i

No. 04-15-___________-CV

In the Court of Appeals

For the Fourth District of Texas

IN RE ALLEN J. JONES, Relator

From the 150th District Court, Bexar County, Texas

Cause No. 2014-CI-16674; Hon. Richard Price, Presiding

PETITION FOR WRIT OF MANDAMUS AND APPENDIX/RECORD

Christine E. Reinhard Kimberly S. Keller

SBN: 24013389 SBN: 24014182

Justin Barbour Shane Stolarczyk

SBN: 24044152 SBN: 24033242

Schmoyer Reinhard LLP Keller Stolarczyk PLLC

17806 IH 10 West, #400 234 West Bander Rd #120

San Antonio, Texas 78257 Boerne, Texas 78006 

Tel: 210.447.8033 Tel: 830.981.5000

Fax: 210.447.8036 Fax: 888.293.8580

Attorneys for Relator 

ACCEPTED

04-15-00653-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

10/19/2015 4:15:46 PM

KEITH HOTTLE

CLERK

00653

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/19/2015 4:15:46 PM KEITH E. HOTTLE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

Relator certifies this as a list of parties and their counsel:

RELATOR/PETITIONER: 

ALLEN J. JONES

COUNSEL FOR RELATOR/DEFENDANT:

Trial: Appellate:

Christine E. Reinhard Kimberly S. Keller

Justin Barbour Shane J. Stolarczyk

Schmoyer Reinhard LLP Keller Stolarczyk PLLC

17806 IH 10 West, Suite 400 234 W. Bandera Rd., Suite 120

San Antonio, Texas Boerne, Texas 78006

REAL PARTY IN INTEREST/RESPONDENT: 

CEARTH FAIRE

COUNSEL FOR REAL PARTY IN INTEREST/PLAINTIFF:

Olga Brown 

Law Office of Olga Brown

111 Soledad, Suite 1725

San Antonio, Texas 78205

RESPONDENT:

Honorable Richard Price

Judge, 150th Judicial District, Bexar County
iii

TABLE OF CONTENTS

PETITION FOR WRIT OF MANDAMUS AND APPENDIX/RECORD..... i

IDENTITY OF PARTIES AND COUNSEL............................................ ii

TABLE OF CONTENTS.................................................................... iii

MANDAMUS APPENDIX AND RECORD........................................... iv

TABLE OF AUTHORITIES ............................................................... ix

STATEMENT OF THE CASE............................................................. 1

STATEMENT OF JURISDICTION...................................................... 3

ISSUE PRESENTED ......................................................................... 4

STATEMENT OF THE FACTS ........................................................... 5

SUMMARY OF THE ARGUMENT.................................................... 12

ARGUMENT SUPPORTING MANDAMUS RELIEF............................ 14

CONCLUSION ................................................................................ 32

RULE 52.3(J) CERTIFICATE OF COMPLLIANCE ............................ 34

CERTIFICATE OF COMPLLIANCE & SERVICE............................... 34
iv

MANDAMUS APPENDIX AND RECORD

Plaintiff’s Reply to Defendants’ Response to Motion to

Compel Deposition of Defendant Allen J. Jones

(Dated October 12, 2015)................................................... 1 

Plaintiff’s Amended Response to Defendant Kemp’s 

Rule 91a Motion to Dismiss and Request for Attorney Fees

(Dated October 6, 2015)..................................................... 2 

Plaintiff’s Sixth Amended Original Petition

(Dated October 6, 2015)..................................................... 3 

Plaintiff’s Second Motion to Compel the Oral and

Videotaped Deposition of Defendant Allen J. Jones

(Dated October 1, 2015)..................................................... 4 

Plaintiff’s Response to Defendant Jones’ Motion to 

Disqualify Plaintiff’s Attorney

(Dated September 15, 2015)............................................... 5 

Defendant Allen J. Jones’ Motion to Disqualify Plaintiff’s 

Counsel

(Dated September 8, 2015) ................................................ 6 

Olga Brown’s Vacation Notice

(Dated July 21, 2015) ........................................................ 7 

Rule 11 Agreement to drop hearings 

(Dated June 30, 2015) ....................................................... 8 

Plaintiff’s Fifth Amended Original Petition

(Dated June 19, 2015) ....................................................... 9 

Plaintiff’s Response to Defendant Kemp’s Rule 91a

Motion to Dismiss and Request for Attorney Fees 

(Dated June 16, 2015) .....................................................10
v

Order Granting Defendants’ First Amended Rule 91a

Partial Motion to Dismiss 

(Dated May 6, 2015).........................................................11

Plaintiff’s Objections and First Supplemental Responses

to Defendant FMP’s First Set of Interrogatories and

Request for Production

(Dated May 1, 2015).........................................................12

Order Granting Defendants’ First Amended Rule 91a

Partial Motion to Dismiss 

(Dated April 9, 2015)........................................................13

Plaintiff’s Fourth Amended Original Petition

(Dated March 10, 2015) ...................................................14

Olga Brown’s Vacation Notice

(Dated February 11, 2015)...............................................15

Plaintiff’s Third Amended Original Petition

(Dated January 30, 2015) ................................................16

Plaintiff’s Response to Defendants’ Rule 91a Motion

to Dismiss and Request for Attorney Fees

(Dated January 28, 2015) ................................................17

Plaintiff’s Second Amended Original Petition

(Dated January 28, 2015) ................................................18

Olga Brown’s Vacation Notice

(Dated October 22, 2014).................................................19

Petition for Leave to File Interlocutory Appeal 

(Dated May 20, 2015).......................................................20

Order Denying Petition for Leave

(Dated June 3, 2015) .......................................................21

Ltr from Justin Barbour to Court re Sealed Documents
vi

(Dated September 16, 2015).............................................22

Ltr from Olga Brown re Competency of Jones Affidavit 

(Dated September 14, 2015).............................................23

Olga Brown’s Vacation Notice

(Dated July 21, 2015) .....................................................24

Ltr from Olga Brownb re "wrongfully produced" 

documents

(Dated June 22, 2015) ....................................................25

Ltr from Justin Barbour to Olga Brown re return of

privilege documents

(Dated June 8, 2015) ......................................................26

Ltr from Justin Barbrour to Olga Brown re First

Amended Docket Control Order and dropping hearing

on Defendant's Motion to Compel

(Dated May 27, 2015).......................................................27

Ltr from Olga Brown forwarding Petition for Leave to

File Interlocutory Appeal re 91a Motion to Dismiss

(Dated May 21, 2015).......................................................28

Hearing Transcript re Motion to Partially Dismiss

(March 18, 2015) .............................................................29

Hearing Transcript re Motion for New Trial

(May 6, 2015)...................................................................30

