Opinion=20
issued July 27, 2006 =
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-05-00489-CV
____________
RANDY G. CALHOUN, =
Appellant
V.
STEVEN =
YING, =
Appellee
On Appeal from the 157th =
Judicial=20
District Court
Harris =
County,=20
Texas
Trial Court Cause No. =
2002-63496
MEMORANDUM=20
OPINION
&nbs=
p;Appellant, Randy G.=20
Calhoun, challenges the trial court=E2=80=99s take-nothing =
judgment, entered after=20
a jury verdict, in his suit against appellee, Steven Ying, for =
common law=20
conversion and civil liability for theft. ![3DFootnote](3D"")
In one =
issue, Calhoun=20
contends that the trial court erred in quashing his discovery =
attempts and=20
granting Ying=E2=80=99s motion for protection of Ying=E2=80=99s =
financial records from=20
discovery.
&nbs=
p;We=20
affirm.
Factual and Procedural =
BackgroundOn=20
December 21, 2001, Calhoun and Joyce Ying-Calhoun, =
appellee=E2=80=99s sister,=20
divorced.
In the =
divorce=20
proceeding, as part of the family property settlement, the family =
district=20
court awarded Calhoun =
=E2=80=9C125 ounces of=20
maple leaf and American eagle gold coins=E2=80=9D that were =
=E2=80=9Cin the possession of=20
Joyce Ying-Calhoun.=E2=80=9D However, when =
Ying-Calhoun surrendered the property in her =
possession=20
pursuant to the divorce decree, she gave Calhoun only 100 gold=20
coins.
<=
/SPAN>On=20
June 19, 2002, Calhoun filed a =E2=80=9CMotion for Contempt and =
Clarification=E2=80=9D in=20
the divorce proceeding, asserting that Ying-Calhoun had not =
surrendered=20
the gold coins and other personal property as ordered in the =
decree.=20
Calhoun also served on Ying a notice of intention to take his oral =
deposition, accompanied by a subpoena duces tecum for certain =
financial=20
records and other documents that Calhoun asserted could show that =
Ying had=20
sold the twenty-five gold coins that Ying-Calhoun had failed to =
return.=20
<=
/SPAN>At=20
the deposition, Ying stated =
that he=20
had brought all of the items requested in the subpoena duces tecum =
within=20
his possession, namely, his =
checkbook, which had a few loose deposit slips inside. =
Calhoun=E2=80=99s counsel then suspended =
the deposition=20
pending a court ruling on the sufficiency of Ying=E2=80=99s =
compliance with the=20
subpoena.
<=
/SPAN>Calhoun=20
then filed a motion in the divorce proceeding seeking to hold Ying =
in=20
contempt for failing to comply with the subpoena duces tecum. In =
response,=20
Ying filed an original answer to the motion for contempt, a motion =
for=20
rule 13 sanctions,
a motion =
to quash=20
Calhoun=E2=80=99s subpoena, and a motion for protection. In ruling =
on the motions,=20
the family district court dismissed Calhoun=E2=80=99s motion for =
contempt, ordered=20
him and his attorney to pay =
$500 in=20
rule 13 sanctions,
and =
quashed =E2=80=9Cthe=20
remainder of [Ying=E2=80=99s] deposition.=E2=80=9D The court =
further ordered that prior to=20
any additional deposition of Ying, =E2=80=9Ca ruling be obtained =
by motion, notice=20
and hearing to determine the scope of such additional =
discovery.=E2=80=9D=20
<=
/SPAN>On=20
December 16, 2002, Calhoun filed the=20
instant suit alleging that Ying had entered his home and had taken =
and=20
converted the twenty-five gold coins as well as various other =
personal=20
property. On February 10, 2003, Calhoun served Ying with his first request for production, =
seeking the=20
same financial records that he had previously requested by the =
subpoena=20
duces tecum at Ying=E2=80=99s deposition in the divorce=20
proceeding.
