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Electronically Filed
2/28/2024 7:31 AM
Hidalgo County District Clerks
Reviewed By: Claudia Rangel
CAUSE NO. C-0590-24-G
LIESAY LAW OFFICE § IN THE DISTRICT COURT
Petitioner, §
§
vs § 370th JUDICIAL DISTRICT
§
ETHAN SAENZ, §
NEREIDA LOPEZ SINGLETERRY § HIDALGO COUNTY, TEXAS
Respondents. §
______________________________________________________________________________
RESPONDENT NERIEDA LOPEZ SINGLETERRY’S
ORIGINAL ANSWER AND MOTION FOR SANCTIONS
______________________________________________________________________________
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Nereida Lopez Singleterry, Respondent in the above numbered and
styled suit, and makes this its Original Answer and in support thereof would show the Court the
following:
I.
OPERATIVE FACTS
Petitioner is a law firm owned and operated by Keith Livesay. Mr. Livesay has recently
engaged in an emotional vendetta against those who have humiliated him in open court. Mr.
Livesay has used his clients, specifically client Carlos Hernandez, to attack people who Livesay
feels have aggrieved him by exposing his malpractice and negligence. Mr. Livesay has not only
cost his clients increased fees, but he has also subjected them to personal liability by filing
frivolous claims in their name. With regard to the specific client Carlos Hernandez, Mr. Livesay
has pushed him to engage in criminal activity by hiding secret recording devices in is estrange
wife’s home to record conversations that his client was not a party to. Mr. Livesay apparently also
had his client record conversations where his client ended up admitting to striking his estranged
wife. Then, allowed evidence of the criminal activity of his client to be admitted to on the record
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of a hearing in open court. After, the horrible representation of Livesay, one of Livesay’s co-
counsels agreed to seal the records in the case. Mr. Livesay, not satisfied with his level of
malpractice fought to unseal the evidence of his own clients’ crimes so that the evidence could be
available to any member of the public.
Mr. Livesay then sought to enforce an appellate court judgment which had not become ripe
nor had it been finalized by the District Court against the wife of his client during the pendency of
a divorce. This resulted in Livesay seeking a judgment against the community estate of his own
client. Unfortunately for his client, Mr. Livesay filed on the non - final judgment prior to the
divorce being finalized. Which means that Livesay’s client could face the total amount of his own
lawyers alleged judgment when the community debts are divided by the court in a just and fair
split of the assets and liabilities of the married couple.
To the extent that Livesay’s ill drafted pleading is seeking to investigate potential
defamation, those claims have largely been nonsuited with prejudice in cause number CL-23-3743-
I; and therefore, not proper subjects for a petition to investigate claims under 202. Mr. Livesay is
also seeking to investigate the already filed application for turnover relief, such case is under a
discovery stay, pursuant to a pending TCPA motion. Mr. Livesay has already sought to obtain the
requested depositions and the Court in cause number CL-23-3743-I and has already ruled such
depositions would not proceed without a proper motion and finding under the TCPA statute. Mr.
Livesay failed to follow up on such motion and missed the deadline for such filing. Livesay is
now seeking to circumvent the discovery stay in an attempt to harass the respondent, a former
opposing attorney, whom Mr. Livesay has deep seeded animosity. Animosity that can only be
explained due to my client severely embarrassing Mr. Livesay and exposing his malpractice. Now,
Mr. Livesay is desperately trying to find someone to blame because of the level of professional
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incompetence that he has shown in these cases it is going to be hard to defend in a malpractice suit
or before the state bar. Everything that Mr. Livesay complains of on his behalf and on his poor
client’s behalf are harms he himself committed. If Mr. Livesay wants to find the sources of the
information becoming public, he has to look no further than his own reflection.
Mr. Livesay has not made a single claim that demonstrates that the use of “pre-suit”
discovery will be more useful or efficient and not unduly burdensome. Without stating in a clear
concise manner of what Mr. Livesay intends to discover from the responding parties, which is not
privileged, he should not be allowed to continue his blind harassment of the respondent.
III.
GENERAL DENIAL
Respondent, Nereida Singleterry enters a General Denial of Petitioner's claims.
Respondent denies each of the material allegations of fact and law contained in Petitioner's
Original Petition and demand strict proof thereof.
IV.
