                                     IN THE
                             TENTH COURT OF APPEALS



                                     No. 10-12-00339-CV

                               IN RE JOHN C. PASCHALL


                                    Original Proceeding



                              MEMORANDUM OPINION


       In this mandamus proceeding, we are asked to determine whether the

respondent, Judge H.D. Black assigned to the 82nd Judicial District Court, abused his

discretion in compelling the production of the Marium Oscar 1992 Trust documents to

real parties in interest, Marsha and John Gilbert, both of whom allegedly lack standing.

For the reasons stated herein, we deny relator’s petition for writ of mandamus.1

                                          I.      BACKGROUND

       Marium Jeanette Oscar died testate on November 20, 2004, at the age of ninety-

five. On December 3, 2004, Marium’s Last Will and Testament was admitted to probate


       1  See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”).
in the County Court of Robertson County, Texas, in cause number 6875. The will

specifically names relator, John C. Paschall, as executor of Marium’s estate.

Furthermore, the will also provides that:

               I [Marium] give, devise, and bequeath all of my property of
        whatsoever nature, kind, or character, whether real, personal, or mixed, of
        which I may die seized or possessed or to which I may then or at any time
        thereafter be entitled, all my estate (“my residuary estate”) to the trustee
        of the Marium Oscar 1992 Trust.

        On June 7, 2011, almost seven years after Marium’s will was probated, Harry H.

Oscar Jr. filed suit against Paschall and Marium’s estate, seeking an accounting from

Paschall and asserting claims of unjust enrichment and breach of fiduciary duty.2

Subsequently, on September 6, 2011, Harry amended his original petition to include

Marsha and John Gilbert, real parties in interest, as parties to his lawsuit. In their live

pleading, the third amended petition, Marsha and John assert the same causes of action

as alleged by Harry and “demand equitable relief, including the imposition of a

constructive trust and/or resulting trust over any property that purportedly belonged

to the Marium Oscar 1992 trust.”

        In any event, on September 15, 2011, the trial court granted a summary judgment

in favor of Paschall with respect to Harry. Specifically, the trial court noted, in its

summary-judgment order, that: “Plaintiff [Harry] presented no evidence to establish

his standing to bring suit against John C. Paschall.” The record does not contain an




        2   Harry H. Oscar Jr. is not a party to this proceeding.



In re Paschall                                                                         Page 2
order severing Harry’s claims from those brought by Marsha and John.3 Furthermore,

it does not appear as if Harry appealed the trial court’s summary-judgment order.

        Thereafter, Marsha and John, claiming to be heirs of Marium, requested that

Paschall produce the Marium Oscar 1992 Trust and other records.4 Paschall objected to

producing the Marium Oscar 1992 Trust and other records because neither Marsha nor

John have standing to bring a cause of action in this matter; thus, Paschall argued that

the trial court had no jurisdiction to compel the production of any records. Paschall

also filed a motion to dismiss Marsha and John’s claims for want of jurisdiction, which

has not yet been ruled on.

         In response to Paschall’s objections and refusal to produce the trust documents,

Marsha and John filed a motion to compel, a motion to unseal the trust documents, and



        3In an affidavit attached to Marsha and John’s response to Paschall’s mandamus petition, Marsha
and John’s counsel, Ty Clevenger, averred that Harry’s claims were severed from Marsha and John’s.

        4  Also attached to their brief as an appendix is an affidavit executed by Marsha, wherein she
states that:

        1.   I am one of the plaintiffs in the case listed above. John Gilbert is my brother, and he
             is also a plaintiff.

        2.   Harold S. Gilbert was our father.

        3.   Reba Samuels Gilbert was the mother of Harold S. Gilbert, and she was my
             grandmother. Her mother, Maymie Oscar Samuels, died when I was one year old,
             but my grandmother told me that Maymie Oscar Samuels grew up in Calvert, Texas.

        4.   According to our family genealogical records and oral history, as well as synagogue
             records, photographs, and cemetery records, Isador Oscar, Sr. was the father of
             Maymie Oscar Samuels, Isador Oscar, Jr.[,] and Harry Oscar. Because Marium Oscar
             was the daughter of Isador Oscar, Jr., she would be my (and John Gilbert’s) first
             cousin, twice removed.

