In re Peter Gueldner--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00175-CV
IN RE Peter GUELDNER
Original Mandamus Proceeding (1)

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 28, 2003

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

Relator Peter Gueldner seeks a writ of mandamus ordering respondent, Judge John D. Gabriel, Jr., to vacate his order compelling production of bank records belonging to a third-party and imposing sanctions against Peter Gueldner. Because we conclude that Peter Gueldner is entitled to the relief sought, we conditionally grant the writ.

Background

In the underlying action, Peter Gueldner filed an amended petition for modification of suit affecting the parent-child relationship, seeking to modify the terms of possession and access to his children and to decrease the amount he pays in child support. Kimberly Gueldner responded to this suit by filing a counter-petition to increase the amount of child support. Kimberly then served requests for production on Peter. At issue in this appeal is Kimberly's request for production number five:

For the period August 31, 1999 to the present, with respect to all accounts reflecting funds, including mutual funds, on deposit with banks or other financial institutions

(a) statements of account reflecting balances;

(b) originals or true and correct copies, front and back, of all canceled checks;

(c) all deposit slips;

(d) all withdrawal slips;

(e) all documents evidencing transfers into or withdrawals from the account; and

(f) all check registers.

This request applies to all accounts whether in your name or your name jointly with any other person. This request also applies to any account from which you have the right to make withdrawals.

Peter did not object to this request and provided some documents in response, including documents from a personal bank account in both his and Ralph L. Welch's names.

Not satisfied with these documents, Kimberly filed a motion to compel production of a business account for Lynn Design. Ralph L. Welch, Peter's life partner, is the sole proprietor of Lynn Design. Peter works for Welch, helping him with the bookkeeping. In order to pay the business's bills, Welch allowed Peter to sign checks on the business account. On December 10, 2002, the Honorable Fred Shannon heard Kimberly's motion to compel and ordered Peter to produce all documents requested in Kimberly's request for production number five, including but not limited to all bank accounts on which Peter is a signatory. On January 27, 2003, Peter served Kimberly with his second supplemental responses with respect to her request for production number five:

I have previously provided the information requested about all accounts, which are in my name or in my name jointly with another person. As you have been informed, although at one time I was able to sign checks on a business account, the owner of the account revoked my ability to sign his company's checks. The owner of the business account has refused to provide me with any of the requested information concerning the business account. I have none of the requested documents in my possession and I have made a diligent effort to obtain them. As I was never an owner of the account, I do not have the ability to force the bank to turn over the documents to me.

On January 29, 2003, Kimberly filed another motion to compel, stating that the trial court had previously ordered Peter to produce all documents in response to her request for production number five. According to Kimberly, based upon Peter's deposition, she is aware that a bank account "exists or existed under the name of 'Lynn Design' (by whatever name known), on which Peter Gueldner is or was a signatory during the relevant time period."

On January 31, 2003, Associate Judge Richard Garcia heard Kimberly's motion. At the hearing, Peter Gueldner and Ralph L. Welch were the only two witnesses to testify. Peter testified that he is not an owner of the Lynn Design business account at issue, nor has he ever been an owner. According to Peter, Ralph Welch is the owner of the account, and when Peter asked for the documents, Welch refused to give them to him. Peter testified that in the past, he had been a signatory on the account, but that Welch had removed him as one. Welch then testified that he is the owner of Lynn Design and that he is the sole owner of the Lynn Design business account. Welch confirmed that Peter had, at one time, been a signatory on the account but that Welch had removed him as a signatory. According to Welch, he pays Peter to help him with the bookkeeping duties for the business. At the conclusion of the hearing, Associate Judge Garcia orally granted the motion to compel and stated that Peter was to pay Kimberly $300 in attorney's fees.

On February 6, 2003, Peter filed a motion for rehearing, arguing that the evidence at the hearing conclusively showed that Peter did not have possession of the Lynn Design business account records. In a written order dated February 7, 2003, Associate Judge Garcia ordered Peter to produce the Lynn Design business bank account documents, warning that if Peter failed to produce the documents, the trial court would infer non-disclosed income, which might result in a higher child support obligation. Judge Garcia also ordered Peter to pay $300 in attorney's fees as sanctions. Judge John D. Gabriel, Jr. adopted Judge Garcia's order on February 19, 2003. (2)

Mandamus

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); In re Dilley Indep. Sch. Dist., 23 S.W.3d 189, 191 (Tex. App.--San Antonio 2000, orig. proceeding). The trial court abuses its discretion when it fails to properly apply the law to the undisputed facts, when it acts arbitrarily or unreasonably, or when its ruling is based on factual assertions unsupported by the record. In re Dilley, 23 S.W.3d at 191. We must first consider whether the trial court abused its discretion in ordering Peter to produce the Lynn Design business bank account records.

