ORAL ARGUMENT REQUESTED

05-09-00484-CV

______________________________________________________________________________

I N THE C OURT OF A PPEALS

FOR THE F IFTH D ISTRICT OF T EXAS
AT D ALLAS

In re P RESIDENT G EORGE W. B USH AND

THE G EORGE W. B USH F OUNDATION,
Relators

Original Proceeding From Cause No. 05-07746-C

In the 68 th Judicial District Court of Dallas County, Texas
The Honorable Martin J. Hoffman, Presiding

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

Kent F. Brooks Gary M. Vodicka

Law Office of Kent F. Brooks State Bar No. 20598260
State Bar No. 03070710 1517 Pinehurst Drive
8117 Preston Rd., Suite 300 Coppell, TX
Dallas, Texas 75225 Phone: 214/695-3105
Phone: 214/706-9151 Fax: 972/304-1707
Fax: 214/706-9152

Counsel for Real Party in Interest Gary M. Vodicka

 TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..i

LIST OF AUTHORITIES. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

I. Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

II. Mandamus Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

III. The Trial Court Properly Ordered President Bush’s Deposition . . . . .. . . . . . . 10

A. History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

B. The “Federal Standard.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. Materiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

D. Respondent Properly Analyzed the Apex Doctrine . . . . . . . . . . . . . . . . . . 19

IV. The Limitations on the Deposition Are Adequate . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

-i-
 LIST OF AUTHORITIES

FEDERAL CASES:

Clinton v. Jones,
520 U.S. 681 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10-12

Halperin v. Kissinger,
401 F. Supp. 272 (D.D.C. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Jones v. Clinton,
869 F. Supp 690 (E.D. Ark. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Jones v. Hirschfeld,
219 F.R.D. 71 (S.D.N.Y. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Judicial Watch, Inc. v. National Energy Policy Development Group,

233 F. Supp 2d 16 (D.D.C. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 14

Nixon v. Administrator of General Services,

433 U.S. 425 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Nixon v. Fitzgerald,
457 U.S. 731 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Branscum,

No. LR-CR-96-49, 1996 U.S. Dist. LEXIS 22813 (W.D. Ark. June 7, 1996) . . .10, 11

TEXAS CASES

In re Alcatel USA, Inc.,

11 S.W.3d 173 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-22, 24

In re Autonation, Inc.,
228 S.W.3d 663 (Tex. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bright v. Addison,
171 S.W.3d 588 (Tex. App. - Dallas 2005, pet. den’d) . . . . . . . . . . . . . . . . . . . . . ..18

-ii-
Casso v. Brand,
776 S.W.2d 551 (Tex. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Columbia Medical Center of Las Colinas, Inc. v. Hogue,

132 S.W.3d 671 (Tex. App. - Dallas 2004, affirmed in part,
rev’d in part on other grounds 271 S.W.3d 238 (Tex. 2008) . . . . . . . . . . . . . . . . . .18

In re Colonial Pipeline Co.,

968 S.W.2d 939 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Crown Central Petroleum Corp. v. Garcia,

904 S.W.2d 125 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ginther v. Taub,
675 S.W.2d 724 (Tex. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

In re Global Sante Fe Corp.,

275 S.W.3d 477 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

In re Jane Doe 11,

92 S.W.3d 511 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Kirby v. Cruse,
688 S.W.2d 161 (Tex. App. - Dallas 1985, writ ref’d, n.r.e.). . . . . . . . . . . . . . . . . .17

In re Kuntz,
124 S.W.3d 179 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 23

Pulley v. Milberger,
198 S.W.2d 418 (Tex. App. - Dallas 2006, pet. den.) . . . . . . . . . . . . . . . . . . . . . . . 17

Reynolds v. Nagely,
262 S.W.3d 521 (Tex. App. - Dallas 2008, pet. den.) . . . . . . . . . . . . . . . . . . . . . . . 22

In re S.C.V.,
750 S.W.2d 762 (Tex. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

- iii -
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 23

In re Weekley Homes, L. P.,

180 S.W.3d 127 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.

OTHER STATE CASES:

Behm v. Victory Lane Unit Owner’s Assn, Inc.,

(1999) 133 Ohio App.3d 484, 487-88 n5, 728 N.E.2d 1093 . . . . . . . . . . . . . . . . . . 19

Raven’s Cove Townhomes, Inc. v. Knuppe Development Co., Inc.,

(1981) 114 Cal. App.3d 783, 171 Cal. Rptr. 334 . . . . . . . . . . . . . . . . . . . . . . . . . . .19

CODES:

T EX. C IV. P RAC. & R EM. C. §41.001 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

T EX. C IV. P RAC. & R EM. C §41.011(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

T EX. C IV. P RAC. & R EM. C. §41.006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

T EX. P ROP. C. §82.002(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

T EX. P ROP. C. §82.103(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

T EX. P ROP. C. § 82.103(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

T EX. R. C IV. P RO. 192.6(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 23

T EX. R. C IV. P RO. 192.6(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

-iv-
TO THE HONORABLE FIFTH COURT OF APPEALS:

Real Party in Interest Gary M. Vodicka (“Vodicka”), files this his Response to Petition

for Writ of Mandamus and would respectfully show the Court as follows:

STATEMENT OF THE CASE

The Underlying Case:

Vodicka is satisfied with Relators’ Statement of the Case except that the following

was omitted:

On January 30, 2006, Peruna Properties, Inc. (“Peruna”) filed a counterclaim against

Vodicka asserting a trespass to try title claim based on a Special Warranty Deed alleged to

have been executed by the University Gardens Condominium Association (“the

Association”), as attorney in fact for the owners, on December 7, 2005 (the “SWD”).1

Vodicka filed his statutory “not guilty” plea and has asserted defenses, including a claim that

any legal title Peruna might have under the SWD is subject to a constructive trust in his favor

due to breach(es) of fiduciary duties owed to him.2

REQUEST FOR ORAL ARGUMENT

Vodicka requests oral argument.