EEOC Charge

(Dated February 23, 2015)...............................................31

TWC Charge

(Dated February 10, 2015)...............................................32

EEOC Dismissal

(Dated October 6, 2015)...................................................33
vii

TWC Dismissal

(Dated August 20, 2015)..................................................34

Defendant Allen Jones' First Set of Interrogatories

and Requests for Production to Plaintiff Cearth Faire

(Dated March 2, 2015) .....................................................35

Defendant FMP SA Management Group, LLC d/b/a

Food Management Partners' First Set of Interrogatories

and Requests for Production to Plaintiff Cearth Faire

(Dated March 2, 2015) .....................................................36

Plaintiff's Objections and Responses to Defendant's FMP's

First Set of Interrogatories and Requests for Production

(Dated April 1, 2015)........................................................37

Bexar County Online Full Case Information Docket Sheet

(Printed October 14, 2015)...............................................38

Justin Barbour’s Verification of Mandamus Appendix

/Record ...........................................................................39

Ltr from Olga Brown re Response to Letter dated June 26

Re dropping Motion to Compel hearing

(Dated June 26, 2015) .....................................................40

Ltr from Olga Brown re not available on Sept. 14, 2015

(Dated September 10, 2015).............................................41

First Amended Fiat re Motion to Disqualify

(Dated September 10, 2015).............................................42

Order on Defendant Allen Jones' Motion to Disqualify

Plaintiff's Counsel

(Dated October 2, 2015)...................................................43

Second Amended Deposition Notice of Allen Jones

(Dated August 27, 2015)..................................................44
viii

Deposition Notice of Jason Kemp

(Dated August 27, 2015)..................................................45

Chart

(Dated August 27, 2015)..................................................46

Hearing transcript re Motion to Compel Discovery and

Amended Motion to Drop or Amend Docket Control Order

(Dated September 16, 2015).............................................47
ix

TABLE OF AUTHORITIES

Cases

In Re Am. Home Prods. Corp.,

985 S.W.2d 68 (Tex. 1998) (orig. proceeding)..................... 3, 15, 32

In re Automated Techs., Inc.,

156 S.W.3d 557 (Tex. 2004) (orig. proceeding)............................. 32

In re Bell Helicopter Textron, Inc.,

87 S.W.3d 139 (Tex. App.—Fort Worth 2002) (orig. proceeding)... 25

In Re Columbia Valley Healthcare Sys., L.P.,

320 S.W.3d 819 (Tex. 2010) (orig. proceeding)................... 3, 15, 32

In re CSX Corp., 

124 S.W.3d 149 (Tex. 2003) (per curiam) (orig. proceeding)......... 14

In re EPIC Holdings, Inc.,

985 S.W.2d 41 (Tex. 1998) (orig. proceeding)............................... 30

In re Hoar Const., LLC,

256 S.W.3d 790 (Tex. App.—Houston [14th Dist.] 2008) (orig. 

proceeding).................................................................................. 31

In re Marketing Corp.,

80 S.W.3d 44 (Tex. App.—Dallas 1998) (orig. proceeding)..... passim

In re Marketing,

80 S.W.3d at 52 .................................................................... 22, 28

In re Meador,

968 S.W.2d 346 (Tex. 1998) ................................................. passim

In re Meador,

968 S.W.2d at 351 ...................................................................... 16

In re Meador,

968 S.W.2d at 352 ...................................................................... 29
x

In re Odyssey Healthcare, Inc., 

310 S.W.3d 419 (Tex. 2010) (per curiam) (orig. proceeding)......... 14

In re Prudential Ins. Co. of Am., 

148 S.W.3d 124 (Tex. 2004) (orig. proceeding).......................... 14

In re Reynoso, 

361 S.W.3d 719 (Tex. App.—Corpus Christi 2012, no pet.) (orig.

proceeding).................................................................................. 15

In re Team Rocket, L.P.,

256 S.W.3d 257 (Tex. 2008) (orig. proceeding) ......................... 15

In re XL Specialty Insur. Co.,

373 S.W.3d 46 (Tex. 2012) (orig. proceeding)............................... 21

Johnson v. Brewer & Pritchard, P.C.,

73 S.W.3d 193 (Tex. 2002) .......................................................... 27

NCNB Tex. Nat’l Bank v. Coker,

765 S.W.2d 398 (Tex. 1989)) ................................................. 16, 32

Prudential,

148 S.W.3d at 136 ..................................................................... 15

Richards v. Jain,

168 F. Supp.2d 1195 (W.D. Wash. 2001)..................................... 28

Vaughan v. Walther,

875 S.W.2d 690 (Tex. 1994)) ....................................................... 32

Walker v. Packer, 

827 S.W.2d 833 (Tex. 1992) (orig. proceeding)............................. 14

Walker, 

827 S.W.2d at 840 ..................................................................... 14
xi

Welex Jet Servs. v. Owen,

325 S.W.2d 856 (Tex. Civ. App. –Fort Worth 1959, writ ref’d n.r.e.)

................................................................................................... 27

West v. Solito,

563 S.W.2d 240 (Tex. 1978) .................................................. 21, 26

Statutes

Tex. Gov’t Code Ann. § 22.201(e)...................................................... 3 

Tex. Gov’t Code Ann. § 22.221(b)(1).................................................. 3 

Rules

Tex. R. App. P. 52.1 ......................................................................... 3 

TEX. R. EVID. 503(b)........................................................................ 21
1

STATEMENT OF THE CASE

Nature of the Case: Relator Allen J. Jones filed this original 

proceeding to challenge the trial court’s 

denial of his motion to disqualify opposing 

counsel (order signed on October 2, 2015). 

Jones contends the trial court abused its 

discretion in denying this Motion, as each

of the six factors set forth by the Texas 

Supreme Court in In re Meador, 968 S.W.2d 

346 (Tex. 1998) support and require 

disqualification of Ms. Olga Brown, counsel 

for Real Party in Interest Cearth Faire, who 

came into possession of, reviewed, and 

produced during discovery Jones’ privileged 

documents. 