SPECIFIC DENIALS and OBJECTIONS
1. TCPA Prohibits use of Petition for pre-suit discovery under 202 in this case.
The Petitioner should not be permitted to circumvent the TCPA's mandatory discovery stay
by filing a Rule 202 petition seeking the same or similar discovery on matters already subject to a
pending TCPA motion In re Elliott, 504 S.W.3d 455, DeAngelis v. Protective Parents Coal., 556
S.W.3d 836. Even though the original causes of action have been nonsuited, the TCPA motion
remains pending on the issues of sanctions and attorney's fees. Therefore, the automatic stay
imposed by the TCPA remains in effect. Section 27.003(c) of the TCPA provides that all discovery
in the legal action is suspended upon the filing of a motion to dismiss under the TCPA. In re
Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 3
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Quality Cleaning Plus, 2022 Tex. App. LEXIS 8065, In re Elliott, 504 S.W.3d 455. The purpose of
this discovery stay is to prevent the Petitioner from circumventing the TCPA's protections by
engaging in potentially unnecessary, expensive, and invasive discovery while a motion to dismiss
is pending. Here, allowing the Petitioner to obtain the same or similar discovery through a Rule
202 petition would clearly undermine the discovery stay under Section 27.003(c) and the purpose
behind it. The TCPA's mandatory stay cannot be circumvented by simply filing a new petition
seeking the same information. Therefore, the Petitioner's Rule 202 petition should be denied on
grounds that it improperly seeks to bypass the discovery stay required by the TCPA. The requested
discovery should instead be sought through the procedures available under the TCPA, if at all.
2. Attorney client privilege protects against any discovery through Attorney,
RESPONDENT
The Respondent asserts attorney-client privilege on behalf of the former client to prevent
disclosure of the confidential communications between them Kay v. State, 340 S.W.3d 470, Wood
v. McCown, 784 S.W.2d 126. Although, Petitioner’s pleading requesting pre-suit discovery makes
it difficult to determine what information exactly is being sought, it appears he wants to discover
information that the respondent would have acquired during the course of her representation of a
former client.
The attorney-client privilege protects confidential communications made for the purpose
of facilitating legal services between an attorney and client In re Rescue Concepts, Inc., 556
S.W.3d 331, Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328. This privilege belongs to the
client, not the attorney Emami v. Emami, 2022 Tex. App. LEXIS 5840, In re Benavides, 2014 Tex.
App. LEXIS 4106. While the client has the right to waive the privilege, the lawyer cannot waive
Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 4
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it without the client's consent , Martinez v. State, 513 S.W.3d 87, Herbert v. State, 2012 Tex. App.
LEXIS 3126. The client has not waived such privilege.
Here, the respondent seeks to prevent disclosure of confidential attorney-client
communications with a former client Wood v. McCown, 784 S.W.2d 126. As the privilege belongs
to the client, it is the client who holds the right to waive it Fuller v. State, 835 S.W.2d 768, In re
Arterial Vascular Eng'g, Inc., 2000 Tex. App. LEXIS 7874. The Respondent cannot waive the
privilege without the client's authorization. Further, the Respondent has an ethical obligation to
assert the privilege on the client's behalf in order to protect the confidentiality of their
communications In re Benavides, 2014 Tex. App. LEXIS 4106, Herbert v. State, 2012 Tex. App.
LEXIS 3126.
Therefore, despite no longer representing the client, the lawyer asserts attorney-client
privilege on the former client's behalf regarding their past confidential communications. The
lawyer does not have discretion to waive the privilege without the client's consent. Martinez v.
State, 513 S.W.3d 87, Herbert v. State, 2012 Tex. App. LEXIS 3126. Doing so would improperly
violate the attorney-client privilege that rightfully belongs to the client and subject the respondent
to professional liability. Emami v. Emami, 2022 Tex. App. LEXIS 5840, West v. Solito, 563
S.W.2d 240.
V.
AFFIRMATIVE DEFENSES
To the extent that a discernable cause of action can be ascertained from the patched
together petition, Respondent put forth the following defenses:
Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 5
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ESTOPPEL - COLLATERAL
Respondent asserts the Affirmative Defense of Collateral Estoppel. Petitioner is precluded
from relitigating the issue of defamation against Respondent’s former client, Ricarte. A motion for
non-suit with prejudice has already been filed on the issues of facts of law that Petitioner seeks to
relitigate here. A non-suit with prejudice operates as final resolution of the affirmative claims for
relief and any claims which could have been made under the alleged facts. The issues presented in
the earlier action were necessary to the court's judgment on the matter of defamation for which
pre-suit discovery could be sought.
ESTOPPEL - QUASI
Respondent asserts the Affirmative Defense of Quasi Estoppel. Petitioner is prevented from
asserting, to Respondent's disadvantage, a right inconsistent with a position the Petitioner
previously took.