STATEMENT OF FACTS 3

Vodicka is satisfied with Relators’ Statement of the Facts except as follows:

1
SA Tab 1 at 4 .

2
SA Tab 2 at 1-2; SA Tab 5 at 38-39.

3
Vodicka will use the same record designations Relators used. The Supplemental Appendix will be
referred to as “SA”.

-1-
 The Underlying Lawsuit.

Vodicka’s Suit Against Peruna Was Filed Prior to the Special Warranty Deed. On

June 27, 2005, at a special meeting of the homeowners, Peruna was the only owner who

voted in favor of Peruna’s resolution that the University Gardens Condominiums (“UGC”)

units were obsolete and should be sold.4 Vodicka sued the Defendants in August, 2005, four

months prior to the execution of the SWD under which Peruna claims legal title to the entire

UGC property, including legal title to Vodicka’s homestead and his three other units and the

joint, undivided interest in the general common elements associated with unit ownership.5

Vodicka asserted that Peruna had not properly triggered the provisions of the UGC

Condominium Declaration that authorized the Association to sell the UGC property as the

attorney in fact for the owners and he has added a declaratory judgment claim to that effect.6

Vodicka’s Defensive Issues to Peruna’s Trespass To Try Title Claim. After Peruna

purportedly took title pendente lite, Peruna filed its trespass to try title counterclaim against

Vodicka.7 Vodicka answered with the statutory “not guilty” and has asserted that he has

superior title to Peruna’s claim of legal title under the SWD due to the UGA’s breach of

fiduciary duty owed to Vodicka in regard to the sale.8 This defensive claim is expressly

predicated on the Texas Supreme Court’s approval of the use of a constructive trust based

4
Homeowner Mark Stradley raised the objection at the special meeting that the vote being that of only one
owner was inadequate to trigger the forced sale provisions. SA Tab 3 at 7 "App. 17".

5
SA Tab 4 at 1.

6
MRA Tab-4 pp. 44-51. This claim by Vodicka is presently unadjudicated.

7
SA Tab 1 at 4.

8
SA Tab 5 at pp.38-39.

-2-
on a breach of fiduciary duty as a method of defeating a trespass to try title claim of a person

holding legal title in Ginther v. Taub 9 . Vodicka’s defensive issues also included a claim for

recission based upon the breach of fiduciary duties.10 Peruna’s trespass to try title claim is

unadjudicated.

Vodicka’s Claims for Affirmative Relief Based on Breach of Fiduciary Duty.

Vodicka has also asserted affirmative claims for damages, recission of the SWD and a

constructive trust on any legal title Peruna has under the SWD based upon the breaches of

fiduciary duties.11

Peruna did not acquire the UGC property.12 Neither Vodicka’s declaratory judgment

claim to declare that the June 27, 2005 vote was inadequate to trigger the authority to execute

a deed as attorney in fact for the owners of the units of UGC nor Peruna’s trespass to try title

claim asserting the SWD as legal title superior to any title in Vodicka (with Vodicka’s

affirmative defenses thereto) have been adjudicated. Therefore, neither Peruna nor SMU

have been determined to have acquired the UGC property.

The Hearings on the motions.

Relators’ Motion for Protection. Relators’ Motion for Protection sought protection

9
Ginther v. Taub, 675 S.W .2d 724, 727 (Tex. 1984)(constructive trust available to provide superior title to
property acquired by a knowing or unknowing beneficiary of fraud, in that case breach of fiduciary duty)

10
SA Tab 5 at pp.38-39.

11
MRA. Tab-4. pp.44-51.

12
Throughout Relators’ Petition for Writ of Mandamus statements are made to the effect that Vodicka was
formerly an owner of University Gardens Condominium units. Since Peruna’s specified source of title is the SW D
which was executed pendente lite and Peruna’s trespass to try title claim is yet unadjudicated, Relators are misstating
the facts.

-3-
under Tex. R. Civ. Pro. 192.6(b) and (b(1) and specified that the basis was that “Here,

Vodicka is seeking President Bush’s deposition for publicity purposes-not because he

possesses any information that appears reasonably likely to lead to the discovery of

admissible evidence.” 13 In the Motion for Protective Order Relators state “Despite

uncontradicted evidence of President Bush’s lack of knowledge of the facts material to this

lawsuit, Vodicka insisted on seeking President Bush’s deposition.” 14

Vodicka’s Reply to Relators’ Motion for Protection. Vodicka’s Reply pointed out that

Relators bore the burden of proving both Vodicka’s motive (publicity) and President Bush’s

lack of discoverable knowledge as a party seeking protection. 15 Vodicka testified at the

hearing.16 He was not asked what his motive was in seeking to depose President Bush.

