                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00103-CV


IN RE WADE MEEKER, JAMES                                          RELATORS
MEEKER, BARNEY HOLLAND, AS
INDEPENDENT EXECUTOR OF
THE ESTATE OF LAWRENCE H.
MEEKER, AND NATASHA
WESSON

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                            ORIGINAL PROCEEDING
                       TRIAL COURT NO. 2014-PR01451-2-B

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                                      OPINION

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      In this original proceeding,1 relators Wade Meeker, James Meeker, Barney

Holland, as independent executor of the estate of Lawrence H. Meeker, and

Natasha Wesson seek a writ of mandamus to compel respondent the Honorable

Joe Loving to withdraw his February 24, 2016 “Order Granting Verified Rule 202

Petition and Intervention for Deposition and Subpoena Duces Tecum to


      1
          See Tex. R. App. P. 52.1.
Investigate Potential Claims.” We deny relief in part and conditionally grant relief

in part.

       Relators contend that respondent abused his discretion by granting relief

under a petition for presuit discovery filed by real party in interest David Alan

Meeker (Alan) under rule of civil procedure 202 and by granting relief under a

petition for intervention filed by real party in interest Margaret Meeker

(Margaret).2 See Tex. R. Civ. P. 202.1. Alan’s and Margaret’s petitions were first

heard by the Honorable Lin Morrissett, an associate judge. Judge Morrissett

orally granted the petitions.     Relators requested a de novo hearing.          The

Honorable Patrick W. Ferchill voluntarily recused himself from the case, and

Judge Loving presided over the de novo hearing and granted the relief requested

by Alan and Margaret. Relators asked Judge Loving to stay his February 24,

2016 order pending our review of the order through this mandamus proceeding,

but he denied that request. Upon a motion filed in this court, on April 1, 2016, we

stayed the February 24, 2016 order pending our review of relators’ mandamus

petition.   We have received and considered relators’ mandamus petition, the

responses filed by real parties in interest, and relators’ replies to the responses.

       To the extent that the trial court’s February 24, 2016 order grants Alan’s

rule 202 petition, the court is of the opinion that mandamus relief should be

denied because the trial court did not clearly abuse its discretion in granting that

       2
      Alan, Wade, and James are brothers and sons of Lawrence Meeker.
Margaret is Lawrence’s widow.



                                           2
relief. See In re Hayward, 480 S.W.3d 48, 51–52 (Tex. App.—Fort Worth 2015,

orig. proceeding). Although we need not detail all of the reasons that we deny

relief with respect to that part of the order, we will briefly respond to the

contentions raised by the dissenting opinion. See Tex. R. App. P. 52.8(a), (d)

(“When denying relief, the court may hand down an opinion but is not required to

do so.”); In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 318 (Tex. App.—

Houston [1st Dist.] 2006, orig. proceeding) (Keyes, J., concurring) (“[U]nlike

review of an appeal, the court of appeals is not required to issue a written opinion

explaining its denial of mandamus relief.”).

      The dissenting opinion contends that the trial court abused its discretion by

granting Alan’s rule 202 petition for presuit discovery to investigate a potential

challenge to Lawrence’s will because Alan has accepted benefits under the will

and therefore lacks standing to contest it. See Dissenting Op. at 5–11; see also

In re Wolfe, 341 S.W.3d 932, 932–33 (Tex. 2011) (orig. proceeding) (holding that

when parties did not have standing on their own to bring a suit for removal of a

county official, they could not obtain presuit discovery under rule 202 to

investigate the potential removal suit). The dissenting opinion relies upon the

general rule that acceptance of benefits in a transaction forecloses an

inconsistent challenge to the transaction and upon the more particular principle

that one who accepts benefits under a will generally has no standing to contest it.

See Trevino v. Turcotte, 564 S.W.2d 682, 685–86 (Tex. 1978) (“It is a




                                          3
fundamental rule of law that a person cannot take any beneficial interest under a

will and at the same time retain or claim any interest, even if well founded, which

would defeat or in any way prevent the full effect and operation of every part of

the will.”); Little v. Delta Steel, Inc., 409 S.W.3d 704, 711 (Tex. App.—Fort Worth

2013, no pet.) (discussing the general principles of quasi estoppel/acceptance of

benefits); In re Estate of Davis, 870 S.W.2d 320, 322 (Tex. App.—Eastland 1994,

no writ) (“The acceptance of benefits under a will is a form of estoppel.”).

      The rule concerning acceptance of benefits is designed to prevent “one

from embracing a beneficial interest devised to him under a will, and then later

asserting a challenge of the will inconsistent with the acceptance of benefits.”

