Carla Roberson Cummings in Supreme Count of Texas

8/14/2019 Carla Roberson Cummings in Supreme Count of Texas

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NO. 02-0670

____________________________

IN THE

SUPREME COURT OF TEXAS

____________________________

GEORGE E. CIRE, JR., MARTHA K. ADAMS, and TAYLOR & CIRE,

Petitioner/Cross-Respondent,

vs.

CARLA ROBERSON CUMMINGS,

Respondent/Cross-Petitioner.

____________________________

On Petition For Review from the

Seventh Court of Appeals at Amarillo, Texas

________________________________________________________

Brief on the Merits

for

Carla Roberson Cummings________________________________________________________

L.T. Butch Bradt

TBA # 02841600THE TELTSCHIKLAW FIRM,A Texas Professional Corporation

5718 Westheimer, Suite 700Houston, Texas 77057-5762Telephone: (713) 681-2696Facsimile: (713) 978-6434Attorney for Petitioner,Carla Roberson Cummings


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1Ms. Cummings divorced her second husband during the pendency of this appeal and restored her name

to her maiden name, Hend rickson. For clarity she is referred to throughout as Cummings.

ii

IDENTITY OF PARTIES

Cross-Petitioner: Carla Roberson Cummings 1

Cross-Petitioners Counsel:

L.T. Butch Bradt #02841600 Elsie Martin-Simon #18382800

The TELTSCHIK LAW FIRM 1915 Commonwealth #203

5718 Westheimer, Suite 700 Houston, Texas 77006

Houston, Texas 77057-5785 (713) 521-0368

(713) 681-2696 Fax: (713) 521-0740

Fax: (713) 978-6434

Cross-Respondents: George E. Cire, Jr., Martha K. Adams, Taylor & Cire

Cross-Respondents Counsel:

Charles R. Watson, Jr. Byron Lee

Mullin , Hoard & Brown, L.L.P . Coats, Rose, Yale, Holm, Ryman & Lee , P .C.

P.O. Box 31656 800 First City Tower

Amarillo, Texas 79120-1656 1001 Fannin

(806) 372-5050 Houston, Texas 77002-6707

Fax: (806) 372-5086 (713) 653-7308

Fax: (713) 651-0220

OTHER PARTIES AT TRIAL COURT LEVEL:

Plaintiff, Carl Hendrickson. Mr. Hendrickson was represented by L.T. Bradt. Mr.

Hendrickson died during the pendency of the suit and the trial court granted summary

judgment to Respondents that his claims did not survive his death. This was not appealed

and Mr. Hendricksons estate is not before this Court.

Plaintiff - Intervenor, Jerry Wayne Roberson. Mr. Roberson is Petitioners ex-husband.

Respondents settled with Mr. Roberson and he has not appealed the trial courts judgment.


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iii

TABLE OF CONTENTS

Identity of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT AND AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

DUE PROCESS, RULE 215 AND THIS COURTS PRIOR DECISIONS

MANDATE THAT RESPONDENTS TO MOTIONS TO COMPEL AND

FOR SANCTIONS, BE AFFORDED ORAL HEARINGS. (Issue No. One,

Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Entitlement to Oral Hearing Before Imposition of Sanctions. . . . . . . . . . . 7

A COURT MAY NOT DISPENSE WITH THE NECESSITY OF AN ORAL

HEARING ON A MOTION TO COMPEL. (Issue No. Two, Restated)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Entitlem ent To H earing On Motion T o Compel. . . . . . . . . . . . . . . . . . . . . 11

WHAT MUST A PARTY DO TO PRESERVE AN ISSUE FOR APPELLATE

REVIEW? (Issue No. Five, Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

IS THE NON-MOVANT IS ENTITLED TO RELY UPON THE OBJECTIONS

ASSERTED TO THE DISCOVERY, EVEN WITHOUT A SEPARATE

RESPONSE BEING FILED, IN ORDER TO CONTEND ON APPEAL

THAT THE GROUNDS EXPRESSLY PRESENTED TO THE TRIAL

COURT ARE INSUFFICIENT AS A MATTER OF LAW TO SUPPORT

THE RELIEF GRANTED. (Issue No. Four, Restated)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Objections to Discovery Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Compelling Deposition Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Violation of Attorney - Client Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Discovery Not Reasonably Calculated to Lead to Discovery of Admissible

Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Petitioner Fully Briefed Her Issues at the Court of Appeals . . . . . . . . . . 23

Appellate Preservation: Lack of Separate Response or Answer . . 25

Ap pella te Prese rvation: Motion fo r Re hea ring . . . . . . . . . . . . . . . . . . . . . 27

THE LEGAL SUFFICIENCYOF AN ORDER COMPELLING DISCOVERY IS TO

BE TESTED IN AND OF ITSELF. (Issue No. Three, Restated) . . . . . . . 28


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Sufficiency of Order Compelling Answers to Interrogatories . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

APPENDIX

1. Opinion and Judgment of the Court of Appeals

2. Orders of November 1997 and January 1998

3. Order of August 3, 1998, relating to Interrogatories

4. Order of August 3, 1998, compelling deposit ion

5. Cummings Response to Taylor & Cires Motion to Strike Pleadings as Sanctions and

to Rehear Prior Orders Regarding Discovery

6. Tex. R. Civ. P. 215

7. IRS Form 2848

8. Portions of Cummings Brief at Court of Appeals


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v

INDEX OF AUTHORITIES

Cases

Axelson, Inc. v. McIlhany, 798 S.W.2d 550 (Tex. 1990) . . . . . . . . . . . . . . . . . . . . . . 21, 22

Brighton Square Pub., Inc. v. Nelson, 795 S.W.2d 29

(Tex. App.Houston [1st D ist.] 1990, no w rit) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Childs v. Argenbright, 927 S.W.2d 647 (Tex. App.Tyler 1996, no writ) . . . . . . . . . . 12

City of Gladewater v. Pike, 727 S.W.2d 514 (Tex. 1987) . . . . . . . . . . . . . . . . . . . . . . . . 26

City of Houston v. Clear Creek Basin Authority,

589 S.W.2d 671 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Cummings v. Cire, 74 S.W.3d 920

(Tex. App. Amarillo 2002, pet. filed) . . . . . . . . . . . . . . . . . . . . . . . ix, 8, 9, 23, 25

Daniel v. Jones, 193 S.W.2d 437

(Tex. Civ. App. San Antonio 1937, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Dillard Dept Stores, Inc. v. Hall, 909 S.W.2d 491 (Tex. 1995) . . . . . . . . . . . . . . . . . . . 15

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1986) . . . . . . . . . . . . . . 28

Ex parte Herrera , 820 S.W.2d 54

(Tex. App.Houston [14th Dist.] 1991, orig. proceeding) . . . . . . . . . . . . . . . . . 30

Ex parte Padron, 565 S.W.2d 921 (Tex. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Ex parte Slavin , 412 S.W.2d 43(Tex. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-30

First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640

(Tex. App.Dallas 1987, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gulf Coast Inv. Corp. v. NASA 1 Business Center, 754 S.W.2d 152 (Tex. 1988) . . . . . . . 7

Huie v. DeShazo , 922 S.W.2d 920 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17


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vi

In re Alford Chevrolet-Geo, 997 S.W.2d 173 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . 12

In re Willie, 25 F. Cas. 38 (D. Virginia 1807) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

K-Mart Corp. v. Sanderson, 937 S.W.2d 429 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . 15

Loftin v. Martin, 776 S.W.2d 145 (Tex. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

