NO. 12-21-00090-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: BELLA CORP. D/B/A

BROADWAY POWERSPORTS AND

BRADLEY WATSON, 

RELATORS

§

§

§

ORIGINAL PROCEEDING

OPINION

Relators Bella Corp. d/b/a Broadway Powersports and Bradley Watson filed this original 

proceeding to challenge Respondent’s order granting net worth discovery.1 We conditionally 

grant the writ.

BACKGROUND

Real Parties in Interest J. Greenberg Limited Partnership and Trisis Properties, L.L.C.

(RPIs) sued Relators for trespass to real property, unjust enrichment, private nuisance, 

negligence, negligence per se, and aiding and abetting based on allegations that Relators allowed 

their customers to test drive vehicles and parked on the RPIs’ neighboring land, and showcased 

merchandise on the RPIs’ land without permission. They sought a temporary injunction, a 

permanent injunction, and damages, including exemplary damages. An agreed temporary 

injunction was signed on November 18, 2019. The RPIs subsequently amended their petition to 

allege that Relators installed a commercial wash pit that drained wastewater onto the RPIs’

property.

In November 2020, the RPIs filed a motion for net worth discovery. On June 3, 2021, 

Respondent granted the motion and ordered the discovery due by June 18. Relators filed this 

1 Respondent is the Honorable Austin R. Jackson, Judge of the 114th District Court in Smith County, 

Texas.
2

original proceeding on June 15 and this Court granted their request for a stay of Respondent’s 

order.

PREREQUISITES TO MANDAMUS

Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of 

discretion and there is no adequate remedy by appeal. See In re Daisy Mfg. Co., 17 S.W.3d 654, 

658 (Tex. 2000) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a 

decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. 

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no 

discretion in determining what the law is or in applying the law to the facts. Id. at 840. Thus, a 

clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of 

discretion and may result in mandamus. Id. The relator has the burden to establish the 

prerequisites to mandamus. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.—Tyler 2014, 

orig. proceeding).

ADEQUATE REMEDY

The RPIs contend that Relators failed to show lack of an adequate remedy by appeal. 

They maintain that Relators will not be harmed by production of net worth discovery because a 

protective order is in place and net worth discovery will only be presented to the jury in the 

second phase of trial should the jury find liability.

However, “[m]andamus relief is available when the trial court compels production 

beyond the permissible bounds of discovery.” In re Weekly Homes, L.P., 295 S.W.3d 309, 322 

(Tex. 2009) (orig. proceeding). Whether Respondent ordered net worth discovery within the 

scope of the civil practice and remedies code may be reviewed by mandamus. See In re Boone, 

No. 04-20-00219-CV, 2020 WL 3815921, at *1 (Tex. App.—San Antonio July 8, 2020, orig. 

proceeding) (op.) (mandamus review of net worth discovery order); see also In re Daybreak 

Cmty. Servs. Tex., LLC, No. 10-19-00395-CV, 2020 WL 958457, at *1 (Tex. App.—Waco Feb.

26, 2020, orig. proceeding) (mem. op.) (same); In re Islamorada Fish Co. Tex., LLC, 319 

S.W.3d 908, 910 (Tex. App.—Dallas 2010, orig. proceeding) (op. on reh’g) (same).
3

ABUSE OF DISCRETION

Relators contend that Respondent abused his discretion by granting net worth discovery 

because the RPIs failed to demonstrate an entitlement to the discovery.

Applicable Law

“[I]n cases in which punitive or exemplary damages may be awarded, parties may 

discover and offer evidence of a defendant’s net worth.” Lunsford v. Morris, 746 S.W.2d 471, 

473 (Tex. 1988), disapproved of on other grounds by Walker, 827 S.W.2d at 842. Exemplary

damages may be awarded only if the claimant proves by clear and convincing evidence that the 

harm with respect to which the claimant seeks recovery of exemplary damages results from: (1) 

fraud; (2) malice; or (3) gross negligence. TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(a) 

(West 2015). 

