NUMBER 13-02-262-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI -- EDINBURG
In re Texas A&M - Corpus Christi Foundation, Inc., Relator
On Petition for Writ of Mandamus
from the 214th District Court
of Nueces County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Dorsey and Rodriguez
Opinion by Justice Dorsey
Relator, Texas A&M-Corpus Christi Foundation, Inc., seeks mandamus relief from an order issued by the 214th Judicial District Court of Nueces County, Texas, that denied the Foundation's motion to compel discovery.
This case involves a challenge to a gift of $2 million made by Mrs. Frances K. Snyder to the Foundation. The administrator for Snyder's estate brought suit against the Foundation and the President of Texas A&M University--Corpus Christi, Robert Furgason, contending that Furgason wrongfully induced Mrs. Snyder to make the gift to the Foundation. (1)
The issues in that suit seem to have been distilled to the question of whether Mrs. Snyder possessed the mental capacity required to effectuate the transfers at issue. However, when the Foundation attempted to depose the lawyers who prepared most of the transfer documents for Mrs. Snyder and represented her in the transfer, the estate asserted the attorney-client privilege as a shield against the Foundation's discovery of communications between Mrs. Snyder and those attorneys.
At deposition, the estate attorneys testified generally that Mrs. Snyder appeared to have mental capacity, but one attorney refused to turn over documents requested pursuant to the Foundation's duces tecum attached to its notice of deposition, claiming the attorney-client privilege. The Foundation brought a motion seeking the trial court to compel the estate to turn over the discovery requested and allow discovery into matters concerning the attorney-client relationship between Mrs. Snyder and her estate attorneys.
The Foundation argued that, first, the discovery sought is not shielded by the attorney-client privilege, and, second, even if it were, the estate is prohibited from asserting the privilege in such an "offensive use." (2) When the trial court signed an order denying its motion to compel, the Foundation sought mandamus relief from this Court. We conditionally grant mandamus because we find that the discovery sought by the Foundation is not protected by the attorney-client privilege. Accordingly, the trial court abused its discretion in refusing to compel the estate to produce the discovery requested.
The estate contends, first, that mandamus relief is not available in this case because remedy by direct appeal is adequate. While we certainly agree with the principle that mandamus may only issue where there is no adequate remedy by appeal, Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992), we disagree with the estate's contention that remedy by direct appeal is adequate. "[A] denial of discovery going to the heart of a party's case may render the appellate remedy inadequate." Id. at 843. The discovery sought is evidence bearing on Mrs. Snyder's donative capacity around the time of the gift. As such it is highly relevant and goes "to the heart" of the case. Appeal is not a sufficient remedy, because absent the discovery the case will have been tried needlessly.
Having found mandamus available, we now turn to the question of whether the trial court clearly abused its discretion in denying the Foundation's motion to compel. In addition to showing that the remedy of direct appeal is inadequate, a party seeking mandamus relief must also show that the trial court clearly abused its discretion. Id. at 839. When applying the law, the trial court has little discretion. Id. Thus, if a trial court applied the law incorrectly, an abuse of discretion will be found. Id. We find that to be the case here.
Straightforward application of the rule of evidence regarding attorney-client communications shows that the information the Foundation seeks to discover is not covered by the privilege, but rather, is specifically excepted by rule 503(d)(3). See Tex. R. Evid. 503(d)(3).
In general, communications between attorneys and their clients are privileged. See id. at 503(b)(1). The privilege may be claimed by the personal representative of a deceased client. Id. at 503(c). However, the rule has some exceptions that take attorney-client communications out of the scope of the privilege. Specifically, the rule states: "There is no privilege under this rule. . . [a]s to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transactions . . . ." Id. at 503(d)(3). We have found no cases construing the parameters of this exception.
Thus, we simply apply the plain meaning of the rule to the case at bar. Because the discovery material sought by the Foundation is "relevant to an issue between parties who claim through the same deceased client," we hold that it is outside the scope of the attorney-client privilege. Because the trial court denied the Foundation's motion seeking compulsion of this discovery, it abused its discretion. Accordingly, we conditionally grant mandamus and direct the trial court to vacate its order denying the Foundation's motion to compel, and instead, enter an appropriate order in accordance with this opinion.
______________________________
J. BONNER DORSEY,
Justice
Publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 7th day of June, 2002.
1. The Real Party in Interest is referred to as "the estate" for purposes of clarity. In each instance, the term refers to "Bryan Lee Holmes, as Independent Administrator of the Estate of Frances K. Snyder, Deceased, and as Trustee of the Frances K. Snyder Trust."
2. The Texas Supreme Court set forth the offensive use doctrine in Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993). Because we find that straightforward application of the rule of privilege shows that the discovery sought is not privileged, we do not inquire into whether the estate has met the requisites for application of the offensive use doctrine.