Under Texas Rule of Civil Procedure 192.3(b), a person is required to produce only those documents or tangible things that is "within the person's possession, custody, or control." Tex. R. Civ. P. 192.3(b); GTE Communications v. Tanner, 856 S.W.2d 725, 728-29 (Tex. 1993). "The phrase, 'possession, custody or control,' within the meaning of this rule, includes not only actual physical possession, but constructive possession, and the right to obtain possession from a third party, such as an agent or representative." GTE Communications, 856 S.W.2d at 729. The right to obtain possession is a legal right based upon the relationship between the party from whom a document is sought and the person who has actual possession of it. Id.

Peter argues that the trial court abused its discretion in finding that he had constructive possession of the Lynn Design business bank account records, because the undisputed evidence at the hearing showed that he is not the owner of the account. (3) In response, Kimberly urges that Peter had constructive possession of the documents because he was a signatory on the bank account. For support, Kimberly cites section 30.007 of the Texas Civil Practice and Remedies Code. By its own terms, however, section 30.007 only applies to records that are requested from financial institutions, and has no applicability to Kimberly's request of Peter to produce records in his possession. (4) See Tex. Civ. Prac. & Rem. Code Ann. 30.007 (Vernon 1997); Martin v. Darnell, 960 S.W.2d 838, 843 (Tex. App.--Amarillo 1997, no writ).

The Texas Supreme Court has recently stated that the relationship between a banking institution and its customer is established through a deposit agreement evidenced by a signature card. Am. Airlines Employees Fed. Credit Union v. Martin, 29 S.W.3d 86, 96 (Tex. 2000). Here, the undisputed evidence showed that Welch was the person who had such a relationship with the bank. There is no evidence that Peter entered into a deposit agreement on the account in question. There was evidence that Peter had been a "signatory" on the account and that Peter had been able to sign checks to pay bills for the business. There was no evidence, however, of how the deposit agreement between Welch and the bank defined "signatory" or what rights a "signatory" had in regard to the business account. As such, there was simply no evidence presented during the hearing to support the inference that Peter had the right to access the documents in question. Additionally, it is undisputed that at the time of the hearing before Associate Judge Garcia, Peter did not have the authority to access the bank account records for the Lynn Design business account. For the reasons stated, it was an abuse of discretion for Associate Judge Garcia to order Peter to produce these documents and for Judge Gabriel to adopt Judge Garcia's order.

Further, Peter has no adequate remedy of appeal. He cannot produce documents that he does not possess and by failing to produce those documents, the trial court will infer that he has more income than he has disclosed. See Tilton v. Marshall, 925 S.W.2d 672, 682-83 (Tex. 1996); Walker, 827 S.W.2d at 843. We, therefore, conditionally grant Peter's petition.

Motion for Sanctions

Kimberly has filed a motion for sanctions and asks us to sanction Peter for filing a groundless petition. See Tex. R. App. P. 52.11. As we are granting Peter the relief he sought, we decline to sanction him for filing a groundless petition. Kimberly's motion for sanctions is denied.

Conclusion

Because the trial court abused its discretion in ordering Peter to produce documents associated with the Lynn Design business bank account, we conditionally grant Peter's petition for writ of mandamus. Tex. R. App. P. 52.8(c). Only if the Honorable John D. Gabriel, Jr. fails to withdraw his order of February 19, 2003 will we issue the writ.

Karen Angelini, Justice

1. This proceeding arises out of Cause No. 99-CI-03266, styled In the Interest of J.E.G. and E.A.G., pending in the 225th Judicial District Court, Bexar County, Texas, the Honorable John D. Gabriel, Jr. presiding.

2. Kimberly argues that Peter is really seeking relief from Judge Shannon's earlier order of December 10, 2002 and not this later order signed by Judge Gabriel. Upon our review of the record in this mandamus, it seems clear that Peter seeks relief from Judge Gabriel's order.

3. Kimberly argues in her response that Peter waived this issue by not filing objections to her request for production number five. If, however, the documents in question are not within Peter's possession, custody, or control, he had no need to file objections to the request; the documents in question would not have been applicable to the request.

4. Kimberly has not sought the Lynn Design bank records from the bank. This opinion does not comment on whether she may still seek the documents from the bank itself through the procedure described in section 30.007 of the Texas Civil Practices and Remedies Code.