Ad Hominem Attacks Against Respondent. Relators assert as a fact that “at the

beginning of the April 17 hearing and before hearing Relators’ evidence and argument,

Respondent stated on the record that he had already prepared a draft of the order on the

motion to compel.” Relators cite RR3 at 52:15-23 and 64:8-22. However, immediately

prior to this cite beginning on page 52, starting on page 51 at line 10 of the transcript of the

continued hearing on the motions, the following is recorded:

THE COURT: Okay. I’ll take judicial notice of that affidavit. All right.
Anything else from the Bush Foundation?
MR. MARTIN: No, Your Honor.

13
MRA Tab 7 at 10-11.

14
MRA Tab 7 at 2, ¶ I.

15
MRA Tab 8 at 9.

16
RR1-3, inclusive.

-4-
 MR. LANIER: No, Judge.
MS. Blue: No, Your Honor.
THE COURT: Okay. Final argument.

Relators misinform the Court when they assert Respondent announced that he had

prepared a draft order before hearing all the evidence.17 And, even the portion of the record

Relators do cite includes Respondent’s statements made after the close of evidence:

THE COURT: We’ve been going on for awhile. Let me kind of tell you what
my timeline is on this. I want to hear obviously Mr. Martin’s and Mr. Lanier’s
and Ms. Blue’s argument concerning President Bush. What I’d like to do--I’ve
drafted an order. I haven’t made a final decision obviously, but assuming that
there’s some additional information I want to add to the order. I know you
guys have been waiting a long time to get an opinion out of the Court. And we
tried to get an agreement on this, it didn’t work out, and so I’m going to make
a ruling today. I need to do some tweaking to it.(RR3 at 8-18)

Relators assert that the Real Parties in Interest did not identify the evidence points that

were identified in Respondent’s Order, rather Respondent identified them during the parties’

closing arguments. However, in closing arguments the Real Parties in Interest argued in

support of the deposition, “Your Honor, knowledge is relevant. What SMU knew; what

Peruna knew, is relevant to whether or not they were breaching their fiduciary duties.” 18

They argued that the substance of the conversations with President Bush was relevant to

know what SMU/Peruna knew from these conversations that might have affected the

Defendants’ decision making process.19 They argued that they were not limited to Turner,

Miers and Hunt’s recollection (or lack thereof) “as to what was said” at the meetings with

17
In fact, the Court noted when it became Relators’ turn to submit evidence, to which Relators’ counsel
replied “Our evidentiary case will be very brief, Your Honor.” (RR3 at p. 47:4-7)

18
RR3 at p.62:18-20.

19
RR3 at 63:20-24.

-5-
the President.20 They argued that they were not limited to discovery of only one side of

conversations that might have an effect on the Defendants’ decision making process.21

Relators argued to Respondent that to determine materiality of a matter you had to

look at what causes of action were pleaded by Vodicka and analyze what information the

President might have in relation to the elements of those causes of action.22 Respondent

noted:

THE COURT: SMU’s defense seems to be that the reason that they were
purchasing these units was for residential housing. They may eventually use
it for the Bush Library, but at the time they were purchasing them they were
going to use them for residential housing, is that correct? 23

Real Parties in Interest argued that to know when (and if ) President Bush had informed SMU

that it would get the Library at some point prior to the SWD they needed to ask President

Bush.24 Respondent expressed his analysis:

THE COURT: And that’s what I trying to figure out. I think that is critical
information in this case. I’m trying to figure out has that been--does anybody
know when he made that decision? 25

In response, Real Parties in Interest even identified other evidence that made it reasonable

to assume that the President may have made and relayed that decision to SMU at a time much

20
RR3 at p. 55:21-23.

21
RR3 at 61:18-25;62:1-3.

22
RR3 at 71:2-8.

23
RR3 at 78:21-25;79:1.

24
RR3 at 76:13-25;77:1.

25
RR3 at 77:2-5.

-6-
prior to the SWD.26

Respondent’s Order. In Respondent’s Order he specifically addresses whether the

deposition of President Bush was appropriate under a federal test, the general Texas rules of

procedure and the apex deposition doctrine.27 Respondent found that the deposition would

be proper under all three. Respondent’s Order also finds that certain limitations on President

Bush’s deposition are proper. These limitations were time limits, site selection to be made

by President Bush within Dallas county and direct court supervision of the deposition if

requested by President Bush.28

ARGUMENT AND AUTHORITIES

I. Summary of Argument.

Respondent did not abuse his discretion by ordering President Bush’s deposition under

the Poindexter II standard. The Presidential deposition in this case that Respondent ordered

after applying the Poindexter II standard is legally indistinguishable from the Presidential

deposition ordered by the federal district court in Branscum where that court applied the

Poindexter II standard.

Respondent did not abuse his discretion in ordering President Bush’s deposition using

the apex deposition doctrine’s two tests as a (analogous) standard. Without an affidavit of

President Bush stating under oath the denial of any relevant knowledge as President Bush

pleaded in his Motion for Protection, Respondent could not follow the Supreme Court’s

26
RR3 at 77:2-22.

27
MRA Tab 2 at 6-12.

28
MRA Tab 2 at 11.

-7-
pronouncements on what is required to initiate the apex deposition guidelines and properly

grant protection by ordering that the deposition not take place.

