In In re Meeker, individuals sought a mandamus to reverse a trial court’s order granting a Rule 202 pre-suit deposition order. No. 02-16-00103-CV, 2016 Tex. App. LEXIS 6883 (Tex. App.—Fort Worth June 29, 2016, original proceeding). After accepting some benefits under a will and after not opposing its probate, an heir filed a Rule 202 petition for pre-suit deposition. Another individual then filed an intervention to join in the petition. The trial court granted both petitions, and the executor of the will and defendants filed a petition for writ of mandamus. The court of appeals issued a writ of mandamus as to the intervention, but not as to the order allowing the pre-suit deposition. The court described the procedure for a Rule 202 pre-suit deposition as follows:

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.” A rule 202 petition must be verified and must state either that “the petitioner anticipates the institution of a suit in which the petitioner may be a party” or that “the petitioner seeks to investigate a potential claim by or against petitioner.” The petition must also “state the subject matter of the anticipated action, if any, and the petitioner’s interest therein.” 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.” 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.” 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.”

Id. at *10-11. The court held that the applicant sufficiently met these requirements and that the trial court did not clearly abuse its discretion in granting the relief. The court only addressed one issue regarding the applicant’s request, the acceptance-of-the-benefits doctrine as it applies to will contests. The court held that the general rule was 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. 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.” However, the court noted that “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.”

The court cited to an earlier opinion, Holcomb v. Holcomb, 803 S.W.2d 411, 414 (Tex. App.—Dallas 1991, writ denied), which held that “Sid must demonstrate that Anita had in fact 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.” Id. (emphasis added). So, the court held that simply accepting a benefit under a will was not enough to trigger acceptance of the benefits where the party would also be entitled to that benefit under a different will. In other words, if a party receives $10,000 under will A, accepts those funds, and then challenges will A in favor of Will B, the party will not be estopped from making that challenge if the party will receive $10,000 or more under Will B. There is other caselaw that disagrees with Holcomb and its holding. In re Estate of McDaniel, 935 S.W.2d 827, 829 (Tex. App.—Texarkana 1996, writ denied).

The court concluded that: “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.” The court denied the mandamus to the ruling granting the pre-suit deposition.

The court then granted mandamus relief regarding the intervention. The court held that the intervenor did not allege any personal interest or claim in seeking the deposition. Rather, she relied upon the original applicant’s claim and standing. The court held that this did not meet the strict procedural requirements for a Rule 202 deposition petition.

Finally, there was a dissent in this case on the acceptance of the benefits issue. The dissenting justice disagreed with the majority’s reliance on the Holcomb exception:

To the extent Alan claims, and the Majority Opinion holds, that under the case of Holcomb v. Holcomb, 803 S.W.2d 411 (Tex. App.—Dallas 1991, no writ) the acceptance-of-benefits doctrine does not apply because he would have received a larger share of Mr. Meeker’s estate under some other yet-to-be-identified will or the laws of intestacy, Holcomb has been criticized as contrary to binding Texas Supreme Court authority. Because Holcomb is, in my view, contrary to Trevino and is an aberration in the case law, it does not apply….

Here, Alan would not be entitled to the benefits he has already received under the Will; if Alan successfully prosecutes a contest to the Will and obtains a declaration that the Will is void based on Mr. Meeker’s alleged lack of capacity, Alan is entitled to no benefits under the Will. After a successful contest to the Will, Alan might be entitled to different and possibly greater benefits under a different will, or under the law of intestate, but Alan would not be entitled to the benefits he has already accepted under the Will if the Will is declared void.

Id. at *25-27.

Interesting Note: This is an interesting case in for two reasons: 1) the use of the Rule 202 pre-suit deposition procedure to investigate grounds for a will contest, and 2) the court’s analysis of the acceptance-of-the-benefits doctrine in the context of a will contest. A Rule 202 petition is a great option to investigate a claim of mental incompetence, undue influence, or other claims, especially where another party is not cooperating with the disclosure of information. If another party will not respond to requests for documents, explanations, and the identity of other third parties (doctors, attorneys, etc.), then a party can seek that information via a pre-suit deposition and document request without technically filing a full-blown contest. This procedure may also protect a party from the consequences of a no-contest clause.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law