McInnes v. Yamaha Motor Corp., 659 S.W.2d 704

(Tex. App.Corpus Christi), affd, 673 S.W.2d 185 (Tex. 1984 . . . . . . . . . . . . . 9

McKinney v. National Union Fire Ins. Co.,

772 S.W.2d 72 (Tex. 1989) . . . . . . . . . . . . . . . . . . . . . . . 5, 7-11, 13, 17, 22, 25, 26

Meek v. Bishop, Petersen & Sharp, P.C., 919 S.W.2d 805

(Tex. App.Houston [14th Dist.] 1996, writ denied) . . . . . . . . . . . . . . . . . . . 8-10

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Phippen v. Deere and Co., 965 S.W.2d 713

(Tex. App.Texarkana 1998, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Plodzik v. Owens-Corning Fiberglass Corp., 549 S.W.2d 52

(Tex. Civ. App.Waco 1977, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Plummer v. Superior Court of the City and County of San Francisco,

20 Cal.2d 158, 124 P.2d 4 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir. 1980) . . . . . . . . . . . 18

Richard v. Cornerstone Constructors, Inc., 921 S.W.2d 465

(Tex. App.Houston [1st Dist.] 1996, writ denied) . . . . . . . . . . . . . . . . . . . . . . 23

Sears, Roebuck & Co. v. Hollingsworth, 156 Tex. 176, 293 S.W.2d 639 (1956) . . . . . . . 9

Smith v. Wilkins, 577 S.W.2d 522 (Tex. Civ. App.Texarkana 1979, no writ) . . . . . . . . 9

St. Paul Med. Ctr. v. Cecil, 842 S.W.2d 808

(Tex. App.Dallas 1992, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

State ex rel. Latty v. Owens , 907 S.W.2d 484 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . 27


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State v. Lowry, 802 S.W.2d 669 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . 15

Texas Gas Utility Co. v. Barrett, 460 S.W.2d 409 (Tex 1970) . . . . . . . . . . . . . . . . . . . . 24

Trans-American Nat. Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) . . . 8-11, 14, 25

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

West v. Solito, 563 S.W.2d 240 (Tex. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Statutes, Rules & Codes

Tex. R. App. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Tex. R. App. P. 38.1(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tex. R. Civ. Evid. 803(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Tex. R. Civ. P. 166b(4)(repealed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14, 22

Tex. R. Civ. P. 168 (Vernon 1976, repealed 1999) . . . . . . . . . . . . . . . . . . . . . 2, 12, 14, 26

Tex. R. Civ. P. 192.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Tex. R. Civ. P. 199.5(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Tex. R. Civ. P. 204 (Vernon 1976, repealed 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Tex. R. Civ. P. 215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 25

Tex. R. Civ. P. 215.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. R. Civ. P. 215.1(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17

Tex. R. Civ. P. 215.2 (Vernon Supp. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. R. Civ. P. 215.2(b) (Vernon Supp. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 17

Tex. R. Civ. P. 215.3 (Vernon Supp. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 17


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STATEMENT OF THE CASE

Nature of the Case: Suit for legal malpractice.

Trial Court: 55 th Judicial Dis trict Court of Harris County, Texas;

Honorable Sherry Radack, Presiding; Docket No.

1996-64747

Trial Courts Disposition: Plaintiffs pleadings stricken as discovery sanction;

judgment for defendants entered.

Parties in Court of Appeals: Appellant: Carla Roberson Cummings

Appellees: George E. Cire, Jr., Martha K. Adams,

Taylor & Cire

Court of Appeals: Seventh Court of Appeals, Docket No. 07-00-0143-CV;

Chief Justice Boyd, Justices Quinn and Reavis.

Cummings v. Cire, 74 S.W.3d 920 (Tex. App. Amarillo

2002, pet. filed) (Opinion attached, Appendix, Tab 1)

Court of Appeals Disposition: Reversed death penalty sanction and remanded to trial

court; otherwise affirmed trial court.


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1

TO THE HONORABLE SUPREME COURT O F TEXAS:

Carla Roberson Cummings (Cummings), files her Brief in support of her Petition

for Review and for grounds shows:

STATEMENT OF FACTS

The Court of Appeals correctly stated the factual background of the case. However,

the following additional facts are necessary for this Honorable Courts review of the case.

This is a legal malpractice fee forfeiture case that arose out of Taylor & Cires

representation of Cummings, her father (Carl Hendrickson), her infant son (Carl Roberson)

and her then-husband (Jerry Wayne Roberson), in a suit against Texas Utilities Fuel

Company (TUFCO) and others in Cause No. 92-21892 in the 189TH Judicial District

Court of Harris County. (See, C.R. p. 2)

The TUFCO suit alleged toxic contamination of Carl Hendricksons property through

the discharge of toxic chemicals and radioactive materials, proximately causing injuries (in

the form of cancer and death) to Carl Roberson resulting from exposure to those materials,

individual economic damages to Cummings through the loss of her horses by exposure to

these chemicals, and loss of consortium for Cummings and Jerry Roberson through the

injuries to their son, Carl. Ibid.

After the suit had been pending for over three years, on or about April 28, 1995, while

the jury was deliberating, the TUFCO defendants made an aggregate settlement offer, which

Taylor & Cire advised Cummings and Jerry Wayne Roberson to accept. Taylor & Cire acted

as intermediaries between Cummings and Jerry Wayne Roberson without written waivers


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2Cummings father, Carl Hendrick son, also sued Taylor & Cire. (C.R. p. 2) After he received an

assessment from the IRS for unpaid estate taxes, penalties and interest on the Estate of Carl Roberson. Cummings

ex-husband, Jerry Wayne Roberson, intervened, suing Taylor & Cire for malpractice (C.R. p. 280), and subsequently

settled with Taylor & Cire. His claims are not before the Court. Cummings father, Carl Hendrickson, died during

the pendenc y of the suit. Thereafter Taylor & Cire obtained summary judgment on the theory that legal malpractice

claims do not survive death. No appeal has been advanced for the estate of Carl Hendrickson and that issue is not

before the Court. (C.R. p. 1264)

2

of the conflict of interest. (Deposition of Martha Adams, pp. 63 - 65 at C.R. pp. 1212 - 13;

Deposition of George Cire, pp. 59 - 60; 74 - 75, C.R. at pp. 1217 - 1218) Taylor & Cire were

the persons who apportioned the settlement proceeds between Cummings and Jerry Wayne

Roberson. (C.R. p. 1117, 17 - 18)

In August, 1996, Cummings sued Taylor & Cire, alleging DTPA violations, legal

malpractice, fraud and breaches of fiduciary duty. (C.R. p. 2) 2

In defense of this case, in 1996, Taylor & Cire began requesting discovery of

Cummings and others (non-parties). (See, e.g., C.R. pp. 146, 151, 155, 161) Cummings

objected to the first request for production that was served upon her; and Taylor & Cire never

sought a ruling on Cummings objection. See C.R. p. 149.

Thereafter, Taylor & Cire served interrogatories and additional requests for production

upon Cummings. (C.R. pp. 292, 300) Again, Cummings asserted objections to the discovery

requests and generally objected that the interrogatories called for more than 30 answers as

allowed by Rule 168, Tex. R. Civ. P. (repealed). (See C.R. pp. 311, 320) The objections

notwithstanding, Cummings answered more than 60 of the separate items in the

Interrogatories.(C.R. pp. 311-319) Taylor & Cire moved to compel and, without a hearing,

the trial court entered an order dated November 4, 1997, overruling the objections,


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3As noted by the Court of Appeals, Taylor & Cire did not request that counsel be sanctioned.

