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In re Sun City Gun Exchange, Inc.

Court of Appeals of Texas, Eighth District, El Paso

May 12, 2017

IN RE: SUN CITY GUN EXCHANGE, INC. D/B/A KIRK'S GUN SHOP, RELATOR.

         An Original Proceeding in Mandamus

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          ANN CRAWFORD McCLURE, Chief Justice

         Relator, Sun City Gun Exchange, Inc. d/b/a Kirk's Gun Shop (SCGE), has filed a mandamus petition against the Honorable Sergio H. Enriquez, Judge of the 448th District Court of El Paso County, Texas. SCGE asks the Court to order Respondent to vacate an order compelling a non-party, Jeremy Bristow, to allow entry onto his real property and personal residence located in El Paso, Texas, for the purpose of photographing, inspecting, and video-recording all firearms and related property located in a firearms storage facility in the basement of Bristow's homestead. The Court granted SCGE's motion to stay the discovery order pending resolution of this original proceeding. We conditionally grant mandamus relief.

         FACTUAL SUMMARY

         In December 2015, the Real Parties in Interest, Met-Tech, Inc. and Juan Herrera, sued Relator, Sun City Gun Exchange, Inc. d/b/a Kirk's Gun Shop and KentMark Industries for breach of contract, quantum meruit, promissory estoppel, fraud, and vicarious liability.[1] The petition alleges that Jeremy Bristow is Relator's registered agent, president, and director, and Bristow could be served at his residence, 13800 Wildflower, in El Paso, Texas. The mandamus record reflects that Bristow is the former son-in-law of Herrera.

         The petition filed by Met-Tech and Herrera alleges the following facts: (1) SCGE borrowed $50, 000 from Herrera on December 27, 2006 for the purpose of purchasing inventory for Kirk's Gun Shop; (2) SCGE "took out loans in the approximate amount of $60, 000.00 from credit cards paid by Plaintiff Juan Herrera;" (3) SCGE executed a promissory note on September 1, 2009, in the amount of $299, 196.40 to Met-Tech Steel Fabrication, Inc.;[2] (3) the note was payable in a single installment due on December 31, 2011, and it was secured by a Security Agreement; (4) the Security Agreement granted to Met-Tech Steel Fabrication a security interest in SCGE's assets;[3] and (5) SCGE failed to repay the Herrera loans and did not make the payment of $299, 196.40 on the note. The note and security agreement are included in the mandamus record. Bristow signed the promissory note in his capacity as president of SCGE, and he signed the security agreement on behalf of both SCGE and Met-Tech Steel Fabrication in his capacity as president of those entities. The security agreement showed SCGE's address as 3333-F Yarbrough, El Paso, Texas.

         SCGE ceased operating in May or June of 2010 and sold its entire inventory to a gun dealer, but SCGE retained its firearms license. On October 15, 2013, Bristow responded to interrogatories in his divorce proceeding, and stated that he had in his possession twelve firearms which were owned by SCGE with a total value of $53, 220. He listed forty-six other weapons which he or other individuals owned. Two years later, Herrera and Met-Tech purchased the account receivables of Met-Tech Steel Fabrication in the United States Bankruptcy Court for the Western District of Texas, El Paso Division. Met-Tech and Herrera filed suit against SCGE on December 23, 2015.

         SCGE initially filed a general denial, but later filed an amended answer pleading the affirmative defenses of accord and satisfaction, estoppel, failure of consideration, fraud, laches, payment, release, statute of frauds, statute of limitations, waiver, and bad faith. Its amended answer also asserted the verified denials of lack of capacity, defect of parties, and lack of consideration. On November 10, 2016, Met-Tech and Herrera deposed Bristow. Bristow testified that he has a secure bunker located in the basement of his home which he uses to store firearms, ammunition, and explosives which he personally owns, but none of the assets of SCGE are stored there. Bristow testified at the hearing on the motion to compel entry that the bunker was built in 2006, and he denied ever storing any of SCGE's inventory in the bunker. On January 18, 2016, SCGE surrendered its firearm license to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Bristow testified at the hearing that this became necessary because Herrera had registered SCGE in his own name. Waco Mountain Trading was incorporated on March 7, 2016 with its principal place of business at 13800 Wildflower, El Paso, Texas, and it acquired a federal firearms license. Waco Mountain Trading's license is limited to manufacturing. Met-Tech and Herrera filed their first amended petition on or about December 7, 2016, dismissing their claims against KentMark Industries, and adding Waco Mountain Trading as a defendant.

         In August 2016, Met-Tech and Herrera filed a written request for entry on land as follows:

Plaintiffs request entry upon the premises at 13800 Wild Flower Dr., El Paso, Texas 79938 on a date and time to be agreed upon by the Parties for the inspection, photographing, and/or videotaping by Plaintiffs and Plaintiffs' counsel of the firearms and related items, including but not limited to all types of guns, knives, silencers, class III weapons, ammunition, firearm accessories, magazines, scopes, reloading supplies, and targets, whether such items are operational, in repair or kept as a collection/antique (collectively 'Firearms'), on the premises.

         SCGE objected on the grounds that: (1) the premises are owned by a non-party, Jeremy Bristow; (2) SCGE does not own any firearms or related items located on the premises; (3) Met-Tech and Herrera had failed to show good cause for entering onto Bristow's property and the information sought is not relevant to the subject matter of the suit; and (4) Met-Tech and Herrera had not complied with the requirements of Rule 196.7.

         Met-Tech and Herrera filed a motion to compel entry onto the property located at 13800 Wild Flower in El Paso for the inspection, photographing, and videotaping of all firearms and related items on the premises.[4] The motion did not restrict entry to only the bunker, but instead sought to inspect the entire property. SCGE objected that the property is the homestead of Jeremy Bristow and it is not owned by SCGE. It further objected that SCGE never operated out of 13800 Wildflower or stored any inventory at that address. SCGE and Bristow offered to produce for inspection, at a neutral location, the guns previously identified by Bristow as belonging to SCGE. Following a hearing, Respondent granted the motion and entered an order compelling entry onto Bristow's property on January 6, 2017 for the inspection and photographing or video-recording of the "'firearms' storage facility" or "bunker." Relator filed its mandamus petition and motion for emergency relief on December 28, 2016.

         COMPELLING ENTRY ONTO LAND

         In its sole issue, Relator asserts that Respondent clearly abused his discretion by ordering the entry upon the residence of Jeremy Bristow for the purpose of inspecting, photographing and videotaping all firearms located on the premises without good cause, without establishing the relevance of inspecting, ...


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