Respondent did not abuse his discretion in ordering President Bush’s deposition with

the limitations he imposed under the general Texas Rules of Civil Procedure governing oral

depositions since the prior discovery established that President Bush had been a party to

several conversations with SMU emissaries concerning his library and the Defendants’

defense in denial and some of Vodicka’s claims and affirmative defenses turn in some part

on what was said or not said in these conversations.

II. Mandamus Standards.

Relators have cited a total of six Texas cases for their various propositions that

mandamus lies in the situation presented. All of the cited cases, other than Walker v.

Packer,29 address mandamus in a fact situation where the person to be deposed was a

corporate officer and the legal issue was the apex deposition doctrine. In Walker, the

Supreme Court stressed that mandamus was not available in the discovery context absent a

showing of the inadequacy of the legal remedy. Walker sets forth in detail the examples of

discovery rulings where the legal remedy would be inadequate. Not one of those examples

involves what is raised in this mandamus: that there is an insufficient showing of

relevance/materiality,30 without any assertion or proof that the discovery “clearly constitutes

29
Walker v. Packer, 827 S.W .2d 833 (Tex. 1992)

30
Relators’ Petition for Writ of Mandamus informs: “The fundamental error in Respondent’s Order is that
there is no attempt to analyze how the August 2002 meeting or any other Presidential conversation with SM U
representative relates to an essential element of any cause of action or defense asserted. Nothing said or done at the
August 2002 meeting is remotely relevant to any elements of Plaintiffs’ claims or any defense asserted.” Petition for
W rit of Mandamus p. 16.

-8-
harassment or imposes a burden far out of proportion to any benefit that may obtain to the

requesting party.”

Moreover, Relators acknowledge in their Petition that “President Bush is not a high-

level corporate official.31 ” Relators’ Petition acknowledges that the apex doctrine is only

“analogous” and admits that they only argued to Respondent “that the Texas approach with

respect to high-ranking officials was consistent with the federal rule developed for sitting and

former Presidents.” 32

Relators have not pled a proper basis for mandamus relief.

With respect to the resolution of fact issues or matters committed to the court’s

discretion, a reviewing court may not substitute its judgment for that of the trial court in a

mandamus. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)(orig. proceeding). A

trial court’s determination of a factual issue is entitled to deference in a mandamus

proceeding and should not be set aside unless it is clear from the record that only one

decision could have been reached. In re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003)(orig.

proceeding). Even if the reviewing court would have decided the issue differently, it cannot

disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Walker,

827 S.W.2d at 840.

Abuse of discretion is present when a discovery order conflicts with the Texas Rules

of Civil Procedure. In re Kuntz, 124 S.W.3d at 181. Abuse of discretion can occur in the

31
Petition for W rit of Mandamus p. 10.

32
Petition for W rit of Mandamus p. 10-11, 27.

-9-
exercise of the great latitude a trial court has in controlling discovery when it acts

unreasonably and arbitrarily. In re Colonial Pipeline Co., 968 S.W.2d 939, 941 (Tex.

1998)(orig. proceeding).

III. THE TRIAL COURT PROPERLY ORDERED PRESIDENT BUSH’S

DEPOSITION.

A. History. Respondent’s Order correctly acknowledges that the United States

Supreme Court has noted “[s]itting Presidents have responded to court orders to provide

testimony and other information with sufficient frequency that such interactions between the

Judicial and Executive Branches can scarcely be thought of as a novelty.” 33 Clinton v. Jones,

520 U.S. 681, 704 (1997)(listing United States v. Branscum, No. LR-CR-96-49 (ED. Ark.

June 7, 1996 as an example of depositions of a President). Relators are incorrect when they

inform this Court that “only in rare circumstances have sitting or former Presidents been

compelled to testify.”

Relators are also incorrect when they represent to this Court that “[a]ll told, a sitting

or former President has testified in a federal civil case only three times in American history.”

There have been depositions of sitting and former Presidents taken in four civil cases. Nixon

v. Fitzgerald, 457 U.S. 731, 734 n. 5 (1982)(former President Nixon deposed); Nixon v.

Administrator of General Services, 433 U.S. 425, 484 n. 48 (1977)(former President Nixon

deposed)34 ; Halperin v. Kissinger, 401 F. Supp. 272 (D.D.C. 1975)(former President Nixon

33
MRA Tab 2 at 6.

34
Relators failed to cite this case in their Petition.

-10-
deposed); Jones v. Clinton, 869 F. Supp 690 (E.D. Ark. 1994)(then President Clinton

deposed).

In Hirschfeld, the trial court found the deposition of President Clinton to be an undue

burden where President Clinton had submitted an affidavit about his lack of knowledge and

the trial court held that Hirschfeld did not allege any personal communications between Jones

and President Clinton regarding the two relevant subjects. Jones v. Hirschfeld, 219 F.R.D.

71, 76-78 (S.D.N.Y. 2003). Relators failed to explain the circumstances in Hirschfled in

their Petition.

In Branscum, the trial court, applying the Poindexter II test, allowed Branscum to

depose sitting President Clinton with regard to Branscum’s appointment to the Arkansas

Highway Commission and allowed Hill to depose President Clinton with regard to Hill’s re-

appointment to the Bank Board in 1991 in a criminal case. United States v. Branscum, No.