Respondent/Trial Court: Honorable Richard Price, 150th District 

Court, Bexar County, Texas

Relief Sought by Relator at 

Trial Court: Jones seeks mandamus relief to reverse the 

order denying his motion to disqualify 

opposing counsel. Real Party in Interest, 

Cearth Faire, is a former personal assistant 

to and agent for Jones. Faire came into 

possession of Jones’ privileged 

communications and documents while 

working for Jones, who was CEO of FMP SA 

Management Group, LLC d/b/a Food 

Management Partners (a Co-Defendant in 

the underlying case). These privileged 

communications pertained to Jones’ prior 

family law proceedings, in which Ms. Brown 

represented Jones’ ex-wife, Tetyana Jones. 

At some point, Faire provided to her 

counsel (Brown) Jones’ personal, private, 
2

and privileged communications. Brown did 

not return the documents. Rather, Brown 

thoroughly reviewed, analyzed, and intends 

to use these documents in the ongoing 

litigation between Jones and Faire. 

Because each of the six Meador factors 

weighed in favor of disqualification, Jones 

asked the trial court to disqualify Brown 

from further representation of Faire in her 

underlying lawsuit. 

Respondent: Hon. Richard Price, 150th District Court, 

Bexar County, Texas. 

Respondent’s Action: The trial court denied Jones’ motion on 

October 2, 2015. 

Relief Sought: Jones respectfully requests this Court 

vacate the trial court’s October 2, 2015 

Order and direct the trial court to grant the 

Motion to Disqualify. 
3

STATEMENT OF JURISDICTION

This Court has jurisdiction under Tex. Gov’t Code Ann. § 

22.221(b)(1): “Each court of appeals for a court of appeals district may 

issue writs of mandamus, agreeable to the principles of law regulating 

those writs, against a ... judge of a district or county court in the court 

of appeals district[.]” See also TEX. R. APP. P. 52.1 et seq. (governing 

original proceedings in appellate courts). The 150th District Court, 

Bexar County, Texas is within this Court’s district. TEX. GOV’T CODE 

ANN. § 22.201(e). This Court’s mandamus authority extends to orders 

denying Motions to Disqualify. In Re Am. Home Prods. Corp., 985 

S.W.2d 68 (Tex. 1998) (orig. proceeding); In Re Columbia Valley 

Healthcare Sys., L.P., 320 S.W.3d 819 (Tex. 2010) (orig. proceeding). 
4

ISSUE PRESENTED

One: The trial court erred by denying Relator’s Motion to 

Disqualify Counsel for Real Party in Interest, based on 

counsel’s acceptance, review, and production of Relator’s 

privileged documents. 

Two: Relator lacks an adequate remedy by appeal. 
5

STATEMENT OF THE FACTS

The case underlying this original proceeding is a quid pro quo 

sexual harassment claim arising under Chapter 21 of the Texas Labor 

Code. Real Party in Interest Cearth Faire is a former employee of FMP 

SA Management Group, LLC d/b/a Food Management Partners

(“FMP”), a corporate co-defendant in the underlying lawsuit. App. 3 at

¶ 22. During the term of her employment with Defendant FMP, Faire 

worked as a personal assistant to Relator Allen J. Jones, FMP’s Chief 

Executive Officer. Id. at ¶ 7. As Jones’ personal assistant, Faire was 

responsible for handling and assisting with various personal and 

business matters for Jones. App. 6, Ex. D at ¶ 3. Faire remained 

employed with FMP until August 31, 2014, when she was terminated 

due to erratic behavior and suspected drug use while on the job, which 

included caring for Jones’ small children. Id. at ¶ 6.

During the term of Faire’s employment, Jones was involved in 

multiple family law disputes, which included divorce and child 

custody proceedings.1 Faire’s sworn testimony admits her “attorney, 

 

1 App. 5, Ex. B at ¶ 4. These family law cases are styled Tetyana Jones v. Allen J. 

Jones, No. 2013-CI-04328 (in the 57th District Court, Bexar County) and In the 

Interest of Allen Jones, et al., No. 2013-CI-11046 (in the 407 District Court, Bexar 

County). While Cause No. 2013-CI-11046 has been closed, Cause No. 2013-CI04328 remains pending. See App. 38. 
6

Olga Brown, represented Mr. Jones’ third wife, Tetyana Jones, in [this]

international child custody case.” App. 5, Ex. B at ¶ 4. In her capacity 

as Jones’ personal assistant, Faire was copied on and came into

possession of numerous privileged communications to, from, and 

between Jones, his counsel Mr. Sam Bashara, and Mr. Bashara’s 

agents and representatives. Id. ¶ 8 (admitting she was in possession 

of Jones’ privileged “emails both sent directly to my personal account, 

and those I forwarded to my work account”); App. 6, Ex. D at ¶ 5 (noting 

“Faire was copied on or had access to emails and other confidential 

and privileged documents of [Jones] in connection with the family law 

proceedings”). 

Faire’s pleadings in the trial court, as well as before this Court, 

acknowledge she participated in and assisted Jones with his defense 

in those family law proceedings. App. 2 at 4 (“... Plaintiff [worked] for 

approximately five months to assist him in his divorce defense ...”); 

App. 5, Ex. B at ¶ 6 (“As Mr. Jones’ personal assistant, I was to gather 

personal information and forward it to his legal team ...”); App. 16 at

¶ 24 (Jones allegedly promised to gift Faire a house “in consideration 

for her loyal efforts in assisting [him] in the defense of his suit for 

divorce”); App. 18, 2d Am. Pet. ¶ 24 (same); App. 20 at 1 (Faire 
7

“assist[ed] administratively in his defense in Jones’ divorce 

proceedings pending in Bexar County, Texas during 2013 and 2014”); 

App. 29 at 29:21-23 (“She had been working, like I said, 24/7 helping 

him defend in the divorce pending here in Bexar County”). The trial 

court record demonstrates Jones did not authorize or have any 

knowledge that Faire had retained possession of his confidential and 

privileged communications beyond her August 31, 2014 termination 

of employment. App. 6, Ex. D at ¶ 8.

Brown, counsel for Faire in proceeding below (and for Jones’ exwife in the family law proceedings), has repeatedly attempted to 

intermingle these distinct lawsuits. For example, Brown has 

repeatedly accused Jones of holding “hostage his infant son in the 

Dominican Republic ... to gain financial advantage in the” underlying 

family law proceedings. App. 1 at 1-2; App. 5 at 3, Ex. B ¶ 4. Similarly, 

Brown has repeatedly cited sworn testimony offered before the Hon. 

Cathleen Stryker in the family law proceedings for the proposition that 

Jones allegedly “admitted to human trafficking.” App. 1 at 1; App. 2 at 

3, 4; App. 3 at ¶ 41; App. 4 at ¶¶ 7-8; App. 9 at ¶ 29; App. 10 at 2; App. 

