                                       In The

                                 Court of Appeals

                       Ninth District of Texas at Beaumont

                              _________________
                               NO. 09-13-00247-CV
                              _________________


                       IN RE AWC FRAC VALVES INC.

________________________________________________________________________

                               Original Proceeding
________________________________________________________________________

                          MEMORANDUM OPINION

      In this discovery dispute, which arises in a case involving alleged breaches

of a noncompetition agreement, we are asked to address whether the trial court

abused its discretion by denying Relator’s motion to compel answers to discovery

requests. 1 The discovery at issue concerns discovery that Relator served on two

individuals and a corporation who are allegedly competing with Relator in ways



      1
        Relator, who is the plaintiff in the trial court, moved to strike the response
the real parties in interest filed to the petition for mandamus because the response
was joined by others who were not served with the discovery requests at issue.
Relator has not shown that the response has been filed by a party that is not
interested in the outcome of the mandamus petition. Accordingly, we deny
Relator’s motion to strike.
                                          1
that violate the terms of a noncompetition agreement between Relator and its

former chief operating officer.

      Because some of the discovery requests at issue could have been more

narrowly tailored to the issues in dispute, we conclude the trial court did not abuse

its discretion in denying some of Relator’s discovery requests. We also conclude

that some of the challenged requests are narrowly tailored to the issues in dispute,

and with respect to these requests, we conclude the trial court abused its discretion

by denying Relator discovery on them. Therefore, having considered each of the

trial court’s rulings, we conditionally grant Relator partial relief.

                                      Background

      AWC sued Richard T. Mitchell and five other defendants, Eagle Oilfield

Enterprises, Inc., Lockheed Sales & Rentals, Inc., Apache Machining Solutions

Inc., Jose Antonio Flores, and Jeffrey Vawter claiming that Mitchell, along with

the other defendants, were violating the terms of its noncompetition agreement

with Mitchell. According to AWC, after Mitchell (AWC’s founder and former

owner), Flores (AWC’s former shop manager), and Vawter (AWC’s former quality

assurance inspector) formed Apache in March 2012, Apache began “competing

with AWC and soliciting its customers.” AWC alleges that Mitchell, in breach of

his noncompetition agreement, funded Apache through Eagle, Lockheed, and other

                                            2
corporations that he controlled. It also alleges that Mitchell’s companies, Eagle and

Lockheed (“the Mitchell defendants”), together with Apache, Flores and Vawter

(“the Apache defendants”), tortiously interfered with AWC’s non-competition

agreement with Mitchell by concealing Mitchell’s involvement in Apache from it.

AWC sued for actual damages, punitive damages, and injunctive relief. According

to AWC, the discovery requests at issue are relevant either to its right to recover or

to proving the extent the defendants’ conduct caused it to suffer damages.

                             Standards and Guidelines

      The law governing the issue of the scope of discovery is well established.

“Parties are ‘entitled to full, fair discovery’ and to have their cases decided on the

merits.” Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009) (quoting

Able Supply Co. v. Moye, 898 S.W.2d 766, 773 (Tex. 1995) (orig. proceeding)). “A

trial court abuses its discretion when it denies discovery going to the heart of a

party’s case or when that denial severely compromises a party’s ability to present a

viable defense.” Id.

      The Texas Rules of Civil Procedure define the general scope of discovery

for both interrogatories and requests for production. See Tex. R. Civ. P. 192.3(a),

(b) (allowing requests for documents with respect to matters that are not privileged

and that are relevant to the subject matter of the pending action); Tex. R. Civ. P.

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197.1 (allowing interrogatories on matters within the scope of discovery). “In

general, a party may obtain discovery regarding any matter that is not privileged

and is relevant to the subject matter of the pending action, whether it relates to the

claim or defense of the party seeking discovery or the claim or defense of any other

party.” Tex. R. Civ. P. 192.3(a). Rule 197.1 states:

      An interrogatory may inquire whether a party makes a specific legal
      or factual contention and may ask the responding party to state the
      legal theories and to describe in general the factual bases for the
      party’s claims or defenses, but interrogatories may not be used to
      require the responding party to marshal all of its available proof or the
      proof the party intends to offer at trial.

Tex. R. Civ. P. 197.1.

      “Although the scope of discovery is broad, requests must show a reasonable

expectation of obtaining information that will aid the dispute’s resolution.” In re

CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). Consequently,

“requests must be reasonably tailored to include only matters relevant to the case.”