On March =
4, 2003,=20
Ying filed a motion to =
quash, a=20
motion for protection, and a motion for rule 13 sanctions =
asserting that=20
he had previously =E2=80=9Cproduced everything that he possessed =
at the time of=20
the deposition that was responsive to the subpoena duces =
tecum.=E2=80=9D=20
<=
/SPAN>On=20
May 23, 2003, the trial court held a hearing on Ying=E2=80=99s =
three motions. At the hearing, Ying =
presented the court with copies of two =
orders from=20
the divorce proceeding=E2=80=94the order=20
quashing the remainder of Ying=E2=80=99s deposition in the divorce =
proceeding and=20
the order requiring Calhoun and his attorney to pay a sanction of =
$500 to=20
Ying=E2=80=99s counsel for Calhoun=E2=80=99s frivolous motion for =
rule 13 sanctions. The=20
trial court considered these documents over Calhoun=E2=80=99s =
objection that the=20
copies were =E2=80=9Cunauthenticated=E2=80=9D and had not been =
served on Calhoun=20
prior to the =
hearing. At the conclusion of the hearing, the =
trial court=20
granted Ying=E2=80=99s motion to quash and motion for=20
protection,
but =
denied his motion=20
for rule 13 sanctions. The trial court noted that Calhoun had =
already had=20
an opportunity to depose Ying and request Ying=E2=80=99s financial =
records in the=20
divorce proceeding. Thus, it protected Ying from identical =
discovery=20
requests in connection with Calhoun=E2=80=99s conversion and civil =
theft suit.=20
However, the trial court made clear that if Calhoun had =E2=80=9Ca =
new request=20
that=E2=80=99s something new and different . . . [Ying] =
can=E2=80=99t rely upon the=20
[divorce proceeding] order if it=E2=80=99s something new.=E2=80=9D =
<=
/SPAN>On=20
September 23, 2003, Calhoun served notice that he intended to =
subpoena=20
Ying=E2=80=99s brokerage account records from UBS Painewebber, =
Inc. Also, on=20
October 7, 2003, Calhoun served Ying notice that he intended to =
subpoena=20
Ying=E2=80=99s bank account records from Bank One. On October 7, =
2003, Ying again=20
filed a motion to quash the two subpoenas and a motion for =
protection,=20
asserting that the request was overly broad, irrelevant, and =
harassing.=20
Nearly one year later, on September 1, 2004, Calhoun filed a =
motion to=20
compel discovery requesting that the trial court allow him to =
subpoena=20
Ying=E2=80=99s bank and brokerage account records. On September 3, =
2004, the trial=20
court held a hearing on the motions. In response to =
Calhoun=E2=80=99s motion to=20
subpoena the records, Ying asserted that Calhoun had neither =
agreed to any=20
restrictions regarding the breadth of the production of =
Ying=E2=80=99s financial=20
records nor agreed to pay the costs associated with the production =
of such=20
records. Calhoun=E2=80=99s =
counsel agreed=20
that he had objected to paying the cost of producing the records, =
but=20
stated that he =E2=80=9C[could not] agree to spend [his] =
client=E2=80=99s money unfairly.=E2=80=9D=20
Finding that Calhoun had not accepted Ying=E2=80=99s =
=E2=80=9Clegitimate compromise=E2=80=9D to=20
provide the financial records at Calhoun=E2=80=99s expense, =
the trial court denied Calhoun=E2=80=99s =
motion to compel=20
discovery and granted Ying=E2=80=99s motion to quash and his =
motion for=20
protection.
<=
/SPAN>On=20
December 13, 2004, the jury trial began on Calhoun=E2=80=99s =
conversion and theft=20
suit. The jury returned a verdict of no liability on both theories =
of=20
recovery and awarded Ying attorneys=E2=80=99 =
fees.
Standard of=20
Review
<=
/SPAN>We review the trial court=E2=80=99s =
rulings on discovery=20
matters for an abuse of discretion. In re CSX Corp., 124 S.W.3d 149, =
152 (Tex.=20
2003); Smith v. Gayle, 834 S.W.2d 105, 107 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1992, orig. proceeding). A=20
trial court abuses its discretion if its ruling was arbitrary or=20
unreasonable or it acted =
without=20
reference to guiding rules and principles. Gen. Tire, Inc. v.=20
Kepple, 970 S.W.2d 520, 526 (Tex. 1998). A trial court abuses =
its=20
discretion =E2=80=9Cby ordering discovery that exceeds that =
permitted by the rules=20
of procedure.=E2=80=9D CSX Corp., 124 S.W.3d at 152.=20
Discovery Orders
<=
/SPAN>In=20
his sole issue, Calhoun argues that the trial court abused its =
discretion=20
in quashing his discovery attempts and in granting protection for =
Ying=E2=80=99s=20
financial records from discovery because it =E2=80=9Cbased [its] =
orders on an=20
erroneous finding that =
[Ying] had=20
previously responded to the same discovery requests in the Calhoun =
divorce=20
proceeding.=E2=80=9D Ying counters that the trial court=E2=80=99s =
orders were appropriate=20
because he had already complied with the discovery request during =
the=20
divorce proceeding and the protection order was necessary to =
prevent=20
unnecessary expense and harassment.
<=
/SPAN>In=20
general, a party may obtain discovery regarding any matter that is =
not=20
privileged and is relevant to the subject matter of the pending =
action.=20
Tex. R. Civ. P. =
192.3(a).=20
The responding party is =
required =E2=80=9Cto=20
produce a document or tangible thing that is within the =
person=E2=80=99s=20
possession, custody, or control.=E2=80=9D Tex. R. Civ. P. =
192.3(b).=20
=E2=80=9CPossession, custody, or control of an item means that the =
person either=20
has physical possession of the item or has a right to possession =
of the=20
item that is equal or superior to the person who has physical =
possession=20
of the item.=E2=80=9D Tex. R. Civ.=20
P. 192.7(b). The rule does not permit a trial court =
=E2=80=9Cto force a=20
party to create documents which do not exist, solely to comply =
with a=20
request for production.=E2=80=9D In re Guzman, 19 S.W.3d =
524, 525 (Tex.=20
App.=E2=80=94Corpus Christi 2000, no pet.) (citing In re =
Colonial Pipeline=20
Co., 968 S.W.2d 938, 942 (Tex. 1998)). Furthermore, this rule =
cannot=20
be used to force a party to make lists or reduce information to =
tangible=20
form. In re Colonial Pipeline Co., 968 S.W.2d at 942 =
(quoting=20
McKinney v. =
Nat=E2=80=99l Union Fire Ins.=20
Co., 772 S.W.2d 72, 73 n.2 (Tex. 1989)).