LR-CR-96-49, 1996 U.S. Dist. LEXIS 22813 (W.D. Ark. June 7, 1996). There is no mention

in Branscum whether President Clinton tendered an affidavit. Relators failed to cite this case

in their Petition.

B. The “Federal Standard.” Relators assert that there is a specific and defined

“federal standard” for depositions of sitting and former Presidents who do not assert a

privilege, but cite only federal district court authority, starting with Poindexter II, for this

“standard.” Therefore, the Petition provides no indication that the United States Supreme

Court views there to be any “Presidential gloss” to discovery depositions of former

Presidents for use in civil cases. Of note in Clinton v. Jones, the United States Supreme

-11-
Court mentioned that discovery had not been abated in the civil case against President

Clinton, “assume[d] that the testimony of the President, both for discovery and for use at trial

may be taken at the White House at a time that will accommodate his busy schedule” and

directed that the district court not delay the matter for trial. Clinton v. Jones, 520 U.S. 681,

688, 691-92, 708 (1997).

Relators argue that “out of comity”Texas should conform its rules of procedure for

deposing a non-party fact witnesses to match the federal case law gloss to the Federal Rules

of Civil Procedure when the fact witness is a non-sitting President. The Texas Supreme

Court has noted situations where the federal and state rules of procedure diverge and has

declined to amend the Texas Rules of Procedure to mirror those of the Federal Rules of Civil

Procedure. Casso v. Brand, 776 S.W.2d 551, 556-57 (Tex. 1989). Relators cite only In re

Weekley Homes 35 as their “comity” authority, but Weekley Homes does not mention comity

concerning rules of procedure and expressly held that in making the determination of the

substantive law issue of whether a Federal Arbitration Act agreement is binding on a

nonparty it applies Texas procedural rules. So, Weekley Homes, is controlling precedent that

even when federal substantive law issues are determined in Texas courts the determinations

are governed by Texas procedural law.

The Texas Supreme Court discusses “comity” in relation to laws and judicial

decisions. In re Autonation, Inc., 228 S.W.3d 663, 670 (Tex. 2007). However, Vodicka’s

research on “comity” and rules of procedure has not turned up any Texas case that applies

35
In re Weekley Homes, L.P., 180 S.W .3d 127 (Tex. 2005)

-12-
comity principles to cases interpreting federal procedure to “conform” Texas procedure to

federal procedure. One recent Texas Supreme Court case re-affirmed that in litigation in

Texas courts of a federal Jones Act claim, both the United States Supreme Court and the

Texas Supreme Court view the issue as a reverse-Erie situation were federal substantive law

applies in Texas state court, but Texas procedural laws apply. In re Global Sante Fe Corp.,

275 S.W.3d 477, 485 (Tex. 2008).

It is Vodicka’s position below and in this mandamus that Texas discovery procedure

applies and that under that procedure there are no “special rules” for former Presidents.

However, since Respondent ordered President Bush’s deposition and Respondent’s Order

found this deposition proper under both general Texas discovery procedure and using the

apex deposition doctrine analysis, Respondent’s assumption of the applicability of the

“federal standard,” even if mistaken, is not a basis for granting mandamus relief.

Relators claim “Respondent’s Order erred because there actually are two so-called

Poindexter standards, and he applied the wrong one” and asserts “[t]he cited portion of

Judicial Watch referred to in Respondent’s Order is the Poindexter I standard for obtaining

documents.” Relators are wrong. First, the “test” Respondent’s Order sets out is “his [the

President’s] testimony would be material as tested by a meticulous standard, as well as being

necessary in the sense of being a more logical and more persuasive source of evidence than

alternatives might suggest.” 36 And, Respondent’s Order cites directly to Poindexter II as the

36
MRA Tab 2 at 6 .

-13-
source of that test.37 Relators’ Petition then cites this Court to page 26 of Judicial Watch as

“the cited portion” in Respondent’s Order where it states “demonstrate that the documents

and information sought are material and relevant to the legal questions before the Court.”

Respondent’s Order expressly cites to page 25 of Judicial Watch, where the exact quoted and

underscored language found in the Order is found in the case. It is Relators who are reading

off the wrong page of Judicial Watch. The quoted and underscored language in Judicial

Watch does refer to both Poindexter opinions:

However, the showing the party seeking discovery was required to make was
not one of “need,” but rather one of materiality and relevance pursuant to the
applicable federal rules. See Poindexter I, 727 F. Supp. at 1509; Poindexter II,
732 F. Supp. at 147, both citing Fed. R. Crim. P. 17(c). The party seeking
discovery in that case was never required to do anything more than plaintiffs
were required to do here with respect to submission of a disclosed discovery
plan: demonstrate that the documents and information sought are
material and relevant to the legal questions before the Court.(emphasis
added) Judicial Watch, Inc. v. National Energy Policy Development Group,
233 F. Supp 2d 16, 25 (D.D.C. 2002).

Respondent’s Order is not erroneous if the “federal standard” applies because the

“meticulous standard” for subpoenaing a President to testify at a federal trial is whether the

testimony will be “relevant and material,” as well as necessary in the sense of being a more

logical and more persuasive source of the evidence that alternatives might suggest.