14 at ¶ 29. Brown has made similar claims in correspondence between 

counsel. See App. 23 (enclosing purported transcript from prior family 
8

law proceedings and alleging, based on testimony in that prior family 

law matter, Jones’ “credibility in this motion and in the entire [Chapter 

21] lawsuit is at issue”).2 A chart tracking the numerous instances in 

which Brown has attempted to conflate the earlier family law 

proceedings and this instant lawsuit, as well as relevant excerpts from 

such documents, is attached at Appendix 46.

In the underlying litigation, Faire has alleged a Chapter 21 claim 

for quid pro quo sexual harassment against Jones.3 As part of this 

litigation, Jones, FMP, and other Defendants served on Faire standard 

discovery requests, seeking documents, emails, and other 

communications that evidenced or supported such claims. See App. 

35; App. 36. Faire provided her responses and objections to these 

Interrogatories and Requests for Production on April 1, 2015. App. 37. 

 

2 Brown’s statements are utterly untrue and inflammatory. They were made to 

sully Jones’ reputation, credibility, and integrity in an effort to gain leverage at 

the underlying proceeding. Moreover, these allegations are irrelevant to the 

factual and legal questions within Faire’s claim for Chapter 21 sexual harassment 

in the underlying proceeding. Brown’s statements evidence an intent to relitigate 

the Jones family law proceedings vis a vis the instant lawsuit. 3 Previously, Faire alleged claims for promissory estoppel and “oral gift” of real 

estate, stemming from Jones’ purported promise to gift her a home, as well as a 

claim for civil conspiracy against Jones and certain other co-Defendants in the 

District Court litigation. See App. 14 at ¶¶ 25-46; App. 16 at ¶¶ 20-42. Jones’ Rule 

91a Partial Motion to Dismiss was granted (and reaffirmed) as to these claims. 

App. 13; App. 11; App. 21. As such, the lone claim remaining against Jones in the 

trial court arises under Chapter 21 of the Labor Code. 
9

Notably, nowhere within these discovery responses did Faire indicate 

(i) she was in possession of communications to, from, or between 

Jones, his representatives, and his legal counsel in the prior family 

law litigation or (ii) that she had disclosed and provided such 

privileged communications to Brown, her attorney in this matter and 

counsel for Jones’ ex-wife in the prior family law matter. Id.

Thereafter, Faire produced 279 pages of documents, ostensibly 

in response to Jones’ Requests for Production. On review of these 

documents, it was discovered Faire had retained possession of, shown 

to Brown, and then produced back in the underlying litigation nearly 

100 pages of Jones’ privileged communications in the prior family law 

litigation (they were labeled FAIRE 015-16, 068-71, 149-204, 213-

230, 237-241, and 246-255). These documents included emails 

between Jones’ family law counsel (Mr. Sam Bashara) and Jones, 

discussing pleadings, hearings, and litigation strategy in the family 

law proceedings. Before Faire’s production of these documents in the 

underlying proceeding, Jones was unaware Faire had retained these 

emails or that these emails were ever provided to Brown. App. 6, Ex. D 

at ¶ 8; App. 39.
10

 On June 8, 2015, Jones’ counsel addressed Faire’s wrongful 

conduct and demanded Brown take remedial action, including:

• Immediately return Jones’ privileged documents and 

communications;

• Provide an accounting and detailed description of any other 

of Jones’ privileged information and documents not yet 

disclosed during discovery but in the possession of Faire or 

Brown; and

• Brown’s withdrawal from representation of Faire in this 

lawsuit.

App. 26. 

Brown responded to this demand, disputing whether “all 

documents” were in fact privileged, though her correspondence 

implicitly acknowledges that some, if not many, of the documents were 

such. App. 25. Brown refused to take any of the other actions 

requested therein. Id. Brown instead contended that, because the 

documents were responsive to Jones’ discovery requests, she was 

allowed to retain them and use them in litigation despite their status 

as privileged documents. Id.

 Days later, Brown communicated with Jones’ counsel and asked 

that the parties “make attempts to resolve the discovery issues before 

going to court.” App. 40. As a demonstration of their good faith and 
11

willingness to confer in an attempt to resolve the parties’ disputes

without seeking intervention by the trial court, Defendants agreed to 

such. Defendant’s counsel attempted to schedule a conferral meeting 

to discuss all pending matters, but Brown never responded. 

Nonetheless, there was a de facto stay of this matter, with no further 

filings, discovery, or other substantive action was taken in the trial 

court until August 27, 2015, when Faire noticed the depositions of 

Jones and Jason Kemp, FMP’s Chief Financial Officer. 

As Faire refused to take any actions to return the privileged 

documents or otherwise mitigate the prejudice to Jones, Jones filed 

his Motion to Disqualify on September 8, 2015, days after Faire 

restarted the proceedings and lifted the de facto stay. App. 6. This 

Motion was initially set for hearing on September 14, 2015. Id. Brown 

indicated she had a conflicting setting on that date, App. 41, so the 

hearing was reset to September 16, 2015. App. 42. 

Plaintiff’s Response to the Motion to Disqualify was filed the day 

before the hearing. App. 5. In the response, Brown does not deny she 

came into possession of, reviewed, or intended to utilize Jones’ 

privileged communications in the underlying lawsuit. Id. Instead, the 

response contends the facts in the family law and Chapter 21 claims 
12

were distinct, somehow absolving Brown’s invasion and violation of 

Jones’ attorney-client privilege. Id. at 3. Moreover, the response 

repeatedly invokes facts and allegations from the prior family law 

dispute, including allegations of purported “violation of human 

rights.” Id. at 9.

The Motion to Disqualify was argued before the Hon. Richard 

Price on September 16, 2015.4 During this hearing, Judge Price 

requested that the privileged communications reviewed by Brown be 

submitted in a sealed format for the Court’s inspection. Id. That same 

day, Jones’ counsel submitted the documents in sealed form for Judge 

Price’s review. App. 39; App. 22.5 On October 2, 2015, Judge Price 

denied Jones’ Motion. App. 43. Jones now seeks mandamus relief from 

this Court. 

SUMMARY OF THE ARGUMENT

Faire wrongfully and surreptitiously retained privileged attorneyclient communications obtained while she was Jones’ personal 

assistant. After she was let go from her employment, she, 

 

4 The transcript of the parties’ September 16, 2015 hearing on the Motion to 

Disqualify is attached at Appendix 47. 