FAILURE TO STATE A CLAIM
Petitioner fails to state a valid claim which he seeks to obtain pre-suit discovery.
RES JUDICATA
Respondent asserts the Affirmative Defense of Res Judicata. This matter has already been
decided by a court of competent jurisdiction.
VI.
CONSOLIDATION
Mr. Livesay has shown a pattern of filing multiple lawsuits for the same factual allegations.
This is either an attempt to increase the chances of obtaining a favorable ruling form one of the
many courts he finds himself in or he is simply trying to increase the cost of litigation. There is
another suit pending in this county and state between the same parties, the Petitioner and the person
Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 6
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Petitioner claims to have a judgment against. The factual allegations in the suits are intertwined
and cannot be reasonably segregated, all discovery issues should be handled under the same court,
therefore we are asking that this court either send it back to Hidalgo County, Court at Law No. 9
or to the 93rd District Court, both which have jurisdiction of these claims. The 93rd, was the first
court to obtain jurisdiction over these issues and a Motion to Transfer and Consolidate is currently
pending in Hidalgo County, Court at Law No. 9.
VII.
SANCTIONS
Petitioner filed a frivolous Rule 202 petition, in this case, seeking pre-suit discovery on
claims that are already subject to a discovery stay in ongoing litigation from a party that the
petitioner knows is covered by attorney - client privilege. This petition violates Texas Rule of Civil
Procedure 13 and warrants the imposition of sanctions.
Rule 202 allows a party to petition the court for an order authorizing pre-suit discovery to
investigate a potential claim or suit In re Velvin Oil Co., 2018 Tex. App. LEXIS 3198, In re Liebbe,
2016 Tex. App. LEXIS 6356. Tex. R. Civ. P. 202.1. However, opposing counsel's Rule 202 petition
is frivolous and brought in bad faith. It seeks discovery on the exact claims already being litigated
between the parties in the current lawsuit and subject to a discovery stay. Seeking the same
discovery through a Rule 202 petition that is stayed in the current litigation is by definition
frivolous and duplicative. In fact, including this filing the Petitioner has filed at least 6 different
actions involving the same issues and or parties. Several of those previous filings have been
nonsuited.
Under Rule 13, the court may impose sanctions against an attorney who files pleadings that
are both groundless and/or either brought in bad faith or for the purpose of harassment R.M.
Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 7
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Hidalgo County District Clerks
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Dudley Constr. Co. v. Dawson, 258 S.W.3d 694. Tex. R. Civ. P. 13. Groundless means no basis in
law or fact and not warranted by existing law. Opposing counsel's Rule 202 petition is groundless
because the discovery sought is already part of the ongoing litigation and subject to a stay. The
Petitioner is attempting to circumvent the discovery stay and is attempting to discovery privileged
information. There is no good faith basis to seek the same discovery again through a separate Rule
202 petition.
The court should also find the Rule 202 petition was brought in bad faith and/or to harass.
There is no legitimate reason to file a Rule 202 petition seeking discovery on claims already being
litigated and stayed DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, Houston Tennis Ass'n
v. Thibodeaux, 602 S.W.3d 712. The only plausible reason is to harass the opposing party and
needlessly multiply proceeding costs by attempting to circumvent the discovery stay.
Sanctions are warranted against opposing counsel under Rule 13 to deter and prevent
further abuse of the discovery process. The court has broad discretion to craft an appropriate
sanction to punish the offender and deter future abuse. An appropriate sanction here would be an
award of attorneys' fees incurred in responding to the frivolous Rule 202 petition. The court should
also bar opposing counsel from filing any other Rule 202 petitions in this matter without leave of
court.
PATTERN OF MALICIOUS PRACTICE:
The Petitioner, Mr. Livesay, has recently engaged in a pattern of underhanded and deceitful
practices in order to harass the Respondent and other parties that he is frivolously harassing. Mr.
Livesay has demonstrated a habit of trying to obtain relief from the court in deceptive and
fraudulent manners. He does this by filing orders titled “Order Setting Hearings” and then
inserting relief into the order so that when the order setting gets signed, he can claim he was entitled
Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 8
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to the relief that the court inadvertently granted. He plays this trick, because he knows that order’s
setting hearings are routinely signed by the court staff instead of the judge. It is common for
Courts’ staff to rely on attorneys not violating their duty of candor to the court and will typically
sign said orders without presenting them to the judge because order setting hearings are not
supposed to grant any relief except setting a hearing date. Livesay has used this as a way to gain
some advantage in frivolous cases.