C. Materiality.

Relators argue to this Court that mandamus is appropriate because “the fundamental

error in Respondent’s Order is that there is no attempt to analyze how the 2002 meeting or

37
MRA Tab 2at 6.

-14-
any other Presidential conversation with SMU representatives relates to an essential element

of any cause of action or defense asserted.”

The Defendants have defensively attacked Vodicka’s claims for fraud, breach of

fiduciary duty and conspiracy in their summary judgment factually arguing “in view of the

contingency of whether SMU would be chosen as the host for the Presidential Library at

all” 38 and “the SMU Parties also owe no duty to disclose possible uses of the former U.G.

Condominiums or speculations on the uses others might have for the property in the future

given the speculative and contingent nature of the future award or location of the Presidential

Library, which as of the date of this brief, has yet to be determined.” 39 SMU asserts as a

substantive defensive issue that “contingent, future events, opinions, probabilities,

expectations ...do not constitute material facts.” 40 It also asserts “restraint in speculating

about the unknown future of the Presidential Library does not constitute fraud.” 41

As of March 19, 2007, SMU’s General Counsel and Vice President for Governmental

Relations of Southern Methodist University has stated under oath that the selection of SMU

as the location for the Presidential Library was “in active negotiations” and as of that date

“agreement has not been reached between SMU and the Site Selection Committee regarding

38
SA Tab 6 at 10, ¶ 10.

39
SA Tab 6 at 14, ¶ 20; 16, ¶ 23.

40
SA Tab 6 at 14, ¶ 21.

41
SA Tab 6 at 15, ¶ 23.

-15-
the selection of SMU as the site of the Library...” 42

Vodicka has set forth factually the representations SMU made that it was not

acquiring the UGC units for use for the Presidential Library, as follows.43

During this same meeting, homeowners were concerned that Peruna and SMU
might try and seize control of the University Gardens Condominiums project
to tear it down to build the George W. Bush Presidential Library. Leon
Bennett assured the homeowners that SMU and Peruna had no such intention
to do such. From that meeting in 1999, up and through the end of June 2005,
Peruna and SMU continued to represent that they had no intention of using the
University Gardens Condominium property site to construct any part of the
George W. Bush Library.

Vodicka has also set forth, in factual detail, the conduct of SMU and/or the SMU controlled

Board for the period of time from 1989 to 2005. Up until 2004, the Association’s Board

engaged in managing and administering the condominium complex in an efficient manner,

making the necessary repairs and performing the maintenance of the complex to keep it

running in a first class manner consistent and in accordance with the Condominium By-Laws.

Likewise in that time frame SMU and Peruna maintained its units in good repair and

continually leased these units. However, beginning in 2004, SMU failed to allow the Board

to authorize or expend the sums to continue to maintain the common areas of the University

Garden Condominiums44 and Peruna/SMU began to let its units remain vacate, forgoing

42
SA Tab 7 at 1, ¶ 2; 2, ¶ 3.

43
SA Tab 8 at 7.

44
SA Tab 8 at 9-10.

-16-
$100,000 or more rentals on a monthly basis.45 In response to the Defendants’ Motion for

Summary Judgment, Vodicka was left to expressly argue the inference that allowing these

units to sit vacant was because SMU would need the Condominium Property immediately

if President Bush was not elected for a second term in 2004.46

Respondent’s Order sets out that “Plaintiffs claim that emissaries of SMU and

President Bush were involved in conversations about the placement of the library at

approximately the same time that SMU began buying up the units of University Garden.” 47

Respondent’s Order explains that the deposition of President Bush would provide testimony

material to Plaintiffs’ assertions about SMU’s intentions for University Gardens and SMU’s

intent would be relevant to Plaintiff’s claim for exemplary damages. The Defendants’

position in this case, that Peruna/SMU did not know that it would get the Bush Library at

any time prior to the SWD, so there was no fraud of breach of fiduciary duty, constitutes a

defense in denial to both Vodicka’s claims for affirmative relief relating to breach of

fiduciary duty/constructive trust/recission and his affirmative defenses relating to title based

upon a constructive trust /recission. Pulley v. Milberger, 198 S.W.2d 418, 426 (Tex. App. -

Dallas 2006, pet. den’d). That makes President Bush’s testimony about what and when he

told SMU things relating to getting the Library highly relevant and material.

Vodicka has pled for exemplary damages against all Defendants as conspirators in

45
SA Tab 8 at 12.

46
SA Tab 8 at 12.

47
MRA Tab 2 p. 2.

-17-
breaches of fiduciary duties owed to him under §41.001 et seq, T EX. C IV. P RAC. & R EM. C.48

The evidence relating to the amount of exemplary damages that is to be considered includes

“the degree of culpability of the wrongdoer.” §41.011(a)(3). T EX. C IV. P RAC. & R EM . C.

Even though Vodicka has pled that all Defendants were engaged in a conspiracy, he is

required to prove the liability of each Defendant for exemplary damages. §41.006, T EX. C IV.

P RAC. & R EM. C. A party who breaches its fiduciary duty to the plaintiff can be assessed

exemplary damages. Kirby v. Cruse, 688 S.W.2d 161, 167 (Tex. App. - Dallas 1985, writ

ref’d, n.r.e.).

