in Re Catherine Tower LLC ( 2018 )


Menu:
  •                                                                              ACCEPTED
    03-17-00735-CV
    21672076
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    1/8/2018 1:27 PM
    JEFFREY D. KYLE
    CLERK
    NO. 03-17-00735-CV
    __________________________________________________________________
    FILED IN
    3rd COURT OF APPEALS
    IN THE COURT OF APPEALS             AUSTIN, TEXAS
    FOR THE THIRD DISTRICT OF TEXAS      1/8/2018 1:27:44 PM
    __________________________________________________________________
    JEFFREY D. KYLE
    Clerk
    IN RE CATHERINE TOWER LLC
    Relator
    __________________________________________________________________
    On Petition for Writ of Mandamus
    from the 261st District Court of Travis County, Texas,
    Cause No. D-1-GN-16-002929, The Hon. Amy Clark Meachum,
    Judge Presiding
    __________________________________________________________________
    REAL PARTY IN INTEREST TRAVIS CENTRAL
    APPRAISAL DISTRICT’S SUR-REPLY
    Tammy White-Chaffer                 OLSON & OLSON, L.L.P.
    State Bar No. 24008273              Wortham Tower, Suite 600
    serv.tchaffer@olsonllp.com          2727 Allen Parkway
    Eric Farrar                         Houston, Texas 77019
    State Bar No. 24036549              Telephone:(713) 533-3800
    efarrar@olsonllp.com                Facsimile:(713) 533-3888
    Jenny M. Rogers
    State Bar No. 24060155              ATTORNEYS FOR REAL
    jrogers@olsonllp.com                PARTY IN INTEREST
    TABLE OF CONTENTS
    TABLE OF CONTENTS ...........................................................................ii
    INDEX OF AUTHORITIES .................................................................... iii
    APPENDIX ............................................................................................... iv
    SUR-REPLY .............................................................................................. 1
    PRAYER .................................................................................................... 4
    CERTIFICATE OF COMPLIANCE.......................................................... 6
    CERTIFICATE OF SERVICE................................................................... 6
    ii
    INDEX OF AUTHORITIES
    CASES
    In re ExxonMobil Corp., 
    97 S.W.3d 353
    (Tex. App.—Houston [14th Dist.]
    2003, orig. proceeding) ........................................................................... 
    4 Walker v
    . Packer, 
    827 S.W.2d 833
    (Tex. 1992) ......................................... 4
    STATUTES, RULES AND OTHER AUTHORITIES
    Tex. R. Civ. P. 193.3 .............................................................................. 1, 3
    Tex. R. Civ. P. 193.4 .............................................................................. 2, 3
    iii
    APPENDIX
    APPENDIX                                                                          TAB
    SECOND SUPPLEMENTAL RECORD .......................................................... K
    iv
    TO THE HONORABLE THIRD COURT OF APPEALS:
    Pursuant to this Court’s order granting leave to file a sur-reply,
    Real Party in Interest Travis Central Appraisal District submits the
    following:
    SUR-REPLY
    1.      In its Reply, Relator for the first time asserts that “there is
    no evidence that TCAD ever actually served Prudential with a
    subpoena duces tecum.” Relator’s Reply at 12. However, the record
    reveals at the oral hearing on its Motion to Quash held on August 3,
    2017, Relator’s counsel acknowledged a subpoena had been issued.
    Ms. Michel: They issued a subpoena to Prudential
    as well. And I spoke with Prudential’s counsel
    regarding these matters, and we had already filed the
    motion to quash and we were already in a position to
    defend it, and they felt that they would rest on our
    efforts. Tab 9 at 12, lines 6-11 (emphasis added).
    A copy of the subpoena duces tecum, with a notarized officer’s
    return, is attached hereto as a supplement to the Record at Tab 26.
    2.      In its Reply, Relator incorrectly asserts that TCAD did not
    object in the trial court that its trade secret arguments and evidence
    were untimely. In violation of Texas Rules of Civil Procedure 193.3 and
    193.4, by Relator’s own admission, the first time Relator even
    attempted to assert confidentiality1 was in in its reply in support of its
    motion to quash filed August 2, 2017—one day prior to the oral hearing
    on said motion. Reply at 13. Relator did not attach to its reply an
    affidavit or any other evidence in support of its contention that the
    appraisal was confidential, nor did Relator assert that the appraisal
    was a trade secret. 2 At the oral hearing on its motion to quash, Relator
    presented testimony from Mr. Fredrick Butt regarding confidentiality.