4Even though the deposition was completed after they had the order compelling Cummings to

answer the questions that were previously objected to , Taylor & Cire did not ask any of the questions that went to

attorney-client privilege. (See Depositions attached to Reporters Record, Exhibits Volume I, Tab A).

3

compelling responses and sanctioning Cummings counsel. (C.R. p. 409) 3 Cummings

complied with the Order dated November 4, 1997, by supplementing her answers to

interrogatories. (See C.R. pp. 1398 -1407, Amended Answers to Interrogatories, part of

Appendix 5) Notwithstanding Cummings Amended Answers to Interrogatories, Taylor &

Cire also filed a Motion to Compel Compliance with Court Order (C.R. p. 439).

Beginning in October, 1997, Taylor & Cire began deposing Cummingson four

separate days totaling some 18+ hours of testimony. (See Depositions attached to Reporters

Record, Exhibits Volume I, Tab A). Cummings counsel objected to some of the questions

posed during the depositions on the basis of attorney client privilege and on other grounds.

Taylor & Cire filed a Motion to Compel Carla Robersons Answers to Deposition

Questions (C.R. p. 505).

Acting on these two motions, the trial court entered two orders on August 3, 1998,

without granting the parties an oral hearing. (C.R. pp. 587, 589; App. 3 and 4) One order

compelled Cummings to appear and answer the questions that were objected to, within ten

(10) dayseven though it is undisputed that Cummings was then in the hospital, having just

had a complete hysterectomy. The Cummings deposition was completed December, 1998.

4 As detailed below, the other order was unintelligible.

After all of this, on February 5, 1999, Taylor & Cire moved to strike Cummings

pleadings for alleged discovery abuse. (C.R. p. 1286) Cummings responded to the Motion


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5Taylor & Cire used the discovery orders that are at issue in this Brief as a predicate to obtaining

death penalty sanctions against Cummings. W hile the Seventh Court of Appeals reversed the death penalty

sanctions, it let the discove ry orders stand unco rrected. Taylor & Cire have sought a Petition for Review, seeking to

have the death penalty sanctions reinstated. If the discovery orders were an abuse of discretion or if they are

otherwise defective, then there should be no basis for Taylor & Cire to argue for the reinstatement of the death

penalty sanctions.

4

demonstrating reasonable compliance and requesting a rehearing of the motions to compel.

(C.R. p. 1382) On September 24, 1999, an oral hearing was held on Taylor & Cires Motion

to Strike Pleadings. (R.R. September 24, 1999 hearing.) On November 29, 1999, the trial

court signed an order striking Cummings pleadings. On January 21, 2000, Cummings

moved to rehear the order striking her pleadings or for a new trial. (C.R. pp. 1973; 2130)

Final judgment was entered on January 27, 2000 (C.R. p. 2020) and the Motion for New

Trial was denied on February 18, 2000. (C.R. p. 2129) 5

On direct appeal, the Court of Appeals reversed the death penalty sanctions, as an

abuse of discretion, but incorrectly disposed of the issues relating to the discovery orders.

This appeal ensued to correct those errors.

SUMMARY OF THE ARGUMENT

This case is the latest in a growing number of cases that deviate from and diminish the

clear due process / due course of law requirements embodied in the Texas Rules of Civil

Procedure, and as elucidated by this Honorable Courts opinions, infra, especially as they

relate to the entitlement to and requirement for a hearing on objections to discovery, before

a motion to compel is finally disposed of and sanctions are imposed.

It violates a partys due process rights and conflicts with the express requirements of

the Rules of Civil Procedure and prior decisions of this Honorable Court for discovery


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5

sanctions to be imposed against a party or a partys attorney without an oral (evidentiary)

hearing. It also violates a partys due process rights and the express requirements of the

Rules of Civil Procedure for motions to compel discovery to be granted without affording

an oral hearing to the party to be compelled. If a request for an oral hearing is necessary,

the respondent to the motion should be entitled to rely upon the request for oral hearing

contained in the movants motion.

It should not be necessary for the non-movant to file a response to a motion to compel

when that party has asserted timely, proper and valid objections to discovery. The trial court

must consider and rule on the sufficiency of the objections asserted in the responses to

discovery when considering the motion to compel.

The Court of Appeals finding that the failure to file a separate response or answer to

the motion to compel is a complete concession of the merits of the motion to compel and

results in a waiver of the objections asserted in the responses to the discovery, attached to the

motion, is incorrect and conflicts with this Honorable Courts decision in McKinney v.

National Union Fire Ins. Co. , 772 S.W.2d 72 (Tex. 1989). Even without a separate response

or answer, the non-movant to a motion to compel may contend on appeal that the grounds

expressly presented in the motion are insufficient as a matter of law, to support the relief

afforded by the trial court. Rule 3a, Tex. R. Civ. P. prohibits local rules of court from being

used to dispose of a matter on the merits and therefore does not support the opinion of the

Court of Appeals.

Even without a separate response, moving for rehearing of the motions / orders


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compelling discovery should be sufficient to preserve error for appellate review. Further, the

Court of Appeals finding that Cummings did not cite authority and waived appellate review

overlooked her citations to the appellate record and the incorporation by reference of other

issues in her appellate brief, which should be appropriate and sufficient to fulfill the

requirements of the Rules of Appellate Procedure for the citation of authority. An appellant

may satisfy the requirements of the Rules of Appellate Procedure for the citation of authority

by referring to relevant parts of the appellate record, especially when: (i) there is no prior

case directly on point, and (ii) when the facts contained within the appellate record

demonstrates the abuse of discretion complained of.

The Court of Appeals erred when it held that it was not an abuse of discretion for a

trial court to compel answers to interrogatories that have already been fully answered and to

overrule an objection to a request for production that required the party resisting discovery

to sign an IRS power of attorney form designating opposing counsel as the partys attorney

in fact especially when the party being compelled was a party in separate but related

litigation with the IRS.

The sufficiency of an order compelling discovery, especially if used to support

additional (death penalty) sanctions, is to be judged in and of itself.

The Court of Appeals erred when it did not find that the trial court abused it discretion

when it overruled objections and compelled a party to answer deposition questions which

invaded the attorney-client privilege, without having afforded the party the opportunity to

present evidence of the attorney-client privilege, on a sealed record, as to the validity of the


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6Cummings recognizes that this Honorable Court has held that not every hearing called for under

the Rules of Civil Procedure ne cessarily requires an oral hearing. Gulf Coast Inv. Corp. v. NASA 1 Business Center,

754 S.W.2d 152 (Tex. 1988). However, Gulf Coastwas beforeMcKinney, did not address the requiremen t of an

oral hearing in the context of a motion t o compel or for discovery sanc tions and should not, therefore, be controlling

on this issue.

7

claim of privilege, to prevent loss or waiver of the privilege.

ARGUMENT AND AUTHORITY

DUE PROCESS, RULE 215 AND THIS COURTS PRIOR DECISIONS

MANDATE THAT RESPONDENTS TO MOTIONS TO COMPEL AND

FOR SANCTIONS, BE AFFORDED ORAL HEARINGS. (Issue No. One,

Restated)

The Court of Appeals correctly noted that sanctions were imposed against Cummings

attorney, even though Taylor & Cire had not requested that relief. The only issue of greater

importance than this violation of due process, is the non-movants entitlement to an oral

hearing before a motion to compel is finally disposed of and sanctions are imposed.

Entitlement to Oral Hearing Before Imposition of Sanctions.