For discovery purposes, however, on a party’s motion and after notice and a hearing, a

trial court may authorize discovery of a defendant’s net worth if the court finds in a written order 

that the claimant demonstrated a substantial likelihood of success on the merits of a claim for 

exemplary damages. Id. § 41.0115(a) (West Supp. 2020). Accordingly, the statute’s plain 

language makes clear that the movant seeking net worth discovery need only show a substantial 

likelihood of success on the merits, not clear and convincing evidence, to be entitled to net worth 

discovery.2 See id.; see also ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 

2017) (when construing a statute, we give effect to the Legislature’s intent, which requires us to 

first look to the statute’s plain language). “A substantial likelihood of success on the merits 

requires a showing of only likely or probable, rather than certain, success.” Schiavo ex. Rel.

Schindler v. Schiavo, 403 F.3d 1223, 1232 (11th Cir. 2005); see BLACK’S LAW DICTIONARY 947 

2 In reliance on a Texas Court of Criminal Appeals opinion, the RPIs maintain that mandamus review is 

improper because the evidentiary standard is a “legal issue of first impression that is neither positively commanded 

nor plainly prescribed.” Assuming that case applies to civil proceedings, the court of criminal appeals also stated, 

“Mandamus relief is inappropriate if the law surrounding the court’s action is unclear.” State ex rel. Wice v. Fifth 

Judicial Dist. Court of Appeals, 581 S.W.3d 189, 194 (Tex. Crim. App. 2018) (emphasis added). The San Antonio 

appellate court has evaluated a net worth discovery challenge and in doing so, addressed whether the movant 

established, by clear and convincing evidence, the elements of gross negligence. See In re Boone, No. 04-20-

00219-CV, 2020 WL 3815921, at *2 (Tex. App.—San Antonio July 8, 2020, orig. proceeding) (op.). But the 

statute’s plain language clearly calls for application of the substantial likelihood of success on the merits standard. 

Based on that plain language, we conclude that the evidentiary standard surrounding Respondent’s action is not 

unclear and mandamus is appropriate. See Wice, 581 S.W.3d at 194 (“even an issue of first impression can qualify 

for mandamus relief when the principle of law is so plainly prescribed as to be free from doubt”).
4

(8th ed. 2004) (likelihood of success on the merits requires that the moving party “show a 

reasonable probability of success in the litigation or appeal”).

If exemplary or punitive damages clearly are not recoverable, net worth information is 

not relevant and, consequently, not discoverable. Islamorada, 319 S.W.3d at 912. When 

reviewing an order authorizing or denying discovery of net worth evidence, we consider only the 

evidence submitted by the parties in support of or in opposition to the motion.3 TEX. CIV. PRAC.

& REM. CODE ANN. § 41.0115(c).

Evidence

The RPIs own the Greenberg North and South Tracts. Watson and his wife own Bella, 

which owned the neighboring Bella Tract until it sold the property to Heath Hicks in 2019, after 

which it leased the property from Hicks. Broadway Powersports, owned by Bella, operated a 

business on the Bella Tract, which included the sale of off-road vehicles. As previously stated, 

the RPIs complain of unauthorized activity by Relators on the Greenberg Tracts, including 

driving, parking, and showcasing merchandise on the South Tract and using a “wash pit” that 

drained onto the North Tract.

According to Watson’s deposition, he and his wife each own fifty percent of Bella and 

Watson oversees operations, “ordering primarily, inventory.” He was at Broadway Powersports 

almost daily. Regarding injuries, he recalled a lawsuit involving a Yamaha vehicle and a 

rollover in which Broadway Powersports was named as a defendant. As for the wash pit, he 

explained that the pit appeared to extend past the boundary line, a fact he did not notice until 

later. He stated, “...when they did it, I didn’t realize it was going to roll out like that. I didn’t 

know they were going to roll it out like that.” As for the test driving, when Watson spoke to 

employee Jonathan Hitt about the South Tract, Hitt did not recall taking anyone up the track. 

Watson identified a particular area “where we were okay with people driving the units ... for test 

3 The RPIs maintain that we should consider both evidence presented in the motion for discovery and 

response and evidence presented regarding Relators’ no evidence summary judgment motion on exemplary 

damages. At the discovery hearing, Relators’ counsel argued that it may be beneficial for Respondent to decide the 

summary judgment before deciding the discovery motion. The RPIs’ counsel had no objection. Respondent ruled 

on the summary judgment motion before ruling on the discovery motion. The discovery order states that 

Respondent reviewed the RPIs’ motion, responses thereto, replies (if any), and oral arguments (if any) in reaching 

his decision. The record does not reveal that Respondent considered the summary judgment evidence when ruling 

on the discovery motion, but even so, Section 41.0115(c) expressly limits our review to evidence submitted by the 

parties in support of or in opposition to the motion for net worth discovery. TEX. CIV. PRAC. & REM. CODE ANN.

