in Re Nicola Opdycke ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-21-00250-CV
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IN RE NICOLA OPDYCKE
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Original Proceeding
457th District Court of Montgomery County, Texas
Trial Cause No. 20-12-15503-CV
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MEMORANDUM OPINION
Nicola Opdycke filed a petition for mandamus in which she complains the
trial court abused its discretion by ordering her to produce documents that she argues
are irrelevant and protected by her attorney-client privilege. See Tex. R. Civ. P.
192.3(a); Tex. R. Evid. 503. In response to a request for production, filed by a party
opponent, Nicola filed a privilege log and claimed a large group of documents
subject to the request were irrelevant and privileged. Nicola refused to produce them
when she responded to the discovery.
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The parties who sent the request, Thomas and Linda Opdycke (Nicola’s
stepchildren), jointly moved to compel Nicola to produce the documents she had
refused to produce in response to their request. They supported their motion with
evidence, evidence that supports their argument the documents not produced are
relevant and not privileged.
The scope of discovery depends on the claims the parties have made in court
in the suit. See Tex. R. Civ. P. 192.3(a). Two different but related lawsuits are at the
heart of this dispute: (1) a will contest case, which Thomas and Linda filed to
challenge the validity of their father’s, Wallace Opdycke’s, last will; and a
declaratory judgment action, which Bessemer Trust Company N.A. filed against
Nicola Opdycke and her stepchildren, Thomas and Linda, challenging Nicola’s
actions as related to a family trust. In the declaratory judgment action, Thomas and
Linda filed counterclaims against Nicola complaining about the actions she took
while acting as Wallace’s attorney-in-fact. Nicola acted as Wallace’s attorney-in-
fact under two powers of attorney that Wallace gave Nicola over the years, which
allowed her to become involved in decisions relevant to the manner the trustee
managed the Wallace Opdycke Family Trust. Nicola, along with Thomas and Linda,
are beneficiaries of the trust.
The record reflects that Thomas and Linda served Nicola with a request to
produce documents relevant to issues in the two cases we have described generally
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above. Nicola objected to producing many documents covered by the request,
including a much smaller subset of documents now at issue. This subset of
documents consists of emails Nicola exchanged with Joan West, a financial
consultant employed by Bessemer Trust.
When before the trial court, Nicola argued the emails to and from West are
not relevant to the claims in the suit and not discoverable because they are subject
to her attorney-client privilege. The motion to compel and Nicola’s response present
competing arguments about whether the documents are relevant and privileged.
Generally, as to the emails, the evidence shows Bessemer Trust provided financial
services to members of the Opdycke family—to Wallace, to Nicola—and to the
trustee of the Wallace Opdycke Family Trust.
The trial court held a hearing on Thomas’s and Linda’s motion to compel.
Nicola provided the trial court with the documents she withheld from production so
the trial court could inspect them in camera and determine whether the documents,
which include the smaller subset of emails, are irrelevant or privileged as related to
the claims the parties made in these suits. Following the hearing, the trial court
ordered Nicola to produce several emails in the much larger set of documents the
trial court reviewed. When Nicola filed her petition, she provided the Court with
only the emails the trial court ordered her to produce, so we do not have the benefit
of seeing the entire set of documents the trial court reviewed in camera when it
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rejected Nicola’s arguments claiming the emails are irrelevant and privileged. Under
the order, Nicola must produce fewer than twelve pages of emails even though these
twelve pages are just a small part of the set of documents the trial court reviewed.
We have independently inspected the evidence Thomas and Linda attached to
their motion to compel, the evidence that Nicola attached to her response, and the
emails the trial court ordered Nicola to produce. The evidence before us conflicts on
whether the documents are covered by Nicola’s attorney-client privilege. Even so,
we agree with the trial court’s conclusion that the emails are relevant to the claims
in these suits, so they are discoverable if not privileged. We hold the trial court did
not abuse its discretion by finding the emails relevant to the parties’ competing
claims.
We also conclude that Nicola has not shown the trial court abused its
discretion by finding the emails are not subject to Nicola’s attorney-client privilege.
In the trial court, the parties presented conflicting evidence on whether West and
Bessemer Trust acted as Nicola’s client representative, given the definition of that
term in the rule that governs the attorney-client privilege. See Tex. R. Evid. 503(2)
(defining client representative). On this record, the trial court’s resolution of that
question was reasonable given the conflicting inferences available from evidence.
When a trial court’s resolution of a discovery issue turns on inferences based
on evidence, its determination is entitled to deference if its ruling is reasonable when
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later challenged by mandamus. Simply put, “[a] trial court’s determination of a
factual issue is entitled to deference in a mandamus proceeding and should not be
set aside unless it is clear from the record that only one decision could have been
reached.” In Re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003). It is not clear here whether
West and Bessemer Trust acted as Nicola’s client representative as to the emails at
issue. It is also not clear whether West and Bessemer Trust were hired by Nicola’s
personal attorney given the limited evidence in the record Nicola filed here.
Writs of mandamus are issued to compel trial courts to perform ministerial
acts or duties, or to correct a clear abuse of discretion when there is otherwise no
adequate remedy through an ordinary appeal. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d
833, 839-40 (Tex. 1992) (orig. proceeding). Having examined the evidence Nicola
included with her petition, we conclude she has not established that a clear abuse of
discretion occurred when the trial court ordered her to produce the emails that she is
complaining about being ordered to produce here. For the reasons explained above,
Nicola’s petition is denied. See Tex. R. App. P. 52.8(a).
PETITION DENIED.
PER CURIAM
Submitted on September 20, 2021
Opinion Delivered October 21, 2021
Before Golemon, C.J., Kreger and Horton, JJ.
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