All of the discovery orders were entered without any oral or evidentiary hearing on

the motions. 6 The Due Process Clause of Amendment 14, Section 1, United States

Constitution, expressly protects litigants in state court and prohibits any state from ...

deprive any person of life, liberty, or property, without due process of law... The Due

Course of Law protections in the Texas Constitution are similar. Article I, 19, Texas

Constitution holds No citizen of this State shall be deprived of life, liberty, property,

privileges or immunities, or in any manner disfranchised, except by the due course of the law

of the land. The Fourteen Amendment to the United States Constitution and Article I, 19,

Texas Constitution, establish the constitutional floor for Cummings and her counsels


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7It is undisputed that Cummings attorney had no notice of the possibility that sanctions might be

imposed against him. UnderPeralta , at least this portion of the order should be set aside. However, the Court of

Appeals l et the entire order stand and did not eve n address counsels entitlement to notice, in the first instance,

before sanctions were imposed a gainst him.

8

substantive and procedural due process rights which are concerned in the motions to compel

and/or for sanctions herein.

When notice is required, improper notice to a party of proceedings invalidates

subsequent court proceedings. Peralta v. Heights Med. Ctr. Inc. , 485 U.S. 80 (1988). As

noted inPeralta, only wiping the slate clean ... would have restored the petitioner to the

position he would have occupied had due process of law been accorded to him in the first

place. The Due Process Clause demands no less in this case. Peralta, 485 U.S. at 87. 7

The Court of Appeals held that Cummings and her counsel were not entitled to a

hearing on the motions to compel or before sanctions were imposed, relying upon Meek v.

Bishop, Petersen & Sharp, P.C., 919 S.W.2d 805, 809 (Tex. App.Houston [14th Dist.]

1996, writ denied). (See, Cummings v. Cire, 74 S.W.3d at 924, App. 1) Meekis inapposite

because Taylor & Cire requested an oral hearing in their notice of setting. ( See C.R. p. 407)

Cummings should be entitled to rely upon this request for oral hearing, just as they should

be entitled to rely on another partys request for jury trial. Rule 21 and Rule 248, Tex. R.

Civ. P.

However, Meekand the holding of the Court of Appeals opinion directly conflict

with the decisions of this Honorable Court inMcKinney v. National Union Fire Ins. Co. , 772

S.W.2d 72, 75 (Tex. 1989), Trans-American Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917

(Tex. 1991) and Sears, Roebuck & Co. v. Hollingsworth, 156 Tex. 176, 293 S.W.2d 639


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8In Braden v. Downey , 811 S.W.2d 922, 926 (Tex. 1991), sanctions were imposed after a hearing

on a motion to compel at which counsel for both parties were present. W hile dicta in this context, this should

further support Cummings argument that an oral hearing is necessary on motions to co mpel.

9In addition to Trans-American and Sears, Roebuck & Co. v. H ollingsworth , the following cases

specifically hold that a party is entitled to an oppor tunity to be heard before discovery sanctions are impose d:

McInnes v. Yamaha Motor Corp., 659 S.W.2d 704 (Tex. App. Corpus Christi), affd, 673 S.W.2d 185 (T ex. 1984);

First Dallas Petroleum, Inc. v. Hawkins , 727 S.W.2d 640, 648 (Tex. App. Dallas 1987, no writ); Plodzik v.

Owens-Corning Fiberglass Corp., 549 S.W.2d 52, 54 (Tex. Civ. App. Waco 1977, no writ); and Smith v. Wilkins,

577 S.W.2d 522 (Tex. Civ. App. Texarkana 1979, no writ). The opinion in this case andMeektherefore conflict

with prior decisions of this Honorable Court as well as with opinions of other courts of appeals. The requirement of

and entitlement to an oral hear ing before the imposition of discovery sanctions is an important question to the

jurisprudence of this State.

10In the context of Cummings entitlement to an oral hearing, the opinion of the Court of App eals

conflicts withBrighton Square Pub., Inc. v. Nelson, 795 S.W.2d 29, 31 (Tex. App.Houston [1st Dist.] 1990, no

writ), wherein the First Court of Appe als held the Court of Appeals can not assume that a hearing was waived simply

because the defendant did not a sk for a hearing.

11In Trans-American , this Honorable Court recognized the due process considerations inherent in a

motion for sanctions. Trans-American , 811 S.W.2d at 917. These due process considerations should include the

fact that Taylor & Cire did not plead for sanctions against Cummings attorney and that he, therefore, had absolutely

no notice that would comply with the requirements of due process. The Court of Appeals ignored Trans-American

in upholding the sanctions against counsel.

9

(1956). 8 9 10 Trans-American Nat. Gas Corp. stands for the proposition (and specifically

holds) that there must be an oral hearing to determine who the responsible party is and

against whom to impose sanctionsthe attorney or the client. Trans-American Nat. Gas

Corp., 811 S.W.2d at 917. This is consistent with Cummings and her attorneys due

process rights. 11

The Court of Appeals also incorrectly held that McKinney does not support

Cummings claim of entitlement to a hearing. Cummings, 74 S.W.3d at 925. In so holding,

the Court of Appeals refers to the portion ofMcKinney dealing with Rule 166b(4), Tex. R.

Civ. P. (repealed) but completely ignores this Honorable Courts holding that placed the

responsibility for obtaining a hearing on discovery matters on the party requesting

discovery.


19/41


20/41

12In Trans-American , this Honorable Cou rt specifically recognized the con stitutional limitations on

the powers of courts to impose sanctions. See, Trans-American , 811 S.W.2d at 917-918.

11

A COURT MAY NOT DISPENSE WITH THE NECESSITY OF AN

ORAL HEARING ON A MOTION TO COMPEL. (Issue No. Two,

Restated)

Entitlement To Hearing On Motion To Compel.

As set forth above, the right of a party and her counsel to an oral hearing, before a

motion to compel is granted and sanctions are imposed, is a fundamental constitutional right

and an important issue to the jurisprudence of this State. The denial of that right, by the trial

court and the Court of Appeals, conflicts with the prior decisions of this Honorable Court and

Cummings due process rights, and should merit correction by this Honorable Court.

Contrary to the holding of the Court of Appeals herein, Rule 215(1)(d), Rule 215(2)(b)

and Rule 215(3), Tex. R. Civ. P. (repealed) specifically required the court to afford the

opportunity for a hearing before assessing costs or imposing sanctions against the party or

attorney. These requirements of an oral hearing are carried forward into Rule 215.1(d), Rule

215.2(b), and Rule 215.3, Tex. R. Civ. P.. The requirement of a hearing before sanctions are

imposed implicates both Due Course of Law rights under Article I, 19, Tex. Const. and

Fourteenth Amendment, Due Process rights of the United States Constitution.12 McKinney

v. National Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex. 1989) specifically required Taylor

& Cire to obtain a hearing on Cummings objections.

This Honorable Court should clarify whether that hearing could be by submission, or

whether an oral hearing was required on Cummings objections.


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13This was not, there fore, the same as the situation that existed in Childs v. Argenbright, 927 S.W.2d

647, 652 (Tex. App. Tyler 1996, no writ), where the attorney filed 9 pages of objections and did not otherwise

attempt to answer any of the discovery.

