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 [email protected] [email protected] Kerry Schonwald Amy Warr State Bar No. 24051301 State Bar No. 00795708 [email protected] [email protected] LOEWINSOHN FLEGLE DEARY, LLP Melanie Plowman 12377 Merit Drive, Suite 900 State Bar No. 24002777 Dallas, Texas 75251 [email protected] Telephone: (214) 572-1700 ALEXANDER DUBOSE JEFFERSON & Facsimile: (214) 571-1717 TOWNSEND LLP Congress Avenue, Suite 2350 Mary Elizabeth Conlon Austin, Texas 78701 State Bar No. 24045691 Telephone: (512) 482-9300 [email protected] 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 [email protected] 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.

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.

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 [email protected] Amy Warr State Bar No. 00795708 [email protected] Melanie Plowman State Bar No. 24002777 [email protected] ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Telephone: (512) 482-9300 Facsimile: (512) 482-9303 Alan S. Loewinsohn State Bar No. 12481600 [email protected] Kerry Schonwald State Bar No. 24051301 [email protected] LOEWINSOHN FLEGLE DEARY, LLP 12377 Merit Drive, Suite 900 Dallas, Texas 75251 Telephone: (214) 572-1700 Facsimile: (214) 571-1717 Mary Elizabeth Conlon State Bar No. 24045691 [email protected] 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 [email protected] 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

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 [email protected] [email protected] Susan Shelton JORDAN, HOUSER & FLOURNOY, LLP Texas Bar No. 08996750 10000 North Central Expressway [email protected] 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 [email protected] 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

Hon. John Peyton, Jr. Old Criminal Court Building Main Street, 4th Floor Dallas, Texas 75202 Telephone: (214) 653-7236 [email protected] Respondent

/s/ Douglas W. Alexander Douglas W. Alexander

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 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 [email protected] Kerry Schonwald [email protected] Texas Bar No. 24051301 Susan Shelton [email protected] Texas Bar No. 08996750 12377 Merit Drive, Suite 900 [email protected] 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