Opinion
No. 05-07-01040-CV
Opinion Filed August 30, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
Original Proceeding from the 193rd Judicial District Court, Dallas County, Texas Trial Court Cause No. 07-01451.
Before Justices WHITTINGTON, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Evan Lane "Van" Shaw, relator, seeks a writ of mandamus ordering the trial court to vacate its "Order Denying Defendant's Motion to Dismiss for Lack of Jurisdiction," signed June 1, 2007, and its "Order on Plaintiff's Motion to Compel/Request for Fees," signed July 8, 2007. Mandamus is an extraordinary remedy that is available only when the trial court clearly abuses its discretion and there is no adequate remedy at law. In re CI Host, Inc., 92 S.W.3d 514, 516 (Tex. 2002) (orig. proceeding). Prior to 2004, Shaw and real party in interest, D. Brent Lemon, were law partners. Disputes arose between the partners that resulted in the termination of the partnership. These disputes were resolved by arbitration, and a final judgment confirming the arbitration award was entered on January 20, 2005. In February 2007, Lemon filed a bill of review seeking to set aside the judgment on the grounds that it is illegal, against public policy, without adequate consideration, and was procured by Shaw's fraud. Lemon alleged, inter alia, that Shaw filed false sworn verifications with the State Bar of Texas stating that he attended certain mandatory continuing legal education courses when he did not. Lemon further alleged that, as a result of Shaw's false sworn verifications, Shaw was not in good standing with the State Bar at the time he entered into the settlement agreement with Lemon and could not legally share in the fees distributed pursuant to that agreement. Lemon alleged he did not learn of Shaw's alleged fraud until after the time limit had passed for filing a motion to vacate the arbitration award.
1. Order Denying Defendant's Motion to Dismiss for Lack of Jurisdiction
Shaw filed a motion to dismiss the bill of review on the ground that the trial court did not have subject matter jurisdiction over an arbitration matter because Lemon did not file a motion to vacate the arbitration award within 90 days of learning of the alleged fraud. See Tex. Civ. Prac. Rem. Code Ann. § 171.088(b) (Vernon 2005). Shaw asserts the trial court abused its discretion by denying his motion to dismiss Lemon's bill of review proceeding on this basis. Incidental trial court rulings, including pleas to the jurisdiction, generally will not be reviewed by mandamus because appeal is an adequate remedy at law. In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004) (orig. proceeding); In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding). Courts have made exceptions to this general rule when one court renders an order that directly interferes with another court's jurisdiction, or when it is shown that an agency has exclusive jurisdiction over the matter. In re Entergy Corp., 142 S.W.3d at 321; In re State Bar of Tex., 113 S.W.3d at 734. Shaw has not shown that any exception applies to this case. Accordingly, we deny mandamus with regard to Shaw's request to vacate the trial court's order denying his motion to dismiss because he has an adequate remedy at law.2. Order on Plaintiff's Motion to Compel/Request for Fees
Shaw also argues the trial court abused its discretion by granting Lemon's motion to compel/request for fees. The background on the motion is that Lemon sought to take Shaw's deposition and served a subpoena duces tecum asking Shaw to produce, inter alia, records of his attendance at mandatory continuing legal education courses for the years 2001 through 2006 and communications with the State Bar concerning those courses. Two days before the deposition was to occur on June 6, 2007, Shaw filed a motion for protection. Shaw objected to the production of his MCLE records on the grounds the records are irrelevant, privileged, confidential, and the request is overly broad and harassing. The deposition was held, Shaw refused to answer questions, and Lemon filed a motion to compel/request for fees that same day. On June 8, 2007, Shaw filed his "motion to dismiss, brief in support of defendant's emergency motion for protection and stay of discovery, and response to Lemon's motion to compel and for fees." After a hearing on August 9, 2007, the trial court granted Lemon's motion to compel/request for fees and ordered Shaw to appear at a deposition on August 13, 2007 and to produce certain documents. We issued an emergency stay to consider Shaw's petition for writ of mandamus. The determination of the scope of discovery is generally within the trial court's discretion. See In re Graco Children's Products, Inc., 210 S.W.3d 598, 600 (Tex. 2006) (orig. proceeding). Unless there is an abuse of discretion, the trial court's ruling should not be disturbed. Id. The trial court abuses its discretion by ordering discovery that exceeds that permitted by the rules of procedure. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). The rules of procedure define the general scope of discovery as "any unprivileged information that is relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information sought is `reasonably calculated to lead to the discovery of admissible evidence.'" Id.; Tex. R. Civ. P. 192.3(a). Although the scope of discovery is broad, requests for discovery must be "narrowly tailored to the dispute at hand." In re Allstate County Mut. Ins. Co., 227 S.W.3d 667, 669 (Tex. 2007) (per curiam) (orig. proceeding) (citing In re CSX Corp., 124 S.W.3d at 153). Without regard to the merits of Lemon's claim, we conclude Shaw's MCLE records and communications concerning those records are relevant to Lemon's contention that the settlement agreement should be set aside because Shaw was allegedly not authorized to practice law at the time he executed the agreement. See Robnett v. Kirklin Law Firm, 178 S.W.3d 45, 51 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (attorney's reinstatement to practice of law after suspension did not operate retroactively to validate contingency-fee agreement signed while attorney suspended); see also Satterwhite v. State, 952 S.W.2d 613, 618 (Tex.App.-Corpus Christi 1997) (retroactive reinstatement of attorney's status did not absolve lawyer of responsibility for professional misconduct during period of suspension), aff'd, 979 S.W.2d 626 (Tex.Crim.App. 1998). We also conclude that Shaw has not shown that his MCLE records are privileged and confidential. Shaw does not cite any authority in support of this contention. And the State Bar rules provide thatthe files, records, and proceedings of the Committee [on Minimum Continuing Legal Education], as they relate to the compliance or noncompliance of any member with the requirements of this Article, shall be confidential and shall not be disclosed except upon consent of the member affected or as directed in the course of judicial proceeding by a court of competent jurisdiction.Tex. State Bar R. art. XII, § 12, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon Supp. 2006) (emphasis added). However, we conclude Shaw has shown that the trial court's order granting the motion to compel is overly broad. It compels Shaw to attend the deposition and
2. During the ordered deposition, Defendant Shaw is to answer all questions relative to his participation, or claim of participation made at any time, in Continuing Legal Education courses; In Exhibit A attached to the order, the trial court also orders Shaw to produce at that deposition
3. A true and correct copy of any non-compliance notice issued by the State Bar of Texas relative to Evan Lane Shaw.
4. A true and correct copy of all submissions made by or on behalf of Evan Lane Shaw to the State Bar of Texas in order to amend his MCLE records.The cited provisions of the trial court's order are not limited in time or scope, do not comport with Lemon's request, and should have been more narrowly tailored to the period of time the parties contend is in dispute. As a result, the order is overly broad. We conclude the trial court abused its discretion in the breadth of its order. Accordingly, we conditionally grant the petition for writ of mandamus in part and order the Honorable Carl Ginsburg, Judge, 193rd Judicial District Court, Dallas County, Texas, to vacate his order on plaintiff's motion to compel/request for fees dated July 8, 2007 and to reconsider the scope of permissible discovery in light of this opinion. See Tex. R. App. P. 52.8(c). The writ will issue only if the trial court fails to comply.
Although the order is signed July 8, 2007, the order states the trial court conducted a hearing on the motion to compel/request for fees on August 9, 2007. The parties apparently agree that the order was dated incorrectly and actually was signed after the hearing on August 9, 2007.
Shaw also argues the trial court does not have jurisdiction because the State Bar is the proper party to bring an action for suspension or discipline. However, Lemon does not seek disciplinary action against Shaw in his bill of review. Instead, he seeks to set aside a contract Shaw entered into at the time Lemon alleges Shaw was not authorized to practice law. Consequently, Shaw has not shown the State Bar has exclusive jurisdiction over this matter. We also reject Shaw's argument that res judicata bars the court' s exercise of jurisdiction. The record does not show that Shaw raised this issue below.
Lemon argues Shaw waived his objections because he did not lodge them timely. We do not reach this argument because Lemon has not shown, and we have not found, where he raised this issue below. Lemon also argues Shaw waived his complaints because he did not timely file his petition for writ of mandamus after the trial court's April 9, 2007 order requiring Shaw to appear for deposition. Shaw's petition for writ of mandamus was filed August 10, 2007, one day after the hearing in which the trial court ordered Shaw to appear for a deposition on August 13, 2007. We conclude Shaw timely filed his petition. Lemon further argues our review of Shaw's complaints are barred because Shaw has "unclean hands." Although mandamus is a legal remedy, the equitable principle of the doctrine of unclean hands has been used to deny issuance of a writ. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 552 n. 2 (Tex. 1990) (orig. proceeding); In re Jim Walter Homes, Inc., 207 S.W.3d 888, 899 (Tex.App.-Houston [14th Dist.] 2006, orig. proceeding). However, this doctrine should not be applied when the party asserting the defense has not been seriously harmed and the wrong complained of can be corrected without applying the doctrine. In re Jim Walter Homes, Inc., 207 S.W.3d at 899. Because Lemon has not shown he has been seriously harmed or that any wrong cannot be corrected without applying the doctrine, we decline to apply it.
The record shows that Shaw was licensed to practice law in Texas on October 30, 1981.
See supra, footnote 1.