If we look into cases related to the issues, which Livesay intends to investigate, he has
already committed this type of fraud three times. One example of this is when Mr. Livesay asked
the Court, in Cause Number CL-23-3743-I, to set a hearing on a motion for Default against a party
that had already answered. In the order setting the hearing on the motion for default, Mr. Livesay
snuck in a line granting the default and setting the hearing only on the issue of damages. See
“Exhibit A”. Once the Court was made aware of Mr. Livesay’s fraudulent attempt to try to cheat
a win, the court on its own motion rescinded the order. Mr. Livesay was then later forced to non-
suit his filed claims for being frivolous.
Another example of this is on cause number C-0645-24-I, where although not properly
identifying a party in his comically nonsensical pleading, he is moving to serve the party through
alternative means1. In his proposed order granting the alternative service, Mr. Livesay again snuck
in relief against a person who is not even properly before the court yet. See “Exhibit B”.
The third example is this very case, where Mr. Livesay has only been able to serve one of
the parties in this case. The answer deadline for the party who has been served hasn’t even passed.
The answer deadline is March 04, 2024. Mr. Livesay, presumably knowing how to calculate an
1
Although Mr. Livesay names a Mildred E. Flores in the Style of C-0645-24-I, he lists only the Respondent in this
case as a party in that case. He technically never asked for service of a Mildred E. Flores in his pleading but is
attempting to get sanctions without a hearing against a person he hasn’t served or even pled to have served.
Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 9
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answer deadline, set a hearing on the ultimate issue on the Wednesday preceding the answer
deadline. See Exhibit C. It should also be noted that Mr. Livesay has not served the other named
party nor sought alternate service on the other party. Mr. Livesay should know that setting a
hearing before the parties are properly served before the court and able to properly response to his
frivolous filing is morally contemptable and legally sanctionable. This firm was able to discover
these fraudulent actions by Mr. Livesay with a quick search of those cases that are tangentially
related to the allegations made in this action. It is safe to assume that Mr. Livesay will continue to
engage in this type of fraudulent behavior unless action is taken to deter Mr. Livesay from his
abusive practices. Mr. Livesay is the type of lawyer that gives a bad name to our profession and
if we do not step in to correct his actions, we will become complicit in his misdeeds.
For the foregoing reasons, Respondent respectfully requests that the Court impose
sanctions against opposing counsel for violation of Rule 13 by filing the frivolous and harassing
Rule 202 petition seeking discovery on matters subject to a stay. The requested sanctions are
attorneys' fees and an amount that would deter Mr. Livesay from continuing his fraudulent
practices before our honorable courts. This motion for sanctions should be granted.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Respondent prays that it has judgment of
the Court, that Petitioner take nothing by their original suit, that all relief requested by Petitioner
be denied, and all of Petitioner’s causes of action be dismissed with prejudice to the refiling of
same; and that Petitioner be sanctioned for his continued harassment of the Respondent and
Respondent’s clients. Respondent further prays for such other and further relief, both general or
special, at law or in equity, to which they may show themselves to be justly entitled.
Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 10
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Hidalgo County District Clerks