    Tab 9 at 33-34. Prior to Mr. Butt’s testimony, TCAD objected that the
    witness had not been previously disclosed and that his testimony
    constituted unfair surprise and prejudice. Tab 9 at 19, lines 6-7, 14-20.
    Regardless of whether Relator meant for Mr. Butt’s testimony to
    address confidentiality or to address the trade secret privilege, TCAD
    objected at the time of the hearing that the testimony was unfair
    surprise.
    3.    In attempting to assert CBRE’s trade secret privilege,
    Relator continued in its tactic of unfair surprise. In violation of Texas
    Rules of Civil Procedure 193.3 and 193.4, Relator again waited until
    1 “Confidentiality” is not a privilege. Relator did not reference a trade secret
    privilege in its August 2, 2017 reply. Tab 21 (attached to Relator’s Reply).
    2 This first time Relator specifically identifies a trade secret privilege is in its
    Motion to Reconsider. Tab 17.
    2
    September 27, 2017—one day prior to the trial court’s submission date
    on its motion to reconsider—to file its reply to TCAD’s response.
    Attached to the reply, Relator for the first time presented the affidavit
    testimony of Mr. David Thibodeaux who testified regarding CBRE’s
    alleged trade secret. Tab 14 at 16. The following day, the trial court
    issued its order.   Tab 15.   TCAD barely had 24-hours notice of the
    affidavit, so there was no time for TCAD to complain that the
    Thibodeaux affidavit was not timely.
    4.    Finally, there is no evidence in the record that Prudential
    intends to assert any privilege whether on its own or by way of Relator.
    As stated above, Relator’s counsel at the oral hearing on Relator’s
    motion to quash stated that Prudential had elected not to participate in
    the proceedings and would rely on Relator’s efforts in arguing Relator’s
    motion to quash. Tab 9 at 12, lines 6-11. There was nothing for TCAD
    to object to in this regard. The first time TCAD became aware that
    CBRE would attempt to assert a privilege was one day before the
    court’s submission date on Relator’s motion to reconsider. With less
    than 24-hours notice, TCAD did not have sufficient time to object or to
    respond to Relator’s untimely assertion of CBRE’s privilege. This Court
    3
    “must uphold the trial court’s order on any ground supported by the
    mandamus record.” In re ExxonMobil Corp., 
    97 S.W.3d 353
    , 358 (Tex.
    App.—Houston [14th Dist.] 2003, orig. proceeding). When factual
    matters are within the trial court’s discretion, “the reviewing court may
    not substitute its judgment for that of the trial court.”      Walker v.
    Packer, 
    827 S.W.2d 833
    , 839 (Tex. 1992). It was within the trial court’s
    discretion to consider what, if any, weight to afford the affidavits
    Relator presented in support of its assertion of privilege.
    PRAYER
    To determine whether the trial court clearly abused its discretion,
    this Court must examine the specific facts of this case in light of the
    actual law. Relator presents broad, nonspecific arguments of facts and
    law. Relator relies on a one-sided version of facts, without regard to the
    entire record. Relator provides overly broad, mistaken statements of
    cases to support its argument.      The complete record and a correct
    reading of the court opinions cited show that the trial court did not
    commit a clear abuse of discretion. Therefore, Real Party in Interest,
    Travis Central Appraisal District, respectfully requests this Court deny
    4
    Relator’s petition for writ of mandamus and prays for such other relief
    as it may show itself justly entitled.
    Respectfully submitted,
    OLSON & OLSON, L.L.P.
    By:   /s/ Tammy White-Chaffer
    Tammy White-Chaffer
    State Bar No. 24008273
    serv.tchaffer@olsonllp.com
    Eric C. Farrar
    State Bar No. 24036549
    EFarrar@olsonllp.com
    Jenny M. Rogers
    State Bar No. 24060155
    jrogers@olsonllp.com
    Wortham Tower, Suite 600
    2727 Allen Parkway
    Houston, Texas 77019
    Telephone: (713) 533-3800
    Facsimile: (713) 533-3888
    ATTORNEYS          FOR     REAL
    PARTY IN INTEREST
    5
    CERTIFICATE OF COMPLIANCE
    I hereby certify that the foregoing Real Party in Interest’s Sur-Reply
    has a word count of 865.
