November 29, 2022

Volume XII, Number 333

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November 28, 2022

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Appellate Court Denies Mandamus Regarding A Trial Court’s Initial Disclosure Order In An Estate Case

In In re Eisenbise, the parties, a mother and son, argued about a trial court’s order requiring an executrix to produce certain documents pursuant to her duty to provide initial disclosures in a dispute concerning the grandmother’s estate. No. 10-22-00090-CV, 2022 Tex. App. LEXIS 3866 (Tex. App.—Waco June 8, 2022, original proc.). The trial court ordered:

 Mother, in her capacity as executor “to produce the following in her possession, custody, or control within ten (10) days from the signed date of this Order pursuant to Texas Rule of Civil Procedure 194.2: (1) The medical records of [Grandmother], including the documents, and electronic information; and (2) The documents and electronic information obtained by [Mother] from the [Grandmother’s] laptop(s) and cellular telephone(s).”

Id. The son relied upon Texas Rule of Civil Procedure 194.2(b)(6) to require mother, in her capacity as executor, to make disclosure of “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment.” Id. However, the son also attempted to obtain other documents that were or may be relevant to the proceeding. “In essence, without making a discovery request, Son wants Mother to be required to produce all of Grandmother’s information/documents that Mother has access to in her capacity as Executor of Grandmother’s estate.” Id. The trial court did not go that far.

The son filed a petition for writ of mandamus. The court of appeals denied the mandamus without an opinion. One of the justices issued a concurring opinion, and stated:

The two categories are somewhat vague. And I concede that I do not fully understand the scope of the two categories. Nevertheless, the production ordered is circumscribed by the reference to Texas Rule of Civil Procedure 194.2, and thus limited to the documents/information that Mother “may use to support her claims or defenses.” Therefore, because the trial court’s order does not require production of anything beyond the initial disclosures required by Texas Rule of Civil Procedure 194.2, and merely sets a time period by which those items must be produced, I respectfully concur in the Court’s denial of the petition for writ of mandamus.

Id.

© 2022 Winstead PC.National Law Review, Volume XII, Number 276
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About this Author

David Johnson Financial Institution lLtigation Winstead Law Firm Fort Worth Texas
Managing Shareholder - Fort Worth

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. 

David's financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class...

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