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In re Melcher

Court of Appeals of Texas, Fourteenth District

March 23, 2017

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

         ORIGINAL PROCEEDING WRIT OF MANDAMUS

         215th District Court Harris County, Texas Trial Court Cause No. 2011-52524

          Panel consists of Justices Jamison, Donovan and Brown.

          MEMORANDUM OPINION

          Martha Hill Jamison Justice

          Trey 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.

         I. Background

         Harris County sued Hallmark Cleaners and the current and former owners of the property on which Hallmark operated at 4203 San Felipe[1] 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.[2]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 decades.[3]

          Harris 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 is void.

         A. Mistrial and the November 8, 2013 Sanctions Order

         The 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.

         Harris 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.

         On 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.

         B. Discovery Violations and the August 28, 2015 Sanctions Order

         On 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 ...


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