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Avary v. Bank of America N.A.

Where a claim is based upon a new and independent tort committed in the course of the mediation proceedings, and that tort encompasses a duty to disclose, Texas Civil Practice and Remedies Code '154.073 does not bar discovery of the claim where the trial judge finds in light of the facts, circumstances and context, disclosure is warranted.

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REVERSED and REMANDED; Opinion issued March 22, 2002

OPINION

Rhonda Avary, guardian of the estates of Brett Joseph Bourgeois and Timothy James Bourgeois, minor children (Avary), sued Bank of America, N.A. (Bank) for breach of fiduciary duty, negligence, fraud, and conspiracy. The alleged wrongful conduct occurred during the court-ordered mediation of a now-concluded lawsuit. The Bank moved for summary judgment on the ground that Avary had no evidence to support her claims because all communications made at the mediation were confidential under section 154.073 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. � 154.073 (Vernon Supp. 2002). The Bank’s motion also raised the affirmative defenses of accord and satisfaction, ratification, waiver, and estoppel.

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