This affidavit bears no file stamp; thus, it is unclear whether this document was filed in the trial court.
Furthermore, the record does not contain any of the genealogical records, synagogue records,
photographs, or cemetery records alluded to in Marsha’s affidavit.


In re Paschall                                                                                         Page 3
a request for setting. The trial court set the discovery matter for a hearing on August 14,

2012.

        After the August 14, 2012 hearing, the trial court ordered that Paschall produce

the trust documents to Marsha and John.          In particular, the trial court noted the

following in its order:

               The Plaintiffs’ motion to unseal evidence and their motion to
        compel discovery responses were heard by the Court on August 14, 2012.
        The hearing on the motion to unseal evidence is continued until the oral
        argument scheduled for December 11, 2012[,] at 10 a.m. Counsel are
        asked to address TEX. R. CIV. P. 76a[,] as well as Abdelnour v. Mid National
        Holdings, Inc., 190 S.W.3d 237 (Tex. App.—Houston [1st Dist.] 2006); and,
        apply the facts of the case at bar.

                The motion to compel discovery responses is GRANTED as
        follows. The Court finds that the Marium Oscar 1992 Trust instrument is
        subject to discovery for the purpose of determining if the trust has failed
        per Pickelner v. Adler, 229 S.W.3d 516 (Tex. App.—Houston [1st Dist.]
        2007). Before the trust instrument is tendered to the Plaintiffs, the
        Defendant shall be granted 31 days to perfect a writ seeking mandamus
        relief from this Order to the Court of Appeals of Texas for the Tenth
        District in Waco, Texas. The Plaintiffs and Plaintiffs’ Counsel are ordered
        to not disclose the contents of the trust agreement.

Paschall subsequently filed his petition for writ of mandamus in this Court.

                                  II.    STANDARD OF REVIEW

        Mandamus is an extraordinary remedy that will issue only to correct a clear

abuse of discretion when there is “no adequate remedy by appeal.” In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (citations omitted). “A trial court has no

‘discretion’ in determining what the law is or applying the law to the facts.” Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992). “Thus, a clear failure by the trial court to

analyze or apply the law correctly will constitute an abuse of discretion.” Id. (citations


In re Paschall                                                                         Page 4
omitted). And, generally speaking, an adequate legal remedy exists if the relator is able

to raise the issue on appeal. See id. However, in some extraordinary cases, an appellate

remedy may be inadequate when the benefits to mandamus review outweigh the

detriments. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462, 468-69 (Tex. 2008)

(orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. Moreover, a relator

has the burden of providing this court with a sufficient record to establish his right to

mandamus relief. See Walker, 827 S.W.2d at 837; see also TEX. R. APP. P. 52.3, 52.7.

        Mandamus will issue to correct a discovery order if the order constitutes a clear

abuse of discretion and there is no adequate remedy by appeal. In re Colonial Pipeline

Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding). When determining whether the

trial court abused its discretion, we are mindful that the purpose of discovery is to seek

the truth so that disputes may be decided by what the facts reveal, not by what facts are

concealed.       Id.   The rules governing discovery do not require as a prerequisite to

discovery that the information sought be admissible evidence; it is enough that the

information appears reasonably calculated to lead to the discovery of admissible

evidence. See TEX. R. CIV. P. 192.3(a). However, this broad grant is limited by the

legitimate interests of the opposing party to avoid overly broad requests, harassment, or

disclosure of privileged information. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.

1998) (orig. proceeding).

                                          III.   ANALYSIS

        In his mandamus petition, Paschall asserts that the Gilberts do not have standing

to bring suit in this matter because they are not persons interested in the estate or, in


In re Paschall                                                                         Page 5
other words, heirs, devisees, spouses, creditors, or other persons having a property

right in Marium’s estate.     See TEX. PROB. CODE ANN. § 3(r) (West Supp. 2012).

Specifically, Paschall alleges that “the Gilberts have no pecuniary interest in the estate

of Marium Jeanette Oscar, but seek only to meddle into the affairs of the estate for the

purpose of getting a copy of the Marium Oscar 1992 Trust.” Paschall also argues that

“[t]his is nothing more than a fishing expedition where the Gilberts, as mere strangers

or curiosity seekers, are attempting to use the court system to obtain information not

intended for public disclosure . . . .” All of Paschall’s arguments are couched within the

standing doctrine.

