In Re Debra Smith and Diane Kianvar v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-25-00421-CV
__________________

IN RE DEBRA SMITH AND DIANE KIANVAR

__________________________________________________________________

Original Proceeding
284th District Court of Montgomery County, Texas
Trial Cause No. 22-03-02870
__________________________________________________________________

MEMORANDUM OPINION

Debra Smith and Diane Kianvar filed a petition for a writ of mandamus and a

motion for temporary relief. Relators are plaintiffs in Trial Cause Number

22-03-02870, Debra Smith and Diane Kianvar v. Russell J. Fryman, Trustee of the

Virginia Fryman Trust. Relators seek a writ compelling the trial court to (1) vacate

rulings permitting Carol Montalbo Fryman to direct counsel and appear for

Russell J. Fryman under a purported power of attorney, (2) vacate the trial court’s

October 1 Order on Motion to Show Authority and Motions to Strike Experts and

1
Disclosures and the trial court’s October 17 Order on Motion for Clarification,

and (3) restore Relators’ ability to present fiduciary accountings, discovery

materials, expert testimony, and other evidence previously ordered produced

through a court-appointed fiduciary.1 See Tex. Gov’t Code Ann. § 22.221. Relators

filed an Emergency Motion for Stay requesting this Court to (1) stay enforcement of

the October 1 order, (2) stay enforcement of the October 17 order, and (3) stay all

further proceedings in the trial court pending disposition of the mandamus petition.

On October 31, this Court received a suggestion of death for Real Party in

Interest Russell Fryman. On November 1, Relators filed a Supplemental Emergency

Motion for Stay, asserting the court-appointed temporary trustee had filed a notice

in the trial court informing the parties the Virginia Fryman Trust terminated upon

the death of Russell Fryman and that the temporary trustee intends to distribute

assets to distributees pursuant to the terms of the trust. Without requesting any relief

in the trial court, Relators requested this Court to (1) stay dissolution or termination

of the trust, (2) stay distribution of trust assets, (3) order all trust assets to remain

frozen pending further order of this Court, and (4) grant any other temporary relief

necessary to preserve this Court’s jurisdiction and prevent irreparable harm.

On November 3, we requested information regarding the status of proceedings

in the trial court, and on November 4, we were informed no representative of the

1
All dates are in 2025.
2
Estate of Russell Fryman has appeared and no new parties have been joined.

We were also informed Relators did not seek from the trial court any of the relief

requested in their Emergency Motion for Stay or their Supplemental Emergency

Motion for Stay. 2 Lastly, we were informed that the case has been removed from the

November 10 trial docket.

“Mandamus is an extraordinary proceeding, encompassing an extraordinary

remedy.” Deloitte & Touche LLP v. Fourteenth Ct. of Appeals, 951 S.W.2d 394, 396

(Tex. 1997) (orig. proceeding). Accordingly, we are to “exercise our mandamus

power sparingly and deliberately.” Id. Mandamus will issue only when an ordinary

appeal would not adequately remedy a trial court’s clear abuse of discretion or failure

to carry out a duty imposed by law. Walker v. Packer, 827 S.W.2d 833, 839

(Tex. 1992) (orig. proceeding). “The operative word, ‘adequate,’ has no

comprehensive definition; it is simply a proxy for the careful balance of

jurisprudential considerations that determine when appellate courts will use original

mandamus proceedings to review the actions of lower courts.” In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). As explained

2
We note that on September 25, Relators filed a Motion for Continuance and
Leave to Supplement which included a request not only that the trial be continued
but that the parties be given time to conduct additional discovery. Although the
motion could be construed as requesting some of the same relief requested in this
Court, we do not regard it as such since the record does not show the motion was
ever set for hearing or submission, nor that the trial court ever ruled on the motion.
3
below, these jurisprudential considerations weigh against exercising our mandamus

authority in this case.

Discovery “Sanctions” 3

In its October 1 order, the trial court granted Russell’s motion to strike

Relators’ initial disclosures that were served on September 5, which was 93 days

after the June 2 discovery deadline and only 66 days before the November 10 trial

setting. In its October 17 order, the trial court clarified that its October 1 order

resulted in the exclusion of certain evidence Relators seemingly intended to

introduce at trial. Because the record establishes Relators’ initial disclosures were

served after the discovery deadline, Relators bore the burden to establish an

exception to Rule 193.6 which otherwise would result in the automatic exclusion of

any undisclosed legal theories, witnesses, economic damages and documents which

Rule 194.2(b) requires a party to disclose. See Tex. R. Civ. P. 193.6, 194.2(b).