§ 41.0115(c) (West Supp. 2020). Accordingly, we will limit our review to the discovery evidence in accordance 

with the statute. 
5

driving,” which included Greenberg property. He added that customers were allowed to test 

drive on “what we now understand” to be the Greenberg property. Watson did not see customers 

or employees driving off-road very often, and not at all after the RPIs’ request to stay off the 

property. 

In another deposition, Tray Whiteside, a former Bella employee, testified that Bella

mechanics drove on the South Tract during his employ and this activity probably began before 

his employment. He never asked the mechanics if they had permission to drive on the South 

Tract. He also drove on the South Tract and assumed it was okay to do so. In 2009 or 2010, he 

stopped allowing employees to drive on the South Tract after a Broadway Powersports service 

technician had an accident on the South Tract. He did not want employees driving on the tract 

because of the dirt, erosion, and safety issues. He acknowledged that someone could be hurt. He 

later learned that “they didn’t want anybody over there.”

In his declaration, Sam Greenberg averred that he never gave Watson, Bella, or anyone 

associated with them, permission to use the Greenberg tracts to park vehicles, test drive vehicles, 

or drain wastewater/chemicals. But he has seen Bella employees and customers park on the 

South Tract and showcase merchandise on the South Tract, and he has seen the off-road trails 

that run from the Bella Tract though the South Tract. Sam explained that the trails are consistent 

with off-road tracks of the type of vehicles sold by Relators and that no one associated with the 

RPIs created the trails. The declaration incorporates a photograph, which Sam states depicts 

three vehicles, none of which belong to the RPIs, parked on the South Tract. He contacted law 

enforcement to warn Bella and its employees off the land; he saw the officer enter the building 

and speak with a Bella representative. Sam states that the “trespasses” caused erosion of soil 

because the off-road vehicles turn the soil into fine sand and destroy the vegetation. He did not 

feel comfortable entering the property, knowing someone else may be on the property without 

permission. He especially felt this way after seeing a photograph on Broadway Powersports’

website, which depicted an employee seated on a vehicle and “wielding firearms on the 

Greenberg Land.” Sam explained that the trespass caused annoyance, mental anguish, and 

discomfort because of the knowledge that Relators used the property without permission and 

someone could be harmed by the unauthorized activity. According to Sam, the trespassing

continued despite two cease and desist letters and calls to law enforcement to warn Relators’

employees off the Greenberg property. He explained that, after filing the lawsuit, he learned that 
6

Relators “secretly” operated a commercial wash pit that used the North Tract “as a dumping 

ground for wastewater and sludge.” Sam installed cameras, which caught video footage of 

Relators’ employees draining wastewater, debris, and chemical sludge onto the North Tract.

In his declaration, Michael J. Collins stated that he went to Broadway Powersports on 

August 28, 2019, and encountered a trailer and several trucks on the South Tract. It was 

apparent to him that the equipment and trucks belonged to Bella employees or other people at 

Broadway Powersports. On September 3, he returned to Broadway Powersports and the 

salesman, Hitt, offered a test drive. Hitt rode with Collins and directed Collins to drive “over in 

the dirt behind the cars,” which Collins knew to be the South Tract. Collins stated, “so it was 

clear he was directing me to drive further into the Greenberg South Tract.” He drove the vehicle 

partially up the South Tract’s slope. Collins test drove a second vehicle, with Hitt riding along, 

also driving onto the South Tract.

Attorney Jon Rowan stated in his declaration that he sent a letter to Bella and Watson on 

the RPIs’ behalf, which instructed them to immediately cease and desist from using Greenberg 

land. Specifically, a letter dated September 19, 2017 states:

It has come to our attention that you are trespassing upon my clients’ properties for the purposes 

of offering vehicles for sale and conducting illegal and inappropriate “test drives”, amongst 

possibly other things. The Greenberg interests therefore demand that you immediately cease such

activities and any other activity on my clients’ properties, and desist from such activity in the 

future, and comply with other requirements set forth in this letter.

...

The continued use by you and your business of my client’s Properties creates an unsafe situation

and causes damage to my clients’ real property.

