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In re Estate of Palmeros

Court of Appeals of Texas, Sixth District, Texarkana

April 19, 2017

IN THE ESTATE OF JORGE ALEJANDRO PALMEROS, DECEASED

          Submitted Date: March 16, 2017

         On Appeal from the County Court Hopkins County, Texas Trial Court No. P15-13793

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Bailey C. Moseley Justice

         This is an appeal of an order assessing the Law Office of Domingo Garcia, P.C., with the obligation to pay $1, 000.00 to attorney George L. Preston.

         The order arose in the County Court of Hopkins County probate of the estate of Jorge Alejandro Palmeros, deceased. Previously, Preston had represented Brandi Solis (the mother of the minor child who was the sole offspring of the decedent) in getting Solis appointed the independent administratrix of Palmeros' estate. After the issuance of letters of administration as requested, Paul R. Hornung, an attorney with the Garcia law firm, filed a motion to set aside the appointment[1] and, in connection therewith, had obtained the issuance of a subpoena duces tecum for service on Preston. That subpoena duces tecum directed Preston to appear for his deposition and bring with him "[t]he complete file pertaining to [his] client Brandie [sic] Solis in the matter of Cause No. P15-13793; In The Estate of Jorge Alejandro Palmeros, Deceased, in the County Court of Hopkins County, Texas." The subpoena was sent via facsimile transmission to Preston.

         Preston responded by filing a motion to quash the subpoena and for sanctions against Hornung and the law firm for whom he worked. In his motion, Preston noted that Hornung either knew or should have known (1) that the communications between Solis and Preston and the content of Preston's file were protected by the attorney/client privilege and (2) that all of the information which Hornung was entitled to review regarding the matter had previously been made a part of the court's file in the probate action.

         After a hearing, the trial court ruled on June 7, 2016, in favor of Preston, finding that the discovery request was improper and had created undue hardship on Preston, awarding Preston $1, 000.00 against the Law Office of Domingo Garcia., P.C., to be paid within thirty days. The Law Office of Domingo Garcia., P.C., has appealed.

         I. Points of Error Raised by Appellant

         In its initial brief, the Garcia firm claimed, in essence, that it had not complied with the requirements of service of a subpoena in two respects. First, it says that the only service of the subpoena on Preston was by electronic transmission (as opposed to the requirement in Rule 176.5 of the Texas Rules of Civil Procedure that it be personally served) and that the subpoena notice was not accompanied by the $10.00 "witness fee" that is required pursuant to Section 22.001(a) of the Texas Civil Practice and Remedies Code. Accordingly, the Garcia firm argued, Preston was not required by law to do anything at all and could have ignored the subpoena that had been delivered to him.

         In its reply brief, the Garcia firm adds that it was never found by the court to have been sanctioned and that the trial court was simply attempting to get Preston paid for unpaid fees due to him in the probate of Palmeros' estate.

         II. Content of Reply Brief

         The appellant's brief raises neither the issue of the lack of a specific finding that the Garcia firm was not sanctioned nor that the trial court was attempting to seek reimbursement for Preston of fees due to him in the probate of Palmeros' estate. We will not address issues newly raised in a reply brief. See Bankhead v. Maddox, 135 S.W.3d 162, 163-64 (Tex. App.-Tyler 2004, no pet.); Green Light Co. v. Moore, 485 S.W.2d 360, 364 (Tex. Civ. App.-Houston [14th Dist.] 1972, no writ). Accordingly, we will not respond to those additional points attempted to be raised by the Garcia firm in what it termed its "Reply Brief."

         III.Standard of ...


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