<=
/SPAN>In=20
the divorce proceeding, Calhoun requested that Ying produce =
=E2=80=9Call canceled=20
checks, money orders, deposit slips, checkbook ledgers, and bank=20
statements for all checking, savings, cash or other accounts . . . =
in your=20
name or in the name of another, at any financial institution since =
December 17, 2000.=E2=80=9D =
Ying, after=20
producing his checkbook with a few loose deposit slips, testified =
at the=20
deposition that =E2=80=9Cthose documents are not in my possession. =
I don=E2=80=99t know=20
about them; I don=E2=80=99t have them. So there=E2=80=99s nothing =
to bring. I brought you=20
all I have.=E2=80=9D Ying further stated that he does not save or =
organize his=20
bank records. Thus, at the =
May 23,=20
2003 hearing, Ying asserted that he had produced all responsive =
documents=20
in his possession. Based on =
this=20
testimony, the trial court could have reasonably concluded that =
Ying had=20
already complied with the subpoena duces tecum seeking financial=20
records.
<=
/SPAN>Calhoun=20
also asserts that the discovery sought by him and responded to by =
Ying in=20
the divorce proceeding should not have controlled the discovery =
issue in=20
this case.
However, =
this=20
assertion is misplaced. A trial court abuses its discretion by =
imposing a=20
burden on the producing party to furnish duplicative documents. =
See=20
Colonial Pipeline, 968 S.W.2d at 941; Wheeler v. The =
Methodist=20
Hosp., 95 S.W.3d 628, 644 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2002, no=20
pet.). Here, in his first =
request for=20
production in the conversion and civil theft suit, Calhoun requested the same financial =
records that=20
he had, less than one year =
before,=20
subpoenaed Ying to provide in connection with the divorce =
proceeding.=20
Accordingly, the trial court did not abuse its discretion in =
granting=20
Ying=E2=80=99s motion to quash Calhoun=E2=80=99s first request for =
production pertaining=20
to discovery he had previously propounded.
<=
/SPAN>Next,=20
we turn to Calhoun=E2=80=99s third-party discovery subpoenas, =
seeking to access=20
Ying=E2=80=99s financial records from the bank and brokerage firm. =
Initially, we=20
note that civil discovery of customer records maintained by a =
financial=20
institution is governed by section 59.006 of the Finance Code. =
Tex. Civ. Prac. & Rem. Code =
Ann.=20
=C2=A7 30.007 (Vernon Supp. 2005). Section 59.006 provides =E2=80=9Cthe =
exclusive method=20
for compelled discovery of a record of a financial =
institution.=E2=80=9D Tex. Fin. Code Ann.=20
=C2=A7 59.006(a) (Vernon Supp. 2005). The requesting =
party must=20
file a record request with the financial institution and pay the =
financial=20
institution=E2=80=99s reasonable costs of complying with the =
record request.=20
Id. =C2=A7 59.007(b)(1)=E2=80=93(2).
<=
/SPAN>Here,=20
the record reveals that the financial records that Calhoun =
requested were=20
not within Ying=E2=80=99s possession. Thus, these records were not =
within the=20
scope of rule 196. See =
In re State=20
Farm Mut. Auto. Ins. Co., 982 S.W.2d 21, 24 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1998, orig. proceeding) (stating that customer=E2=80=99s =
financial records=20
do not belong to customer but are possessed and owned by financial =
institution). Ying had =
offered to=20
give Calhoun access to the financial records maintained by =
Ying=E2=80=99s bank but=20
only if Calhoun paid for the bank=E2=80=99s costs. However, =
Calhoun refused to pay=20
the costs of such access. Section=20
59.006 of the Texas Finance Code requires the party requesting =
financial=20
records to pay the financial institution=E2=80=99s reasonable =
costs. See=20
Tex. Fin. Code =
Ann.=20
=C2=A7 59.006(b)(2) (Vernon =
Supp. 2005).=20
However, Calhoun refused to =
comply=20
with this requirement. Compliance =
with=20
section 59.006 is a valid reason for granting a protective order. =
See=20
Enviro Prot., Inc. v. Nat=E2=80=99l Bank of Andrews, 989 =
S.W.2d 454, 456 (Tex.=20
App.=E2=80=94El Paso 1999, no pet.). Accordingly, we hold that the =
trial court did=20
not abuse its discretion in quashing Calhoun=E2=80=99s discovery =
attempts and=20
granting protection for Ying=E2=80=99s financial records from =
discovery.=20
<=
/SPAN>We=20
overrule Calhoun=E2=80=99s sole issue.Conclusion
<=
/SPAN>We=20
affirm the judgment of =
the trial=20
court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Terry=20
Jennings
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel =
consists of=20
Justices Jennings, Hanks, and=20
=
Higley. |