    /s/ Tammy White-Chaffer
    Tammy White-Chaffer
    CERTIFICATE OF SERVICE
    I hereby certify that on January 8, 2018, a true and correct copy of
    the foregoing Real Party in Interest’s Sur-Reply was served on the
    following parties:
    Lorri Michel                           Via electronic service
    MICHEL GRAY, LLP
    812 W. 11th Street, Suite 301
    Austin, Texas 78701
    lorri@michelgray.com
    Ryan D. Clinton                        Via electronic service
    DAVIS, GERALD & CREMER
    600 Congress Avenue, Suite 3100
    Austin, Texas 78701-2984
    rdclinton@dgclaw.com
    /s/ Tammy White-Chaffer
    Tammy White-Chaffer
    6
    APPENDIX K
    TAB 26
    P.G.A.
    P.O. Box 460446, Houston, Texas   77056-8446                            Litigation Support Service
    (713)62r-070s
    6n6t2017
    The Prudential Insurance Co. of America
    c/o Prudential Asset Resources
    Attn: Custodian of Records/Subpoena Processing
    2100 Ross Ave., Suite 2500
    Dallas, Texas 75201
    By and through its
    Registered Agent
    CT Corp.
    1999 Bryan St., Suite 900
    Dallas, TX 75201
    Re:     Catherine Tower LLC vs. Travis Central Appraisal District;   See   Attached Exhibit $A" &
    338)'
    Greetings,
    YOU ARE HEREBY SERVED with a State of Texas Subpoena. All afforneys of record and the
    Court have been notified according to due process of law.
    The attached subpoena is a summons for the release of specific records pertaining to the
    individual or entity named in the subpoena. Please read it carefully, these records are being
    requested because they contain information that relates to the named judicial proceedings. The
    subpoena also requires the custodian of records to answer the attached written questions and
    affidavit under oath.
    Ifyou are located in the general Houston area, please contact our office as soon as the records are
    ready. We may also be contacting your office to make arrangements to send a courier to pick up
    these records. If you are out of town, please call prior to mailing. We may request that you
    overnight the records to us via our overnight account.
    Please be sure to complete and sign the enclosed questions and affidavit and include them with
    the requested records.
    We must have the completed deposition in our office no later than July 15r2017,
    If the fee for these records is above $35.00, please call our office prior to copying for a fee
    approval. If you have any questions regarding this request or need further information, please do
    not hesitate to call us. We appreciate your courteous and prompt attention to this very important
    matter.
    ll*
    Sincerely.
    Cissy Smither
    Enclosures:
    Subpoena
    Cause No. D-l -GN- I 6-002929
    CATHEzuNE'TOWER LLC                                                             $                         IN THE ruDICIAL COURT OF
    N
    VS.                                                                             $                         TRAVIS COUNTY. TEXAS
    $
    TRAVIS CENTRAL APPRAISAL DISTRICT                                               li                        26   lTH ruDICIAL DISTRICT'
    \OTICE OF INTENTION TO TAKE DEPOSITION BY WRITTEN OUESI'IONS
    'to: Plaintiff. Catherine   J'olver   LLC. by      and through it's attomey             of   record. Mr. Lorri Michel, Michel Gray. LLP,
    812 W. 1l'h Street. Suite 301. Austin" texas 78701.
    You will please take notice that after twenty (20) days from the service of a copy hereof with attached
    qucstlons. a deposition by u,ritten questions will be taken ol the Custodian of Records for:
    l'o: The Prudential Insurance Company of America c/o Prudential Asset Resources, Inc.; by and through it's
    registered agent: C'l'Corp. " 1999 Rryant St.. Suite 900. Dallas. Texas 75201.
    See Attached   Exhibit A & B
    Betbre a Notary Public. an Officer of the State of Texas and an employee of PCA., 1770 Saint James Place, Suite
    615. Houston. Texas 77056 (713) 621-0705 or their designated agentl which deposition with attached questions may
    be used in evidence upon the trial of the above styled and numbered cause pending in the above named court.
    Notice is further given that request is here made as authorized under revised Rule 201 . Texas Rules of Civil
    Procedure, to the officer authorized to take this deposition to issue a SUBPOENA DEUCES TECUM and cause it to be
    served on the u,itnesses to produce all items as listed above and to turn all such records over to the officer authorized to
    take this deposition so that photographic reproductions of the same may be made by him and attached to the said
    deposition.
    Respectfu   lly submitted.