A.      Adequate Remedy By Appeal

        We first note the unusual nature of this mandamus proceeding. Essentially,

Paschall seeks to avoid producing the trust documents on the basis that the Gilberts do

not have standing, which, if true, would result not only in Paschall not having to

produce the trust documents but likely the dismissal of the Gilberts’ lawsuit in its

entirety. Ordinarily, appellate courts will not intervene to control incidental trial court

rulings when an adequate remedy by appeal exists. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). However, with regard to the adequate-

remedy-at-law prong of our mandamus review, Paschall argues that he “has no other

remedy other than mandamus. Otherwise, Relator will continue to have to defend

himself and expend large sums of money on defense against the frivolous and meritless




In re Paschall                                                                       Page 6
claims of individuals who have no standing to complain.”5 In other words, Paschall

asserts that the benefits to mandamus review outweigh the detriments.                          See In re

McAllen Med. Ctr., Inc., 275 S.W.3d at 462, 468-69; In re Prudential Ins. Co. of Am., 148

S.W.3d at 136. Furthermore, the Gilberts do not dispute Paschall’s assertion that he

does not have an adequate remedy by appeal. Because it is undisputed as to whether

Paschall has an adequate remedy at law, we will continue our analysis, focusing on

whether the trial court clearly abused its discretion in ordering the trust documents to

be produced to the Gilberts.6

B.      Standing

        “Standing is a constitutional prerequisite to maintaining suit in either federal or

state court.” Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001) (citing Tex. Ass’n of Bus. v.

Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)). Standing “focuses on whether a

party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in

its outcome.”      Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005).

Essentially, parties have standing when they are personally aggrieved, regardless of

whether they are acting with legal authority. See Nootsie, Ltd. v. Williamson County

Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996) (holding that the standing doctrine

requires that there be (1) “a real controversy between the parties,” that (2) “will be

        5 In support of his contention, Paschall references several other lawsuits brought by the Gilberts’
counsel against him—this suit, the Harry Oscar lawsuit, and two different lawsuits in the United States
District Court for the Western District of Texas.

         6 We recognize, however, that it is possible for the trial court to address Paschall’s standing

argument with regard to his motion to dismiss. But, to our knowledge, that motion has not been ruled
on. Moreover, it is also arguable that the trial court implicitly concluded that the Gilberts have standing
in this matter when it ordered the trust documents to be produced. Regardless, out of an abundance of
caution, we will presume that Paschall lacks an adequate remedy by appeal.


In re Paschall                                                                                      Page 7
actually determined by the judicial declaration sought”). The complained-of injury

“must be concrete and particularized, actual or imminent, not hypothetical.”

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05 (Tex. 2008) (footnotes omitted);

see Tex. Lottery Comm’n v. Scientific Games Int’l, Inc., 99 S.W.3d 376, 380 (Tex. App.—

Austin 2003, pet. denied) (holding that “[t]o establish standing, one must show a

justiciable interest by alleging an actual or imminent threat of injury peculiar to one’s

circumstances and not suffered by the public generally”); see also Elizondo v. Tex. Natural

Res. Conservation Comm’n, 974 S.W.2d 928, 932 (Tex. App.—Austin 1998, no pet.) (citing

Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 2204-05, 45 L. Ed. 2d 343 (1975)

(noting that the general standard for determining whether a plaintiff has standing is

whether she has such a personal stake in the outcome of the controversy as to warrant

invocation of the court’s jurisdiction and to justify exercise of the court’s remedial

powers on her behalf)).

         Standing is implicit in subject-matter jurisdiction and cannot be waived. See

Lovato, 171 S.W.3d at 849; see also Tex. Ass’n of Bus., 852 S.W.2d at 443. As such,

challenges to standing can be raised at any time, including for the first time on appeal.

See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000).        Furthermore,

whether a court has subject-matter jurisdiction is a legal question that we review de

novo. See Trulock v. City of Duncanville, 277 S.W.3d 920, 923 (Tex. App.—Dallas 2009, no

pet.).