5 Jones has provided these documents to this Court in hard copy format in an 

envelope with a cover page entitled, Relator’s Sealed Mandamus Appendix. 
13

unbeknownst to Jones, forwarded those privileged communications to 

her counsel, Brown. Brown did not contact Jones or his counsel to 

inform him of the unauthorized retention and disclosure. Nor did 

Brown return the privileged documents to Jones. Rather, Brown held 

onto the privileged documents, analyzed them, and subsequently 

produced them as “responsive” to certain of Jones’ discovery requests 

in the underlying case. Brown further has made it clear through 

various pleadings and correspondence that she intends to use these 

privileged documents to attack Jones’ credibility and integrity in the 

underlying case. Despite these facts, the trial court denied Jones’ 

Motion to Disqualify Brown.

In another employee-employer case with strikingly similar facts, 

the Dallas Court of Appeals reversed a trial court’s denial of the motion 

to disqualify and granted mandamus relief. In re Marketing Corp., 80 

S.W.3d 44 (Tex. App.—Dallas 1998) (orig. proceeding). There, the 

Dallas Court of Appeals applied the six-factor test enunciated by the 

Texas Supreme Court in In re Meador to hold that the conduct by the 

opposing attorney required disqualification. In re Marketing Corp., 80 

S.W.3d at 51; accord In re Meador, 968 S.W.2d 346 (1998). Jones 

respectfully asks this Court to grant his mandamus petition, vacate 
14

the trial court’s order denying his Motion to Disqualify, and instruct 

the trial court to enter an order disqualifying Brown. 

ARGUMENT SUPPORTING MANDAMUS RELIEF

I.

Standard Governing Mandamus Proceeding

The standard governing mandamus proceedings is wellestablished. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–

36 (Tex. 2004) (orig. proceeding). Mandamus relief is warranted 

where: (1) the trial judge has committed a clear abuse of discretion;

and (2) there is no adequate remedy on appeal. In re Odyssey 

Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (per curiam) (orig. 

proceeding). As to the first prong, a “clear abuse of discretion” 

occurs when the challenged ruling is “so arbitrary and 

unreasonable as to amount to a clear and prejudicial error of law.” 

In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam) (orig. 

proceeding); see Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) 

(orig. proceeding). It is well-established, however, that the “review of a

trial court’s determination of the legal principles controlling its 

ruling is much less deferential.” Walker, 827 S.W.2d at 840. 

According to the Texas Supreme Court, “[a] trial court has no 
15

‘discretion’ in determining what the law is or applying the law to the

facts.” Id. Thus, the trial court abuses its discretion if there is “a clear 

failure by the trial court to analyze or apply the law correctly[.]” Id.

As to the second prong of the mandamus standard, “the 

adequacy of an appellate remedy must be determined by balancing 

the benefits of mandamus review against the detriments.” In re 

Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. 

proceeding). An appellate remedy is only adequate if the detriments 

to issuing mandamus relief outweigh the benefits; but if the

detriments are outweighed by the benefits, “courts must consider 

whether the appellate remedy is adequate.” Prudential, 148 S.W.3d 

at 136; accord In re Reynoso, 361 S.W.3d 719, 723 (Tex. App.—

Corpus Christi 2012, no pet.) (orig. proceeding). 

Texas law provides that mandamus relief is available to set 

aside an improperly denied Motion to Disqualify. In re Am. Home 

Prods. Co., 985 S.W.2d 68, 72 (Tex. 1998) (orig. proceeding); In re 

Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 823 & n.2 (Tex. 

2010) (orig. proceeding) (“[m]andamus is available where a motion to 

disqualify is inappropriately denied, as there is no adequate remedy 
16

on appeal”) (citing NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 400 

(Tex. 1989)). 

II. 

Brown Should be Disqualified Based on her Possession, Review, 

and Analysis of Jones’ Privileged Emails

In In re Meador, Chief Justice Tom Phillips instructed:

Without doubt, there are situations where a 

lawyer who has been privy to privileged 

information improperly obtained from the other 

side must be disqualified, even though the 

lawyer was not involved in obtaining the 

information. Discovery privileges are an integral 

part of our adversary system. 

In re Meador, 968 S.W.2d at 351. Chief Justice Phillips went on to 

state:

Thus, a lawyer who uses privileged information 

improperly obtained from an opponent 

potentially subverts the litigation process. 

Id. In this case, Brown falls into the category of lawyers described by 

Chief Justice Phillips. Accordingly, this Court should grant Jones’ 

Petition for Writ of Mandamus, vacate the trial court’s order, and 

instruct the trial court to grant Jones’ Motion to Disqualify Brown.

A. The Six-Factor Analysis

The Texas Supreme Court established a six-factor analysis to 

guide trial court’s during the consideration of disqualification motions 
17

based on the review of privileged information. See In re Meador, 968 

S.W.2d 346 (Tex. 1998). These factors include: 

(1) whether the attorney knew or should have 

known that the material was privileged;

(2) the promptness with which the attorney notifies 

the opposing side that he or she has received its 

privileged information;

(3) the extent to which the attorney reviews and 

digests the privileged information;

(4) the significance of the privileged information; 

i.e., the extent to which its disclosure may 

prejudice the movant’s claim or defense, and the 

extent to which return of the documents will 

mitigate that prejudice;

(5) the extent to which movant may be at fault for 

the unauthorized disclosure;

(6) the extent to which the nonmovant will suffer 

prejudice from the disqualification of his or her 

attorney.” 

Id. 351-352.6

 

6 At the trial court, Jones moved to disqualify Brown based on multiple grounds: 

(1) based on Faire’s membership on his “litigation team” in the prior family law 

proceedings; (2) based on Brown’s participation in Faire’s breach of her fiduciary 

duties owed to Jones; and (3) based on the Meador six-factor analysis. Jones 

maintains his position that all grounds raised below constitute valid grounds for 

Brown’s disqualification; however, Jones’ Petition focuses on only one ground: the 

trial court’s failure to disqualify Brown based on the Meador six-factor test. 
18

B. In re Marketing mirrors this case. 

One case applying the Meador six-factor analysis mirrors the 

case before this Court. In In re Marketing Corp., 80 S.W.3d 44 (Tex. 

App.—Dallas 1998) (orig. proceeding), the Dallas Court of Appeals 

addressed a similar situation -- an employee’s retention and his 

counsel’s review and use of wrongfully retained privileged 

communications during litigation by the employee against his 

employer. Id. at 46-47. In that case, after the employee was 

terminated, he concealed from the employer that he was in possession 

of confidential and privileged communications. Id. After litigation was 

initiated, the employee’s counsel produced the privileged documents 

during discovery. Id. at 47. The employer requested that all documents 

be returned, but the employee refused to do so. Id. The employer then 

sought and was denied disqualification of the employee’s counsel. Id.