In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding).

“The trial court must make an effort to impose reasonable discovery limits.” Id. “It

is the discovery proponent’s burden to demonstrate that the requested documents

fall within the scope-of-discovery of Rule 192.3.” In re TIG Ins. Co., 172 S.W.3d

160, 167 (Tex. App.—Beaumont 2005, orig. proceeding). As a result, the trial

court has the discretion to refuse to compel discovery if it determines that the
                                          4
information being requested would require the responding party to include matters

that are unlikely to fall within the scope of discovery permissible under the rules of

procedure. See In re Christus Health Se. Tex., No. 09-12-00538-CV, 2013 WL

1247680, at *4 (Tex. App.—Beaumont Mar. 28, 2013, orig. proceeding).

                          Transfers of Funds and Property

      AWC argues that the trial court abused its discretion by refusing to compel

the Apache defendants to answer discovery that it needed to uncover evidence that

Mitchell funded Apache so that it could compete with AWC. The discovery

requests that AWC argues are relevant to Apache’s funding asked:2

      • [Interrogatory Number 9 to Flores and to Vawter:] Identify all
        sums of money that Richard Mitchell has loaned or given to you,
        whether directly or indirectly through another individual or entity.
        Include in your answer: the amount of each sum identified; the
        date on which the sum was loaned or gifted; the purpose for which
        the sum was loaned or gifted; the bank account (including the
        name of the bank, account title, and account number) from which
        the sum was drawn; the manner in which the sum was transferred
      2
       For the discovery requests at issue in this mandamus proceeding, AWC
presented separate, identical requests to Flores and Vawter. Interrogatory nine to
Apache is similar but not identical to interrogatory twelve to Flores and Vawter
Interrogatory sixteen to Apache is identical to interrogatory nineteen to Flores and
Vawter. AWC’s Request for Production thirteen concerns the subject matter of
interrogatory nine. AWC’s request fifteen to Apache corresponds to request twenty
to Flores and Vawter, and request twenty-eight to Apache corresponds to request
twenty-nine to Flores and Vawter. AWC’s request twenty-nine to Apache
corresponds to request thirty to Flores and Vawter. Because AWC served similar
requests on various defendants, we distinguish between similar requests that AWC
served on various defendants only where necessary.
                                          5
           (e.g. cash, check, cashier’s check); the identity of the individual or
           entity that loaned or gifted the sum; and the identity of the
           individual or entity that received the sum.

      • [Interrogatory No. 9 to Apache:] Identify all equipment or other
        property (including real property) that Richard Mitchell has bought
        for, loaned or given to, rented for, or otherwise transferred to
        Apache (including its officers, directors, employees, agents, and
        representatives) whether directly or indirectly through another
        individual or entity. Include in your answer: a description of each
        piece of equipment or property identified; the approximate value of
        the equipment or property; the date the loan, gift, rental, or transfer
        was made; the identity of the individual or entity that loaned,
        gifted, rented, or transferred the equipment or property; and the
        identity of the individual or entity that received the equipment or
        property.

      • [Request for Production No. 15 to Apache:] Produce all documents
        evidencing or relating to any equipment or property identified in
        your answer to Interrogatory No. 9.

      With respect to Flores and Vawter, interrogatory number nine contains no

limit in time, nor is the interrogatory limited to funds that Flores and Vawter used

to form Apache or to conduct Apache’s business. For example, interrogatory nine

would require Flores and Vawter to divulge information about loans or gifts from

at least 2006, the date that Flores was hired by AWC, a date well before Apache

existed.

      AWC argues it need not limit its requests because Mitchell asserts that he

made interest-free loans to Flores before Apache existed. In his answer, Mitchell


                                           6
alleges that he loaned money to Flores in the past, and he agreed to make a no-

interest loan to Flores when AWC fired Flores because Flores refused to sign

AWC’s non-competition agreement. Nevertheless, interrogatory nine also requires

Flores and Vawter to disclose information about gifts that Flores and Vawter

received from Mitchell, and AWC has not shown that Mitchell is relying on a

claim that he gave Flores and Vawter gifts before Apache existed to explain any

donations after Apache was formed. Therefore, the trial court could reasonably

conclude that interrogatory nine to Flores and Vawter could have been more

narrowly tailored to require responses that would not include matters irrelevant to

the case. See Christus Health, 2013 WL 1247680, at *4. Since the trial court could

reasonably conclude that interrogatory nine sought information that was in part

irrelevant, and because it was not the trial court’s duty to frame proper discovery

requests, it was not an abuse of discretion to deny AWC’s motion to compel. In re

TIG Ins. Co., 172 S.W.3d at 168 (noting that the burden to propound discovery

requests that comply with the rules of discovery should be on the party

propounding the discovery, not the courts).

