Court of Appeals of Texas, Third District, Austin
In re Jennifer Durbin; Robert L. Gibbins, Jr.; Steve A. Gibbins; and Kyndal Wood
PROCEEDING FROM TRAVIS COUNTY
Chief Justice Rose, Justices Goodwin and Bourland.
Olson Bourland, Justice.
Jennifer Durbin, Robert L. Gibbins Jr., Steve A. Gibbins, and
Kyndal Wood filed a petition for writ of mandamus asking this
Court to direct the trial court to vacate or set aside its
orders denying the relators' motions to compel discovery
in a probate proceeding. See Tex. Gov't Code
§ 22.221; see also Tex. R. App. P. 52.1. At the
same time, the relators filed a motion for emergency stay of
all proceedings in the underlying case, which we granted.
Having reviewed the petition, the record, the response of the
real party in interest, and the relators' reply, we will
conditionally grant in part the requested mandamus relief.
original proceeding arises out of a declaratory-judgment
lawsuit filed by the real party in interest, Pamela G. Reed,
as Independent Executor of the Estate of Robert L. Gibbins.
Reed and Gibbins had been married for thirty-two years at the
time of Gibbins's death. Relators are Gibbins's
children from his first marriage.
seeks a declaration that a foreign trust created before
Gibbins's death (the Maple Trust) was valid and passed
outside the estate upon Gibbins's death. She also seeks a
declaration that she has no duty as executor to disclose
information concerning the Trust to relators. The relators
filed a counterpetition for declaratory judgment, contesting
the validity of the Maple Trust and two will codicils
admitted to probate based on Gibbins's alleged lack of
capacity, or alternatively, Reed's undue influence. They
also assert claims for breaches of fiduciary duty, tortious
interference with inheritance rights, removal of Reed as
independent executor, a constructive trust, and rescission of
the Maple Trust. The trial court denied the relators'
motion to compel production of documents and their motion to
compel answers to interrogatories and to deposition
questions. The relators seek mandamus relief from the trial
three issues, the relators contend that the trial court
abused its discretion by denying the motions to compel.
First, they contend that the discovery they requested related
to the Maple Trust is relevant to Reed's claim that the
Trust should pass outside the estate, to their defense
against that claim, and to their counterclaims asserting the
Trust's invalidity and Reed's breaches of fiduciary
duty. Second, they argue that they are entitled to discovery
of Gibbins's estate-planning file because it is relevant
to their challenge to Gibbins's capacity to execute the
2004 Maple Trust and the 2004 and 2008 codicils to his will.
Third, the relators assert that the trial court should have
compelled Reed to answer questions at a deposition about
money borrowed from Reed's parents five months before
Gibbins's death. The relators assert that Reed, who is
also the executor of her mother's estate, should have to
answer questions about why she entered into the loan and the
estimated value of her mother's estate because this
information is relevant to their allegations that Reed has
breached her fiduciary duties as executor of Gibbins's
estate and that she has a conflict of interest because she is
acting as executor of both estates. In response, Reed
primarily argues that the trial court decided to try the
capacity issue first because resolution of that claim would
affect how much additional discovery, if any, would be
warranted. She further contends that none of the discovery
for which the relators seek relief affects their ability to
prove Gibbins's lack of capacity at the time he executed
the Maple Trust and the 2004 and 2008 codicils, which she
contends is the only relevant issue.
is an extraordinary remedy granted only when the relator
shows that the trial court abused its discretion and that no
adequate appellate remedy exists. In re Prudential Ins.
Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). The
relator bears the burden of proving these two requirements.
See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992). We first consider the abuse-of-discretion element.
While we may not substitute our judgment for the trial
court's with respect to resolution of factual issues or
matters committed to the trial court's discretion, our
review of its determination of the legal principles
controlling its ruling is much less deferential. Id.
at 839-40. "The trial court has no 'discretion'
in determining what the law is or applying the law to the
facts. Thus, a clear failure by the trial court to analyze or
apply the law correctly will constitute an abuse of
discretion . . . ." Id. at 840. The trial
court's basis for denying requested discovery is "a
legal conclusion to be reviewed with limited deference."
