                                                                        ACCEPTED
                                                                    12-15-00307-CV
                                                       TWELFTH COURT OF APPEALS
                                                                     TYLER, TEXAS
                                                              12/16/2015 5:03:28 PM
                                                                          Pam Estes
                                                                             CLERK

               IN THE
  TWELFTH DISTRICT COURT OF APPEALS
            TYLER, TEXAS                            FILED IN
                                             12th COURT OF APPEALS
                                                  TYLER, TEXAS
                                             12/16/2015 5:03:28 PM
              In Re KELLY BRADY                     PAM ESTES
                                                      Clerk




         Original Proceeding From the
   th
114 Judicial District Court of Smith County, Texas




   PETITION FOR WRIT OF MANDAMUS




              William S. Hommel, Jr.
              HOMMEL LAW FIRM
             1404 Rice Road, Suite 200
                Tyler, Texas 75703
              State Bar No. 09934250

        ATTORNEY FOR KELLY BRADY, RELATOR



         ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of all parties, as well as the names and

addresses of all counsel.

PARTIES                                    COUNSEL

Relator:

Kelly Brady                                William S. Hommel, Jr.
1172 Hunters Trail                         Hommel Law Firm
Flint, TX 75762                            1404 Rice Road, Suite 200
                                           Tyler, Texas 75703

Respondent:

THE HON. CHRISTI KENNEDY                   None
Smith County Courthouse
100 N. Broadway, Room 209
Tyler, Texas 75702

Real Party in Interest:

JKS Travel, Inc. dba                       Roger Anderson
Travel Masters and                         Gillen & Anderson
Sharon K. Howell                           613 Shelley Park Plaza
                                           Tyler, Texas 75701
915 W. Southwest Loop 323
Tyler, TX 75701




                                      ii
                                          TABLE OF CONTENTS


Index of Authorities ..................................................................................................iv

Statement of the Case................................................................................................. 1

Statement of Jurisdiction……………………………………………………………2

Issues Presented ......................................................................................................... 2

Statement of Facts ...................................................................................................... 2

Argument and Authorities.......................................................................................... 4

Conclusion ................................................................................................................. 8

Verification .............................................................................................................. 10

Certificate of Compliance…………………………………………………………11

Certificate of Service ............................................................................................... 11

Appendix

         Trial Court’s Order Denying Motion to Disqualify ................................ Tab 1

         Declaration of Kelly Brady……………………………………………...Tab 2

         Emails between Gillen and Brady.……………………………………...Tab 3




                                                             iii
                          INDEX OF AUTHORITIES


CASES

CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996)………………………………..8

In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 824 (Tex. 2010) (orig.
proceeding)…………………………………………………………………………6

In re Epic Holdings, Inc., 985 S.W.2d 41 (Tex., 1998)…………………………….6

In re Gunn, No. 14-13-00566-CV, 2013 WL 5631241, *2 (Tex. App.—Houston
[14th Dist.] Oct. 15, 2013, orig. proceeding) (mem. op., per curiam)………….…..5

In re Louisiana Texas Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 689 (Tex. App.
2011)………………………………………………………………………………..4

In re Mitcham, 133 S.W.3d 274, 276 (Tex. 2004) (per curiam) (orig. proceeding)..6

In re Nitla, 92 S.W.3d at 423……………………………………………………….4

In re Ruvalcaba, 2014 WL 5089388(Tex. App
Houston [14th] 2014)…………………………………………………..……………7

In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004)………………………………………4

In re Users Sys. Servs., Inc., 22 S.W.3d 331, 336 (Tex. 1999)……………………..5

National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 133 (Tex.1996)
(orig. proceeding)…………………………………………………………………...4

NCNB Texas Nat'l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989)………………4
                                        iv
Spears v. Fourth Ct. App., 797 S.W.2d 654, 656 (Tex. 1990)………………………5

Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992)………………………………..4



STATUTES AND RULES

TEX. GOV’T CODE § 22.221(b)(1)……………………………………………….2

Tex. Disciplinary R. Prof. Conduct, R. 1.09 (1989)………………………………..5




                                 v
                         STATEMENT OF THE CASE

      This case was filed by Kelly Brady (“Brady”), who worked for Defendant JKS

Travel, Inc. dba Travel Masters (“Travel Masters”) as a travel consultant from 2008

to March 13, 2015. Defendant, Sharon K. Howell is the President and CEO of Travel