      The absence of a stated time frame creating a problem of breadth with regard

to interrogatory nine served on Vawter and Flores is not a concern with respect to

interrogatory nine served on Apache. Although interrogatory nine to Apache also

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fails to state a time frame, the period of inquiry is limited. Apache did not exist

before March 2012; therefore, as phrased, AWC has not required Apache in

answering interrogatory nine to provide information to it about matters that

occurred before Apache existed. The fact that there was no end date of the period

of inquiry also fails to make the interrogatory overly broad. When Apache

responded to AWC’s discovery, Mitchell was still subject to the terms of his

noncompetition agreement with AWC. Thus, with respect to interrogatory nine to

Apache, the inquiry seeks information that is within the scope of discovery and

relevant to the parties’ dispute.

      Although AWC’s request for production number fifteen to Apache contains

no specific dates, it is likewise limited in time, considering the date that Apache

was created. In summary, the information AWC requested that Apache provide in

interrogatory nine and request fifteen is information that is relevant and goes to the

heart of the parties’ dispute. We conclude the trial court erred in denying AWC’s

motion to compel Apache to respond to interrogatory nine and to request fifteen.

      Similarly, interrogatory twelve to Flores and interrogatory twelve to Vawter

seek to discover the same information as sought in interrogatory nine to Apache.

Requests twenty to Flores and Vawter seek the same documents as AWC request

fifteen seeks from Apache. These discovery requests, like the ones to Apache we

                                          8
have just discussed, are necessarily limited to the period of time after Apache was

formed. Therefore, we also conclude the trial court erred in denying AWC’s

motion to compel Flores and Vawter to respond to interrogatory twelve and request

twenty.

      In summary, we conclude the trial court did not abuse its discretion by

refusing to compel Vawter and Flores to answer interrogatory nine. However, we

conclude the trial court abused its discretion by refusing to compel Apache’s

response to interrogatory nine and request fifteen, and by refusing to compel

Flores’ and Vawter’s responses to interrogatory twelve and request twenty.

                               Business Operations

      AWC also complains that the trial court refused to compel Apache to

respond to discovery relating to Apache’s business operations. Apache objected

that AWC’s requests were overly broad and not reasonably calculated to lead to the

discovery of admissible evidence. With respect to Apache’s business operations,

AWC’s discovery asks that Apache:

      • [Interrogatory No. 12 to Apache:] Identify all sales of products or
        services, including, without limitation, repair services, made by
        Apache since its inception, including but not limited to the buyer,
        date of sale, product/service that was sold, and amount of sale.

      • [Request for Production 21 to Apache:] Produce all documents,
        including, without limitation, bids, quotes, purchase orders,

                                        9
          invoices, and related documents, evidencing or relating to the sales
          identified in your answer to Interrogatory No. 12.

      Request twenty-one asks Apache to produce information regarding all sales

or services by Apache since its inception. However, Mitchell’s noncompetition

agreement does not prohibit Apache from being in any business; the

noncompetition agreement describes AWC’s business as “the manufacture, repair,

sale and testing of frac valves and the rental to third parties of ‘frac stack’ valves.”

Even if the areas of the businesses of AWC and Apache may overlap in some

respects, we conclude that request twenty-one is overly broad because it asks that

Apache produce documents in areas of business that differ from those defined by

Mitchell’s noncompetition agreement.

      On this record, the trial court could reasonably conclude that both

interrogatory twelve and request twenty-one would require Apache to provide

information about its business in areas that were not relevant to Mitchell’s

noncompetition agreement. See In re TIG Ins. Co., 172 S.W.3d at 168. AWC

argues it needs this information to prove at trial that Apache is competing against

AWC, but the trial court could reasonably conclude that AWC is aware of the

products and services that it provides and that it could have more narrowly tailored

its discovery to limit Apache’s obligation to provide information in areas

consistent with AWC’s business, as identified in Mitchell’s noncompetition
                                          10
agreement. We conclude the trial court had the discretion to require AWC to more

narrowly tailor interrogatory twelve and request twenty-one.