Trevino, 564 S.W.2d at 689 (emphasis added); In re Estate of Perez-Muzza, 446

S.W.3d 415, 420 (Tex. App.—San Antonio 2014, pet. denied). Thus, in various

contexts, Texas courts have held that when a successful challenge to a

transaction would not affect the entitlement to benefits already received, there is

no inconsistency inherent in the challenge and, thus, no estoppel. See Lopez v.

Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000) (holding that

clients were not estopped from suing a firm for payment of part of a settlement

because the clients’ “initial acceptance of a lesser portion of the settlement [was]

not inconsistent with their later assertion that they were entitled to more”); Carle

v. Carle, 149 Tex. 469, 472, 234 S.W.2d 1002, 1004 (1950) (stating, for example,

that when “the reversal of a judgment cannot possibly affect an appellant’s right




                                          4
to the benefit secured under a judgment, then an appeal may be taken”);3 see

also Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002) (op. on reh’g)

(applying Carle’s exception to estoppel by acceptance of benefits); Reynolds v.

Reynolds, No. 14-14-00080-CV, 2015 WL 4504626, at *4 n.3 (Tex. App.—

Houston [14th Dist.] July 23, 2015, no pet.) (mem. op.) (expressing that an

exception to the acceptance-of-benefits rule occurs when the challenge involves

only a “right to further recovery”); Waite v. Waite, 150 S.W.3d 797, 804 (Tex.

App.—Houston [14th Dist.] 2004, pet. denied) (explaining that when the

challenger to a transaction or judgment accepts only a benefit that is due in any

event, the challenger is not estopped).

      This exception to the general rule concerning estoppel by acceptance of

benefits is well-developed and broadly recognized. See 28 Am. Jur. 2d Estoppel

and Waiver § 61 (“One cannot be estopped by reason of accepting that which he

or she is legally entitled to receive in any event . . . . Hence, estoppel against

attacking . . . [a] transaction is not ordinarily created by the acceptance of a

benefit purporting to be derived therefrom if in fact the party is entitled thereto

regardless of whether the . . . transaction is sustained or overthrown.”); see also

Bonner Farms, Ltd. v. Fritz, 355 Fed. Appx. 10, 16 (6th Cir. 2009) (reciting the

“longstanding rule” that estoppel “does not arise where the person accepting the

benefits is entitled thereto, regardless of the questioned transaction”); Cook v.

      3
      The dissenting opinion relies, in part, on Carle in its application of
estoppel to Alan’s rule 202 petition. Dissenting Op. at 5–6, 9.



                                          5
Ball, 144 F.2d 423, 438 (7th Cir.) (“It is well settled that even by quasi estoppel

one cannot be estopped by reason of accepting that which he is legally entitled to

receive in any event.”), cert. denied, 323 U.S. 761 (1944). More particularly, the

exception has been commonly applied to acceptance of benefits under a will.

See 79 Am. Jur. 2d Wills § 772 (“One cannot be estopped under the general rule

that one who has accepted benefits under a will is estopped to contest the will or

to attack its validity by accepting a benefit that he or she would be legally entitled

to receive in any event.” (footnote omitted)); 95 C.J.S. Wills § 533 (“Although it is

the general rule that one who accepts and retains benefits under a will is

estopped to contest the will’s validity, one cannot be estopped by accepting that

which he would be legally entitled to receive in any event.”); see also In re

Burrough’s Estate, 475 F.2d 370, 373 (D.C. Cir. 1973) (“[T]here is no . . . problem

of equity and election when the claimant . . . is entitled to the property taken

under the will even if he succeeds in the claim outside and against the will.”);

In re Will of Smith, 582 S.E.2d 356, 358 (N.C. Ct. App. 2003) (concluding that

estoppel did not bar a challenge to the validity of a will because the devisee

would have been entitled to the property even if the will was declared invalid).

      Alan argues that this well-recognized exception to the rule of estoppel by

acceptance of benefits applies here and cites a Texas case that has applied the

exception in a will context. See Holcomb v. Holcomb, 803 S.W.2d 411, 414 (Tex.

App.—Dallas 1991, writ denied) (“Sid must demonstrate that Anita had in fact




                                           6
received benefits to which she would not be entitled under either will . . . . From

the record before us, Sid has failed to establish as a matter of law that Anita

accepted benefits under the probated will over those which she would otherwise

have been entitled to.” (emphasis added)). Relators argue that the exception

does not apply and cite a case that disagrees with the decision in Holcomb. See

In re Estate of McDaniel, 935 S.W.2d 827, 829 (Tex. App.—Texarkana 1996, writ

denied).