Therefore, The Greenberg interests demand that Bella Corp., Broadway Powersports, its 

employees, clients and owners immediately cease and desist from all further use of my clients’

properties for any purposes. Additionally, my clients demand that you warn any employees, 

invited guests, and others to abide by these demands. 

My client further demands that you provide a written confirmation to my clients[] stating your 

intention to change your policy with respect to “test drives” and any continued use of my clients’

property by the close of business on September 27, 2017. Any failure or delay in complying with 

these demands will likely compound the damages for which you may be liable. If my clients do 

not receive a timely and satisfactory response, they are prepared to use all remedies available, 

including the filing of a civil lawsuit to restrain these actions, compensate for damages and

reimburse out of pocket expenses including attorneys’ fees without further notice to you. I will 

also advise my client to contact the local authorities to report this behavior should it continue to 

occur.
7

The letter further states that Rowan informed Watson “several years ago” that the RPIs owned 

the properties to the south and north and have owned these properties the entire time that Watson 

operated his business. Rowan states that he followed up with a telephone call to Watson 

reiterating that he must stop using Greenberg land. He sent a second letter to Bella and Watson 

to again instruct that they refrain from entering Greenberg land for any reason. That letter, dated 

November 9, 2017, referenced a telephone conversation between Watson and Rowan regarding 

activity on the Greenberg property. The letter states:

Pursuant to our conversation, and in an attempt to avoid any confusion in the future, you are to 

refrain from entering upon the Greenberg property for any reason whatsoever at any time. Safety 

is of utmost concern for my client and any entry onto this property will compromise these safeties 

and will be unacceptable.

In response to Greenberg’s requests for admission, Relators admitted that the RPIs own

the Greenberg land, Bella has parked vehicles on the South Tract, and Bella customers have test

driven vehicles and/or equipment on the South Tract. Also, in 2018, Watson made an offer to 

purchase a portion of the South Tract, but the RPIs declined to sell the property.

In his affidavit attached to Relators’ response to the motion for discovery, Watson stated 

that he is an authorized representative and shareholder of Bella, who leased or owned the Bella 

Tract during the relevant time period. Watson stated that he did not individually own or lease the 

Bella Tract, have any employees, customers, or merchandise, or use the Greenberg property; 

rather, his involvement in the properties and claims at issue is limited to his role as a principal of 

Bella. He explained that the concrete pavement, trough, and metal grate (wash pit) was designed 

and constructed to level the area to allow crates to be stacked and to allow Bella’s forklift to be 

safely operated in that area. Before this installation, crates could not be safely stacked and the 

forklift could not be safely operated. Vehicles are also rinsed in that area. Watson 

acknowledged that the rinse water drains onto the North Tract, but stated that it was not apparent 

to him or to Bella that washing the vehicles on the Bella Tract could adversely affect the North 

Tract and there was no visible indication that the washing had any adverse affect on the North 

Tract. According to Watson, the washing activity ceased on or about January 13, 2020. Watson 

also stated that an employee injury occurred in approximately 2010, but he was unaware of any 

customers being injured during a test drive.
8

The RPIs’ experts, Donny Hearn and Leslie Jeske, offered their declarations regarding 

the damage done to the Greenberg Tracts. Hearn and Jeske each opined that the operation and 

use of the wash pit contaminated the North Tract because of the purposeful discharge of 

wastewater and solid-state sludge residue associated with cleaning, degreasing, and removing

sediment, fuel, oil, grease, and other unknown substances from various vehicles, and by the 

application of solvents to perform these cleaning and degreasing activities. Hearn explained as 

follows:

The following Chemicals of Concern or “COCs” were found in the soil samples taken from the 

Greenberg North Tract immediately below the commercial wash pit and in the direct downstream 

path of the waste water flowing from the commercial wash pit: TPH C6-C12, TPH >C12-C28, 

TPH >C28-C35, Benzene, Ethylbenzene, Toluene, Trimethylbenzene (1, 2, 4-), Trimethybenzene 

(1, 3, 5-), Xylene (o-), Xylenes (total), and Benzo(a)pyrene. These COCs were at levels exceeding 

both the respective critical Tier 1 Commercial/Industrial Soil PCL and the critical Tier 1 

Residential Soil PCL. Naphthalene was found in the same area at levels exceeding critical Tier 1 

Residential Soil PCL. In plain English, the soil on the Greenberg Land has been contaminated, and 

the source of that contamination is the commercial wash pit on the Bella Tract.

