the trial court abused its discretion in

granting disqualification on that basis alone.

      14.    The trial court further erred by granting the motion to disqualify since

Plaintiffs provided no evidence that was a genuine threat that confidences were or

will be revealed between competing adversaries (i.e., 8001 LBJ and Mr. Ramji).

      15.    The second prong of this Court’s decision in Suntech requires the

movant to show a genuine threat of confidences being shared. During the Hearing,


                                           6
Plaintiffs made no attempt to address, much less satisfy Suntech. [See SuppAppx-

0018.] Instead, Plaintiffs erroneously relied on non-authoritative case law that also

failed to address this Court’s requirements as set out in Suntech.

      16.    At no point during the Hearing, or in their pleadings, did Plaintiffs

provide any evidence of a genuine threat of confidences being shared. No evidence

was entered, and no testimony was provided. The reason for the lack of evidence is

clear—there logically cannot be a threat of confidences being revealed between Mr.

Ramji, as an individual, and Mr. Ramji, as manager of 8001 LBJ. Mr. Ramji’s

knowledge always remains with him, regardless of the hat he wears. As such, the

idea that confidences could be revealed between Mr. Ramji and Mr. Ramji is simply

an absurdity.

C.    NO EVIDENCE OF ACTUAL HARM TO PLAINTIFFS.

      17.       Even if Plaintiffs met the initial Suntech requirements (attorney-client

relationship and genuine threat), the trial court erred by failing to prove an additional

element for disqualification: “However, an attorney should not be disqualified for

violating a disciplinary rule when the violation has not resulted in actual harm to

the party seeking disqualification.” Id. (citing In re Meador, 968 S.W.2d 346, 350

(Tex. 1998) (emphasis added)).

      18.    Plaintiffs did not provide a shred of evidence in their pleadings or

during the Hearing of the actual harm they suffered as a result of Mr. Richmond



                                            7
and/or Mr. Lang serving as counsel to Mr. Ramji. During the Hearing, Plaintiffs

completely glossed over the “harm to movant” requirement, while unconvincingly

attempting to argue harm to 8001 LBJ, by perfunctorily stating, “There is harm or

risk of harm to 8001 via the use of this confidential information by Ramji to the

disadvantage of 8001 or to the advantage or Ramji or vice versa.” [See SuppAppx-

0017.] This attorney argument, however, is not evidence and falls far short of

satisfying Plaintiffs’ burden.

      19.    Plaintiffs failed to satisfy their burden of showing “actual harm,” and

the trial court abused its discretion in granting disqualification on the record below.

D.    THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING PLAINTIFFS’
      MOTION TO DISQUALIFY.
      20.    When considering Relator’s Petition, this Court “presume[d] that

evidence was presented at the hearing or in pleadings not included in the mandamus

record” that supported the trial court’s order disqualifying Relator’s counsel.

      21.    Relator has now supplemented its Petition with the Hearing transcript

and the pleadings referenced during the Hearing. In conjunction with Plaintiff’s

Motion to Disqualify and Defendants’ Response to Plaintiffs’ Motion, the foregoing

constitute all the “evidence” that the trial court considered in making its ruling.

      22.    As such, the Court now has a complete record by which to consider

Relator’s Petition. It is abundantly clear from the record, this Motion, and the

Petition that (a) Plaintiffs failed to prove or provide any evidence to show an


                                           8
attorney-client relationship between Mr. Richmond and 8001 LBJ, (b) there is no

genuine threat of confidences being revealed; and (c) Plaintiffs have not suffered

any harm from Relator being represented by the lawyers and firms of his choice.

      23.    Based on this complete lack of evidence to support Plaintiffs’ motion,

as well as the untimely filing of the motion, the trial court abused its discretion in

disqualifying counsel for Relator.

                                       PRAYER

      For the foregoing reasons, Relator Ramji prays that this Court will GRANT

this Motion for Rehearing, GRANT the Petition for Writ of Mandamus, ISSUE the

writ, and REMAND the matter to the district court for further consistent proceedings

(including but not limited to the vacating of the trial court’s order of disqualification).

                                           Respectfully submitted,

                                           PLATT CHEEMA RICHMOND PLLC

                                           By: /s/ William S. Richmond
                                           Texas Bar No. 24066800
                                           1201 N. Riverfront Blvd., Suite 150
                                           Dallas, Texas 75207
                                           Telephone: 214.559.2700
                                           Fax: 214.559.4390
                                           brichmond@pcrfirm.com

                                           COUNSEL FOR RELATOR




                                            9
                     CERTIFICATE OF COMPLIANCE
      This document complies with the typeface requirements of Texas Rule of

Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface

no smaller than 14-point for text and 12-point for footnotes. This document also

complies with the word-count limitations of Rule 9.4(i), if applicable, because it

contains 1,830 words, excluding any parts exempted by Rule 9.4(i)(1).

                                                   /s/ William S. Richmond
                                                   William S. Richmond


                      MANDAMUS CERTIFICATION

      Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that I have

reviewed this motion and that every factual statement in the motion is supported by

competent evidence included in the appendix or record. Pursuant to Rule

52.3(k)(l)(A), I certify that every document contained in the supplemental appendix

or record filed contemporaneously-therewith and referenced herein is a true and

correct copy.


                                                   /s/ William S. Richmond
                                                   William S. Richmond




                                        10
                          CERTIFICATE OF SERVICE
I certify that on March 27, 2018, this document was served on the following parties
or counsels of record in accordance with Texas Rule of Appellate Procedure 9.5:


Jeff R. Boggess                              Carlos R. Cortez
LAW OFFICE OF JEFFREY R. BOGGESS             Megna Wadhwani
2815 Valley View Lane, Suite 202             CORTEZ LAW FIRM, P.L.L.C
Dallas, Texas 75234                          12801 N. Central Expy, Suite 360
Telephone: 972.514.2007                      Dallas, Texas 75243
Fax: 214.594.8800                            Telephone: 214.919.4208
[Via Electronic Service]                     Fax: 214.919.4209
                                             [Via Electronic Service]

Kyle Harneck                                 Jeffrey S. Lowenstein
Daryoush Toofanian                           BELL NUNNALLY & MARTIN LLP
RAD | MITCHELL | TOOFANIAN | MAHARAJ |       3232 McKinney Avenue, Suite 1400
HERRERA, PLLC                                Dallas, Texas 75204
8001 LBJ Freeway, Suite 300A                 Telephone: 214.740.1400
Dallas, Texas 75251                          Fax: 214.740.1499
Telephone: 214.530.2311                      [Via Electronic Service]
Fax: 214.276.1757
[Via Electronic Service]

Jeremy R. Wilson                             Honorable Gena Slaughter
WILSON LAW                                   191st District of Dallas County, Texas
705 Ross Ave.                                George L. Allen, Sr. Courts Building
Dallas, Texas 75202                          600 Commerce Street
Telephone: 214.662.8456                      Dallas, Texas 75202
Fax: 214.594.8844                            Telephone: 214.653.7709
[Via Electronic Service]                     [Via U.S. Mail]



/s/ William S. Richmond
William S. Richmond




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