12

WHAT MUST A PARTY DO TO PRESERVE AN ISSUE FOR

APPELLATE REVIEW? (Issue No. Five, Restated)

IS THE NON-MOVANT IS ENTITLED TO RELY UPON THE

OBJECTIONS ASSERTED TO THE DISCOVERY, EVEN WITHOUT

A SEPARATE RESPONSE BEING FILED, IN ORDER TO CONTEND

ON APPEAL THAT THE GROUNDS EXPRESSLY PRESENTED TO

THE TRIAL COURT ARE INSUFFICIENT AS A MATTER OF LAW

TO SUPPORT THE RELIEF GRANTED. (Issue No. Four, Restated)

Objections to Discovery Requests

On July 3, 1997, Taylor & Cire filed Interrogatories and another Request for

Production of Documents. (C.R. pp. 292, 300) Cummings timely and specifically objected

to Taylor & Cires discovery requests. (See C.R., pp. 311 - 325) See, e.g., State v. Lowry,

802 S.W.2d 669, 671 (Tex. 1991);In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex.

1999). Cummings objected generally that the Interrogatories called for 98 separate answers,

more than the 30 separate answers permitted by Rule 168, Tex. R. Civ. P. (repealed). (See

C.R. p. 311) Subject to and without waiving that objection, Cummings answered more than

60 of the sub-parts of the Interrogatories and made additional objections to specific

interrogatories. (C.R. pp. 311-319) 13

Taylor & Cire filed a Motion to Compel and for sanctions with regard to their First

Interrogatories and Second Request for Production. (See, C.R. p. 326) The motion attached,

and therefore included all responses and objections made by Cummings. Cummings did not

file a separate response to the motion to compel.

Without oral hearing, the trial court sustained some of Cummings objections which


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14Whethe r a party must file a separate response to a motion to compel in o rder to avoid waiver of th e

objections asserted is an important question to the jurisprudence of Texas and should be addressed by this Honorable

Court.

15A trial judges failure to apply the law correctly will constitute an abuse of discretion. Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992).

13

were contained within her discovery responses, which were attached to Taylor & Cires

motion. (C.R. pp. 4 09 - 410; App. 2) Presumably, this means that the trial court read

Cummings discovery responses and objections, without requiring Cummings to file a

separate response to the motion. Aside from the lack of hearing, Cummings believes that this

is a proper application of the law regarding the necessity of a separate response to a motion

to compel as a trial court should be able to read the objections asserted in the responses to

discovery, attached to the motion to compel, without the necessity or requirement of a

separate response. 14

The trial court compelled answers and production of documents and sanctioned

Cummings counsel $250, even though that relief was not sought in the motion. In so doing,

the trial court struck out the portion of Taylor & Cires proposed order which would have

overruled all of Cummings objections and did not otherwise address the issue of the

excessive number of sub-parts to the Interrogatories. (See C.R. p. 409; App. 2) This was an

abuse of discretion and plain error for the following reasons: 15

First, as to the attorneys fees, there was no hearing to determine who the responsible

party was, so as a matter of fact and law, there was no basis on which to determine against

whom to impose the $250 sanction. McKinney v. National Union Fire Ins. Co. , 772 S.W.2d

72, 75 (Tex. 1989); Trans-American Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.


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16This may be a case of first impression on this issue. Undersigned counsel has been unable to find

another case where some objections are sustained and then all of the objections are overruled.

17As to the Requests for Production, Cummings declined to produce a written exp erts report (C.R. p. 373,

No. 5; Rule 166b (e)(4), Tex. R. Civ. P. (repealed)); referred Tayl or & Cire to their own records for their contract

with Cummings (C.R. p. 375, No. 12); referred Taylor & Cire to the public records for certain docum ents (C.R. p.

375, No. 14); stated that there were no ne (C.R. p. 376, No. 20); and referred T aylor & Cire to the real property

records in Panola County (C.R. p. 376, No. 21). Those responses to the requests for production were proper,

complete and accurate.

14

1991). This was also an arbitrary amount as there was no evidence or pleadings to support

these attorneys fees.

Second, the trial court specifically sustained three (3) of Cummings objections to

Interrogatories but then, in a clear abuse of discretion, found that all of Plaintiff's

objections ... are vague, over broadd (sic) and harassing in nature, without merit and should

be overruled. (App. 2) At best, it is inconsistent to sustain some objections, while finding

that they should be overruled.16

Third, the trial court found that Plaintiffs have failed to fully answer and respond to

the Interrogatories and Request for Production and have filed evasive and incomplete

responses to same. (See, App. 2) In so holding, the trial court overlooked the fact that in her

original answers to interrogatories, before the Motion to Compel was even filed, Cummings

fully and completely answered, subject to her general objections, Interrogatories Nos. 1, 2,

3, 4, 5, 6, 8, 9, 14, 17 and 19, which answered interrogatories contained and constituted more

than thirty (30) answers allowed by Rule 168, Tex. R. Civ. P. (repealed). See C.R. pp. 347

- 355. 17

Fourth, the objections to several of the Requests for Production were proper in that

the objected -to Requests were vague, over broad, unspecific and constituting nothing other


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18Davis & Shank was Taylor & Cires first attorney. Coats, Rose substituted in after the case had

been pending for about 2 years.

19It is undisputed that there was, at that time, on-going litigation with the IRS ov er the estate tax

liability created by Taylor & Cires conduct. Signing of the Form 2848 would have given opposing (Taylor &

Cires) counsel the absolute right to compromise that litigation! It was also over broad because it was not limited as

to time or the type of tax records to be sought. Overruling Cummings objection to this Request and requiring

Cummin gs to sign the Form 2848 appoi nting opposing counsel as Plaintiffs attorney in fact was a clear abuse of

discretion. The request was over broad because it would have allowed opposing counsel to obtain copies of all of

15

than a fishing expedition prohibited under the Rules of Civil Procedure. See Loftin v.

Martin, 776 S.W.2d 145 (Tex. 1989); Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex.

1995); K-Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996); Dillard Dept

Department Stores, Inc. v. Hall, 909 S.W.2d 491 (Tex. 1995). Taylor & Cire were not

entitled to go f ishing through any discovery device. K-Mart, supra.

Fifth, as entered, the Order required Cummings to sign an IRS Form 2948 (sic)

authorization to the law firm of Davis & Shank.18 (See, Form 2848, App. 7) This was based

on Request No. 9, which read:

9. Executed IRS Forms 2848 hereto attached (one for your personal

income, one for estate taxes of Carl Wayne Roberson) permitting the law firm

of Davis & Shank, P.C., or its designated representatives, to secure a request

forall tax records from the Internal Revenue Service. [Emphasis supplied]

Cummings objected to this request as follows:

RESPONSE: Plaintiff objects to this request as being vague, over broad,

unspecific and constituting nothing other than a fishing expedition prohibited

under the Rules of Civil Procedure.

See C.R. p. 374. The request was over broad because the IRS Form 2848, was not an

authorization for copies, but was an IRS power of attorney which would have designated

and made opposing counsel Cummings attorney for dealing with the IRS, including the

power to sign any agreements, consents or other documents! See C.R. p. 307, 5. 19 20


25/41

Cummings tax records, wh ether related to the tax liability in question, or not. Again, undersigned coun sel has been

unable to find a single reported decision where a person, involved in litigation with the IRS has been required toappoint opp osing counsel as her attorney in fact, with full power to compromise litigation. See C.R. p. 309. Counsel

has also been unable to find a reported decision where a party has been require d to sign such a power of attorney in

blank!

20Cummings filed a Writ of Mandamus with the Court of Appeals, which denied the writ. After

Cummings filed a Writ of Mandamus with this Honorable Court (See Docket No. 97-1192); and after this Honorable

Court requested respo nses to the Writ, the trial court,sua sponte, modified the Order Compelling Answers and

Production of Documents (C.R. p. 409) to require Cummings to sign an IRS Form 8821, which is an authorization to

obtain copies and is not a power of attorney. (C.R. p. 413, App. 2) It is undisputed that Cummings immediately

complied. In all other respects, the Order remained the same.