In re Paschall                                                                       Page 8
C.      Discovery Disputes

        At its core, this mandamus proceeding involves a discovery dispute—namely,

whether the trust documents should be produced to the Gilberts. We note that Texas

courts have routinely held that the trial court has broad discretion over the discovery

process. See In re Colonial Pipeline Co., 968 S.W.2d at 941 (noting that the trial court has

broad discretion to schedule and define the scope of discovery in cases); Dillard Dep’t

Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995); see also In re Williams, 328 S.W.3d 103,

111 (Tex. App.—Corpus Christi 2010, orig. proceeding). Nevertheless, a trial court’s

ruling that requires production of information beyond what our procedural rules

permit is an abuse of discretion. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig.

proceeding) (per curiam) (citing Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995)

(orig. proceeding) (per curiam)); see Hall, 909 S.W.2d at 492. If an appellate court cannot

remedy a trial court’s discovery error, then an adequate appellate remedy does not

exist. In re Dana Corp., 138 S.W.3d at 301 (citing Texaco, Inc., 898 S.W.2d at 815; Walker,

827 S.W.2d at 839). Thus, “[m]andamus review is proper for discovery that is ‘well

outside the proper bounds.’” In re Brewer Leasing, Inc., 255 S.W.3d 708, 711 (Tex. App.—

Houston [1st Dist.] 2008, orig. proceeding) (citing In re Am. Optical Corp., 988 S.W.2d at

713).

        Discovery is generally permitted of any unprivileged information relevant to the

subject of a lawsuit, whether it relates to a claim or defense of the parties. See TEX. R.

CIV. P. 192.3(a); In re Am. Optical Corp., 988 S.W.2d at 713 (providing that, although the

scope of discovery is broad, requests must show a reasonable expectation of obtaining


In re Paschall                                                                           Page 9
information that will aid the dispute’s resolution and may not be used as a fishing

expedition); see also In re Spence, No. 2-09-392-CV, 2010 Tex. App. LEXIS 4884, at *6 (Tex.

App.—Fort Worth June 21, 2010, orig. proceeding) (“The rules governing discovery do

not require as a prerequisite to discovery that the information sought be admissible

evidence; it is enough that the information appears reasonably calculated to lead to the

discovery of admissible evidence.”) Information is relevant if it tends to make the

existence of fact that is of consequence to the determination of the action more or less

probable than it would be without the information. TEX. R. EVID. 401; see In re Brewer

Leasing, Inc., 255 S.W.3d at 712.

D.      Will Contests and Interested Persons

        In their live pleading, the Gilberts allege that Paschall has misappropriated

hundreds of thousands of dollars belonging to Marium’s estate for his personal use.

They also allege that the trust is void because Marium’s will is invalid. And, because

Marium’s will is invalid, under the laws of intestacy, the Gilberts assert that they inherit

from Marium’s estate and, thus, have a pecuniary interest in both the will and the trust.

Based on our reading of the live pleadings, the Gilberts ostensibly seek to attack the

trust by contesting the underlying will.

        A will contest is a direct attack on the order admitting a will to probate and must

be filed in the original probate proceeding. Crawford v. Williams, 797 S.W.2d 184, 186

(Tex. App.—Corpus Christi 1990, writ denied). Furthermore, section 93 of the Texas

Probate Code provides:




In re Paschall                                                                       Page 10
        After a will has been admitted to probate, any interested person may
        institute suit in the proper court to contest the validity thereof, within two
        years after such will shall have been admitted to probate, and not
        afterward, except that any interested person may institute suit in the
        proper court to cancel a will for forgery or other fraud within two years
        after the discovery of such forgery or fraud, and not afterward. Provided,
        however, that incapacitated persons shall have two years after the
        removal of their disabilities within which to institute such contest.

TEX. PROB. CODE ANN. § 93 (West 2003).

        The Texas Probate Code defines an “interested person” as “heirs, devisees,

spouses, creditors, or any others having a property right in, or claim against, the estate

being administered.” TEX. PROB. CODE ANN. § 3(r). In Evans v. Allen, the First Court of

Appeals stated the following regarding interested persons in an estate:

        A “person interested in the estate” is “one who has a legally ascertained
        pecuniary interest, real or prospective, absolute or contingent, which will
        be impaired, benefitted, or in some manner materially affected by the
        probate of the will.” Abbott v. Foy, 662 S.W.2d 629, 631 (Tex. App.—
        Houston [14th Dist.] 1983, writ ref’d n.r.e.) (holding, in contest of will
        already admitted to probate, that appellant, as beneficiary under prior
        will, was person interested in estate because if probated will was void for
        undue influence or lack of testamentary capacity and prior will was last
        valid will, appellant, “as [a] beneficiary, has a pecuniary interest in the
        estate”).

