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In re Topletz

Court of Appeals of Texas, Fifth District, Dallas

September 11, 2019

IN RE STEVEN K. TOPLETZ, Relator

          Original Proceeding from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-04120-2012

          Before Justices Bridges, Osborne, and Carlyle

          MEMORANDUM OPINION

          LESLIE OSBORNE, JUSTICE

         Relator Steven K. Topletz filed a petition for writ of habeas corpus and an emergency motion for relief after the trial court ordered him jailed for civil contempt for failing to comply with the trial court's order to produce documents from a family-run trust during post-judgment discovery. Relator contends the documents are not within his possession, custody, or control and thus he cannot purge himself of contempt to effectuate his release. We deny relief.

         Background

         Relator is a beneficiary of the Steven Topletz 2011 Family Trust ("the trust") set up by his father and overseen by relator's brother, sister, and cousin as trustees. Section 4.12 of the trust instrument provides:

Each beneficiary who has attained the age of twenty-five years shall have free access to those books, records and accounts at all reasonable times during regular business hours. If such beneficiary requests, a profit and loss statement, fully disclosing the fiscal operations of the trust for the preceding year, and a balance sheet, which accurately reflects the financial status of the trust at the expiration of the preceding year, shall be furnished to such beneficiary within ninety days of the end of the fiscal year. Any beneficiary who has attained the age of twenty-five years may cause the books, records and accounts of any trust in which the beneficiary has a beneficial interest to be audited at any time. . . .[1]

         The real party in interest ("Wadle") seeks to collect from relator on a 2015 judgment. During post-judgment discovery, the parties agreed relator would produce the trust instrument and tax returns from the trust subject to a protective order. The agreement was reflected in an email sent by relator's former counsel in 2017 that relates:

As I have said, we will produce the tax returns and the Steven Topletz 2011 Family Trust subject to the protective order which I have previously signed and sent to you for entry by the Court when you send me a signed copy of the protective order. I also require an Order from the Court ordering the production of the trust document subject to the protective order so we eliminate the issue of [relator] being required to breach a contractual agreement without an order of the Court.
I think this could be included in an order on your amended Motion to Compel granting it as to document production, production of the trust subject to the protective order and denying your request (or withdrawing your request) for sanctions.
We can provide you with an affidavit from [relator] stating that he has produced all documents requested that were in his possession or to which he had access or you can send additional interrogatories to inquire. Either way, I would like to put some finality to document production.

         After changing attorneys, relator refused to produce documents from the trust, citing In re Kuntz as legal authority that he did not have possession of the trust documents. See In re Kuntz, 124 S.W.3d 179 (Tex. 2003) (orig. proceeding). Nevertheless, on June 27, 2018, the trial court granted Wadle's second amended motion to compel and it ordered relator to produce for in camera inspection within ten days "the agreement creating the Steven Topletz 2011 Family Trust" and any documents related to it responsive to six categories of documents Wadle had requested. In a handwritten addendum at the bottom of the order, relator was directed to "produce the trust documents and the tax returns as requested. [Relator] shall also produce the other documents requested that are in his possession, custody or control." The order also requires relator to pay Wadle $1, 000 in attorney's fees.

         On July 2, 2018, relator wrote a letter to trustee Dennis Topletz asking for "copies of the tax returns for the Trust from 2012 to 2016 and any documents for the same period related to items 9, 10, 14, 18, 27 and 28 of Plaintiff's Production Requests." Relator's counsel followed up with a July 10, 2018 letter also requesting documents from the trustee that would be responsive to the production requests, noting that the production was to include "the trust documents and related tax returns as requested" and that the relevant time period was 2012 to 2016. On July 12, 2018, counsel for the trustee responded with a letter refusing to provide the documents, but offering to provide relator with a profit and loss statement or balance sheet upon proper request.

         On July 13, 2018, relator produced documents under the June 27, 2018 order, but he did not produce any tax returns or financial documents from the trust. Instead, relator produced a copy of ...


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