The employer sought mandamus, arguing that counsel “did not 

notify the Corporation of his receipt of the documents in question or 

tender their return as required by Texas law.” Id. at 51. Applying the 

six Meador factors, the Court of Appeals noted that “[m]any of the 

documents refer directly to the status of litigation and strategy for 

future action” in such litigation and were thus privileged. Like with 
19

Brown in the instant matter, the In re Marketing decision noted it was 

“undisputed that [counsel] has extensively reviewed the documents, 

... and has shown an intent to use them in the future.” Id. Thus, 

because the documents were “kept by a terminated employee,” not 

returned upon demand, and because the “questions arise” at a point 

when the “case is neither well developed nor ready for trial,” 

disqualification was warranted. As a result, the Court of Appeals held 

the trial court erred, in relevant part, in not disqualifying counsel for 

his conduct, and conditionally granted the writ. 

C. The six-factor analysis requires Brown’s disqualification.

In re Marketing bears stunning factual similarities to the instant 

case. There, the Meador factors weighed in favor of disqualification. 

Here, as demonstrated in more detail below, the Meador factors, when 

applied to the facts, also weigh in favor of disqualification. As such, 

the trial court clearly erred in denying Relator’s Motion to Disqualify 

and, as in In re Marketing, mandamus is warranted.

1. Brown knew or should have known the documents 

were privileged. 

The first factor asks whether Brown “knew or should have 

known” the documents provided by Faire were privileged. Id. In the 
20

prior family law proceedings, Brown represented Jones’ ex-wife. App. 

5, Ex. B at ¶ 4. For her part, Faire admits Jones was represented by 

Bashara & Schwartz, P.C. Id. at 3-4, id. Ex. B at ¶ 6. As Brown had 

direct and adversarial involvement with Jones’ family law counsel 

(Bashara), she cannot now disclaim knowledge of such. See id. at 3-4

(admitting “Jones was represented by Sam Bashara and his office ...”). 

A simple review of the privileged documents produced at FAIRE 

015-16, 068-71, 149-204, 213-230, 237-241, and 246-2557 reveals 

that nearly all communications were sent to or from Bashara, 

Bashara’s paralegal (Melinda Flores), or Jones’ counsel in the 

Dominican Republic (Elvis Roque). These documents contain detailed 

description of legal and factual issues underlying the family law 

proceedings (FAIRE 254-255), correspondence to and from Brown as 

opposing counsel (FAIRE 189-192, 195-196, 217-222), 

correspondence regarding payment of Jones’ legal fees (FAIRE 223-

230), and the discussion of legal strategy, fact investigation, and 

counsel regarding same (FAIRE 68-71, 149-156, 158-175, 181-188, 

193-194, 197-204). These emails constitute “[c]onfidential 

 

7 Supra n.5. 
21

communications between client and counsel made to facilitate legal 

services ...” In re XL Specialty Insur. Co., 373 S.W.3d 46, 49 (Tex. 2012) 

(orig. proceeding) (citing TEX. R. EVID. 503(b), noting the Rule “protects 

not only confidential communications between the lawyer and the 

client, but also discourse among their representatives”). Therefore, 

pursuant to Rule 503(b), these emails are protected by the attorneyclient privilege, which has never been waived by Jones. 

Brown admitted she was aware Bashara and his office 

represented Jones. App. 5 at 3-4. She does not deny she failed to 

recognize these documents were privileged upon her review of them. 

Instead, in her response to Jones’ Motion, Faire contended, without 

support, that “[e]mails are not private and after six months lose 

confidentiality if any existed.” App. 5 at 5. Case law reveals, however, 

that the attorney-client privilege is not subject to a statute of 

limitations. See, e.g., West v. Solito, 563 S.W.2d 240, 244-45 (Tex. 

1978) (attorney-client privilege belongs to holder of privilege unless 

and until it is expressly waived). Thus, because the admissions of 

Faire and Brown, coupled with a reading of the privileged documents 

themselves, plainly evidence that these items are privileged, this factor 

weighs in favor of disqualification. 
22

2. Brown failed to notify Jones she had received his 

privileged communications.

The record demonstrates Faire and Brown failed to notify Jones 

they were in possession of and had reviewed his privileged

communications. See App. 6, Ex. D at ¶¶ 7-8. Jones was first made 

aware of this fact when reviewing the documents turned over by Faire 

as responsive to Jones’ discovery requests. Id. This fact is tacitly 

acknowledged by Ms. Brown’s June 22, 2015 correspondence, App. 

25, and Faire’s failure to address this factor within her Response to 

Jones’ Motion to Disqualify. App. 5. 

In an identical factual circumstance, the In re Marketing court 

determined this factor weighed in favor of disqualification. There, the 

“attorney did not notify the [company] that he had these documents. 

Rather, [plaintiff] produced the documents in response to a discovery 

request.” In re Marketing, 80 S.W.3d at 52. In such a circumstance, 

where no notice is given in advance of the review and production of 

the opposing party’s own privileged documents, this factor weighs in 

favor of disqualification. Id. 
23

3. Extent to which Brown reviewed or digested the 

privileged information.

The third factor considers the extent the opposing lawyer 

reviewed or digested the privileged information. Notably, Brown — the 

person with most knowledge relevant to this inquiry — failed to 

provide any sworn evidence or testimony to the trial court. 

Significantly, she did not disavow that she had reviewed or digested 

the 95 pages of privileged communications. Moreover, the content of 

Faire’s Response to the Motion to Disqualify, which was signed by 

Brown, demonstrates Brown has thoroughly reviewed, digested, and 

analyzed these privileged communications. 

Indeed, the Response indicates that Brown not only reviewed the 

privileged documents, but also found it acceptable to discuss their 

content within Faire’s Response. For example, the Response argues 

(in conclusory fashion) that the emails “are not privileged 

information,” represents that the emails were previously housed on 

“[Faire’s] personal and business phone,” and “were those that

remained in the electronically stored communications on [Faire’s] 

personal email account.” App. 5 at 4. Such representations could only 

be made based on a review of the underlying emails themselves, thus 
24

proving the extent to which Brown analyzed the 95 pages of privileged 

documents and, by extension, invaded Jones’ attorney-client privilege. 

Given Brown’s detailed discussion and analysis of the 

documents in Faire’s Response, as well as the fact she represented 

Faire during the document production, it is “undisputed that [Faire’s] 

attorney has extensively reviewed the documents, ... and has shown 

an intent to use them in the future.” See In re Marketing, 80 S.W.3d at 

51. Additionally, Brown gave the trial court no evidence or testimony 

to dispute such a conclusion. As such, this factor also weighs in favor 

of disqualification.

4. The privileged information is significant to Jones. 

The fourth factor examines the significance of the privileged 

information to the party seeking disqualification. As discussed above, 

the 95 pages of privileged communications contain detailed timelines 

developed for counsel’s use and reference, discussion of legal strategy, 

and intimate, confidential discussions regarding Jones’ legal 

proceedings. As such, these documents go to the very heart of the 

protections afforded by the attorney-client privilege.8 Brown, who has 

 

8

 The documents retained by Faire, reviewed by Brown, and produced in the trial 

court have varying levels of confidentiality and importance to Jones. However, 

Brown and Faire have made the conclusory assertion that, because some of these 
25

been adverse to Jones on two different, unrelated matters, is now in a 

position to utilize Jones’ privileged, private, and confidential 

communications against him in adversarial proceedings. There is no 

way to effectively “screen” out her knowledge of or reliance on these 

privileged communications. Instead, disqualification is the sole 

remedy to eliminate prejudice to Jones. As such, this factor also 

weighs in favor of disqualification. In re Marketing Invest. Corp., 80 

S.W.3d 44, 51 (Tex. App.—Dallas 1998) (orig. proceeding) (documents 

may be deemed to have “significance” to the privilege’s holder if the 

“return of the documents will [not] mitigate that prejudice”). 

5. Jones was not responsible for the disclosure of 

privileged communications to Brown. 

Quite simply, Jones bears no responsibility for Brown’s receipt 

of his privileged communications. This is not a case where Jones 

inadvertently produced documents in litigation, left documents 

exposed to third parties’ eyes, or otherwise took actions that 

 

documents are not, in their opinion, significant, that fact, by itself, eliminates the 

need for disqualification. Brown’s speculative statements are irrelevant to this 

analysis, however. By her own admissions, Faire was actively involved in and 

assisted with Jones’ defense in his divorce proceedings. Thus, her newly-alleged 

“bald assertions do not controvert ... specific evidence that [she] was privy to many 

of [Jones’] legal strategies in suits ...” In re Bell Helicopter Textron, Inc., 87 S.W.3d 

139, 147 (Tex. App.—Fort Worth 2002) (orig. proceeding). 
26

voluntarily or negligently endangered his attorney-client privilege. 

Instead, Faire’s sworn testimony acknowledges she received these 

privileged communications in her capacity as Jones’ personal 

assistant and for the purpose of aiding him in the defense of his 

divorce suit. App. 5, Ex. B at ¶ 6 (“As Mr. Jones’ personal assistant, I 

was to gather personal information and forward it to his legal team 

...,” “Some [emails] were duplicates in that I produced emails both sent 

directly to my personal account, and those I forwarded to my work 

account”); App. 18 at¶ 24 (Jones promised a home to Faire “in 

consideration for her loyal efforts in assisting [him] in the defense of 

his suit for divorce”); App. 20 at 1 (Faire “assist[ed] administratively in 

his defense in Jones’ divorce proceedings pending in Bexar County, 

Texas during 2013 and 2014.”); App. 29 at 29:21-23 (“She had been 

working, like I said, 24/7 helping him defend in the divorce pending 

here in Bexar County”). 

Jones was entitled to rely upon the assumption that Faire, his 

former personal assistant and agent, who owed him fiduciary duties, 

would keep his privileged communications secure. See, e.g., West v. 

Solito, 563 S.W.2d 240, 244-45 (Tex. 1978) (attorney-client privilege 

belongs to holder of privilege unless and until it is expressly waived); 
27

see also Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 202 (Tex. 

2002) (agents owe fiduciary duty to principal and employee is 

obligated to actin employer’s best interest); Welex Jet Servs. v. Owen, 

325 S.W.2d 856, 858 (Tex. Civ. App. –Fort Worth 1959, writ ref’d n.r.e.)

(“[c]onfidential information secured by reason of fiduciary 

relationships may not be used or disclosed to [employer’s] detriment 

...”). As in In re Marketing, Brown came into possession of Jones’ 

privileged communications because her own client wrongfully 

provided them to her. Thus, in this case, as in In re Marketing, this 

factor weighs in favor of disqualification.

6. Faire will not be prejudiced by Brown’s 

disqualification. 

Finally, Faire will not be unfairly prejudiced should Brown be 

disqualified. This proceeding is in an early stage of litigation. No 

depositions have been taken. Dispositive briefing deadlines are many 

months away. App. 39. Additionally, this matter is not set for trial until 

March 7, 2016. Id. Thus, in the event Brown is disqualified, Faire’s 

substitute counsel has ample time to learn the case and provide 

competent representation. Faire has only one claim against Relator 

Jones: Chapter 21 of the Texas Labor Code. Brown does not specialize 
28

in employment litigation,9 eliminating any risk of unique prejudice to 

Ms. Faire. Accordingly, Faire has minimal, if any, risk of prejudice 

from disqualification, further warranting disqualification. Cf. In re 

Marketing, 80 S.W.3d at 52 (trial court erred in not disqualifying 

counsel, as disqualification arose relatively early in litigation, case was 

not well-developed, and there was no indication former employee 

could not obtain alternate counsel). 

A federal district court has guided that, in determining whether 

to exercise discretion in disqualifying counsel under the Meador 

analysis, “the Court should resolve any doubts in favor of 

disqualification.” Richards v. Jain, 168 F. Supp.2d 1195, 1209 (W.D. 

Wash. 2001) (applying Meador factors and analysis). Here, the 

mandamus record demonstrates that all Meador factors weigh in favor 

of disqualification. As such, it was a clear abuse of discretion for the 

trial court to deny Jones’ Motion to Disqualify. 

 

9

https://www.texasbar.com/AM/Template.cfm?Section=Find_A_Lawyer&template

=/Customsource/MemberDirectory/MemberDirectoryDetail.cfm&ContactID=16158

8 (designating Brown’s practice areas as “Business, Family, Litigation: 

Commercial, Litigation: Personal Injury). 
29

III. 

Faire Cannot Establish Waiver

At the trial court level, Faire contended Jones’ disqualification 

motion should be denied based on waiver. App. 5. First, many of 

Faire’s “waiver” arguments assume disqualification should have been 

sought immediately upon suit being filed in the trial court. However, 

disqualification is only warranted under the six-factor analysis once 

the movant becomes aware that “a lawyer receives [his] privileged 

materials ...” In re Meador, 968 S.W.2d at 352. 