To establish a non-excessive amount of exemplary damages there must be evidence

that the actions of the defendant were not mere accident which can be shown by proof of

malice or fraud which involves the mental state of the defendant. Columbia Medical Center

of Las Colinas, Inc. v. Hogue, 132 S.W.3d 671, 686 (Tex. App. - Dallas 2004, affirmed in

part, rev’d in part on other grounds 271 S.W.3d 238 (Tex. 2008); Bright v. Addison, 171

S.W.3d 588, 604-05 (Tex. App. - Dallas 2005, pet. den’d). A defendant’s subjective

awareness of facts is necessary evidence of the required proof of conscious indifference.

Columbia Medical Center of Las Colinas, Inc. v. Hogue, 132 S.W.3d at 671. Therefore,

Respondent was correct concerning the relevance/materiality of the testimony of President

Bush.

Relators also argue to this Court that President Bush’s testimony would not be a more

logical and more persuasive source of evidence. In light of the admitted lack of specific

48
MRA Tab 4 p. 40-41; 67-68.

-18-
recall by Hunt, Turner and Miers of what President Bush has said in the various

conversations, a statement by President Bush as to the date(s) when he told any one or more

of them that the Library would be at SMU would be a more logical and persuasive source of

the evidence. The statement coming from President Bush avoids all possible hearsay

problems. And, President Bush is not a party nor a present or former agent/representative

of the Defendants, so his testimony is not tainted by self-interest.

In Relators’ issues about relevance/materiality they claim that the individuals who

served on the Association’s Board did not owe the unit owners a fiduciary duty and cite to

a single “no petition” San Antonio case. However, §82.103(a) of the Texas Property Code

provides, in pertinent part, that “Each officer or member of the [condominium association]

board is liable as a fiduciary of the unit owners for the officer’s or member’s acts or

omissions.” Section 82.103(f)(1) provides:

An officer or director of the association is not liable to the association or any

unit owner for monetary damages for an act or omission occurring in the
person’s capacity as an officer or director unless the officer or director
breached a fiduciary duty to the association or a unit owner.49

This is a codification of a common law rule that those who make the decisions for a

condominium association directly, or through their agents and employees who sit on and

control the board of directors, are fiduciaries of the owners. See Raven’s Cove Townhomes,

Inc. v. Knuppe Development Co., Inc., (1981) 114 Cal. App.3d 783, 799, 171 Cal. Rptr. 334.

49
These provisions are not expressly applicable to the UGA board members since the UGA Condominium
Declaration was recorded before January 1, 1994. T EX . P RO P . C. § 82.002( c). An amendment of a code to provide
a right or duty does not preclude the Supreme Court from fashioning a common law rule in conformity therewith to
apply to events not governed by the amendment. E.g. In re S.C.V., 750 S.W .2d 762, 764-65 (Tex. 1988).

-19-
This fiduciary duty owed to the owners runs to the actual board members as well as their

principal. See Behm v. Victory Lane Unit Owner’s Assn, Inc., (1999) 133 Ohio App.3d 484,

487-88 n5, 728 N.E.2d 1093, 1095.

D. Respondent properly analyzed and applied the apex doctrine.50

Relators limit their abuse of discretion argument to this Court concerning the apex

deposition doctrine test of unique or superior knowledge expressly to “the purpose of the

August, 2002 meeting.” Respondent’s Order on page 7 finds that “President Bush would

likely know whether SMU was the only real contender for the Presidential Library or simply

one of four finalists as the Defendants have contended.” It also finds “President Bush would

also know when he first expressed his decision to select SMU as the sole finalist for his

library.” Therefore, Relators cannot establish a clear abuse of discretion for compelling

President Bush’s deposition on these unchallenged topics.

Relators admit that they argued to Respondent that the apex deposition doctrine was

an approach “consistent with the federal rule developed for sitting and former Presidents.”

Under the apex deposition doctrine, the deposition of the high ranking officer can be ordered

where either that officer has unique or superior knowledge (one test) or where the officer’s

knowledge is not unique or special and the party seeking the deposition has already resorted

unsuccessfully to seeking the information from other sources (the second test). In re Alcatel

USA, Inc, 11 S.W.3d 173,176 (Tex. 2000)(orig. proceeding). Respondent’s Order finds that

50
Vodicka argued below and continues to assert that Texas procedure neither includes the federal gloss
nor applies the apex deposition doctrine to a former President about knowledge of facts that were not gained while,
and as a result of being, a high corporate officer. In the event that the apex deposition doctrine is applicable,
Respondent properly applied it to the facts of this case.

-20-
Plaintiffs have attempted to obtain this information through other less intrusive means

(namely the depositions of Miers and Hunt) and have been unsuccessful.51 Relators have not

challenged those findings.

Relators cannot assert to Respondent in the hearing on their Motion for Protection that

the apex doctrine provides the appropriate guidance to Respondent and then establish clear

abuse of discretion in the Mandamus without establishing that the apex doctrine would not

allow for the deposition under the established facts.

Relators in their Motion for Protective Order stated “Despite uncontradicted evidence

of President Bush’s lack of knowledge of the facts material to this lawsuit, Vodicka insisted

on seeking President Bush’s deposition.” 52 If President Bush can file a pleading that he lacks

knowledge of the facts material to this suit, then he has an appreciation of what the “facts

material to this suit” are and he could file an affidavit to that effect if it was true. He did not

do so. Rather, Relators now argue that an affidavit by a person seeking to avoid a deposition

under the apex doctrine is not required to trigger the process of applying the Crown Central53

guidelines, but do so without citing any case in Texas were an affidavit was not filed by the

person seeking to avoid his deposition and that person was held entitled to protection.