Id. at 838, 840 (determining that trial court erred
by incorrectly applying rules of civil procedure and case law
related to relevancy of discovery).
the lack of an adequate appellate remedy, "[a] trial
court abuses its discretion when it denies discovery going to
the heart of a party's case or when that denial severely
compromises a party's ability to present a viable
defense." Ford Motor Co. v. Castillo, 279
S.W.3d 656, 663 (Tex. 2009). "[T]he relator must
establish the effective denial of a reasonable opportunity to
develop the merits of his or her case, so that the trial
would be a waste of judicial resources."
Walker, 827 S.W.2d at 843.
preliminary matter, although the record reflects that the
trial judge several times orally expressed his desire to
resolve the capacity issue before allowing discovery related
to the Trust and its assets, there is no oral or written
order requiring separate trials and no oral or written order
abating discovery on all issues other than capacity. There is
no indication in the record before us that Reed moved the
court to render such an order. Further, even if the trial
court had ordered separate trials under Texas Rule of Civil
Procedure 174(b), without an order abating discovery, the
general discovery rules apply. See, e.g.,
Tex.R.Civ.P. 190.4(b)(2) (contemplating that a Level 3
discovery-control plan may phase discovery to resolve
discrete issues), R. 192.3 (addressing scope of discovery),
R. 192.4 (encouraging trial court to limit scope of discovery
in appropriate situations); see also In re Alford
Chevrolet-Geo, 997 S.W.2d 173, 180-82 (Tex. 1999)
(discussing general principles underlying trial court's
discretion to schedule discovery and to bifurcate discovery
on certain issues when warranted); Hall v. City of
Austin, 450 S.W.2d 836, 838 (Tex. 1970) ("An order
for a separate trial leaves the lawsuit intact but
enables the court to hear and determine one or more issues
without trying all controverted issues at the same
hearing." (Emphasis added.)).
related to the Maple Trust
relators are beneficiaries of Gibbins's estate as well as
the remainder beneficiaries of the Maple Trust. They assert
that they accordingly are entitled to discovery on the Maple
Trust generally, the past and present assets of the Maple
Trust, and the origin of those assets. In particular, they
assert that their discovery requests are relevant to
Reed's claim that the Trust should pass outside the
estate and to their defense against that claim, as well as to
their counterclaims, because Reed's position that the
Trust should pass outside the estate is contrary to the
estate's interests and because Reed is breaching her
fiduciary duty by failing to disclose material facts about
the Trust that may affect their rights.
the relators contend that the trial court should have granted
their motion to compel responses to seventeen requests for
production related to the Maple Trust. The requests seek any
documents: (1) showing any non-probate assets that Reed, the
Trust, or anyone else received as a result of Gibbins's
death; (2) related to any trusts created by Gibbins during
his marriage to Reed; (3) related to the transfer of any
assets owned by Gibbins or Reed to the trustee of the Maple
Trust; (4) showing any distributions made out of the Maple
Trust or any trust created under the Trust; (5) showing all
accountings provided by the trustee of the Maple Trust; (6)
showing the assets held in the trust estate of the Maple
Trust; (7) showing changes in the trustee of the Maple Trust;
and (8) showing the current value of the assets held by the
Maple Trust. They also seek all life-insurance policies on
Gibbins that benefitted the Maple Trust; any trusts or
foreign structures or entities of which Gibbins or Reed are
beneficiaries, protectors, or trustees; all Foreign Bank
Account Reports filed from 2004 through the present; all
amendments to the Trust; and all correspondence between Reed
and any trustee or protector for the Trust. The relators also
requested production of all unredacted tax returns and work
papers and all gift tax returns from 2007 through 2013 to
allow them to evaluate assets that the Maple Trust once held.
relators also sought to compel responses to interrogatories
and deposition questions seeking the identity of all current
and former trustees of the Maple Trust, the current assets of
the Trust, the assets in the Trust on the date of
Gibbins's death, the distributions Reed has received from
the Trust and how the distributions work, any other
distributions made from the Trust, the transfers into the
Trust from its inception to the present, whether Reed
communicates with the trustee, the identity of the
"protector" of the Trust, ...