Roger Kelly v. Russell Gaines, et al.--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-03-00369-CV

Roger Kelly,

Appellant/Cross Appellee

v.

Russell Gaines and southwest

guaranty mortgage corp.,

Appellees/Cross-Appellants

AND

ROBERT THOMPSON AND COMMERCIAL

REALTY ADVISORS, INC.,

Appellees

From the 249th District Court

Johnson County, Texas

Trial Court No. 249-13-99

CONCURRING AND DISSENTING Opinion

(dissenting on one issue)

The Concurring and Dissenting Opinion issued September 28, 2005 is withdrawn and this Concurring and Dissenting Opinion is issued November 16, 2005.

PROCEDURAL PRELUDE

In the past we have had so few opinions withdrawn that no particular problems were created if an opinion was withdrawn by an order separate from the new opinion being issued. The problem is that a majority of this Court has recently withdrawn and reissued an inordinate number of opinions (I am currently working with redrafts of four majority opinions), with and without motions for rehearing, and when on motion for rehearing, with and without requesting responses, frequently rewriting the opinion or judgment without any reference to the earlier opinion and even rewriting opinions without granting the motion for rehearing.

Issuing multiple opinions in the same appeal creates confusion. It is possible for a person to have two opinions on the same case from this Court, both certified by the clerk as authentic, which are not the same. This does not present a substantial problem when the issuance of another opinion in the same case is rarely done. But due to the greatly increased frequency of the majority issuing multiple opinions in the same case, it is time to adopt some procedure to assist the readers such as that utilized by the Texas Supreme Court by including in the second, or successive, opinion(s), the order, and explanation if needed, withdrawing the prior opinion as part of the new opinion. See e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex.2000).

This information can be in the first paragraph or in a footnote, but it needs to be readily evident to the reader that this is not the only opinion issued in the case. This is a simple procedure for the convenience of anyone reading the opinions to understand and easily determine which opinion is the Court's final answer on the issues presented. This process also allows a researcher, interested in the ultimate disposition, to easily track backwards to see the development of the case on appeal. Because the majority refuses to provide that information, I do so in this concurring and dissenting opinion.

Prior History of This Appeal

There are several motions currently before us in this appeal. First, a brief history:

(1) original opinions and judgment issued July 13, 2005;

(2) both sides filed motions for rehearing in late July;

(3) the original majority opinion and judgment were withdrawn and new ones were substituted for them on September 28, 2005 by a per curiam order which also denied Kelly s motion for rehearing and granted Gaines s motion for rehearing in part;

(4) Chief Justice Gray s concurring and dissenting opinion issued on September 28, 2005 expressly withdrew his concurring and dissenting opinion of July 13, 2005;

(5) on October 7, Kelly filed a Motion to Correct Order and Judgment contending that (a) the September 28, 2005 per curiam order incorrectly states that Gaines s motion for rehearing was granted in part and (b) the September 28, 2005 judgment does not match the revised September 28 majority opinion; and

(6) on October 13, 2005 Kelly filed a motion for rehearing asserting (a) the same grounds raised in his October 7, 2005 motion and (b) an additional ground challenging the decision on his motion to compel Gaines and Southwest Guaranty to answer discovery regarding the contemplated source(s) for the funding of the loan to Kelly which never materialized.

By an unpublished per curiam order the majority, on this date, has: (1) granted Kelly s October 7, 2005 motion to correct the order and judgment, (2) modified the judgment to indicate that both motions for rehearing filed in July are granted in part, and (3) denies Kelly s October 13, 2005 motion for rehearing. To accomplish this, the following are being issued:

(1) an order which:

(a) withdraws the September 28, 2005 order and judgment;

(b) substitutes a new judgment for the September 28, 2005 judgment;

(c) substitutes the September 28, 2005 opinion for the July 13, 2005 opinion;

(d) grants in part Kelly s and Gaines s July motions for rehearing;

(e) grants Kelly s October 7, 2005 motion to correct the order and judgment; and

(f) denies Kelly s October 13, 2005 motion for rehearing.[1]

(2) a new judgment.[2]

With these comments regarding the history of this appeal, I now proceed to the substance of my dissenting opinion.

THE DISSENTING OPINION

Sometimes all that is necessary to prove a privilege is the document itself. When the claim for protection is based on a specific privilege, such as attorney-client or attorney work product, the documents themselves may constitute the only evidence substantiating the claim of privilege. Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986). But when this situation presents itself, it requires some careful analysis, analysis that is lacking in the majority opinion.

In this case, in addition to the documents being provided in camera, Kelly provided a privilege log to assist the trial court in the evaluation of the privileges asserted by Kelly. With regard to Kelly s privilege log, I note that it also fails to identify the other recipients of items 2, 3, and 4.[3] Because other persons received the documents, and there is no affidavit or other evidence of who these persons are, I agree that Kelly has failed to establish the privileges asserted to these three items. See E.I. Dupont De Nemours and Company, 136 S.W.3d 218, 225-226 (Tex. 2004). I also note that the information in the log on items 2 and 3 is not entirely accurate.

Item 1 in the privilege log is clearly work product. Kelly sought to protect it on this basis. It should be protected. Thus, on this issue, I must dissent to the majority ordering these privileged documents turned over to the opposing party as part of this Court s judgment. At the very least the trial court should be given the opportunity on remand to review the privileges asserted with the guidance provided by this Court s opinions.

TOM GRAY

Chief Justice

Concurring and Dissenting Opinion delivered and filed November 16, 2005

[1] This gets a little confusing since, as indicated above, the relief in this motion for rehearing that is being denied is, in part, the same relief that is being granted via the ruling on the October 7, 2005 motion.

[2] The new judgment was modified to address a complaint I had about rendering a severance as part of the judgment. A severance that was not requested by anyone other than Justice Vance. The fact, or propriety, of a severance was not addressed in any opinion.

[3] It is difficult to discern or correlate the documents produced in camera to the privilege log. The log has four items listed. The documents produced in camera are divided by five numbered tabs. The first three items behind tab 1 correspond to the first three items on the log. Everything after that, including what is behind each of the four remaining tabs, may have been part of a file as described in item 4 in the log. I simply cannot tell. There are many people who appear to have received the documents whose identities are not established. There are many discrete documents of different and diverse character. The privilege log should have listed each document and the privilege asserted to it. For a discussion of the procedure to establish a privilege at the trial court and what is necessary for review of a ruling on a privilege, see the excellent discussion by Justice Vance in In Re Monsanto, 998 S.W.2d 917 (Tex. App. Waco 1999, orig. proceeding).