16

The fact that the trial court modified the order compelling Cummings to sign the Form

2848 and deleted that requirement, should be held to validate Cummings objection to that

request and call into further question the appropriateness of the order compelling discovery

and the sanctions imposed for failure to comply.

For all of the foregoing reasons, the order dated November 4, 1997, which compelled

answers to interrogatories and production was plain error and an abuse of discretion. This

Honorable Court should reverse the Order. (C.R. pp. 409, 413, App. 2)

Compelling Deposition Testimony

In July, 1998, Taylor & Cire filed a Motion to Compel Carla Cummings Answers to

Deposition Questions. (C.R. pp. 505 - 529) Cummings did not file a response to the motion

but relied upon the privileges and objections asserted in the deposition, excerpts of which

were quoted in the motion.

By order of August 3, 1998, and again without oral hearing, the trial court compelled

Cummings to answer all of the alleged questions in clear violation of Cummings attorney -

client privilege. (C.R. p. 587; App. 4) This was harmful error and a clear abuse of discretion

for the following reasons:


26/41

17

Violation of Attorney - Client Privilege.

First, the trial courts ruling on Cummings at torney-client privilege, as set forth in the

motion to compel, without an oral hearing was an abuse of discretion, which merits

correction by this Honorable Court. McKinney v. National Union Fire Ins. Co. , 772 S.W.2d

72 (Tex. 1989); Trans-American Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)

and the specific requirements of Rule 215(1)(d), Rule 215(2)(b) and Rule 215(3), Tex. R.

Civ. P. (repealed); Rule 215.1(d), Rule 215.2(b) and Rule 215.3, Tex. R. Civ. P., all of which

require a hearing in connection with a motion to compel. See also, West v. Solito, 563

S.W.2d 240 (Tex. 1978) (requirement of in camera inspection of documents before

compelling of production of documents claimed to be privileged to avoid waiver or loss of

privilege).

The attorney-client privilege protects from disclosure confidential communications

between a client and her attorney made for the purpose of facilitating the rendition of legal

services to the client. Huie v. DeShazo , 922 S.W.2d 920, 922 (Tex. 1996). The privilege

allows unrestrained communications and contact between an attorney and a client in all

matters in which the attorneys professional advice or services are sought, without fear that

these confidential communications will be disclosed by the attorney voluntarily or

involuntarily in any legal proceeding. Ibid. The privilege attaches to the complete

communication between attorney and client, including not only legal advice but also factual

information. See, Huie, 922 S.W.2d at 923. In a civil context, the right to counsel is also

a Fifth Amendment right. See, e.g., Potashnick v. Port City Construction Co., 609 F.2d


27/41

18

1101, 1118 (5th Cir. 1980). Since this is a Fifth Amendment right and, as set forth in West

v. Solito, the attorney-client privilege can be lost if a party is forced to reveal the privileged

communications on the record, Cummings entitlement to an oral hearing to preserve her

attorney-client privilege is even more important than in ordinary cases.

Assuming further, arguendo, that the trial court could rule on the privilege asserted,

without an oral hearing, then the trial court abused its discretion in overruling the attorney-

client privilege which Cummings had asserted in the deposition and which was set forth in

the motion to compel. The questions and objections will be addressed sequentially. By way

of background, it is undisputed that Betty Homminga was Cummings Family Law lawyer

and was then representing her on various matters. L.T. Bradt is undersigned counsel. (See,

C.R. p. 510)

The first question, at page 5, line 1 - 7 of the deposition, (C.R. p. 505) specifically

requires Cummings to disclose what Cummings was told to her by her attorney, Betty

Homminga, about perjury.

Q. (By Mr. Lee) I also understand that you talked to Betty Homminga

about perjury. What did Betty Homminga tell you about perjury?

MR. BRADT: That would also be attorney/client . I instruct her not to

answer.

The second question from the deposition, at page 51, lines 7 - 11, (C.R. p. 505)

specifically requires Cummings to disclose advice that undersigned counsel may or may not

have given Cummings.

Q. Did Mr. Bradt tell you not to file a tax return?


28/41

19

MR. BRADT: That invades the attorney/client privilege. I instruct her

not to answer.

The third question from the deposition, at page 56, lines 6 - 12, (C.R. p. 506) requires

Cummings to disclose whether she has received certain advice and whether she has taken

certain actions on the advice of counsel. This goes directly to the advice that counsel has

given her. See Rule 503, Tex. R. Evid.

Q. Has it been on the advice of counsel that you have taken no other action

with respect to the letter sent to you by the IRS?

MR. BRADT: That would go to attorney/client privilege and I instruct

her not to answer it.

The fourth, fifth and sixth questions, were all answered. There was not, therefore,

anything to compel.

The seventh and eighth questions ask Cummings how she had obtained certain

information. (C.R. p. 507) The questions tended to invade the attorney-client privilege. See

Rule 503, Tex. R. Evid.

Q. How had you gotten that information?

MR. BRADT: I object to the form of the question as tending to invade

the attorney/client privilege and instruct the witness not

to answer it. * * *

Q. Do you have any information as to how the IRS got wind of the

potential tax liability that you might have, what the estate might have?

MR. BRADT: I instruct the witness not to answer. I ts tending to

invade the attorney/client privilege.

The ninth question was: (C.R. p. 507)

Q. Okay. What else do you recall Betty Homminga saying that she said to


29/41

20

Buck and Martha?

MR. BRADT: I believe it falls within the attorney/client privilege. ...

The tenth question requested Cummings to disclose her discussions with her attorney

about suing Taylor & Cire. (C.R. p. 507)

Q. At anytime in 1995, did you ever discuss with Betty Homminga suing

Buck and Martha?

MR. BRADT: That goes directly to privilege, plus its vague and

ambiguous.

MR. LEE: Anytime in 1995 is the time period.

MR. BRADT: Goes directly to privilege. I instruct her not to answer it.

This is clearly within the attorney-client privilege. See Rule 503, Tex. R. Evid.

The eleventh, twelfth and thirteenth questions requested Cummings to disclose

communications between Cummings and undersigned counsel. (C.R. p. 508)

Q. Ms. Cummings, did you ever ask Mr. Bradt why he didnt put into the

record in June of 96 all this evidence that you wanted in the record?

MR. BRADT: That invades attorney/client privilege. * * *

Q. (By Mr. Lee) Did you ever ask Mr. Bradt in June of 96 to let you get

up on the stand and testify to the evidence that you wanted before the

court that you have just outlined for me?

MR. BRADT: That invades the attorney/client privilege and I instruct

her not to answer. * * *

Q. Did you ever recall speaking with Mr. Bradt in 1995 about your

complaints or criticisms of Martha Adams and Buck Cire?

MR. BRADT: That would invade the attorney/client privilege and Im

going to instruct her not to answer it.


30/41

21Cummings suggests that the prope r procedure should be simi lar to that announced by Chief Justice

John Marshall inIn re Willie

, 25 F.Cas. 38 (D. Virginia 180 7) as relates to the Fifth Amendment pr ivilege.

22The fourteenth question, C.R. page 512, goes to a document that Cummings did not have. This

was a proper objection.

23While taken under the former Rules of Civil Procedure, Cum mings suggests that under Rule

192.3(a), Tex. R. Civ. P., this would still be a proper objection and that, therefore, there is a conflict between R ule

192.3(a) and Rule 199.5(e), Tex. R. Civ. P., which this Honorable Court should address and resolve. Otherwise,

there is no limit to the harassment that a party (or witness) may be subjected to du ring a deposition in the form of

improper q uestions, not designed to lead to the discove ry of admissible evidence, but which are otherwise in proper

form. E.g., Have you had sex with a parrot? would not support an objection under Rule 199.5(e).

