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In re Durbin

Court of Appeals of Texas, Third District, Austin

June 16, 2017

In re Jennifer Durbin; Robert L. Gibbins, Jr.; Steve A. Gibbins; and Kyndal Wood


          Before Chief Justice Rose, Justices Goodwin and Bourland.


          Cindy Olson Bourland, Justice.

         Relators 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.

         This 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.

         Reed 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 court's orders.

         In 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.

         Mandamus 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).

         Regarding 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.

         As a 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.)).

         Discovery related to the Maple Trust

         The 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.

         Specifically, 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.

         The 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, ...

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