

 











 
 
 
 
 
 
NUMBER 13-02-262-CV
 
COURT OF APPEALS
 
THIRTEENTH DISTRICT OF TEXAS
 
CORPUS CHRISTI C
EDINBURG
 
 

 
In Re: Texas A&M - Corpus Christi Foundation,
Inc.

 
 
On
Petition for Writ of Mandamus 

 
 
O P I
N I O N
 
Before
Chief Justice Valdez and Justices Dorsey and Rodriguez
Opinion
by Justice Dorsey

 
The opinion issued by this Court on June 7, 2002, is hereby withdrawn
and the following is substituted in its place.
Relator, Texas A&M-Corpus Christi Foundation, Inc., seeks mandamus
relief from an order issued by the 214th Judicial District Court of Nueces
County, Texas, that denied the Foundation=s motion to compel
discovery.




This case involves a challenge to a gift of $2 million made by Mrs.
Frances K. Snyder to the Foundation.  The
administrator for Snyder=s estate brought suit
against the Foundation and the President of Texas A&M UniversityCCorpus Christi, Robert
Furgason, contending that Furgason wrongfully induced Mrs. Snyder to make the
gift to the Foundation.[1]




The issues in that suit seem to have been distilled to the question of
whether Mrs. Snyder possessed the mental capacity required to effectuate the
transfers at issue.  The $2 million gift
was made by Mrs. Snyder in November 1999. 
The challenged discovery sought in this mandamus action is information
from two attorneys who worked with Mrs. Snyder on estate and trust matters
prior to the actual inter vivos gift at issue here.  The foundation seeks discovery from two
lawyers: Henry Nuss and Richard Leshin. 
Nuss worked with Mrs. Snyder on a gift transaction she sought to make to
the university the year before the inter vivos gift.  In fact, in his deposition, Nuss stated that
it was his Aunderstanding that the
gift [at issue] occurred after [his] representation work had ended, although
[it was] based on documents to a large extent that [he] had prepared.A   While 
Nuss was not directly involved with the actual gift transaction that
Mrs. Snyder finally made to the foundation, he was involved in assisting Mrs.
Snyder with the original idea of giving a large endowment to the university and
in drafting a large part of the paperwork that was actually used to effectuate
the gift.  He testified in his deposition
that with regard to the actual gift that was made, he knew the university was
using documents he had previously prepared and that he communicated with the
university Awith respect to the
gift that . . . Ms. Snyder wanted to make . . . .@  Nuss
testified that documents he was presented with at his deposition dating from
January of 1998 to November of 1999 included documents generated by him,
documents copied from documents generated by him, and documents that did not
appear to have been generated by him.  He
described all these documents as Aa series of documents
that existed between that time that were variations and that would represent
some of the coordination [between himself and the persons preparing the inter
vivos gift transaction] and some of Mrs. Snyder=s thinking during that
period of time as well.@
The other discovery sought is information from attorney Richard
Leshin.  Leshin represented Mrs. Snyder
in estate related matters rather extensively in years prior to the gift at
issue in this case, and worked with Nuss some in the aforementioned
transaction.   Leshin testified at
deposition that he represented Mrs. Snyder in various estate and trust-related
matters during the mid to late >90's.  Also, he actually signed some of the
documents that effectuated the actual inter vivos gift made the subject
of this suit.  When directly asked
whether he played any role in the gift, he stated that he Aexecuted some of the
documents to effectuate the gift, but [he] did not have any contact with Mrs.
Snyder in the gifting.@




When the Foundation attempted to depose Nuss and Leshin, the estate
asserted the attorney-client privilege as a shield against the Foundation=s discovery of
communications between Mrs. Snyder and those attorneys.  Leshin and Nuss asserted the attorney-client
and/or work product privileges to shield them from being forced to disclose
material and information that would normally be protected under those
privileges.  The Foundation brought a
motion seeking the trial court to compel the estate to produce the discovery
requested.
The Foundation argued that, first, the discovery sought is not
shielded by the attorney-client privilege, and, second, even if it were, the
estate is prohibited from asserting the privilege in such an Aoffensive use.@[2]  When the trial court signed an order denying
its motion to compel, the Foundation sought mandamus relief from this
Court.  We conditionally grant mandamus
because we find that the discovery sought by the Foundation is not protected by
the attorney-client privilege. 
Accordingly, the trial court abused its discretion in refusing to compel
the estate to produce the discovery requested.