Masters.     Brady filed suit on August 27, 2015 seeking an accounting of her

commissions, breach of contract, a declaration that her non-complete was not

enforceable, for tortious interference and defamation. The case was assigned to the

Honorable Christi Kennedy in the 114th District Court in Smith County. After

learning the identity of defense counsel, Brady filed a motion to disqualify the firm

of Gillen & Anderson by reason of communications with James Gillen’s in

connection with his prior representation of Brady regarding the formation of the

business in which she has worked since her separation of employment from Travel

Masters. Brady claims she disclosed information to Gillen with are directly related

to her claims against Howell and Travel Masters. A hearing on the motion to

disqualify was held on November 6, 2015. On November 19, 2015, Judge Kennedy

denied the Motion and entered the attached Order. See Appendix, Tab 1.

      Brady seeks relief from Judge Kennedy’s Order. Defense Counsel’s prior

representation of Brady constitutes a conflict of interest and also is a violation of

Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct. Mandamus is

appropriate under the circumstances because Judge Kennedy abused her discretion
                                          1
in denying Brady’s Motion and because Brady has no adequate remedy by appeal.

Brady respectfully requests that this Petition be granted and that the Court require

Judge Kennedy to vacate her prior order and disqualify Gillen & Anderson from its

representation of Defendants.

                      STATEMENT OF JURISDICTION

      This Court has jurisdiction over this Petition under TEX. GOV’T CODE §

22.221(b)(1).

                                ISSUES PRESENTED

      First, whether the trial court abused its discretion in failing to disqualify

defense counsel based upon its prior representation of Relator and the disclosure by

Relator to defense counsel of facts regarding the claims asserted against Defendant

in the underlying case.

                           STATEMENT OF FACTS

      Relator is Kelly Brady; Defendants are JKS Travel, Inc. dba Travel Masters

and Sharon K. Howell; opposing counsel is Roger Anderson of Gillen & Anderson

of Tyler, Texas. Brady is a former employee of JKS Travel, Inc. dba Travel

Masters.

      Relator sued Defendants for a declaratory judgment, for an accounting and for

tortious interference. The crux of Relator’s claims against Defendants relate to her


                                         2
allegation that Travel Masters did not provide her with an accounting of her

commissions earned and possibly failed to pay commissions properly, as well as her

claims that Sharon K. Howell has disparaged Brady in an effort to harm her business

and also caused Brady harm in her divorce proceeding.

      Relator retained the firm of Gillen & Anderson, specifically James Gillen, to

advise her regarding the formation of her new travel business, 5 Star Travel.

Relator discussed factual issues with Mr. Gillen which are now the same factual

allegations which form the basis for Relator’s claims against Travel Masters and

Howell. These conversations were recounted in Relator’s declaration filed with the

trial court, which is attached hereto behind Tab 2.         Additionally, Relator has

attached the emails between herself and Mr. Gillen regarding his representation of

Relator, which are attached hereto behind Tab 3. The factual basis for Relator’s

petition are some of the same facts which she disclosed and discussed with Mr.

Gillen.

      Relator filed a motion asking the trial court to disqualify the firm of Gillen &

Anderson from further representation of all Defendants because of counsel’s prior

representation of Relator. At the hearing on the Motion to Disqualify, Relator

testified to the matters contained in her declaration and specifically testified the she




                                           3
disclosed to James Gillen the facts which form the basis for her lawsuit.1 The trial

court denied the motion to disqualify defense counsel from its representation of

Defendants. The order denying the motion to disqualify is attached hereto behind

Tab 1.


                              ARGUMENT AND AUTHORITIES
         The denial of a motion to disqualify is reviewable by mandamus. See National

Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 133 (Tex.1996); In re

Louisiana Texas Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 689 (Tex. App. 2011).

To obtain mandamus relief, Brady must show that the district court's refusal to

disqualify Gillen & Anderson as defense counsel in the pending litigation was a clear

abuse of discretion for which there is no adequate remedy by appeal. Walker v.

