Court of Appeals of Texas, Second District, Fort Worth
In re Treatment Equipment Company, Janice V. Smith, and Bruce S. Smith, Relators
Original Proceeding Trial Court No. PR-2014-00697-01
Pittman, Bassel, and Womack, JJ.
original proceeding, relators Janice V. Smith, Bruce S.
Smith, and Treatment Equipment Company (TEC) seek mandamus
relief from an order compelling production of documents that
the real party in interest first requested in a motion to
compel instead of in a formal request for production. Because
the trial court abused its discretion by ordering relators to
respond to discovery that was not properly requested, we
conditionally grant relief and order the trial court to
vacate part of its June 3, 2019 order.
and Bruce Smith own TEC, a corporation that sells and
services water treatment equipment. Michael Kilborn began
working for TEC in 1986 as a salesperson. He worked for the
corporation in this capacity until his death in August 2014.
During Kilborn's employment, TEC paid him fifty percent
of its profits from his sales upon the occurrence of certain
"milestones," such as the equipment's actual
delivery. Thus, Kilborn often did not receive his earned
commissions until "months or even years after the
commission was actually earned." TEC and Kilborn never
signed a written employment agreement memorializing how his
commissions were to be paid.
Kilborn's death, on September 11, 2014, real party in
interest Phillip E. Romero, the independent executor of
Kilborn's estate, emailed Janice, asking about the terms
of Kilborn's commission arrangement. According to Romero,
just two weeks later, on September 24, 2014, TEC informed at
least one of its clients that it was "beginning the
process of winding down" its operations and "would
not be pursuing new sales" beginning October 31,
30, 2018, Romero, in his capacity as the independent executor
of Kilborn's estate, sued TEC and the Smiths individually
for breach of contract and fraud. Romero alleged that TEC and
both Smiths had breached Kilborn's oral employment
agreement with TEC by failing to pay all of his earned
commissions. Additionally, Romero alleged, in a section of
the petition entitled "FRAUD/PIERCING OF THE CORPORATE
VEIL," that TEC and the Smiths committed fraud by making
promises to Kilborn about "the manner and means" by
which his commissions would be payable, "knowing they
would not honor the promises." He also alleged that TEC
and the Smiths had misrepresented to him as executor the
terms of the employment agreement, and what TEC still owed
Kilborn, intending to deprive Kilborn's estate of assets.
Finally, Romero alleged that the Smiths committed fraud by
underfunding TEC, causing TEC to stop selling its goods, or
both so that TEC could not meet its financial obligations to
Kilborn and other former employees.
discovery, Romero propounded twenty-three requests for
production. Relators provided documents responsive to the
first fifteen requests but not the remaining eight requests,
five of which are pertinent to this original proceeding:
REQUEST FOR PRODUCTION 18. For the time
period January 1, 2012 to present, please produce credit and
debit card and bank account statements for all accounts held
in the name of or used by Defendants Bruce S. Smith and/or
Janice V. Smith or their family members.
REQUEST FOR PRODUCTION 19. For the time
period January 1, 2012 to present, please produce detailed
expense ledgers or reports showing all expenses incurred by
or reimbursed to Defendants Bruce S. Smith and/or Janice V.
Smith or their family members.
REQUEST FOR PRODUCTION 20. For the time
period January 1, 2012 to present, please produce Account
Analysis for Defendants Bruce S. Smith and/or Janice V. Smith
or their family members.
REQUEST FOR PRODUCTION 21. For the time
period January 1, 2012 to present, please produce copies of
checks or records/reports of all monies taken from a TEC
[sic] or petty cash by Defendants Bruce S. Smith and/or
Janice V. Smith or their family members.
REQUEST FOR PRODUCTION 22. For the time
period January 1, 2012 to present, please produce any and all
vehicles owned or leased by TEC and used by
Defendants Bruce S. Smith and/or Janice V. Smith or their
raised the same objection in response to all five of these
OBJECTION(S): Defendants object to this
Request on relevance grounds, as it seeks countless documents
immaterial to the claims and defenses asserted in this
lawsuit. Defendants further object to this Request as overly
broad and unduly burdensome, as the Request is not reasonably
limited in time or scope to documents which could possibly
evidence Plaintiff's entitlement to recover damages in
this lawsuit. Defendants further object to this Request as
unduly harassing and an impermissible fishing expedition.
14, 2019, Romero filed a motion to compel discovery, in which
he alleged that relators had not timely responded to requests
18 through 22. But he did not ask the trial court to compel
relators to produce documents in response to those requests.
Explaining that he had "suggested" to relators that
they "begin with production of the TEC bank and credit
card statements and expand to other documents," he
instead asked the trial court to compel production of the