      The prevailing recognition and application of the exception in other

jurisdictions to acceptance of benefits under a will, and the consistent application

of the exception in Texas to acceptance of benefits under all other instruments,

including judgments, persuades us that the exception applies to will challenges

and may apply to these facts.4 Accordingly, for this and other reasons, relators’

petition for writ of mandamus is denied to the extent that they complain about the

portions of respondent’s February 24, 2016 order that grant relief to Alan on his

rule 202 petition.5



      4
       Of course, it is not known whether the exception actually applies here
because one purpose of Alan’s rule 202 petition is to obtain a copy of Lawrence’s
prior wills and to determine whether he would have received more benefits under
any prior wills or under intestacy than under the will that Alan might challenge.
Relators have not directed us to evidence establishing that Alan would have
received the same benefits or less benefits under prior wills or under intestacy
than he has already received.
      5
       Specifically, the order allows Alan to take oral depositions of relators and
to obtain production of certain documents in conjunction with the depositions.



                                          7
      With respect to the part of the trial court’s February 24, 2016 order that

grants Margaret’s intervention petition, however, the court is of the opinion that

mandamus relief must be granted. “Mandamus relief may be available if the

relator establishes a clear abuse of discretion for which there is no adequate

appellate remedy.” Hayward, 480 S.W.3d at 51–52. An improper order under

rule 202 may be set aside by mandamus. Wolfe, 341 S.W.3d at 933; see In re

Jorden, 249 S.W.3d 416, 420 (Tex. 2008) (orig. proceeding); In re Reassure Am.

Life Ins. Co., 421 S.W.3d 165, 171 (Tex. App.—Corpus Christi 2013, orig.

proceeding) (stating that an improper order under rule 202 may be set aside by

mandamus because “depositions, once taken, cannot be ‘untaken’”); In re

Campos, No. 02-07-00197-CV, 2007 WL 2013057, at *3 (Tex. App.—Fort Worth

July 12, 2007, orig. proceeding) (mem. op.) (“Mandamus relief is appropriate in

the context of improperly ordered presuit depositions or presuit rule 202

discovery because relators have no adequate remedy by appeal.”).

      Alan filed a verified rule 202 petition for presuit discovery in October 2015.

In December 2015, Margaret filed an “Intervention to Join Rule 202 Action.”6 In

the intervention petition, Margaret alleged that she had requested copies of

Lawrence’s estate planning documents from relators but that relators had refused

to provide the documents. She also alleged that when Alan filed his rule 202

      6
       Relators argue that rule 202 does not permit an intervention. We need
not decide that issue because we hold below that even if an intervention was
generally permitted, Margaret’s intervention failed to satisfy rule 202’s
requirements.



                                         8
petition, relators “took that as their opportunity to cut off all distributions to

[Margaret] under [Lawrence’s] estate plan, claiming that [his] estate planning

documents were being contested.” In other words, Margaret pled that she had

been “cut off” from receiving distributions from Lawrence’s estate “in retaliation

for Alan’s filing.” She alleged,

      The only way to get to the bottom of this family mess is for the
      documents and information to be put on the table. If the information
      leads to a will contest or a trust contest or breach of fiduciary duty
      claims, so be it. More importantly, the information may be sufficient
      to prevent expensive litigation. On [the] other hand, hiding the
      documents accomplishes nothing other than to raise everybody’s
      suspicions, foster even more contentious litigation, and subject
      [Margaret] to unnecessary and inappropriate financial burdens. At
      the minimum, [Margaret] is entitled to [Lawrence’s] earlier estate
      planning documents so that she can determine what her rights are in
      the estate and various trusts, with or without a contest of the
      documents by other parties. Holland, Wade[,] and James should be
      ordered to produce all wills and Trusts of [Lawrence], in effect as of
      January 1, 2000 and after.

      Relators objected to Margaret’s intervention petition and asked the trial

court to strike it.   They argued, in part, that the intervention petition did not

contain the information required by rule 202. Respondent overruled relators’

objections to Margaret’s intervention petition in his February 24, 2016 order.

      Rule 202 allows a person to petition a court for an order authorizing the

taking of a deposition to “perpetuate or obtain the person’s own testimony or that

of any other person for use in an anticipated suit” or “to investigate a potential

claim or suit.” Tex. R. Civ. P. 202.1. A rule 202 petition must be verified and

must state either that “the petitioner anticipates the institution of a suit in which



                                          9
the petitioner may be a party” or that “the petitioner seeks to investigate a

potential claim by or against petitioner.”      Tex. R. Civ. P. 202.2(a), (d).   The

petition must also “state the subject matter of the anticipated action, if any, and

the petitioner’s interest therein.” Tex. R. Civ. P. 202.2(e); see In re East, 476

S.W.3d 61, 66 (Tex. App.—Corpus Christi 2014, orig. proceeding). Further, the

petition must “state the names, addresses[,] and telephone numbers of the

persons to be deposed, the substance of the testimony that the petitioner

expects to elicit from each, and the petitioner’s reasons for desiring to obtain the

testimony of each.” Tex. R. Civ. P. 202.2(g). The court may order a deposition

to be taken if it finds that “allowing the petitioner to take the requested deposition

may prevent a failure or delay of justice in an anticipated suit” or that “the likely

benefit of allowing the petitioner to take the requested deposition to investigate a

potential claim outweighs the burden or expense of the procedure.”7 Tex. R. Civ.