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Respectfully submitted,
J. PENA LAW, P.L.L.C.
203 South 10th Ave.
Edinburg, Texas 78539
Phone: (956) 383-0751
Fax: (956) 383-5980
Email: office@penalawfirm.com
/s/ Javier Peña___________________
JAVIER PEÑA
State Bar No. 24005092
ATTORNEY FOR RESPONDENT
CERTIFICATE OF SERVICE
I hereby certify that on February 28, 2024, a true and correct copy of the above and
foregoing document was served via the electronic service manager on all counsel of record as
follows:
Via eServe:
attorney@RGVAppellateLaw.com
Liesay Law Offices
ATTORNEY FOR PETITIONER
/s/ Javier Pena
Javier Pena
Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 11
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Javier Pena on behalf of Javier Pena
Bar No. 24005092
javier@penalawfirm.com
Envelope ID: 84957043
Filing Code Description: Answer/Response
Filing Description: Original Answer
Status as of 2/28/2024 9:34 AM CST
Associated Case Party: Nereida Singletarry
Name BarNumber Email TimestampSubmitted Status
Javier Pena office@penalawfirm.com 2/28/2024 7:31:13 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Erika Cisneros erika@penalawfirm.com 2/28/2024 7:31:13 AM SENT
Gina Kailipaka gina@penalawfirm.com 2/28/2024 7:31:13 AM SENT
Marcela Castillo Paralegal@RGVAppellateLaw.com 2/28/2024 7:31:13 AM SENT
KEITH C.LIVESAY RGVAppellateLaw@yandex.com 2/28/2024 7:31:13 AM SENT
Preview
Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel CAUSE NO. C-0590-24-G LIESAY LAW OFFICE § IN THE DISTRICT COURT Petitioner, § § vs § 370th JUDICIAL DISTRICT § ETHAN SAENZ, § NEREIDA LOPEZ SINGLETERRY § HIDALGO COUNTY, TEXAS Respondents. § ______________________________________________________________________________ RESPONDENT NERIEDA LOPEZ SINGLETERRY’S ORIGINAL ANSWER AND MOTION FOR SANCTIONS ______________________________________________________________________________ TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Nereida Lopez Singleterry, Respondent in the above numbered and styled suit, and makes this its Original Answer and in support thereof would show the Court the following: I. OPERATIVE FACTS Petitioner is a law firm owned and operated by Keith Livesay. Mr. Livesay has recently engaged in an emotional vendetta against those who have humiliated him in open court. Mr. Livesay has used his clients, specifically client Carlos Hernandez, to attack people who Livesay feels have aggrieved him by exposing his malpractice and negligence. Mr. Livesay has not only cost his clients increased fees, but he has also subjected them to personal liability by filing frivolous claims in their name. With regard to the specific client Carlos Hernandez, Mr. Livesay has pushed him to engage in criminal activity by hiding secret recording devices in is estrange wife’s home to record conversations that his client was not a party to. Mr. Livesay apparently also had his client record conversations where his client ended up admitting to striking his estranged wife. Then, allowed evidence of the criminal activity of his client to be admitted to on the record Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 1 Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel of a hearing in open court. After, the horrible representation of Livesay, one of Livesay’s co- counsels agreed to seal the records in the case. Mr. Livesay, not satisfied with his level of malpractice fought to unseal the evidence of his own clients’ crimes so that the evidence could be available to any member of the public. Mr. Livesay then sought to enforce an appellate court judgment which had not become ripe nor had it been finalized by the District Court against the wife of his client during the pendency of a divorce. This resulted in Livesay seeking a judgment against the community estate of his own client. Unfortunately for his client, Mr. Livesay filed on the non - final judgment prior to the divorce being finalized. Which means that Livesay’s client could face the total amount of his own lawyers alleged judgment when the community debts are divided by the court in a just and fair split of the assets and liabilities of the married couple. To the extent that Livesay’s ill drafted pleading is seeking to investigate potential defamation, those claims have largely been nonsuited with prejudice in cause number CL-23-3743- I; and therefore, not proper subjects for a petition to investigate claims under 202. Mr. Livesay is also seeking to investigate the already filed application for turnover relief, such case is under a discovery stay, pursuant to a pending TCPA motion. Mr. Livesay has already sought to obtain the requested depositions and the Court in cause number CL-23-3743-I and has already ruled such depositions would not proceed without a proper motion and finding under the TCPA statute. Mr. Livesay failed to follow up on such motion and missed the deadline for such filing. Livesay is now seeking to circumvent the discovery stay in an attempt to harass the respondent, a former opposing attorney, whom Mr. Livesay has deep seeded animosity. Animosity that can only be explained due to my client severely embarrassing Mr. Livesay and exposing his malpractice. Now, Mr. Livesay is desperately trying to find someone to blame because of the level of professional Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 2 Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel incompetence that he has shown in these cases it is going to be hard to defend in a malpractice suit or before the state bar. Everything that Mr. Livesay complains of on his behalf and on his poor client’s behalf are