21

Even without an evidentiary hearing, it should be apparent that all of the foregoing

questions clearly call for answers that fall within the attorney-client privilege. See Rule 503,

Tex. R. Evid. In light of the trial courts actions, this case presents this Honorable Court with

the opportunity to specify the procedure to be employed to determine the propriety of the

assertion of attorney-client privilege that is made on the record, in a deposition, such as here.

21 22

Discovery Not Reasonably Calculated to Lead to Discovery of Admissible Evidence.

The fifteenth, sixteenth and seventeenth questions were not relevant and were not

reasonably calculated to lead to the discovery of admissible evidence. (C.R. p. 512 - 13).

Cummings counsel objected on that basis. Axelson, Inc. v. McIlhany , 798 S.W.2d 550, 553

(Tex. 1990). 23

Q. How much of your settlement from the Texas Utilities case do you still

have?

MR. BRADT: Counsel, Im going to instruct her not to answer that.

Thats not reasonably calculated to lead to the discovery

of admissible evidence.

* * *

Q. (By Mr. Lee) did you have any significant dollars left from the

settlement at the time you filed this lawsuit?


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22

MR. BRADT: Same answer or same objection, excuse me.

* * *

Q. (By Mr. Lee) Wasnt one of the motives for you filing this lawsuit

against Martha and Buck the fact that you were running out of money?

MR. BRADT: Its not reasonable calculated to lead to the discovery of

admissible evidence. I instruct her not to answer.

* * *

Cummings suit against Taylor & Cire was for, inter alia, breaches of fiduciary duty in

accepting an aggregate settlement and in acting as intermediaries between plaintiffs, without

disclosing or obtaining waivers of that conflict of interest. Whether Cummings had any of

the money left from the TUFCO settlement was immaterial to the question of whether Taylor

& Cire breached their fiduciary duty in accepting an aggregate settlement and in acting as

intermediaries between Cummings and Jerry Wayne Roberson - without written waivers of

the conflict of interest. Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999).

This record should clearly demonstrate that these were improper questions, far beyond

the scope of legitimate discovery, invading privileges and were addressed with proper

objections. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990). These objections

would have been raised at the time of hearing on Taylor & Cires motionif there had been

one. See Rule 204, Tex. R. Civ. P. (repealed). Even without a hearing, the appropriateness

of the objections is obvious from the face of the record and overruling of same should be

held to be an abuse of discretion.

As to the assertion of the attorney-client privilege, McKinney v. National Union Fire

Ins. Co., 772 S.W.2d 72, 75 (Tex. 1989) and Rule 166b(4), Tex. R. Civ. P. (repealed),

specifically required that Cummings and her counsel be afforded the opportunity to present


32/41

24The Court of Appeals, in focusing in on 3 of the reasons in Cummings Brief, lifted those reasons

out of context to support the Courts opinion that they were conclusions sans explanation. [Emphasis in original]

The 5 reasons were explanations as to why the order of November 4, 1998, (C.R. p. 409) was plain error and an

abuse of discretion. Appellants Brief, pp. 5 - 6. As should be apparent from the Brief, the reasons were not meant

to be read alone, but together.

23

live testimony (on a sealed record) to establish the privilege and not be limited to filing

affidavits.

For all of the foregoing reasons, the trial court erred and abused its discretion when

it compelled Cummings to appear and answer questions to the deposition. The entitlement

to a hearing in a situation where privilege is claimed is important to the jurisprudence of this

State and should be addressed by this Honorable Court.

Petitioner Fully Briefed Her Issues at the Court of Appeals

Appellate courts construe the rules of appellate procedure, including the briefing rules,

liberally. See, e.g., Richard v. Cornerstone Constructors, Inc., 921 S.W.2d 465 (Tex.

App.Houston [1st Dist.] 1996, writ denied). However, the Court of Appeals denied

Cummings Issues relating to the discovery orders, stating that Cummingss assertions ...

consist of nothing more than conclusionssans explanation and that Cummings had failed

to cite authority thereon. Cummings v. Cire, 74 S.W.3d 920, at 924. (App. 1) In denying

these issues, the Court of Appeals violated this rule of liberal construction and put its opinion

in conflict with prior opinions of this Honorable Court and with the opinions of other courts

of appeals on these points.24

In her Brief at the Court of Appeals, in the Argument and Authority, under each

Restated Issue, Cummings specifically incorporated all argument and authority under every

other Issue in support of each Issue. (See, e.g., Appellants Brief, page 4, Issue No. One


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24

Restated, first paragraph; page 8, Issue No. Two Restated, first paragraph, etc..) This was

and should be a proper incorporation by reference of the authority in support of all Issues.

Texas Gas Utility Co. v. Barrett, 460 S.W.2d 409 (Tex 1970).

Further, in addition to the incorporation by reference, under Issue No. One, Cummings

cited case law and specific rules of civil procedure in support of the Issue. (See, Appellants

Brief, page 5-7) Under Issue No. Two, Cummings also cited case law and specific rules of

civil procedure and evidence in support of the Issue. (See, Appellants Brief, pages 9-11)

Under Issue No. Three, Cummings cited case law in support of the Issue. (See, Appellants

Brief, pages 12 - 13) Cummings then addressed the four court orders again at pages 15 -

17 of her Brief, where she again cited case law in support of the Issue. This should be a

sufficient compliance with Rule 38.1(h), Tex. R. App. P., to prevent waiver, contrary to the

holding of the Court of Appeals. (See, e.g., App. 9, where relevant portions of Appellants

Brief to the Court of Appeals are set forth for this Honorable Courts convenience.)

Cummings also cited directly to the record and attached copies of the orders

complained of to her Brief. Id. This should be a sufficient citation to the portions of the

record which supported her points, and should have preserved these issues for review. See,

e.g., St. Paul Med. Ctr. v. Cecil, 842 S.W.2d 808, 816 - 817 (Tex. App.Dallas 1992, no

writ); Phippen v. Deere and Co., 965 S.W.2d 713, 716 (Tex. App.Texarkana 1998, no

writ).

Appellate Preservation: Lack of Separate Response or Answer


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25The absur dity of this position is further reflected by the fact that the first order sa nctioned

Cummings attorney. However, and as noted by the Court of Appeals, the motion did not seek sanctions against

Cummings attorney - only against her an d her father. See C.R. pp. 343 - 344. Under the logic of the Court of

Appeals, the failure of Cummings an d her attorney to file a response to the motion meant that they were not opposed

to the imposition of sanctions against counsel, even though such relief was not requested in the motion.

26

motion to compel. 25

While this Honorable Court has not expressly addressed the requirement of a separate

response to a motion to compel, in the context of motions for summary judgment, this

Honorable Court has held that while it may be prudent and helpful to the trial court for the

non-movant always to file an answer or response, even without a response, the non-movant

may attack the legal sufficiency of the motion on appeal and to contend on appeal that the

grounds expressly presented to the trial court by the movants motion are insufficient as a

matter of law to support the relief sought. See, City of Houston v. Clear Creek Basin

Authority , 589 S.W.2d 671, 678 (Tex. 1979). The logic of that decision should apply in the

context of a hearing on objections to discovery, especially when those objections are set forth

verbatim in the motion to compel, as here; and especially in light of Cummings entitlement

to a hearing underMcKinney.

Further, and in the context of the requirement of a separate response, the law does not

require doing that which is futile. See, e.g., City of Gladewater v. Pike, 727 S.W.2d 514

(Tex. 1987) (law does not require parties to take actions which are futile). Cummings

responded to Taylor & Cires First Set of Written Interrogatories. (C.R.pp. 311 - 319).

