(Ljupco Smokovski)

After Texarkana’s Sixth Court of Appeals stated in a footnote that unidentified “counsel” made a misrepresentation in a brief, a motion for rehearing has been filed, asking the court to reconsider.

The motion denies the allegation and argues that the footnote could dissuade other lawyers from briefing issues.

The dispute is based on the Sixth Court’s March 14 decision in In Re: Freestone Underground Storage Inc. et al., a petition for writ of mandamus proceeding concerning a jurisdictional dispute over a lease agreement for a saltwater disposal well.

Cavern Disposal filed a declaratory judgment action in a Panola County trial court over the well’s lease. Freestone Underground moved to transfer the dispute to a Freestone County trial court—a motion the Panola County trial court denied, according to the decision. Freestone then petitioned the Sixth Court for a writ of mandamus to overturn the trial court ruling.

The Sixth Court ultimately granted the writ and directed the trial court to transfer the case to Freestone County. In footnote No. 6 of the Sixth Court’s opinion, the appellate court took exception to an argument Cavern had made in its appellate brief: Under Texas Rule of Appellate Procedure 38.1, Freestone had “waived” a claim that a mandatory venue provision applied.

“This is nothing less than an untruth,” according to the footnote in the opinion, written by Justice Bailey Moseley and joined by Chief Justice Josh Morriss and Justice Jack Carter. “We caution counsel for the real party that an attorney owes a duty of candor to this court and that the Texas Disciplinary Rules of Professional Conduct forbid a lawyer from making a false statement of material fact to a tribunal.”

“While counsel’s misrepresentation appears to be an intentional attempt to mislead this court, we decline to exercise our discretion to assess sanctions at this time. We caution counsel, however, that we will not be so tolerant if such conduct is repeated.”

The opinion does not name the lawyer or lawyers to whom it is referring.

Cavern filed a motion for rehearing in the case on March 31. The motion’s signature block lists Mark A. Mayfield, a partner in Gardere Wynne Sewell in Austin; Kristina Silcocks, a senior attorney in Gardere’s Austin office; and Carthage solo Mike Parker as “counsel for real party in interest.” Mayfield signed the motion. The same three lawyers are listed on the signature block on Cavern’s response to the petition for writ of mandamus at the Sixth Court.

“Counsel feels it is necessary to address the court regarding footnote 6 of the court’s opinion,” notes the motion for rehearing.

“Each of Cavern Disposal’s counsel have practiced law honorably for 32, 23 and 16 years, respectively. None have ever been ascribed with the conduct found by the court in footnote 6,” notes the motion.

The motion asserted that Cavern had an arguable basis for making the waiver claim, and it goes on to cite 10 appellate court rulings on the issue.

The motion asks the Sixth Court to reconsider footnote 6.

“Respectfully, footnote 6 could well dissuade counsel from raising briefing waiver, due to the fear that if the court rejects the argument, the court could assess sanctions—or perhaps worse, simply state in the public record that counsel: (a) violated a rule of professional conduct, (b) grossly misstated a material fact and (c) intentionally misled the court. In short, footnote 6 risks making waiver arguments a high-risk tactic for counsel in this court, despite counsel’s obligation to zealously represent a client,” the motion states.

Mayfield and Silcocks both declined to comment, and Parker did not return a call for comment.

M. Keith Dollahite, a Tyler solo who represents Freestone on appeal, also did not return a call for comment.