Packer, 827 S.W.2d 833, 842 (Tex.1992).

         The movant bears the burden to prove that the attorney should be disqualified.

See In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004) (stating the party requesting

disqualification must demonstrate an opposing lawyer's dual roles as attorney and

witness will cause the party actual prejudice); In re Nitla, 92 S.W.3d at 423 (holding

that the party moving to disqualify opposing counsel who reviewed privileged



1 The transcript of the hearing on the Motion to Disqualify has been requested from Cassie Condrey, the official
reporter for the 114th Judicial District Court. Relator will supplement the record as soon as the transcript is
prepared.
                                                         4
documents must show actual harm and that disqualification is necessary because the

trial court lacks any lesser means to remedy the moving party's harm); NCNB Texas

Nat'l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989) (requiring moving party to

prove the existence of a prior attorney-client relationship in which the factual matters

involved were so related to the facts in the pending litigation that it creates a genuine

threat that confidences revealed to the former counsel will be divulged to the present

adversary). This burden requires proof of specific facts to meet the exacting standard

necessary to establish disqualification is required. See: Spears v. Fourth Ct. App.,

797 S.W.2d 654, 656 (Tex. 1990).

      The Texas Disciplinary Rules of Professional Conduct do not determine

whether counsel is disqualified, but they do provide guidelines and suggest the

relevant issues courts should consider. Nat'l Med. Enters., Inc. v. Godbey, 924

S.W.2d 123, 132 (Tex. 1996). Even if a lawyer violates a disciplinary rule, however,

the party requesting disqualification must demonstrate that the opposing lawyer's

conduct caused actual prejudice that requires disqualification. See: In re Users Sys.

Servs., Inc., 22 S.W.3d 331, 336 (Tex. 1999); In re Gunn, No. 14-13-00566-CV,

2013 WL 5631241, *2 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013, orig.

proceeding) (mem. op., per curiam).




                                           5
        Relator contends that allowing Defendant’s counsel to continue his

representation of Defendants will violate Rule 1.09 of the Texas Disciplinary Rules

of Professional Conduct, which provides in pertinent part:


      Without prior consent, a lawyer who personally has formerly
      represented a client in a matter shall not thereafter represent another
      person in a matter adverse to the former client: (3) if it is the same or
      a substantially related matter. See also: In re Epic Holdings, Inc., 985
      S.W.2d 41 (Tex., 1998).

Relator contends that Mr. Anderson’s representation of Defendants is in violation of

Rule 1.09, which addresses conflicts of interest that arise in representing someone

who is adverse to a former client. See Tex. Disc. R. Prof'l Conduct 1.09, reprinted

in Gov't Code tit. 2, subtit. G, app. A, art. 10, § 9. See also, In re Gunn, No. 14-13-

00566-CV, 2013 WL 5631241, *2 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013,

orig. proceeding) (mem. op., per curiam).

      Opposing counsel should be disqualified because his law firm represented

Relator in a matter involving a matter factually related to the current case. See: Ex

A - Declaration of Kelly Brady. If a lawyer works on a matter, "there is an

irrebuttable presumption that the lawyer obtained confidential information during

representation." In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 824

(Tex. 2010) (orig. proceeding). Furthermore, an "attorney's knowledge is imputed

by law to every other attorney in the firm Nat'l Med. Enters., Inc. v. Godbey, 924

                                          6
S.W.2d 123, 131 (Tex. 1996) (orig. proceeding). Consequently, there is an

"irrebuttable presumption that an attorney in a law firm has access to the confidences

of the clients and former clients of other attorneys in the firm." Id.; see also In re

Mitcham, 133 S.W.3d 274, 276 (Tex. 2004) (per curiam) (orig. proceeding). ("For

attorneys, there is an irrebuttable presumption they gain confidential information on

every case at the firm where they work (whether they work on them or not)."). In re

Ruvalcaba 2014 WL 5089388 (Tex. App – Houston [14th] 2014).