                                     Net Worth

        Apache, Vawter and Flores have not disputed that net worth evidence is

relevant to this lawsuit and discoverable; instead, after AWC filed its petition for

mandamus, Apache withdrew its objection to answering AWC’s net worth

interrogatories. However, it appears that Apache, Vawter and Flores have still not

provided their respective responses to the net worth interrogatories. Because the

Apache defendants have not shown that they complied with AWC’s attempt to

discover their net worth, the issue regarding the discovery on their net worth is not

moot.

        We note that AWC’s petition asserts claims that the defendants acted with

malice; a finding of malice could provide support, depending on the jury’s other

findings, for an award of punitive damages. See Tex. Civ. Prac. & Rem. Code §

41.003(a)(2) (West Supp. 2012); Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex.

1988) (orig. proceeding) (noting that there is not an evidentiary threshold that a

litigant must cross before seeking discovery concerning net worth). Interrogatory

sixteen asked that Apache:




                                         11
      • [Interrogatory No. 16 to Apache:] State your current net worth and
        describe the method by which the sum provided in your answer
        was calculated.

Interrogatory sixteen to Apache is identical to interrogatory nineteen to Flores and

Vawter. AWC also served Apache with two requests regarding documents

addressing Apache’s net worth:

      • [Request for Production 28 to Apache:] Produce all documents that
        you relied on or referred to in calculating your answer to
        Interrogatory No. 16.

      • [Request for Production 29 to Apache:] Produce summary
        documents evidencing Apache’s net worth.

Identical requests were made to Flores and Vawter.

      Evidence of current net worth is discoverable in a case in which punitive or

exemplary damages may be awarded. Lunsford, 746 S.W.2d at 473. Because

discovery of the net worth is within the scope of discovery governing the parties’

dispute, we conclude the trial court abused its discretion by failing to compel

answers to interrogatories sixteen (Apache) and nineteen (Vawter and Flores).

      However, the requests that AWC served on the Apache defendants regarding

documentation of their net worth are broad enough to include documents that are

not discoverable, such as tax returns. See In re Garth, 214 S.W.3d 190, 194 (Tex.

App.—Beaumont 2007, orig. proceeding [mand. dism’d]) (noting that trial court


                                        12
exceeded its authority regarding discovery matter that involved a defendant’s net

worth by ordering production of tax returns, income statements, bank statements,

insurance applications, contracts of assignment, accounts receivable, data,

inventory lists, and judgments). Because requests twenty-eight and twenty-nine to

Apache and corresponding requests twenty-nine and thirty to Flores and Vawter

could have been more narrowly tailored, the trial court’s decision to deny AWC’s

motion to compel responses to AWC’s request for production was not an abuse of

discretion. See id.; Christus Health, 2013 WL 1247680, at *4.

                               No Adequate Remedy

      Mandamus relief may be granted when the denial of discovery goes to the

heart of a party’s case or severely compromises a party’s ability to present any case

at trial. In re Allied Chem. Corp., 227 S.W.3d 652, 658 (Tex. 2007). The discovery

the defendants must answer goes to the heart of AWC’s claim that the defendants

engaged in a conspiracy to assist Mitchell in violating his noncompetition

agreement. AWC could also discover each defendant’s net worth, to give the jury

guidance in the event it chose to return an award of exemplary damages. See Tex.

Civ. Prac. & Rem. Code Ann. § 41.003; Lunsford, 746 S.W.2d at 473.

      In summary, we conditionally grant AWC’s petition in part and we deny its

petition in part. We conclude that the trial court should have compelled responses

                                         13
to request for production fifteen to Apache, interrogatory nine and sixteen to

Apache, request for production twenty to Flores, interrogatory twelve and nineteen

to Flores, request for production twenty to Vawter, and interrogatory twelve and

nineteen to Vawter. Nevertheless, we are confident the trial court will require

responses to these requests for discovery and that it will vacate that part of its order

of April 3, 2013, denying AWC any discovery on these requests. With respect to

the relief conditionally granted herein, the writ shall issue only if the trial court

fails to act promptly in accord with this opinion. All of the other matters on which

the parties have requested that we grant either temporary or mandamus relief are

denied.

      PETITION DENIED IN PART; CONDITIONALLY GRANTED IN PART.



                                                      PER CURIAM


Submitted on June 7, 2013
Opinion Delivered August 15, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.




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