Petition for Writ of Mandamus Denied and Memorandum Opinion filed February
14, 2012.




                                        In The

                      Fourteenth Court of Appeals
                                     ____________

                                 NO. 14-12-00109-CV
                                   ____________

                      IN RE CHRISTINE S. WILLIE, Relator


                             ORIGINAL PROCEEDING
                              WRIT OF MANDAMUS
                                 Probate Court No. 1
                                Harris County, Texas
                            Trial Court Cause No. 401,492


                     MEMORANDUM                    OPINION

      On February 6, 2012, relator Christine S. Willie filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52.
Relator asks that we direct the respondent, the Honorable Loyd Wright, presiding judge of
Harris County Probate Court Number One, to vacate his November 10, 2011, and
November 15, 2011, discovery orders in the underlying probate proceeding.

      The underlying proceeding is a will contest concerning three different wills of the
decedent, Cecilia Margaret Gibbons. In January of 2011, relator applied to probate the
decedent’s June 3, 2010 will. Five months later, she filed an amended application to
probate the decedent’s May 14, 2010 will. The real party in interest, John Richard
Shanks, has applied to probate a will dated August 26, 2010.

       On November 15, 2011, relator’s deposition was taken. Relator refused to answer
any questions concerning the will June 3, 2010 will. Relator contends that the first-filed
will is no longer before the court, citing that general rule that an amended pleading
supersedes all previous pleadings. See Tex. R. Civ. P. 65. The trial court ruled by
telephone that relator was required to answer. At that time relator agreed to answer the
questions.

       Relator’s counsel, her husband, Joseph R. Willie, II, was also subpoenaed for a
deposition, in part because he is a material fact witness in that he witnessed the decedent’s
June 3, 2010 will. Counsel moved to quash the subpoena, which included a duces tecum,
and the trial court denied the motion by written order signed November 10, 2011.
Counsel refused to attend the noticed deposition, and the real party obtained a certificate of
nonappearance.

       On February 7, 2012, relator filed a motion for emergency stay in this court. See
Tex. R. App. P. 52.10. In her motion, she sought to stay a hearing set for February 9,
2012, during which the trial court was scheduled to consider the real party’s motion for
contempt against relator’s counsel for failing to attend his deposition, the real party’s
motion to disqualify relator’s counsel, and the real party’s motion for summary judgment.
This court denied relator’s motion on February 8, 2012, and denied relator’s motion to
reconsider our ruling on February 9, 2012.

       Generally, the scope of discovery is within the trial court’s discretion. In re CSX
Corp., 124 S.W.3d 149, 152 (Tex. 2003). 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). The heavy
burden of establishing an abuse of discretion and an inadequate appellate remedy is on the

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party resisting discovery. CSX Corp., 124 S.W.3d at 151. Mandamus relief may be
justified when: (1) the appellate court would not be able to cure the trial court’s discovery
error, such as when privileged information or trade secrets would be revealed or production
of patently irrelevant or duplicative documents imposing a disproportionate burden on the
producing party is ordered; (2) the party’s ability to present a viable claim or defense is
severely compromised or vitiated by the erroneous discovery ruling to the extent that it is
effectively denied the ability to develop the merits of its case; or (3) the trial court’s
discovery order disallows discovery that cannot be made a part of the appellate record,
thereby denying the reviewing court the ability to evaluate the effect of the trial court's
error. Colonial Pipeline, 968 S.W.2d at 941 (citing Walker v. Packer, 827 S.W.2d 833,
839-40 (Tex. 1992)).

       In two issues, relator asserts that the trial court abused its discretion in compelling
testimony on a cause of action that is not before the court. Relator cites FKM Partnership,
Ltd. v. Bd. of Regents, 255 S.W.3d 619, 632 (Tex. 2008), in which the Texas Supreme
Court recognized the general rule that filing an amended pleading that does not include a
cause of action effectively nonsuits or voluntarily dismisses the omitted claim.

       While we do not disagree with this general proposition, we must conclude that it
does not control the issues presented here. Rule 801(e)(2) of the Texas Rules of Evidence
provides that, subject to other Rules of Evidence that may limit admissibility, any
statement by a party-opponent is admissible against that party.           See Tex. R. Evid.
801(e)(2) (statements made by a party and offered against that party are admissible). The
Texas Supreme Court has held that Rule 801(e)(2) includes superseded pleadings. See
Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234-35 (Tex. 2007).
Therefore, relator has not established that the trial court abused its discretion in compelling
testimony about relator’s prior application for probate.




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       To the extent that relator and her counsel are claiming attorney-client privilege in
counsel’s refusal to be deposed, relator has not met her burden to establish the privilege.
The party who seeks to limit discovery by asserting a privilege has the burden of proof. In
re E.I. DuPont de Nemours and Co., 136 S.W.3d 218, 223 (Tex. 2004). To meet her
burden, the party seeking to assert a privilege must make a prima facie showing of the
applicability of the privilege, produce evidence to support the privilege through affidavits
or testimony, and produce the documents themselves if the trial court determines an in
camera review is necessary. In Re BP Prods. N. Am. Inc., 263 S.W.3d 106, 112 (Tex.
App.—Houston [1st Dist.] 2006, orig. proceeding); see also Tex. R. Civ. P. 193.4; Peeples
v. Hon. Fourth Supreme Judicial Dist., 701 S.W.2d 635, 637 (Tex.1985). The record
before this court contains no such evidence.

       Relator has not met her burden to establish entitlement to relief, and we overrule her
issues. Accordingly, we deny relator’s petition for writ of mandamus.


                                      PER CURIAM

Panel consists of Chief Justice Hedges and Justices Jamison and McCally.




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