Lee v. Lee
| Decision Date | 14 June 1962 |
| Docket Number | No. 13968,13968 |
| Citation | 359 S.W.2d 654 |
| Parties | W. Howard LEE, Appellant, v. Hedy Lamarr LEE et al., Appellees. |
| Court | Texas Court of Appeals |
Jack Binion, Fletcher H. Etheridge, Houston, Butler, Binion, Rice & Cook, Houston, of counsel, for appellant.
Fred Parks, Donn C. Fullenweider, Houston, for appellees.
This is an appeal by W. Howard Lee from an order of the trial court dissolving a temporary injunction previously granted restraining appellees, Hedy Lamarr Lee et al., from taking the depositions of some 13 witnesses to perpetuate their testimony in a suit which appellee alleged she anticipated filing against appellant. At the time the temporary injunction was granted on June 23, 1961, the trial court ordered that the writ of injunction should issue without prejudice to the right of appellees to move to dissolve the injunction after having amended their petition to perpetuate testimony so that the same would include such information regarding the nature of the anticipated suit as would fairly enable appellant Lee and his attorneys to cross-examine the proposed witnesses on the taking of their depositions. Thereafter, appellees filed an amended statement, which was sworn to, in which they alleged that appellee Hedy Lamarr Lee still desired to perpetuate testimony pursuant to Rule 187, Texas Rules of Civil Procedure, and as a basis therefor represented to the court:
'That a copy of this First Amended Statement has been furnished the law firm of Butler, Binion, Rice & Cook, the attorneys for W. Howard Lee.
'WHEREFORE, Petitioner prays that the deposition of the witnesses named in paragraph 4 above be taken and returned as required by law.'
On December 20, 1961 the trial court, on motion of appellees, entered an order dissolving the temporary injunction. In such order the court recited, among other things, that Hedy Lamarr Lee has filed an amended statement pursuant to Rule 187, T.R.C.P., in Cause No. 572,318, styled In The Matter of The Testimony of W. Howard Lee et al., in the 157th Judicial District Court of Harris County, Texas, 'and it appearing to the Court that said amended original statement was filed in good faith, and it further appearing to the Court that said amended statement to perpetuate testimony includes such information regarding the nature of the anticipated suit as will fairly enable Plaintiff, W. Howard Lee, and his attorneys to cross-examine each of the proposed witnesses named in said statement to perpetuate testimony on the taking of depositions to perpetuate testimony; that the temporary injunction should be dissolved.'
Appellant contends that the trial court erred and abused its discretion in finding that appellees' amended application to perpetuate testimony was filed in good faith, and in dissolving the temporary injunction. Appellant further contends that the trial court abused its discretion in finding that appellees' amended application was sufficient.
We cannot say that the trial court erred or abused its discretion in either particular. Rule 187, T.R.C.P., contemplates that the statement will include such information regarding the nature of the anticipated suit as will fairly enable the adverse party to cross-examine the witness. It does not require or contemplate that the statement will show the testimony which the moving party expects to elicit from the witness. Nor does it require as a condition to the right to perpetuate testimony thereunder that the applicant be unable to file the suit and obtain the testimony by ordinary deposition; nor is the statement required to allege that the proceeding is instituted in good faith and not as a fishing expedition. The good faith of the moving party is presumed unless the contrary is established by the allegations of the statement or by the evidence. Ramsey v. Gardner, 1955, 154 Tex. 457, 279 S.W.2d 584.
It is true that the allegations of the statement in the present case as to the nature of the anticipated suit are somewhat broad and general. The statement does show, however, that the anticipated suit if instituted will relate to the community property of W. Howard Lee and Mrs. Hedy Lamarr Lee, who were divorced on April 22, 1960. The statement also shows that the petitioner anticipates the filing of a suit growing out of intentional acts of W. Howard Lee, his agents,...
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