This mandamus proceeding relates to a discovery dispute. The plaintiff did not show a nexus between the alleged fraud and any of the documents ordered to be produced. The trial court abused its discretion by ordering the production of the documents identified in affidavits as work product without at least subjecting them to an in camera review. The writ of mandamus is conditionally granted. Tyler Court of Appeals, No. 12-12-00325-CV, 08-15-2013.
September 03, 2013 at 04:04 PM
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ORIGINAL PROCEEDING
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
OPINION
James T. Worthen, Chief Justice
This original mandamus proceeding arises out of a discovery dispute. The relators are Park Cities Bank, Thomas Youngblood, Michael Merritt, John Dienes, Steven Metzger, Brian Neitzel, Todd Ashbrook, Michael Saks, and PCB Smith County Properties, LLC. Lewie Anderton is the real party in interest. Relators challenge the trial court’s September 12, 2012 order partially granting Anderton’s motion to overrule Relators’ claims of privilege and granting Anderton’s motion to compel discovery responses. The respondent is the Honorable Randall Lee Rogers, Judge of the County Court at Law No. 2, Smith County, Texas. We conditionally grant the petition.
Background
In 2002, Lewie Anderton and William R. Cawley formed two partnerships in order to develop The Cascades, a golf and residential community, in Tyler, Texas. Cascade Properties, Ltd. (Cascade Ltd.) was to develop the residential portion, and Bellwood Lake Partnership, Ltd. (Bellwood) was to purchase and further develop a golf course adjoining The Cascades. In 2006, Anderton, as president of Bellwood’s general partner, signed a $13, 325, 000 note to Park Cities Bank (the Bank). Anderton, Cawley, and the Bill Cawley 1997 Revocable Trust (the guarantors) guaranteed the note. At the time, Cawley was a 10% shareholder and a director of the Bank. He was also a member of the Bank’s loan committee.
The relationship between Anderton and Cawley became rocky over the years, and in May 2008, Anderton sued Cawley in a Dallas County district court. Tensions between the two continued to escalate. In February 2009, the Bank gave notice to Bellwood and the guarantors that Bellwood was in default on the $13, 325, 000 loan, in part because it had not paid the 2008 property taxes.
On June 30, the Bank, as authorized by the loan documents, paid Bellwood’s delinquent property taxes of $114, 456.46 to Smith County. Also on June 30, BOT Real Estate (BOT), a limited liability company formed by Cawley, paid the Bank $114, 456.46. On July 1, the Bank made demand on Bellwood and the guarantors for reimbursement of the $114, 456.46 delinquent property tax payment it had made the day before. No reimbursement was made, and the Bank subsequently sold the loan to BOT. BOT promptly began foreclosure proceedings against Bellwood on the golf course, which it then purchased at the foreclosure sale. BOT later took a deficiency judgment against Anderton. In 2011, Anderton filed suit in Smith County against Relators alleging, among other causes of action, common law and statutory fraud.
The chronology leading to the discovery dispute before this court developed as follows:
October 11, 2011
Anderton served Relators with sixty-five requests for production (RFPs)
November 9, 2011
Relators filed a motion for a protective order, which included an alternative motion to obtain or compel search terms
November 14, 2011
Relators’ responses to Anderton’s RFPs were due but not filed
February 21, 2012
The trial court held a hearing on Relators’ motion for protective order and denied it without ruling on their alternative motion
March 20, 2012
Anderton filed a motion to compel production
March 22, 2012
Relators filed consolidated objections and responses to Anderton’s RFPs
May 8, 2012
Park Cities Bank, John Dienes, and PCB Smith County Properties, LLC (Bank Relators) filed their first privilege log
May 30, 2012
Bank Relators filed their first amended privilege log
June 1, 2012
Anderton filed a motion to overrule Relators’ claims of privilege
June 8, 2012
Bank Relators filed their second amended privilege log
June 21, 2012
Bank Relators filed their third amended privilege log
July 24 and 26, 2012
The trial court held a hearing on Anderton’s motion to overrule Relators’ claims of privilege, his motion to compel discovery responses, and Relators’ alternative motion to obtain or compel search terms
September 12, 2012
The trial court signed the order that is the subject of this proceeding
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