Here, the mandamus record reveals Jones was unaware Faire 

had retained his privileged communications, App. 6, Ex. D. ¶¶ 7-8, let 

alone that Faire had divulged those documents to Brown for review. 

Id. Jones first became aware of this fact upon Faire’s discovery 

production, which included the privileged documents. Id. at ¶ 7. Thus, 

because Jones had no knowledge of the invasion of his attorney-client 

privilege until discovery production in the underlying case, he had no 

basis to seek disqualification previously. 

In this way, Faire’s waiver claim may be disposed of by reference 

to the Texas Supreme Court’s decision in In re EPIC Holdings, Inc., 

which found no waiver. There, the party seeking disqualification 
30

“waited almost eleven months after they first knew or should have 

known” of the basis for disqualification before filing such a motion. In 

re EPIC Holdings, Inc., 985 S.W.2d 41, 57 (Tex. 1998) (orig. proceeding)

(Baker, J., dissenting). Epic Holdings’ delay was on account of the 

parties attempting to confer resolving resolution of their dispute and, 

once such conferral efforts became futile, submitting the matter to the 

trial court. Id. at 52-53. Moreover, it is probative that, during the 

timeframe relevant to the waiver analysis, “no discovery was 

conducted ...” Id. at 53.

Similarly, in the instant matter, the parties reached an 

agreement to delay further hearings, including those pertaining to 

discovery disputes, via their June 30, 2015 Rule 11 Agreement. App. 

8. This Rule 11 Agreement was requested by Faire just four days after 

she responded to Jones’ demand that she return the privileged 

documents and Brown withdraw as counsel. App. 25; App. 40. During 

the ensuing conferral period, no further discovery was taken and no 

depositions were noticed, making the matter subject to a de facto stay. 

On August 27, 2015, Faire served deposition notices for Jones and 

Kemp, at which time it became clear conferral efforts would be 
31

unsuccessful. App. 44; App. 45. Accordingly, just twelve days later, 

Jones filed his instant Motion to Disqualify on September 18, 2015. 

 As in In re EPIC Holdings, to the extent any “delay” occurred in 

seeking disqualification, it was solely necessitated by the parties’ 

conferral attempts. Importantly, like in In re EPIC Holdings, no 

discovery was conducted during the intervening period, thereby 

eliminating any risk of further prejudice to Jones at that time. Instead, 

only once it became apparent conferral efforts were unsuccessful did 

Jones have a duty to file his Motion to Disqualify, which he promptly 

did. In sum, whereas nearly eleven months passed in In re EPIC 

Holdings, only five total months did in the instant matter. There was 

no finding of waiver by the Supreme Court in the former matter, nor 

should there be any such finding in the instant case before this Court. 

In re EPIC Holdings, Inc., 985 S.W.2d at 57; see also In re Hoar Const., 

LLC, 256 S.W.3d 790, 796-97 (Tex. App.—Houston [14th Dist.] 2008) 

(orig. proceeding) (finding no waiver of right to seek disqualification 

based, in part, on parties’ efforts to “resolve any conflict” during 

intervening period of time).10 

 

10 Notably, to the trial court, Faire did not identify any case holding that a five 

month period would constitute waiver. Instead, she argued a seven-month delay 
32

IV. 

Relator Lacks an Adequate Appellate Remedy

An improperly denied Motion to Disqualify is subject to 

mandamus review and relief. This Court’s mandamus authority 

extends to orders denying meritorious motions to disqualify. In re Am. 

Home Prods. Co., 985 S.W.2d 68, 72 (Tex. 1998) (orig. proceeding); In 

re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 823 n.2, 

829 (Tex. 2010) (orig. proceeding) (“[m]andamus is available where a 

motion to disqualify is inappropriately denied, as there is no adequate 

remedy on appeal”) (citing NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 

398, 400 (Tex. 1989)). 

CONCLUSION

 Jones meets both prongs of the mandamus standard and is 

entitled to mandamus relief. Relator respectfully asks this Court to 

 

would constitute such. See App. 5 at 8 (citing Vaughan v. Walther, 875 S.W.2d 

690, 692 (Tex. 1994)). In Vaughan, the party seeking disqualification waited not 

just five months, without any apparent excuse, but also sought disqualification 

on the final day of a hearing on a child custody dispute. In this case, there was 

no such lengthy period of delay, and disqualification was sought well in advance 

of trial. Moreover, no other discovered cases provide for waiver of a right to seek 

disqualification on account of a five-month period, during which conferral efforts 

and negotiations were ongoing, and when the Motion to Disqualify was filed well 

in advance of trial. In different contexts, the Supreme Court has held that “a delay 

of five months” is “not sufficient” to constitute waiver. In re Automated Techs., Inc., 

156 S.W.3d 557, 559 (Tex. 2004) (orig. proceeding) (analyzing enforcement of 

forum selection clause). 
33

grant the Petition for Writ of Mandamus and vacate the trial court’s 

Order denying his Motion to Disqualify. 

Respectfully submitted,

KELLER STOLARCZYK PLLC

234 West Bandera Road #120

Boerne, Texas 78006

Tele: 830.981.5000

Facs: 888.293.8580

/s/Kimberly S. Keller

 Kimberly S. Keller

 SBN: 24014182

 Email: kim@kellsto.com

 Christine Reinhard

SBN: 24013389

Email: creinhard@sr-llp.com 

Justin Barbour

SBN: 24055142

Email: jbarbour@sr-llp.com

Schmoyer Reinhard LLP

17806 IH 10 West, Suite 400

San Antonio, Texas 78257

Tele: 210.447.8033

Facs: 210.447.8036

 

 RELATOR’S COUNSEL
34

RULE 52.3(J) CERTIFICATE OF COMPLLIANCE

I certify I have reviewed this Petition for Writ of Mandamus and 

concluded that every factual statement in the Petition is supported by 

competent evidence included in the Mandamus Appendix/Record.

 /s/Justin Barbour

CERTIFICATE OF COMPLLIANCE & SERVICE

I certify this Petition for Writ of Mandamus contains 5,604 words.

I certify this Petition for Writ of Mandamus and Mandamus 

Appendix/Record were, on October 19, 2015, served on the following 

via e-mail/first class mail:

Olga Brown

Law Office of Olga Brown

111 Soledad, Suite 1725

San Antonio, Texas 78205

/s/Kimberly S. Keller

 Kimberly S. Keller