In re Evangelina Rendon--Appeal from County Court At Law No 1 of Webb County

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 14, 2007

PETITION FOR WRIT OF MANDAMUS DENIED

In this original mandamus proceeding, Evangelina Rendon contends the trial court abused its discretion by limiting discovery in the underlying estate administration. Two weeks after determining Rendon was not the common law wife of the decedent, Jose Luis Pomar, the trial court appointed Pomar's adult children to serve as administrators of his estate. In her mandamus petition, Rendon complains the trial court limited her efforts to obtain discovery showing the children are disqualified to serve as administrators. Rendon contends the trial court initially delayed the desired discovery until after it ruled on the existence of a common law marriage. Rendon also claims that after its common law marriage ruling, the trial court continued to prohibit the discovery sought. For the following reasons, we deny Rendon's mandamus petition.

As the party seeking relief, Rendon has the burden of providing this court with a record sufficient to establish her right to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Rendon has not met this burden. The mandamus record submitted by Rendon is devoid of any discovery orders or rulings made by the trial court before or after its common law marriage ruling. See Tex. R. App. P. 52.3(j)(1)(A) (appendix must contain a certified or sworn copy of any order complained of, or any other document showing the matter complained of); In re Bledsoe, 41 S.W.3d 807, 811 (Tex. App.--Fort Worth 2001, orig. proceeding) (an oral ruling may be reviewed by mandamus when it is a clear, specific, enforceable order that is adequately shown by the record).

Additionally, this court grants mandamus relief only when the trial court abuses its discretion and a party has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker, 827 S.W.2d at 839-40. A trial court has broad discretion to schedule and define the scope of discovery. In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999) (orig. proceeding). An abuse of discretion occurs when a trial court issues a discovery order that is arbitrary and unreasonable or without reference to guiding rules and principles. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding).

Rendon has not established an abuse of discretion. A surviving spouse has preference in administering an estate unless the decedent named a qualified executor in his will. See Tex. Prob. Code Ann. 77(b) (Vernon 2003). Pomar died without a will. Therefore, if Rendon had established the existence of a common law marriage, she in all likelihood would have been appointed administrator of Pomar's estate. Under this scenario, discovery aimed at disqualifying Pomar's children from serving as administrators would have been unnecessary. Therefore, the initial discovery limitation alleged by Rendon was not arbitrary and unreasonable or without reference to guiding rules and principles.

Finally, Rendon has not alleged or shown that she lacks an adequate appellate remedy. See Walker, 827 S.W.2d at 840-41.

Accordingly, the petition for a writ of mandamus is denied. See Tex. R. App. P. 52.8(a).

PER CURIAM

1. This proceeding arises out of Cause No. 2007-PB-4000018-L1, styled In the Estate of Jose Luis Pomar, Deceased, pending in the County Court at Law No. 1, Webb County, Texas, the Honorable Alvino "Ben" Morales presiding..