358 S.W.3d 358, 364 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The Evans Court

also noted that:

        [B]oth Probate Code section 93, which governs will contests initiated after
        a will is admitted to probate, and Probate Code section 10, which governs
        will contests initiated before a will is admitted to probate, require a
        contestant to be “interested” to have standing to maintain the contest. See
        TEX. PROB. CODE ANN. §§ 10, 93 (Vernon 2003); see also In re Estate of Redus,
        321 S.W.3d 160, 162 (Tex. App.—Eastland 2010, no pet.) (“A person must
        have an interest in an estate to have standing to file a will contest.”).

Id. at 365 n.2.


In re Paschall                                                                           Page 11
        The will, which has been probated, clearly states that all of the proceeds of

Marium’s estate pour over into the trust. Neither Marsha nor John are named as

beneficiaries in Marium’s will.       Moreover, the Gilberts do not state, in their live

pleading, the precise reasons why Marium’s will is invalid in its creation (i.e., Marium

lacked testamentary capacity or was unduly influenced when she executed the will).

They merely assert that Paschall has refused to account for hundreds of thousands of

dollars belonging to the estate.

        With regard to accounting, section 149A of the probate code states the following:

        (a) Interested Person May Demand Accounting. At any time after the
            expiration of fifteen months from the date that an independent
            administration was created and the order appointing an independent
            executor was entered by the county court, any person interested in the
            estate may demand an accounting from the independent executor. The
            independent executor shall thereupon furnish to the person or persons
            making the demand an exhibit in writing, sworn and subscribed by the
            independent executor, setting forth in detail:

            1. The property belonging to the estate which has come into his hands
               as executor.

            2. The disposition that has been made of such property.

            3. The debts that have been paid.

            4. The debts and expenses, if any, still owing by the estate.

            5. The property of the estate, if any, still remaining in his hands.

            6. Such other facts as may be necessary to a full and definite
               understanding of the exact condition of the estate.

            7. Such facts, if any, that show why the administration should not be
               closed and the estate distributed.




In re Paschall                                                                       Page 12
        Any other interested person shall, upon demand, be entitled to a copy of
        any exhibit or accounting that has been made by an independent executor
        in compliance with this section.

TEX. PROB. CODE ANN. § 149A (West 2003). Therefore, we are back to the main question

posed by Paschall’s mandamus petition—whether the Gilberts are “interested persons”

who could institute suit in this matter.

        Attached to the Gilberts’ response to Paschall’s mandamus petition is an affidavit

executed by Marsha on August 3, 2012. Though the affidavit is not file-stamped, it was

executed prior to the August 14, 2012 hearing conducted by the trial court on this issue.

In addition, Paschall attached deposition testimony from both Marsha and John. Both

the deposition testimony and the affidavit contain explanations from the Gilberts as to

their interest in this matter.

        As stated earlier, Marsha averred in her affidavit that she and John were

Marium’s first cousins, twice removed. In her deposition, Marsha testified about her

family tree, which was allegedly researched by Elizabeth Garzone from Austin, Texas.

Marsha noted that:

        She [Garzone] actually does a lot of genealogy and she contacted my
        mother a year ago that someone in her family had married into our family,
        into the Oscar family, and so she just wanted to let my mother know
        about it. My mother isn’t all with it so I contacted her and we met and she
        gave me all this information.

Marsha admitted that, in establishing an interest in this matter, she relies on the work of

Garzone—an individual whose research is not a part of the record before us and whose

background is not established. Marsha also admitted that: “I don’t know if all of this is

true. I know that some of it is true.” When asked about the information that she was


In re Paschall                                                                        Page 13
unsure about, Marsha stated that she has not done any work to independently verify

the unknown information. Later, Marsha testified that she does not have any evidence

that Marium’s will does not accurately express Marium’s intentions, which would seem

to undermine the Gilberts’ contention that Marium’s will is invalid.             Furthermore,

Marsha acknowledged that she does not have any evidence to support many of the

contentions made in the Gilberts’ live pleading, including those alleging that Paschall

misappropriated funds from Marium’s estate. And finally, Marsha stated that Marium

did not owe her money; that she does not have any evidence that “no trust was ever

created”; and that she is not suing Paschall for money but simply to “know what

happened.”