      The information imparted by Relator to James Gillen form the crux of the

complaint against the Defendants. Relator discussed with Gillen her belief that she

was not paid properly, that Sharon Howell had disparaged her and finally the

enforceability of her non-compete agreement with Travel Masters. The meeting as

documented by Relator’s testimony, declaration and the email correspondence

establish a conflict that cannot be overcome by Gillen’s testimony. Gillen testified

that he recalled meeting with Brady on one occasion, but his memory was vague as

to the exact nature of the conversations.       Gillen does not dispute his prior

representation of Travel Masters, nor does he dispute his representation of 5 Star

Travel.

      Additionally, if opposing counsel is permitted to participate, there will be an

appearance of impropriety because his law firm previously represented Relator in a


                                          7
matter closely related to the matter before the Court. Further, the likelihood of

public suspicion resulting from the impropriety outweighs any social interest that

will be served by Mr. Anderson’s participation. Specifically, the public is entitled

to have confidence in the legal profession that allows them to trust the justice system

without a conflict of interest being allowed to exist on the part of one of the lawyers

representing a party and then taking the other side of the case.

      Judge Kennedy’s denial of the motion to disqualify can only be explained by

her complete disregard of Relator’s proof of her conversations and communications

with Gillen. This is the essence of an abuse of discretion. A clear abuse of

discretion occurs when an action is “so arbitrary and unreasonable as to amount to a

clear and prejudicial error of law.” CSR Ltd. v. Link, 925 S.W.2d 591, 596

(Tex.1996).


                                  CONCLUSION
      For these reasons, Brady respectfully requests this Court upon final

consideration grant the writ and order Judge Kennedy to vacate her Order and

disqualify the firm of Gillen & Anderson from its representation of Defendants.




                                          8
Respectfully submitted,




______________________________
William S. Hommel, Jr.
State Bar No. 09934250
HOMMEL LAW FIRM
1404 Rice Road, Suite 200
Tyler, Texas 75703
(903) 596-7100
(469) 533-1618 Facsimile


ATTORNEY FOR KELLY BRADY, RELATOR




        9
                    CERTIFICATE OF COMPLIANCE

       I hereby certify that this petition complies with the type-volume limitation
set out in Tex. R. App. P. 9.4 (i)(3). The brief was prepared using Word 2013, and
contains 1,688 words.


                        CERTIFICATE OF SERVICE

      The undersigned certifies that a true and correct copy of the foregoing was
forwarded on December 16, 2015 via electronic mail and facsimile to:


      The Honorable Christi Kennedy
      114th Judicial District Court
      100 N. Broadway
      Smith County Courthouse
      Tyler, Texas 75702

      Roger Anderson
      Gillen & Anderson
      613 Shelley Park Plaza
      Tyler, Texas 75701




                                            William S. Hommel, Jr.
                                            Attorney for Relator




                                       11
TAB 1
                                                                                                  - -   - \1




                                          NO . 15-1812-B
                                                                         (


KELLY BRADY                                      §    IN THE DISTRIQT        ~ro. "'rl!lo/Irl l

                                                 §
VS.                                              §    OF SMITH COUNTY, TEXAS
                                                 §
JKS TRAVEL, INC. d/b/a                           §
TRAVEL MASTERS AND                               §
SHARON K. HOWELL                                 §    114TH JUDICIAL DISTRICT


                                             ORDER

       On this day came on to be considered Plaintiffs Motion to Disqualify Opposing Counsel,

and the Court is of the opinion that said Motion is not well taken.

       It is, accordingly, ORDERED, ADJUDGED and DECREED that Plaintiffs Motion to

Disqualify Opposing Counsel is DENIED.

       SIGNED this    ~ day of 0o~,-.                                 ,2015.


                                                        (}Q4Jvv1l     "
                                                             JUDGE ~-G----




ORDER-PAGE SOLO

TAB 2
TAB 3
Bill Hommel

From:                           5starescapes@gmail.com
Sent:                           Wednesday, September 23, 2015 3:35 PM
To:                             Bill Hommel
Subject:                        Fw: Fwd: LTGTR Travel, LLC
Attachments:                    Acknowledgment.pdf; Certificate.pdf; Original_Document.pdf



  
See Below. 
  