Implicit in the two orders excluding Relators’ evidence is a determination by the trial

3
Relators claim the trial court’s orders constitute “death penalty sanctions.”
This Court has previously held, “Because Rule 193.6’s penalty—excluding
undisclosed evidence—is automatic and requires the party who failed to answer
discovery to establish either good cause or lack of prejudice, appellate courts do not
consider decisions imposing the automatic penalty called for by Rule 193.6 as death-
penalty sanctions. Consequently, a court’s decision imposing the automatic penalty
specified by Rule 193.6 is not reviewable under the lesser-sanctions standard
identified in TransAmerican.” In re Barsh Auto, LLC, No. 09-21-00085-CV, 2021
Tex. App. LEXIS 4148, at *3 (Tex. App.—Beaumont May 27, 2021, orig.
proceeding) (mem. op) (citing TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d
913, 917-18 (Tex. 1991) (orig. proceeding)).
4
court that Relators did not meet their burden to establish either: (1) that they had

good cause for their failure to serve disclosures before the discovery deadline, or (2)

that their untimely disclosures would not unfairly surprise or prejudice the other

parties. See id. 193.6(a). Carol’s supplemental motion to strike claimed there was

not enough time to prepare a proper defense before the November trial setting after

having been informed for the first time on September 5 that, among other things,

Relators had a method of calculating economic damages and that such damages

totaled between $7 million and $9.8 million. See id. 193.6(b). The record contains a

rough draft of the transcript of a September 26 hearing during which Relators—

when asked—offered no explanation showing good cause for failing to serve

disclosures before the deadline. We are informed a transcript of the final hearing on

September 30 has been ordered but not yet received, so it is unknown what evidence,

if any, Relators offered in an attempt to negate unfair surprise and prejudice, but we

infer from the trial court’s orders that it was unpersuaded that an exception to the

automatic-exclusion rule applies.

On October 31, three days after Relators filed their mandamus petition

seeking relief from the trial court’s two orders, and only ten days before the

November 10 trial setting, Russell—the trust’s 60% beneficiary and former trustee

who Relators sued claiming he violated his fiduciary duties—died. As a result, an

heir or representative of Russell’s estate may need to appear and defend the case on

5
its behalf. See id. 152. The trust contains provisions that may have been triggered by

Russell’s death, including a provision terminating the trust and instructions for

distributing the trust estate to the surviving distributees which—now that Russell has

died—may include his two children. The court-appointed temporary trustee has

notified this Court that he considers Russell’s children to be necessary parties. They

may want to intervene, or other parties may want to implead them. See id. 37-41.

We express no opinion on these matters but simply note that Russell’s death has

created new issues the trial court will likely need to address before trial. To do so

will take time, and if new parties are to be added, additional time may be needed to

allow discovery to be conducted by, or directed toward, any such parties.

We recognize both the passage of time and the potential for additional

discovery may affect the trial court’s determination—implied in its two orders—that

Real Parties in Interest were unfairly surprised or prejudiced by Relators’ untimely

disclosure of legal theories, calculations, economic damages, witnesses and

documents on September 5. See id. 193.6. Without deciding the merits of the

arguments in Relators’ petition, we are concerned mandamus relief at this stage of

the proceedings may unnecessarily interfere with the trial court’s ability and

potential responsibility to decide whether to modify an existing discovery control

plan based on “new information [] disclosed in a discovery response” or “matters

that have changed materially after the discovery cutoff.” See id. 190.5(a), (b).

6
Because proceedings in the trial court require additional time to develop, we

conclude any benefits of mandamus are outweighed by the detriments. We deny

Relators’ petition to the extent it seeks mandamus relief from rulings in the trial

court’s October 1 and 17 orders that are based on Relators’ untimely disclosures.

Motion to Show Authority

Relators also argue the trial court abused its discretion when it denied their

motion challenging the authority of the law firm which was engaged to represent

Russell after the court determined he was incapacitated and removed him from

serving as trustee. See id. 12. According to Relators, the law firm was retained and

directed by Carol, who claimed authority to handle litigation on Russell’s behalf

pursuant to a durable power of attorney, despite the absence of a physician’s written

certification of Russell’s incapacitation. Russell’s death terminated Carol’s ability,

if any, to act on Russell’s behalf. See Tex. Est. Code Ann. § 751.131 (“A durable

power of attorney terminates when: (1) the principal dies[.]”). Nevertheless, we

conclude the issue before us is not moot because Relators claim the trial court’s

October 1 and October 17 orders are void since they flowed from motions filed by a

law firm Relators claim had no authority to act on Russell’s behalf. We disagree.

“While Rule 12 requires the trial court to dismiss counsel who fails to show

authority to prosecute or defend the proceeding, pleadings filed by any such counsel

are not nullified and may only be stricken ‘if no person who is authorized to

7
prosecute or defend appears.’” Kinder Morgan SACROC, LP v. Scurry Cnty., 622

S.W.3d 835, 846 (Tex. 2021) (quoting Tex. R. Civ. P. 12). Because the motions in

question would not be nullified even if Carol lacked authority to retain and direct the

law firm that filed the motions on Russell’s behalf, we deny Relators’ petition to the

extent that it seeks mandamus relief based on the trial court’s denial of their motion

to show authority.

We deny the petition for a writ of mandamus and the motion and supplemental

motion for temporary relief. See Tex. R. App. P. 52.8(a), 52.10.

PETITION DENIED.

PER CURIAM

Submitted on November 19, 2025
Opinion Delivered November 20, 2025

Before Golemon, C.J., Wright and Chambers, JJ.

8