P. 202.4(a).

      As we have explained,

            Rule 202 depositions are not now and never have been
      intended for routine use. There are practical as well as due process
      problems with demanding discovery from someone before telling
      them what the issues are. . . . Accordingly, courts must strictly limit
      and carefully supervise presuit discovery to prevent abuse of the
      rule.




      7
       Depositions authorized by rule 202 are governed by the rules “applicable
to depositions of nonparties in a pending suit.” Tex. R. Civ. P. 202.5.



                                           10
In re PrairieSmarts LLC, 421 S.W.3d 296, 305 (Tex. App.—Fort Worth 2014,

orig. proceeding) (citations omitted).

      Considering Margaret’s intervention carefully and construing it strictly, we

conclude that the petition does not meet the pleading requirements described

above. Margaret does not explicitly allege that she has a potential claim or that

she anticipates a suit that she will be involved in. See Tex. R. Civ. P. 202.2(d).

Instead, her intervention petition focuses on Alan’s potential claim, states that

other parties are interested in Alan’s rule 202 petition, and discusses a potential

will contest brought by “other parties” based on Lawrence’s alleged lack of

mental and testamentary capacity.        Margaret does not explicitly contend that

Lawrence lacked testamentary capacity, that she would be a plaintiff in any such

potential suit, or that she has an interest in such a suit. See Tex. R. Civ. P.

202.2(e). Also, Margaret does not state the substance of testimony that she

expects to elicit during the presuit depositions or her reasons for eliciting the

testimony.   See Tex. R. Civ. P. 202.2(g).      Rather, by seeking to join Alan’s

petition, she appears to attempt to piggyback on his reasons.          We cannot

conclude that this attempt satisfies the detailed requirements of rule 202, which

relate specifically to the “person” or “petitioner” seeking presuit discovery.8 See

Tex. R. Civ. P. 202.1, 202.2(c)–(h).


      8
        In this court, Margaret contends that because she “simply intervened to
join in Alan’s petition, she should not have to plead everything that would be
required if she had filed her own petition.” She cites no authority supporting this
proposition.


                                           11
      For these reasons, we conclude that the trial court clearly abused its

discretion to the extent that it granted Margaret’s intervention petition, overruled

relators’ objections to the intervention and denied their request to strike it, and

authorized Margaret to obtain presuit discovery (including taking relators’

depositions and obtaining documents), and we hold that mandamus relief is

appropriate. See Tex. R. Civ. P. 202.1, 202.2(c)–(g); Wolfe, 341 S.W.3d at 933;

In re Does, 337 S.W.3d 862, 865 (Tex. 2011) (holding that mandamus relief from

an order granting a rule 202 petition was appropriate when the allegations in the

petition were “sketchy” and concerned possible causes of action by a party other

than the petitioner); Reassure Am. Life Ins. Co., 421 S.W.3d at 173 (explaining

that a rule 202 petition that does not include “explanatory facts regarding the

anticipated suit or the potential claim . . . is insufficient to meet the petitioner’s

burden”); see also In re Contractor’s Supplies, Inc., No. 12-09-00231-CV, 2009

WL 2488374, at *5 (Tex. App.—Tyler Aug. 17, 2009, orig. proceeding) (mem.

op.) (“A trial court abuses its discretion by ordering a presuit deposition if the

petitioner does not make the showing required by rule 202.”).

      The trial court’s February 24, 2016 order granting Margaret’s intervention

and allowing her to participate in presuit discovery under rule 202 constituted an

abuse of discretion because Margaret failed to meet the requirements of the rule.

See Tex. R. Civ. P. 202. Relators lack an adequate remedy by appeal. See

Wolfe, 341 S.W.3d at 933. Accordingly, we conditionally grant relators’ petition




                                           12
for writ of mandamus to the extent that relators challenge the parts of the trial

court’s February 24, 2016 order granting relief to Margaret. We are confident

that respondent will set aside the order to that extent. The writ will issue only if

respondent fails to comply.9


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.

WALKER, J., filed a dissenting opinion.

DELIVERED: June 29, 2016




      9
       This court’s temporary stay issued on April 1, 2016 is dissolved with
respect to the part of the trial court’s February 24, 2016 order granting relief
under rule 202 to Alan. With respect to the part of the February 24, 2016 order
granting relief to Margaret, our temporary stay will be dissolved without further
order of this court upon respondent’s setting aside that part of the February 24,
2016 order.



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