Court of Appeals of Texas, Sixth District, Texarkana
IN THE ESTATE OF JORGE ALEJANDRO PALMEROS, DECEASED
Submitted Date: March 16, 2017
Appeal from the County Court Hopkins County, Texas Trial
Court No. P15-13793
Morriss, C.J., Moseley and Burgess, JJ.
C. Moseley Justice
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.
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 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.
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.
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.
Points of Error Raised by Appellant
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.
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.
Content of Reply Brief
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
III.Standard of ...