harms he himself committed. If Mr. Livesay wants to find the sources of the information becoming public, he has to look no further than his own reflection. Mr. Livesay has not made a single claim that demonstrates that the use of “pre-suit” discovery will be more useful or efficient and not unduly burdensome. Without stating in a clear concise manner of what Mr. Livesay intends to discover from the responding parties, which is not privileged, he should not be allowed to continue his blind harassment of the respondent. III. GENERAL DENIAL Respondent, Nereida Singleterry enters a General Denial of Petitioner's claims. Respondent denies each of the material allegations of fact and law contained in Petitioner's Original Petition and demand strict proof thereof. IV. SPECIFIC DENIALS and OBJECTIONS 1. TCPA Prohibits use of Petition for pre-suit discovery under 202 in this case. The Petitioner should not be permitted to circumvent the TCPA's mandatory discovery stay by filing a Rule 202 petition seeking the same or similar discovery on matters already subject to a pending TCPA motion In re Elliott, 504 S.W.3d 455, DeAngelis v. Protective Parents Coal., 556 S.W.3d 836. Even though the original causes of action have been nonsuited, the TCPA motion remains pending on the issues of sanctions and attorney's fees. Therefore, the automatic stay imposed by the TCPA remains in effect. Section 27.003(c) of the TCPA provides that all discovery in the legal action is suspended upon the filing of a motion to dismiss under the TCPA. In re Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 3 Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel Quality Cleaning Plus, 2022 Tex. App. LEXIS 8065, In re Elliott, 504 S.W.3d 455. The purpose of this discovery stay is to prevent the Petitioner from circumventing the TCPA's protections by engaging in potentially unnecessary, expensive, and invasive discovery while a motion to dismiss is pending. Here, allowing the Petitioner to obtain the same or similar discovery through a Rule 202 petition would clearly undermine the discovery stay under Section 27.003(c) and the purpose behind it. The TCPA's mandatory stay cannot be circumvented by simply filing a new petition seeking the same information. Therefore, the Petitioner's Rule 202 petition should be denied on grounds that it improperly seeks to bypass the discovery stay required by the TCPA. The requested discovery should instead be sought through the procedures available under the TCPA, if at all. 2. Attorney client privilege protects against any discovery through Attorney, RESPONDENT The Respondent asserts attorney-client privilege on behalf of the former client to prevent disclosure of the confidential communications between them Kay v. State, 340 S.W.3d 470, Wood v. McCown, 784 S.W.2d 126. Although, Petitioner’s pleading requesting pre-suit discovery makes it difficult to determine what information exactly is being sought, it appears he wants to discover information that the respondent would have acquired during the course of her representation of a former client. The attorney-client privilege protects confidential communications made for the purpose of facilitating legal services between an attorney and client In re Rescue Concepts, Inc., 556 S.W.3d 331, Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328. This privilege belongs to the client, not the attorney Emami v. Emami, 2022 Tex. App. LEXIS 5840, In re Benavides, 2014 Tex. App. LEXIS 4106. While the client has the right to waive the privilege, the lawyer cannot waive Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 4 Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel it without the client's consent , Martinez v. State, 513 S.W.3d 87, Herbert v. State, 2012 Tex. App. LEXIS 3126. The client has not waived such privilege. Here, the respondent seeks to prevent disclosure of confidential attorney-client communications with a former client Wood v. McCown, 784 S.W.2d 126. As the privilege belongs to the client, it is the client who holds the right to waive it Fuller v. State, 835 S.W.2d 768, In re Arterial Vascular Eng'g, Inc., 2000 Tex. App. LEXIS 7874. The Respondent cannot waive the privilege without the client's authorization. Further, the Respondent has an ethical obligation to assert the privilege on the client's behalf in order to protect the confidentiality of their communications In re Benavides, 2014 Tex. App. LEXIS 4106, Herbert v. State, 2012 Tex. App. LEXIS 3126. Therefore, despite no longer representing the client, the lawyer asserts attorney-client privilege on the former client's behalf regarding their past confidential communications. The lawyer does not have discretion to waive the privilege without the client's consent. Martinez v. State, 513 S.W.3d 87, Herbert v. State, 2012 Tex. App. LEXIS 3126. Doing so would improperly violate the attorney-client privilege that rightfully belongs to the client and subject the respondent to professional liability. Emami v. Emami, 2022 Tex. App. LEXIS 5840, West v. Solito, 563 S.W.2d 240. V. AFFIRMATIVE DEFENSES To the extent that a discernable cause of action can be ascertained from the patched together petition, Respondent put forth the following defenses: Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 5 Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel ESTOPPEL - COLLATERAL Respondent asserts the Affirmative Defense of Collateral Estoppel. Petitioner is precluded from relitigating the issue of defamation against Respondent’s former client, Ricarte. A motion for non-suit with prejudice has already been filed on the issues of