  
  
KELLY BRADY CTA,DS
5 STAR ESCAPES
PO Box 263              Flint TX 75762
5StarEscapes@gmail.com
903.710.2628

 The world is your canvas...Let us help create your masterpiece!
Proudly Affiliated with NEXION and Travel Leaders. 

From: 5StarEscapes
Sent: Monday, April 13, 2015 2:33 PM
To: Kelly Brady
Subject: Fwd: LTGTR Travel, LLC
  
  
‐‐‐‐‐‐‐‐‐‐ Forwarded message ‐‐‐‐‐‐‐‐‐‐ 
From: 5StarEscapes <5starescapes@gmail.com> 
Date: Tue, Mar 24, 2015 at 2:06 PM 
Subject: Fwd: LTGTR Travel, LLC 
To: Jim Gillen <jim@gillenanderson.com> 
 

Hello Jim, 

Lynn's SS number. It is 451‐ 92‐6250. 



                                                        1
Lynn and I want to so thank you for helping us with the LLC and the tax ID 
number.  

You have been a big help!! 

Kelly Brady 
903‐570‐6392 
 
  
  
  
 
 
     From: Jim Gillen <jim@gillenanderson.com> 
     Date: March 23, 2015 at 8:32:36 AM CDT 
     To: "kellyvs1@gmail.com" <kellyvs1@gmail.com> 
     Subject: FW: LTGTR Travel, LLC 

     Good Morning Kelly—



     The LLC has been approved by the Secretary of State.



     At such time as you need to open a bank account for the business, you will
     also need a tax id number. You really need to have the accountant for your
     business obtain this number—he can get it with the attached + Lynn’s
     Social Sec #. If you would rather me obtain it, I can do it if you will get
     Lynn’s SS # for me. I normally prefer accountants to do that part only
     because there are tax elections called for on the form that I am not qualified
     to know. If I do get it, I need to know how many employees you expect to
     have during the first year.



     JIM GILLEN

     GILLEN & ANDERSON, ATTORNEYS

     613 Shelley Park Plaza

                                                2
     Tyler, TX 75701

     903/581-3861 (Direct Dial)

     903/581-8600 (Main Firm line)

     903/581-8790 (Fax)



     From: Bonnie Brooks
     Sent: Monday, March 23, 2015 8:21 AM
     To: Jim Gillen
     Subject: LTGTR Travel, LLC



     Jim, attached are the Secretary of State’s approval docs for LTGTR Travel, LLC.



     Bonnie Brooks

     Legal Assistant to James B. Gillen, Jr.

     Gillen & Anderson

     613 Shelley Park Plaza

     Tyler, TX 75701

     Phone: (903) 581-8600

     Fax: (903) 581-8790

     Email: bbrooks@gillenanderson.com



  
  
  
  
  
  




                                                   3
Bill Hommel

From:                         5starescapes@gmail.com
Sent:                         Wednesday, September 23, 2015 3:36 PM
To:                           Bill Hommel
Subject:                      Fw: Tax id
Attachments:                  CCE03252015_0001.pdf



  
  
  
  
  
KELLY BRADY CTA,DS                                  

5 STAR ESCAPES  
PO Box 263             Flint TX 75762 
5StarEscapes@gmail.com 
903.710.2628 
  
The world is your canvas...Let us help create your masterpiece!  
 
  
Proudly Affiliated with NEXION and Travel Leaders.  

From: Jim Gillen
Sent: Wednesday, March 25, 2015 8:20 AM
To: 5StarEscapes
Subject: Tax id
  
Kelly—
 
Attached is tax id I obtained this morning.
 
We will file today online with the Secy of state the dba for 5 Star Escapes. Also, one
should be filed with our local County Clerk, but that is one we will have to prepare and
have you sign.
 
Anyway, that will not hold you up from doing any and everything you need to do.
 
 
JIM GILLEN 
GILLEN & ANDERSON, ATTORNEYS 
613 Shelley Park Plaza 
Tyler, TX 75701
903/581-3861 (Direct Dial)
                                                       1
903/581-8600 (Main Firm line) 
903/581-8790 (Fax) 
 
 




                                 2