    -l?t u i : ,. '\*               (- l''--*--
    --           "r
    "l   ammy White-Chaffer
    TBN: 24008273
    Olson & Olson
    Wortham Toiver
    2727 Allen Parkway. Suite 600
    Houston. I'exas.77019
    (7 I 3 )533-3800
    Attorney for Defendant
    Iravis Central Appraisal District
    CERTIT'ICATE OF SERVICE
    I certify that a true and exacl copy of the tbregoing Notice of Intention to Take Deposition by Written Questions was
    delivered via mail to the respectir,e parties or attomeys of record:
    Mr. Lorri Michel. Michel Grav,.tLP,.,8l}q. l1'h Street, Suite 301. Austin. Texas 78701.
    /              ,                        ,   /1       I
    rj
    'I   -
    Srvorn to and subscribed before me on this the
    FATi'llCiA StvilTHER
    N';ary lD # 3660844
    h,lv
    fxPites june 4,    2rr2'1
    STATE OF TEXAS
    SUBPOENA
    DUCES TECUM
    THE STATE OF TEXAS:
    To any duly authorized Office of the State of Texas-GREETING:
    YOU ARE HEREBY COMMANDED TO SUBPOENA AND SLIMMON the following witness:
    Custodian of Records:
    The Prudential Insurance Co. of America
    c/o Prudential Asset Resources
    Attn: Subpoena Legal Processing
    2100 Ross Ave.,Suite 2500
    Dallas, Texas 75201
    By and through it's
    Registered agent - C.T. Corp
    1999 Bryan St., Suite 900
    Dallas, Texas 75201
    to be and appear and provide answers before a Notary Public or Certified Court Reporter in and for the State of Texas with P.C.A., 1770 St
    James Place. Suite 615, Houston, Texas 77 056, or their designated agent on the forthwith day of instanter, then and there to give evidence
    the instance of the Defendant in that certain Cause No. D-I-GN-16-002929 now pending in the 261't Judicial District Court of Travis
    County, Texas, in which:
    CATIIERINE TOWERLLC
    v.
    TRAVIS CENTRAL APPRAISAL DISTRICT
    And bring and produce the following things to wit:
    See Attached Exhibit '6A" & '68"
    including but not limited to any type documents in the possession, custody , or control of said witness
    then and there to remain from day to day and term to term until discharged according to the law.
    Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt ofcourt from which
    the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement or both.
    wITNESS MY HANDtt',i.tt.        /'1   ouvo
    Issued at the Request of:
    Tammy White-Chaffer
    TBN:24008273
    OLSON & OLSON
    600 Wortham Tower
    2727 AllenParkway                                                                                                       fu{res   June 4, 2021
    Houston. Texas 77019
    (7 I 3)533-3 800 - Telephone
    Came to hand this the       laa^v a ?t, ,r9:Ft!f,1,:,TlH.--f.l,r,                                           and executed,nl,      *:
    Z,Ou,,u--S]cU
    r4o-O.M.                     in the following manner: by       delivering.        Q-,Le-c>            rp oS
    g),). -Hi',xt**-]'},,              J##'L."J               I   t*     i="-4 e       X      '
    Returned this    the .%            duy   of (Y*vq vq                 2U7.
    PATRIChSilTTHER
    My Nohry lD # 3660S44
    Expirea June 4,   E2i
    Exhibit ,{
    I) EPOS IT  ION Oir' WRITT'EN
    QUnS IrONS
    L'ausc         \tr. I) - l-Cr \ - l6-0()2919. Ltrthct'trtt''l owc't' LI-C. t f ruyr.t ('cutrtti
    -l
    lit7tt'trt.tLtt' l)r.vit'ttt. in the I tr i s i C'rr rl I)rstnct L'ourt. Iravrs C'ount1.'. exas
    I   .      ,,\nr rippi'aisirls" r.aluatit)ns or csllnlatcs ()l value ircrlorureri rn comection u'ith
    the loan b1' lhe Prucientral Irrsurancc L'onrDauv ot'Amenca to Cathcrine'forver.
    l.l-C. secured 111 pan l-ru the propcrt)'localed at ll4llartou Sprrngs Road.,\ustin.
    lexas. said propcrtl berng iurthcr detlncd iu that Dccd ot"l rusr. Assrgumerlt o1
    l.cases urd Rents SecLLrrty,\sreement datect April 19. 1016. a copy ot'rvhich rs
    altached as frrhibrt "8".
