In Re Elizabeth Kozak, as Attorney in Fact for Phoebe Osborne Reynolds v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 20, 2023
• Docket: 07-23-00301-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00301-CV

IN RE ELIZABETH KOZAK, AS ATTORNEY IN FACT FOR PHOEBE OSBORNE REYNOLDS

ORIGINAL PROCEEDING

September 20, 2023

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Pending before the court is the petition for writ of mandamus filed by Elizabeth

Kozak, as attorney in fact for her mother, Phoebe Osborne Reynolds. She seeks to “set

aside” an order of the Honorable Phil Vanderpool, 223rd District Court, directing Reynolds

to appear for deposition via Zoom. Through its August 10, 2023 order, the trial court also

mandated the “deposition to be scheduled on or before August 31, 2023.” Kozak did not

petition this court for relief until August 31, 2023. We deny the petition.

The order in question arose from a motion to compel, filed by Patricia Noel

Kennedy, executor of the Wiley Reynolds, Sr. testamentary estate. Kozak, on behalf of Reynolds, had sued Kennedy. The allegations included mismanagement of the

testamentary estate, while the relief sought included Kennedy’s removal as executor.

Kennedy noticed Reynolds’s deposition, which Reynolds failed to attend. That resulted

in the motion to compel. Kozak responded to the motion and alleged that Reynolds, an

89-year-old woman, was too sickly and frail to undergo questioning. Aspects of the record

provided to the trial court supported that notion. Kennedy, however, provided the trial

court with excerpts of Kozak’s own deposition. During same, Kozak was asked about

Reynolds’s “mental health,” to which question Kozak answered “she’s doing well.” Kozak

also attested that her mother could “communicate” and do so “by phone.” Yet, she

fatigued easily at her age. And, though the octogenarian had suffered various recent

maladies, she remained able to play the piano on a daily basis.

Simply put, the trial court had before it conflicting evidence regarding the health of

Reynolds and its effect on her ability to undergo deposition. Kozak said her mother was

too sickly, while Kennedy’s evidence indicated otherwise. As said in In re E.S., No. 07-

19-00323-CV, 2019 Tex. App. LEXIS 11228, at *5 (Tex. App.—Amarillo Dec. 30, 2019,

orig. proceeding) (mem. op.), “[w]e are prohibited from dealing with disputed areas of fact

in an original mandamus proceeding.” Such a disputed area of fact underlies the trial

court’s decision to compel deposition, that being the status of Reynolds’s health. Thus,

we deny Kozak’s petition for writ of mandamus.

Brian Quinn Chief Justice