facts of law that Petitioner seeks to relitigate here. A non-suit with prejudice operates as final resolution of the affirmative claims for relief and any claims which could have been made under the alleged facts. The issues presented in the earlier action were necessary to the court's judgment on the matter of defamation for which pre-suit discovery could be sought. ESTOPPEL - QUASI Respondent asserts the Affirmative Defense of Quasi Estoppel. Petitioner is prevented from asserting, to Respondent's disadvantage, a right inconsistent with a position the Petitioner previously took. FAILURE TO STATE A CLAIM Petitioner fails to state a valid claim which he seeks to obtain pre-suit discovery. RES JUDICATA Respondent asserts the Affirmative Defense of Res Judicata. This matter has already been decided by a court of competent jurisdiction. VI. CONSOLIDATION Mr. Livesay has shown a pattern of filing multiple lawsuits for the same factual allegations. This is either an attempt to increase the chances of obtaining a favorable ruling form one of the many courts he finds himself in or he is simply trying to increase the cost of litigation. There is another suit pending in this county and state between the same parties, the Petitioner and the person Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 6 Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel Petitioner claims to have a judgment against. The factual allegations in the suits are intertwined and cannot be reasonably segregated, all discovery issues should be handled under the same court, therefore we are asking that this court either send it back to Hidalgo County, Court at Law No. 9 or to the 93rd District Court, both which have jurisdiction of these claims. The 93rd, was the first court to obtain jurisdiction over these issues and a Motion to Transfer and Consolidate is currently pending in Hidalgo County, Court at Law No. 9. VII. SANCTIONS Petitioner filed a frivolous Rule 202 petition, in this case, seeking pre-suit discovery on claims that are already subject to a discovery stay in ongoing litigation from a party that the petitioner knows is covered by attorney - client privilege. This petition violates Texas Rule of Civil Procedure 13 and warrants the imposition of sanctions. Rule 202 allows a party to petition the court for an order authorizing pre-suit discovery to investigate a potential claim or suit In re Velvin Oil Co., 2018 Tex. App. LEXIS 3198, In re Liebbe, 2016 Tex. App. LEXIS 6356. Tex. R. Civ. P. 202.1. However, opposing counsel's Rule 202 petition is frivolous and brought in bad faith. It seeks discovery on the exact claims already being litigated between the parties in the current lawsuit and subject to a discovery stay. Seeking the same discovery through a Rule 202 petition that is stayed in the current litigation is by definition frivolous and duplicative. In fact, including this filing the Petitioner has filed at least 6 different actions involving the same issues and or parties. Several of those previous filings have been nonsuited. Under Rule 13, the court may impose sanctions against an attorney who files pleadings that are both groundless and/or either brought in bad faith or for the purpose of harassment R.M. Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 7 Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel Dudley Constr. Co. v. Dawson, 258 S.W.3d 694. Tex. R. Civ. P. 13. Groundless means no basis in law or fact and not warranted by existing law. Opposing counsel's Rule 202 petition is groundless because the discovery sought is already part of the ongoing litigation and subject to a stay. The Petitioner is attempting to circumvent the discovery stay and is attempting to discovery privileged information. There is no good faith basis to seek the same discovery again through a separate Rule 202 petition. The court should also find the Rule 202 petition was brought in bad faith and/or to harass. There is no legitimate reason to file a Rule 202 petition seeking discovery on claims already being litigated and stayed DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, Houston Tennis Ass'n v. Thibodeaux, 602 S.W.3d 712. The only plausible reason is to harass the opposing party and needlessly multiply proceeding costs by attempting to circumvent the discovery stay. Sanctions are warranted against opposing counsel under Rule 13 to deter and prevent further abuse of the discovery process. The court has broad discretion to craft an appropriate sanction to punish the offender and deter future abuse. An appropriate sanction here would be an award of attorneys' fees incurred in responding to the frivolous Rule 202 petition. The court should also bar opposing counsel from filing any other Rule 202 petitions in this matter without leave of court. PATTERN OF MALICIOUS PRACTICE: The Petitioner, Mr. Livesay, has recently engaged in a pattern of underhanded and deceitful practices in order to harass the Respondent and other parties that he is frivolously harassing. Mr. Livesay has demonstrated a habit of trying to obtain relief from the court in deceptive and fraudulent manners. He does this by filing orders titled “Order Setting Hearings” and then inserting relief into the order so that when the order setting gets signed, he can claim he was entitled Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 8 Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel to the relief that the court inadvertently granted. He plays this trick, because he knows that order’s setting hearings are routinely signed by the court staff instead of the judge. It is common for Courts’ staff to rely on attorneys not violating their duty of candor to the court and will typically sign said orders without presenting them to the judge because order setting hearings are not supposed to grant any relief except setting a hearing date. Livesay has used this as a way to gain some advantage in frivolous cases. If we look into cases related to the issues, which Livesay intends to investigate, he has already committed this type of fraud three times. One example of this is when Mr. Livesay asked the Court, in Cause Number CL-23-3743-I, to set a hearing on a motion for Default against a party that had already answered. In the order setting the hearing on the motion for default, Mr. Livesay snuck in a line granting the default and setting the hearing only on the issue of damages. See “Exhibit A”. Once the Court was made aware of Mr. Livesay’s fraudulent attempt to try to cheat a win, the court on its own motion rescinded the order. Mr. Livesay was then later forced to non- suit his filed claims for being frivolous. Another example of this is on cause number C-0645-24-I, where although not properly identifying a party in his comically nonsensical pleading, he is moving to serve the party through alternative means1. In his proposed order granting the alternative service, Mr. Livesay again snuck in relief against a person who is not even properly before the court yet. See “Exhibit B”. The third example is this very case, where Mr. Livesay has only been able to serve one of the parties in this case. The answer deadline for the party who has been served hasn’t even passed. The answer deadline is March 04, 2024. Mr. Livesay, presumably knowing how to calculate an 1 Although Mr. Livesay names a Mildred E. Flores in the Style of C-0645-24-I, he lists only the Respondent in this case as a party in that case. He technically never asked for service of a Mildred E. Flores in his pleading but is attempting to get sanctions without a hearing against a person he hasn’t served or even pled to have served. Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 9 Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel answer deadline, set a hearing on the ultimate issue on the Wednesday preceding the answer deadline. See Exhibit C. It should also be noted that Mr. Livesay has not served the other named party nor sought alternate service on the other party. Mr. Livesay should know that setting a hearing before the parties are properly served before the court and able to properly response to his frivolous filing is morally contemptable and legally sanctionable. This firm was able to discover these fraudulent actions by Mr. Livesay with a quick search of those cases that are tangentially related to the allegations made in this action. It is safe to assume that Mr. Livesay will continue to engage in this type of fraudulent behavior unless action is taken to deter Mr. Livesay from his abusive practices. Mr. Livesay is the type of lawyer that gives a bad name to our profession and if we do not step in to correct his actions, we will become complicit in his misdeeds. For the foregoing reasons, Respondent respectfully requests that the Court impose sanctions against opposing counsel for violation of Rule 13 by filing the frivolous and harassing Rule 202 petition seeking discovery on matters subject to a stay. The requested sanctions are attorneys' fees and an amount that would deter Mr. Livesay from continuing his fraudulent practices before our honorable courts. This motion for sanctions should be granted. PRAYER WHEREFORE, PREMISES CONSIDERED, Respondent prays that it has judgment of the Court, that Petitioner take nothing by their original suit, that all relief requested by Petitioner be denied, and all of Petitioner’s causes of action be dismissed with prejudice to the refiling of same; and that Petitioner be sanctioned for his continued harassment of the Respondent and Respondent’s clients. Respondent further prays for such other and further relief, both general or special, at law or in equity, to which they may show themselves to be justly entitled. Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 10 Electronically Filed 2/28/2024 7:31 AM Hidalgo County District Clerks Reviewed By: Claudia Rangel Respectfully submitted, J. PENA LAW, P.L.L.C. 203 South 10th Ave. Edinburg, Texas 78539 Phone: (956) 383-0751 Fax: (956) 383-5980 Email: office@penalawfirm.com /s/ Javier Peña___________________ JAVIER PEÑA State Bar No. 24005092 ATTORNEY FOR RESPONDENT CERTIFICATE OF SERVICE I hereby certify that on February 28, 2024, a true and correct copy of the above and foregoing document was served via the electronic service manager on all counsel of record as follows: Via eServe: attorney@RGVAppellateLaw.com Liesay Law Offices ATTORNEY FOR PETITIONER /s/ Javier Pena Javier Pena Respondent N.L. Singleterry’s - Original Answer & Motion for Sanctions 11 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Javier Pena on behalf of Javier Pena Bar No. 24005092 javier@penalawfirm.com Envelope ID: 84957043 Filing Code Description: Answer/Response Filing Description: Original Answer Status as of 2/28/2024 9:34 AM CST Associated Case Party: Nereida Singletarry Name BarNumber Email TimestampSubmitted Status Javier Pena office@penalawfirm.com 2/28/2024 7:31:13 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Erika Cisneros erika@penalawfirm.com 2/28/2024 7:31:13 AM SENT Gina Kailipaka gina@penalawfirm.com 2/28/2024 7:31:13 AM SENT Marcela Castillo Paralegal@RGVAppellateLaw.com 2/28/2024 7:31:13 AM SENT KEITH C.LIVESAY RGVAppellateLaw@yandex.com 2/28/2024 7:31:13 AM SENT