    ELECTRONICALLY             RECORDED 2016066492
    TRV 23 PGS
    CATIIERINETOWER, LLC,           as grantor
    (Borrower)
    to
    KELLEY H. BUTLEFI" asmrsteg
    (Trustee)
    forthe bcnefit of
    TI{E PRUDENTIAL INSURA}.ICE COMPAhIY OF AMERICd                         as   beneficiary
    (Lender)
    DEED OF TRUST AI\D
    SECI]RITY AGREEMENT
    Dated:           As of April29,2016
    Location:        214 Barton Springs Road
    Austin, Texas
    Count5t          Travis Couaty
    PRETARED BYAND UPON
    RECORDATION RETT]RN TO:
    Lockc   I-rd   LLP
    111 S. Wackcr Drive
    Chicago, Illinois 60606
    Attention: Gina M. Gamal
    Ioan Number: 7061W847 and 7061 I 0097
    Pnd€r*i8l Lou No. 7O6109t47     d   7061 1009?
    ltcCelhcrinc
    DGcd of Trult ald S€curity Agr!.t tcnt
    ExHlBlT"Ei"
    Cause No. D-l-GN- 16-002929
    CATHERINE TOWER                   LLC                                             IN THE JUDICIAL COT]RT OF
    vs.                                                               $
    $               TRAVISCOUNTY,TEXAS
    TRAVIS CENTRAL               APPRAISAL                            S
    DISTRTCT                                                          $               261" JUDICIAL DISTRICT
    DEPOSITION UPON WRTTTEN QUESTTONS PROPOTTNDED TO
    THE CUSTODIAN OF RECORDS FOR:
    THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
    C/O PRUDENTIAL ASSET RESOI.JRCES, INC.
    RECORDS PERTAINING                   TO:   See Attached   Exhibit "A" &   "8"
    1.    Please state your   full   name.
    Answer:
    2.    Please state by whom you are employed and the business address.
    Answer:
    3. What is the title of your position      or job?
    Answer:
    4,.Please provide to the Officer taking this deposition photostatic copies of the complete records outlined in the
    subpoena duces tecum. Have you complied? If not, why not?
    Answer:
    Witness, Custodian of Records
    Before me, a notary public, on this day personally appeared                                    , known to me
    to be the person whose name is subscribed and has personal knowledge to the foregoing document and, being by
    me first duly sworn, declared that the statements therein contained are true and correct.
    Given under my hand and seal of ofhce this           _day        of                                   A.D.20
    NotaryPublic
    in and for the State of
    My Commission Expires:
    Cause No. D-l-GN-16-002929
    CATHERINE TOWER LLC                                              $                  I},i THE   JUDICIAL COURT OF
    $
    vs.                                                              $
    $                  TRAVIS COLINTY, TEXAS
    $
    TRAVIS CENTRAL                                                   $
    APPRAISAL DISTRICT                                               $                  26lst JUDICIAL DISTRICT
    AFFIDAVIT
    RECORDS PERTAINING          TO:    SEE ATTACHED EXHIBIT                      *A* & *8"
    Beforeme,theundersignedauthority,personal1yappeared-who,
    being by me duly sworn, deposed as follows:
    "1, the undersigned, am over 18 years      of   age,      of   sound mind, capable   of making this affidavit   and
    personally acquainted with the facts herein stated:
    I am the Custodian of Business Records for: The Prudential Insurance Company of America c/o
    Prudential Asset Resources. Inc.
    Attached hereto are                 pages of records. These said records are kept in the regular course of
    business, at the offices of The Prudential lnsurance Company of America c/o Prudential Asset Resources" Inc. and it
    was in the regular course of business at the offices ofThePrudentiallnsuranceCompanyofAmericac/oPrudential
    Asset Resources, Inc. or an employee and/or representative with personal knowledge of the act, event or
    condition, opinion, or documents recorded to make the records or to transmit information thereof to be included in
    such records; and the records were made at or near the time of the act, event or condition or reasonably soon
    thereafter.
    The records attached hereto are the original or exact duplicates of the original file or files and
    nothing has been removed from the original file or files in my possession pertaining to the aforementiotred
    party before making these copies.
    AFFIANT/CUSTODIAN OF RECORDS
    Before me,        a notary public, on this day             personally        appeared
    , known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly
    swom, declared that the statements therein contained are true and correct.
    Given under my hand and seal of office   this              day   of                                      A.D., 20
    Notary Public in and for
    The State ofTexas
    

Document Info

Docket Number: 03-17-00735-CV

Filed Date: 1/8/2018

Precedential Status: Precedential

Modified Date: 1/10/2018