Date: 06-17-2017

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

Case Number: 03-16-00583-CV

Judge: Cindy Olson Bourland

Court: Texas Court of Appeals, Third District on appeal from the Probate Court No. 1 of Travis County

Plaintiff's Attorney: Steve Gibbins for Jennifer Durbin, Kyndal Wood, Robert L. Gibbons, Jr., Steve A. Gibbins

Defendant's Attorney: Daniel C. Bitting for Pamela G. Reed, As Independent Executor of the Estate of Robert L. Gibbins

Daniel Richards for Margaret Moore, Trustee of the Maple Trust

Description: 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
2
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
3
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 discoverycontrol
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
4
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
5
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, who controls the Trust’s assets, and whether a
certain insurance policy is the only Trust asset and if that policy has been terminated.
The trial judge discussed on the record his conclusion that most, if not all, of these
documents would not “be put into evidence” unless the court determines that Gibbins did not have
capacity to execute the Maple Trust in 2004 and it is thus invalid. But unless and until the trial court
makes a determination that the trust is invalid, these documents appear to satisfy the requirements
of Rule 192.3. They are “not privileged and [are] relevant to the subject matter of the pending
action” because they relate to Reed’s claim, the relators’ defense, and some of the relators’
counterclaims, and they appear “reasonably calculated to lead to the discovery of admissible
evidence.” Tex. R. Civ. P. 192.3(a). Moreover, on the record before us, it appears that these
documents go to the heart of some of relators’ counterclaims, and without them, the relators cannot
develop the merits of their case. See Walker, 827 S.W.2d at 843. We conclude that the trial court
abused its discretion by denying the relators’ motions to compel for the discovery requests related
to the Maple Trust, as outlined above, with one exception.
The exception is the unredacted tax returns, corresponding work papers, and gift tax
returns. The party seeking discovery of tax returns has the burden of showing materiality and
relevance. In re Sullivan, 214 S.W.3d 622, 624 (Tex. App.—Austin 2006, orig. proceeding).
“Federal income tax returns are not material if the same information can be obtained from another
6
source.” Id. at 624-25. The requesting party must show that it cannot obtain whatever relevant
information is contained in the tax returns from another source, such as interrogatories and
depositions. On this record, we conclude that the relators have not shown that they are entitled to
production of the unredacted tax returns and related documents. Until the other requested documents
have been produced and the interrogatories and deposition questions have been answered, this record
does not support a finding that the requested tax returns are material so as to be discoverable.1 See
id. at 625.
The estate-planning file
The relators also challenge the trial court’s denial of their request for Gibbins’s estateplanning
file, which is under Reed’s control as executor of the estate. The relators contend that the
file is relevant to their challenge to Gibbins’s capacity to execute the 2004 Maple Trust and the 2004
and 2008 codicils to his will. Reed asserted objections and the attorney-client privilege in
response to the request for the estate-planning file, and she also provided a privilege log. See Tex.
R. Evid. 503(b).
At the hearing on the motion to compel, the relators argued that Rule 503 provides
that the attorney-client “privilege does not apply . . . [i]f the communication is relevant to an issue
between parties claiming through the same deceased client.” Id. R. 503(d)(2). After argument by
both parties regarding whether the entire estate-planning file would be relevant to capacity and not
1 We emphasize that our ruling is based solely on the record before us, and we express no
opinion about whether these documents could be shown to be material after additional discovery.
See In re Sullivan, 214 S.W.3d 622, 625 (Tex. App.—Austin 2006, orig. proceeding).
7
protected by the privilege or whether the request for the entire file was overly broad, the trial court
stated “I’m going to order — I want [the estate-planning attorney] to turn over anything immediately
that goes to capacity.” Also at the hearing, Reed tendered the documents in the file that had been
identified as privileged for in camera review by the trial court, and after the hearing, she tendered
for in camera review the additional documents in the file that had not been claimed as privileged but
were withheld on other grounds. Following the trial court’s receipt of the additional documents for
in camera review and confirmation by Reed’s counsel that three documents concerning capacity had
been produced to relators, the court denied the motion to compel.2
The relators argue in their mandamus petition that the trial court abused its discretion
by not compelling production of the entire estate-planning file because they assert the entire file is
relevant to the issue of whether Gibbins had capacity when he executed the 2004 and 2008 codicils
and the 2004 Maple Trust and is not privileged. The trial court instructed Reed to produce any
documents in the file relevant to the issue of capacity without limitation as to Reed’s claim of
attorney-client privilege, and Reed complied.3 Thus, the trial court concluded that only certain
documents in the estate-planning file are relevant to the issue of capacity (the issue upon which the