Cummings asserted 2 general objections, the second of which was that the interrogatories

called for more than thirty (30) answers, in violation of the strictures of Rule 168, Tex. R.

Civ. P. (C.R. p. 311). Cummings then proceeded to set forth each of the interrogatories


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26Interrogatory No. 12 requested material under Rule 803(1 3), Texas Rules of Evidence (sic). Rule

803(13 ), Tex. R. Civ. Evid. (repealed), specifically related to Family Records. Rule 803(13), Tex. R. Evid., still

relates to family records. This is a case about legal malpractice committed in the context of the acceptance of an

aggregate settlement. What engravings on urns, crypts or tombstones, etc., or treatises, periodic als or pamphlets on

the same, could possibly have to do with T aylor & Cires legal malpractice is impossible for undersigned co unsel to

fathom. As worded, what interrogatory could possibly be more vague, over broad or ambiguous? Those objections

were, and still are prop er, to that interrogatory; and it was an ab use of discretion for the trial court to o ver rule those

objections.

27

and, parenthetically, the number of each separate response called for in the interrogatories.

Ibid.. Cummings then fully and completely answered interrogatories nos. 1, 2, 3, 4, 5, 6, 9,

11, 14, 17 and 19. Contained within those interrogatories were more than 60 separate

answers. Ibid. Cummings also set forth additional objections to specific interrogatories.

See, e.g., interrogatory nos. 12 and 16 (C.R. pp. 317 - 318) 26 Taylor & Cire attached

Cummings entire response to the interrogatories to their motion to compel. See, C.R. pp.

347 - 355. How much more clearly could Cummings have set forth her general objection that

the interrogatories called for more than thirty (30) answers and her specific objections, than

as were set forth in the attachment to Taylor & Cires motion? Any attempt to do so would

merely have repeated the same parenthetical counting, the same specific objections and the

answers already made. This would have been an act of duplication and futility.

Appellate Preservation: Motion for Rehearing.

Although Cummings relied on her objections as set forth in her answers, attached to

Taylor & Cires motions to compel and did not separately respond to the motions, Cummings

did seek to rehear the orders. (See C.R. p. 1382, App. 5) The seeking of rehearing on the

motions / orders, should be held to preserve the issue for appellate review. Rule 33.1, Tex.

R. App. Proc.. See, also, State ex rel. Latty v. Owens, 907 S.W.2d 484 (Tex. 1995). Further,

under the authority ofDowner v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1986),


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27The fact that Taylor & Cire considered both Carl Hendrickson and Jerry Wayne Roberson to be

plaintiffs is demonstrated by their First Amended O riginal Answer to Plaintiffs, Carla Roberson and Carl

Hendricksons Second Amended Original Petition and Original Answer to Plaintiff Jerry Wayne Robersons First

Amende d Original Petition in Intervention. C.R. p. 598.

29

"* * * Where the court seeks to punish either by fine, arrest, or imprisonment

for the disobedience of an order or command, such order or command must

carry with it no uncertainty, and must not be susceptible of different meanings

or constructions, but must be in the form of a command, and when tested by

itself, must speak definitely the meaning and purpose of the court in ordering.

Ex parte Slavin , 412 S.W.2d 43, 44 - 45 (Tex. 1967) [Bold Emphasis Supplied]. See alsoEx

parte Padron, 565 S.W.2d 921, 923 (Tex. 1978).

When tested by itself, this order is fatally defective and void for the following reasons:

First, it recites that Reliance Insurance Companys Motion to Compel Compliance with

Court Order and Subpoena Duces Tecum was heard. (Bold Emphasis Supplied) Reliance

Insurance Company was not a party to the suit and was not even a carrier for any of the

parties to the suit. There was not, and is not, any such motion to be found in the file on this

case.

Second, it states that Plaintiff comply without specifying which plaintiff was to

comply. As set forth above, there were three (3) plaintiffs represented by two separate law

firms in the suit against Taylor & Cire at that time -- Cummings, Carl Hendrickson and Jerry

Wayne Roberson. (C.R. p. 185; p. 280) 27

Third, the order refers to the courts order of January 5, 1998 and the subpoena

duces tecum served on May 27, 1998 without attaching same. While not an injunction, this

was an order compelling Cummings to perform certain acts, failure to do which could result

in Cummings being held in contempt. Rule 215(2)(b)(6), Tex. R. Civ. P. (repealed). To that


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28Rule 683 , Tex. R. Civ. P., provides in relevant p art: Every order granting an injunction ... shall

describe in reasonable d etail and not by reference to the com plaint or other document ....

30

extent the prohibition of Rule 683, Tex. R. Civ. P., against incorporation by reference should

be held to apply.28 Cummings should not to be placed on peril of guessing which order of

January 5, 1998, or which subpoena duces tecum the trial court might be referring to. Ex

parte Slavin, 412 S.W.2d 43, 44 - 45 (Tex. 1967); Ex parte Herrera , 820 S.W.2d 54 (Tex.

App.Houston [14th Dist.] 1991, orig. proceeding).

The method of determining the sufficiency of an order compelling discovery and

whether the order may incorporate other documents by reference, without attaching same,

are important questions to the jurisprudence of this State and should be addressed by this

Honorable Court.

CONCLUSION

As set forth above, the trial court abused its discretion on multiple occasions -- in

over-ruling objections to improper discovery, in compelling answers to improper discovery,

in over-ruling the attorney-client privilege objection asserted during deposition, without a

hearing, etc. These abuses of discretion culminated in the ultimate abuse of discretion: the

striking of Cummings pleadings, which was reversed by the Amarillo Court of Appeals, but

which is the subject of Taylor & Cires Petition for Review herein. The necessity of a

separate response to a motion to compel, the entitlement to a hearing on motions to compel

or for sanctions, the manner of preserving issues for appellate review, the sufficiency of

briefing at the Court of Appeals, the construction of orders, and resolution of the conflict

between the opinion of the Seventh Court of Appea ls and the decisions of this Honorable


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31

Supreme Court (and other courts of appeals, as cited herein) are all matters that are important

to the jurisprudence of this State. For the above reasons, this Honorable Court should grant

Cummings Petition for Review.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Cummings prays that this Honorable

Court grant her Petition for Review, find that the trial court abused its discretion in

overruling Cummings objections to discovery and deposition questions and in compelling

her to respond to discovery, as set forth in the orders complained of. Cummings prays that

this Honorable Court reverse those orders. Cummings prays that this Court thereafter remand

this case to the trial court for further proceedings consistent with this Honorable Courts

opinion. Cummings prays for general relief.

Respectfully submitted,

The Teltschik Law Firm,A Texas Professional Corporation

_______________________________________

L.T. Butch Bradt #02841600

5718 Westheimer, Suite 700

Houston, Texas 77057-5785

(713) 681-2696

Fax: (713) 978-6434

_______________________________________

Elsie Martin-Simon #18382800

1915 Commonwealth, Suite 203

Houston, Texas 77006


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(713) 521-3168

Fax: (713) 521-0740

Attorneys for Carla Cummings

CERTIFICATE OF SERVICE

I, the undersigned attorney, certify that a true and correct copy of the foregoing was

hand-delivered / faxed / mailed, proper postage affixed in a wrapper addressed to:

Charles R. Watson, Jr.

Mullin, Hoard & Brown, L.L.P

P.O. Box 31656

Amarillo, Texas 79120-1656

Attorney for Petitioner/Cross-Respondent

on November 20, 2002.

__________________________________

L.T. Bradt