        Nevertheless, Paschall has not directed us to any evidence directly controverting

the statements made by Marsha in her affidavit and deposition testimony regarding her

and John’s kinship to Marium. See Walker, 827 S.W.2d at 837 (stating that relator must

provide the reviewing court with a record sufficient to establish his right to mandamus

relief); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.

proceeding). Furthermore, we must keep in mind that a “person interested in the

estate” is “one who has a legally ascertained pecuniary interest, real or prospective,

absolute or contingent, which will be impaired, benefitted, or in some manner materially

affected by the probate of the will.” Abbott, 662 S.W.2d at 631 (emphasis added). And

finally, we recognize the trial court’s role in assessing the credibility of witnesses and

resolving conflicts in the evidence. See LaCroix v. Simpson, 148 S.W.3d 731, 734 (Tex.

App.—Dallas 2004, no pet.) (stating that, in a bench trial, it is for the court, as the trier of


In re Paschall                                                                          Page 14
fact, to judge the witnesses, to assign the weight to be given their testimony, and to

resolve any conflicts or inconsistencies in the evidence); Checker Bag Co. v. Washington,

27 S.W.3d 625, 633 (Tex. App.—Waco 2000, pet. denied) (noting that, generally, an

appellate court may not pass upon the credibility of witnesses or substitute its judgment

for that of the trier of fact, even if the evidence would clearly support a different result).

        Here, based on the uncontroverted evidence presented, the trial court implicitly

concluded that the Gilberts are Marium’s heirs at law, meaning they have a contingent

pecuniary interest in the estate should they succeed in their claims regarding the

validity of Marium’s will. See id.; see also TEX. PROB. CODE ANN. § 3(r); Evans, 358 S.W.3d

at 364.       As such, the Gilberts appear to have a cognizable interest in this estate;

therefore, we cannot say that they lack standing in this matter. See Evans, 358 S.W.3d at

364; Abbott, 662 S.W.2d at 631; see also Lovato, 171 S.W.3d at 848; Nootsie, Ltd., 925 S.W.2d

at 661. Moreover, because the Gilberts’ evidence appears to demonstrate that they are

Marium’s heirs at law, and because Marium’s will pours her entire estate into the

disputed trust, it follows that the trust documents are relevant to the Gilberts’ claims

and, thus, would be discoverable. See, e.g., Pickelner v. Adler, 229 S.W.3d 516, 528-32

(Tex. App.—Houston [1st Dist.] 2007, pet. denied).7 Accordingly, we cannot say that



        7   In Pickelner v. Adler, the First Court of Appeals explained that a:

        devise attempting (but failing) to leave property in trust is sometimes referred to as a
        ‘semi-secret trust’ because the intent to make a trust appears in the will, but the trust’s
        essential terms do not. A semi-secret trust is, in essence, a failed express testamentary
        trust. As when any express testamentary trust fails, the remedy of a resulting trust arises
        by operation of law in favor of the testator’s heirs, even if parol evidence would have
        shown that the heirs were not the intended beneficiaries of the failed trust.



In re Paschall                                                                                        Page 15
Paschall has demonstrated that the trial court clearly abused its discretion in ordering

the trust documents to be produced.

                                              IV.     CONCLUSION

        Based on the foregoing, we cannot say that Paschall has met his burden of

providing this Court with a sufficient record demonstrating a clear abuse of discretion

by the trial court. See TEX. R. APP. P. 52.3, 52.7; Walker, 827 S.W.2d at 837. As such, we

cannot conclude that Paschall is entitled to mandamus relief regarding the production

of the trust documents.           See Walker, 827 S.W.2d at 839-40.           Accordingly, we deny

Paschall’s petition for writ of mandamus.8




                                                          AL SCOGGINS
                                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurring)*
Denied
Opinion delivered and filed February 7, 2013
[OT06]

*(Chief Justice Gray concurs in the denial of the petition for writ of mandamus. A
separate opinion will not issue.)



229 S.W.3d 516, 528-29 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). The Gilberts appear to argue
that the trust documents are needed to determine if the trust is indeed a “semi-secret trust,” wherein a
resulting trust arises by operation of law in favor of them—Marium’s purported heirs at law. This
argument comports with our conclusion that the trust documents are relevant to the Gilberts’ claims and,
thus, are discoverable. However, we express no opinion with regard to the validity of the will or the
trust.

        8   Furthermore, we dismiss all pending motions in this matter as moot.


In re Paschall                                                                                  Page 16