Respondent concluded, based on Alcatel, that “before initiating the Crown Central

guidelines, the official begins the process by ‘moving for protection and filing the corporate

51
MRA Tab 2 at 7, 10

52
MRA Tab 10 at. 2, ¶ I.

53
Crown Central Petroleum Corp. v. Garcia, 904 S.W .2d 125 (Tex. 1995)

-21-
official’s affidavit denying any knowledge of relevant facts.’” 54 The Supreme Court in

Alcatel stated “A party initiates the Crown Central guideline proceedings by moving for

protection and filing the corporate official’s affidavit denying any knowledge of relevant

facts.”Alcatel, 11 S.W.3d at 175

Relators argue that filing an affidavit concerning President Bush’s lack of knowledge

is not required under the “analogous” Texas apex deposition doctrine for Relators to establish

a clear abuse of discretion in ordering his deposition. Since the existing Texas Supreme

Court authority states that an affidavit is required under the “analogous” apex deposition

doctrine, both Respondent and this Court are compelled to follow those cases and require an

affidavit in this “analogous” situation. See In re Jane Doe 11, 92 S.W.3d 511, 512 (Tex.

2002)(cautioning the district court that as such it must follow the Supreme Court’s

pronouncements): see also Reynolds v. Nagely, 262 S.W.3d 521, 531 (Tex. App. - Dallas

2008, pet. den.)(“we have no authority to overrule decisions of the Texas Supreme Court”).

Respondent accurately stated and followed the Supreme Court’s pronouncements. A clear

abuse of discretion in not granting Relators’ Motion for Protection asserting the apex

deposition guidelines cannot be shown because there was no affidavit filed in support of the

motion.

III. THE LIMITATIONS ON THE PROPOSED DEPOSITION ARE ADEQUATE.

Respondent’s Order finds that Plaintiffs have attempted to obtain the information

concerning President Bush’s conversations through less intrusive means (namely the

54
MRA Tab 2 at 9.

-22-
depositions of Miers and Hunt) and have been unsuccessful.55 Relators argue that assuming

President Bush should ever be deposed, he should not be deposed until after the completion

of Mr. Hunt’s deposition “about the Crawford Meeting,” citing In re Alcatel. First, the

Respondent’s Order did not find that the only relevant knowledge President Bush may have

is related to the Crawford meeting.56 Second, this procedure of two hearings, the first one

to stay the deposition and the second one to see what additional discovery on others may have

turn up, was addressed by the Supreme Court in Alcatel and rejected as not being mandatory

where there has already been significant discovery done in the case. Alcatel, 11 S.W.3d at

176.

The party seeking an apex deposition is required to pursue less intrusive means of

discovery “only when that party cannot make the requisite showing concerning unique or

superior knowledge.” Id. (the unsuccessful resort to less intrusive means is the second test).

The less intrusive means are efforts to get the information from some one other than the high

corporate officer. Since “[t]he parties admit that all of the individuals who were involved

in these conversations, except President Bush, have been deposed”,57 which determination

Relators have not challenged, and Respondent concluded that Vodicka had satisfied the

second test of Crown Central, the Respondent’s Order is not subject to “correction” to

55
MRA Tab 2 at 7, 10

56
Respondent’s Order on page 7 finds that “President Bush would likely know whether SMU was the only
real contender for the Presidential Library or simply one of four finalists as the Defendants have contended.” It also
finds “President Bush would also know when he first expressed his decision to select SMU as the sole finalist for his
library.” MRA Tab 2 at 7.

57
MRA Tab 2 at 2.

-23-
provide for a “less intrusive” deposition on written questions propounded to President Bush

or a prior list of deposition questions to be provided to President Bush to be used by Relators

to re-start the discovery protection process.

Also, since Respondent’s Order finds specific limitations to be proper, granting

mandamus to have this Court substitute what it believes to be the proper limitations would

require this Court to delve into factual issues, which it is not to do on mandamus. Walker,

827 S.W.2d at 839-40. Respondent’s Order does not conflict with the Texas Rules of Civil

Procedure, since Rule 192.6(b) specifically allows protective orders of the nature of

Respondent’s Order, so mandamus is not appropriate based on any “conflict.” In re Kuntz,

124 S.W.3d at 181. In fact, Relators’ Motion for Protection sought protection and Relators

have not cited any authority that would require that the protection afforded be different than

what Respondent’s Order provides, so the Order is not arbitrary or unreasonable.

CONCLUSION

For the reasons stated, Real Party in Interest Vodicka Gary M. Vodicka requests that

the Court deny the Petition for Writ of Mandamus.

Respectfully submitted,

________________________

Kent Brooks
State Bar Card No. 03070710
Preston Commons West
8117 Preston, Suite 300
Dallas, Texas 75225
(214) 706-9151
(214) 706-9152 Facsimile

-24-
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served upon the

counsel of record and Respondent by certified mail, return receipt requested, or hand delivery on this

26th day of May, 2009.

G. Luke Ashley
Thompson & Knight LLP
1722 Routh Street, Suite 1500
Dallas, Texas 75201
Counsel for Relators

_________________________
Gary M. Vodicka

-25-