Petition for Writ of Mandamus Denied and Memorandum Opinion filed February 

14, 2012.

In The

Fourteenth Court of Appeals

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NO. 14-12-00109-CV

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IN RE CHRISTINE S. WILLIE, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 401,492

M E M O R A N D U M O P I N I O N

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 
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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.