relators based their document request), not the entire file, and that the documents relevant to capacity
should be produced.4 See In re Texas A&M-Corpus Christi Found., Inc., 84 S.W.3d 358, 361 (Tex.
2 The three documents are witness statements made in January 2004 in connection with
Gibbins’s execution of the 2004 codicil and the Maple Trust.
3 Although the trial court’s instruction is not memorialized in a written order, Reed did not
challenge it.
4 Reed argued at the hearing and continues to contend in this mandamus proceeding that
because the estate-planning file concerned the joint representation of Reed and Gibbins, the
8
App.—Corpus Christi 2002, orig. proceeding) (applying plain meaning of Rule 503(d)(2) and
concluding that trial court abused its discretion by denying motion to compel discovery from estateplanning
attorneys related to client’s mental capacity).
In their mandamus petition, the relators urge this Court that the entire estate-planning
file should be produced, relying on testimony of the estate-planning attorney from a deposition taken
a month after the trial court required Reed to produce the file documents related to capacity. The
relators contend that the attorney’s testimony indicates that there are other documents in the file that
are relevant to capacity and reasonably calculated to lead to the discovery of admissible evidence,
including schematic charts used to explain the complicated Trust document and the estate plan to
Gibbins, as well as communications with Reed, the attorney’s “primary liaison,” about Gibbins’s
estate planning and the Trust. Accordingly, they argue that the trial court abused its discretion by
not ordering Reed to produce the entire estate-planning file. It does not appear from the mandamus
exception should not apply because Reed’s communications remain protected by her attorney-client
privilege, relying on In re JDN Real Estate-McKinney L.P., 211 S.W.3d 907, 922 (Tex.
App.—Dallas 2006, orig. proceeding). In that case, which involved inadvertent disclosure of
privileged documents, the Dallas Court of Appeals stated that “[w]here the attorney acts as counsel
for two parties, communications made to the attorney for the purpose of facilitating the rendition of
legal services to the clients are privileged, except in a controversy between the clients.” Id.
(concluding that one party did not waive its ability to assert the attorney-client privilege because
documents were disclosed to a third party who had a common legal interest and shared the same
counsel). The trial court appears to have concluded that the common-legal-interest principle does
not serve to prevent the application of the Rule 502(d)(2) exception when a privileged
communication is relevant to an issue between parties claiming through the same deceased client.
9
record that the relators ever presented the estate-planning attorney’s testimony to the trial court.
Consequently, we cannot conclude that the trial court abused its discretion by denying the relators’
motion to compel the entire estate-planning file based on testimony it never had the opportunity
to consider.
The estate’s debt to Reed’s mother’s estate
The relators also challenge the trial court’s denial of their motion to compel Reed to
answer deposition questions related to a $300,000 loan that Reed entered into with her parents five
months before Gibbins’s death. Although the promissory note is only in Reed’s name, Reed
contends that she borrowed the money on behalf of the community to provide herself and Gibbins
with living expenses. Reed has produced the promissory note and the bank-account statement
showing the deposit of the funds into her and Gibbins’s joint checking account. She also answered
questions about the loan and the use of the proceeds for living expenses, but she refused to answer
questions about why she entered into the loan rather than taking distributions from the trust and
about the estimated value of her mother’s estate (to which the note is payable). The relators contend
that the answers to these deposition questions are relevant to their breach-of-fiduciary-duty and
conflict-of-interest allegations because Reed is the executor of both estates. They allege that as the
executor of her mother’s estate, Reed has the ability to partially forgive the note and that this creates
a conflict of interest with her duties as Gibbins’s executor.
We conclude that the trial court did not abuse its discretion by denying the relators’
motion to compel answers to questions about why Reed entered into the loan and the estimated value
of her mother’s estate. The relators have not alleged that the loan was improper or that the proceeds
10
were used for anything other than community living expenses. See Tex. R. Civ. P. 192.3(a)
(discovery must be relevant to subject matter of case). Nor have the relators articulated how Reed’s
status as executor of both estates has resulted in a breach of any fiduciary duty that she owes to
Gibbins’s estate. Id.

Outcome: Accordingly, we conditionally grant in part the petition for writ of mandamus as to the
discovery requests related to the Maple Trust, except for the request for unredacted tax documents.
See Tex. R. App. P. 52.8. We deny in part the petition for writ of mandamus as to (1) the
estate-planning file and (2) the deposition questions related to the $300,000 loan and the estimated
value of Reed’s mother’s estate. See id. We lift the stay of the proceedings in the underlying case.
See id. R. 52.10. Writ will issue only in the event that the trial court does not act in accordance with
this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: