IN RE TREY MELCHER AND YVONNE MELCHER, TRUSTEES OF THEEVIE MELCHER NON-EXEMPT TRUST; MELCHER INVESTMENTS;AND BILL E. LEWIS AND RICHARD KERR, JR., CO-TRUSTEES OFTHE LUCILE BIRMINGHAM MELCHER MANAGEMENT TRUST ANDTHE LEROY MELCHER MARITAL DEDUCTION TRUST ANDFORMER CO-TRUSTEES OF THE EVIE MELCHER NON-EXEMPTTRUST, AND AS FORMER CO-EXECUTORS OF THE ESTATE OFLUCILLE BIRMINGHAM MELCHER, Relators
PROCEEDING WRIT OF MANDAMUS
District Court Harris County, Texas Trial Court Cause No.
consists of Justices Jamison, Donovan and Brown.
Hill Jamison Justice
Melcher and Yvonne Melcher, Trustees of the Evie Melcher
Non-Exempt Trust; Melcher Investments; Bill E. Lewis and
Richard L. Kerr, Jr., Co-Trustees of the Lucille Birmingham
Melcher Management Trust and the Leroy Melcher Marital
Deduction Trust and former Co-Trustees of the Evie Melcher
Non-Exempt Trust, and as former Co-Executors of the Estate of
Lucille Birmingham Melcher (collectively, the
"Melchers") seek mandamus relief in this court from
a sanctions order, which has the effect of adjudicating the
litigation. See Tex. Gov't Code Ann. §
22.221; see also Tex. R. App. P. 52. Concluding that
the Melchers are entitled to relief because the trial judge
did not first consider lesser sanctions, we conditionally
grant the petition for writ of mandamus.
County sued Hallmark Cleaners and the current and former
owners of the property on which Hallmark operated at 4203 San
Felipe for various violations of the Texas Water
Code and the Texas Health and Safety Code involving the
release of certain chemicals allegedly causing the
contamination of groundwater.The State of Texas, acting by and
through the Texas Commission on Environmental Quality, was
joined as a necessary and indispensable party to recover
civil penalties. Harris County subsequently added the
Melchers, alleging that various Melcher parties have owned
the property at 4206 San Felipe, where dry cleaning
operations have been in business for a number of
County alleged that environmental studies performed during
the investigation of the Hallmark Site indicated that
releases of a hazardous substance, perchloroethylene, from
the Melchers' property had comingled with hazardous
substances from the Hallmark Site, contaminating the
groundwater. The Melchers asserted affirmative defenses and a
counterclaim for declaratory judgment that the contingency
fee agreement between Harris County and its outside counsel
Mistrial and the November 8, 2013 Sanctions Order
case against the Melchers went to a jury trial. On October
29, 2013, the trial court declared a mistrial on the motion
of Harris County. Harris County argued that the Melchers'
expert changed his testimony at trial and defense counsel
violated the motions in limine multiple times, requiring the
attorneys to approach the bench.
County moved for sanctions, and after an evidentiary hearing
on November 4, 2013, the trial court granted the motion for
sanctions and ordered the Melchers, SKB, and their attorneys
to pay $30, 000 to Harris County upon final judgment; $16,
000 to the law firm representing Harris County, Connelly
Baker Wotring LLP, payable within ninety days of the order;
and $10, 000 to the State upon final judgment.
March 9, 2015, Harris County filed a motion to amend the
November 8, 2013 sanctions order. Although the Melchers'
attorney, Nathan Beedle, had argued at the November 4, 2013
hearing that immediate payment of the monetary sanctions
would hinder the Melchers' ability to continue to defend
the case, the Melchers, nonetheless, had hired Wayne
Dolcefino and Dolcefino Consulting to draft press releases,
contact the State's counsel and Harris County Judge Ed
Emmett in writing, and appear before Harris County
Commissioner's Court in person on behalf of the Melchers.
Harris County asserted that, because the Melchers were paying
Dolcefino, they had the financial ability to pay the monetary
sanctions award. After a hearing, the trial court denied the
motion to amend the November 8, 2013 sanctions order.
Discovery Violations and the August 28, 2015 Sanctions
April 23, 2015, Harris County served requests for production
on the Melchers concerning their communications with Wayne
Dolcefino (the "Dolcefino documents"). The Melchers
objected that the request was untimely because it was served
after the discovery cutoff date in the trial court's
docket control order before the first trial. Nevertheless,
Harris County filed a motion to compel that was granted by
the trial court. On May 18, 2015, Harris County filed a
motion to compel ...