The estate contends, first, that mandamus relief is not available in
this case because remedy by direct appeal is adequate.  While we certainly agree with the principle
that mandamus may only issue where there is no adequate remedy by appeal,
Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992), we disagree with the
estate=s contention that
remedy by direct appeal is adequate.  A[A] denial of
discovery going to the heart of a party=s case may render the
appellate remedy inadequate.@  Id. at 843.  The discovery sought here relates to Mrs.
Snyder=s longstanding
intentions to make a gift to the foundation and her mental acumen shortly
before her gift was actually made.  This
is evidence that is relevant to evaluating her mental capacity at the actual
time of the transfer.  We hold this
information sufficiently relevant so as to make mandamus relief an appropriate
remedy.  Appeal is not a sufficient
remedy, because absent the discovery the case will have been tried needlessly.  
Having found mandamus available, we now turn to the question of
whether the trial court clearly abused its discretion in denying the Foundation=s motion to
compel.  In addition to showing that the
remedy of direct appeal is inadequate, a party seeking mandamus relief must also
show that the trial court clearly abused its discretion.  Id. at 839.  When applying the law, the trial court has
little discretion.  Id.  Thus, if a trial court applied the law
incorrectly, an abuse of discretion will be found.  Id. 
We find that to be the case here.
Straightforward application of the rule of evidence regarding
attorney-client communications shows that the information the Foundation seeks
to discover is not covered by the privilege, but rather, is specifically
excepted by rule 503(d)(3).  See Tex. R. Evid. 503(d)(3).




In general, communications between attorneys and their clients are
privileged.  See id. at
503(b)(1).  The privilege may be claimed
by the personal representative of a deceased client.  Id. at 503(c).  However, the rule has some exceptions that
take attorney-client communications out of the scope of the privilege.  Specifically, the rule states: AThere is no privilege
under this rule. . . [a]s to a communication relevant to an issue between
parties who claim through the same deceased client, regardless of whether the
claims are by testate or intestate succession or by inter vivos
transactions . . . .@  Id. at 503(d)(3).  We have found no cases construing the
parameters of this exception.
Thus, we simply apply the plain meaning of the rule to the case at
bar.  Because the discovery material
sought by the Foundation is Arelevant to an issue
between parties who claim through the same deceased client,@ we hold that it is
outside the scope of the attorney-client privilege.  Because the trial court denied the Foundation=s motion seeking
compulsion of this discovery, it abused its discretion.  Accordingly, we conditionally grant mandamus
and direct the trial court to vacate its order denying the Foundation=s motion to compel, and
instead, enter an appropriate order in accordance with this opinion.
 
J.
BONNER DORSEY,
Justice
 
Publish.
Tex.
R. App. P. 47.3(b).
 
Opinion delivered and
filed
this 8th day of
August, 2002.    




[1]The Real Party in
Interest is referred to as Athe estate@ for purposes of
clarity.  In each instance, the term
refers to ABryan Lee Holmes, as
Independent Administrator of the Estate of Frances K. Snyder, Deceased, and as
Trustee of the Frances K. Snyder Trust.@


[2]The Texas Supreme
Court set forth the offensive use doctrine in Republic Ins. Co. v. Davis,
856 S.W.2d 158, 163 (Tex. 1993).  Because
we find that straightforward application of the rule of privilege shows that
the discovery sought is not privileged, we do not inquire into whether the
estate has met the requisites for application of the offensive use doctrine.