Jeske’s declaration virtually mirrors this explanation. He adds that use of the wash pit caused 

significant erosion to the creek bank that runs through the North Tract. He stated that damages 

measured by the costs of proper remediation of the North Tract total over $200,000. Jeske

further opined that the destruction to the South Tract’s vegetation, along with significant 

destabilization and soil erosion, is consistent with the continuous use of off-road utility vehicles. 

The cost of remediation totaled $68,000 to $75,000. James Justice, a licensed real estate 

appraiser, provided a declaration stating that the diminution in value to the North Tract resulting 

from contamination totals $507,763.36. He further opined that the diminution in value to the

North Track resulting from erosion caused by ATV traffic totals $172,578.16.

In Relators’ designation of expert witnesses, they state that Dr. Victoria Harkins, a 

professional engineer, was expected to testify (1) to minor TPH contamination that has already 

demonstrated natural degradation and will continue to degrade naturally with time, (2) that 

contamination is limited to “less than a 10’ squared area;” any additional contamination is not 

reasonably expected to be larger than five feet horizontally and two feet vertically; (3) that 

remediation by introduction of a bio-amendment can be completed for $9,390; (4) that the 

volume of water discharged from washing activities is insufficient to cause erosion or creek bed 

damage on the North Tract; and (5) that the damage to the South Tract, if any, allegedly caused 
9

by Relators could be remedied for $3,335 by application of hydromulch, but that this was 

unnecessary because the area would revegetate naturally. Relators anticipated that Joe Bill

Thompson, a real estate appraiser, would testify that the diminution in market value to the North 

Tract associated with alleged contamination is $140,000 and there is no diminution in value to 

the South Tract.4

Analysis

The question before us is whether the RPIs demonstrated a substantial likelihood of

success on the merits of a claim for exemplary damages; specifically, whether the RPIs presented 

some evidence of fraud, malice, or gross negligence. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 41.0115(a), 41.003(a). In their motion for net worth discovery, the RPIs argued that Relators’

conduct met the standards for malice and gross negligence.5

We first address malice. Malice constitutes a specific intent by the defendant to cause 

substantial injury or harm to the claimant. Id. § 41.001(7) (West Supp. 2020). “Specific intent 

means that the actor desires to cause the consequences of his act, or that he believes the 

consequences are substantially certain to result from it.” Vaughn v. Drennon, 202 S.W.3d 308, 

321 (Tex. App.—Tyler 2006, no pet.). Malice may be proven by direct or circumstantial 

evidence. Id. at 322. A corporation is liable for exemplary damages only if it (1) authorizes or 

ratifies an agent’s malice, (2) maliciously hires an unfit agent, or (3) acts with malice through a 

vice principal. Qwest Int’l Commc’n, Inc. v. AT&T Corp., 167 S.W.3d 324, 326 (Tex. 2005). 

4 Relators argue that evidence predating the applicable statute of limitations cannot be considered, i.e., 

evidence of actions before September 2017. This would include evidence such as the employee injury in 2010,

Whiteside’s testimony to actions that occurred before September 2017, and the photograph of the employee holding 

firearms. But given our disposition of this proceeding, we need not address this contention. 

5 The RPIs contend that mandamus should be denied because granting relief would require us to address the 

following disputed areas of fact: (1) whether Relators had the requisite intent for malice; (2) whether Relators had 

the requisite intent for gross negligence; (3) the extent and level of danger involved with Relators’ test-driving 

activities on the South Tract; and (4) the extent and level of danger involved with Relators’ use of the commercial 

wash pit that discharged contaminated water onto the North Tract. An appellate court may not deal with disputed 

areas of fact in an original mandamus proceeding. In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig. 

proceeding). It is within the trial court’s province to resolve matters regarding witness credibility and the weight to 

be assigned the evidence. See In re Walton, No. 11-16-00230-CV, 2017 WL 922418, at *2 (Tex. App.—Eastland 

Feb. 28, 2017, orig. proceeding) (mem. op.); In re M.C.W., 401 S.W.3d 906, 907 (Tex. App.—Amarillo 2013, orig. 

proceeding) (per curiam). “If the record contains legally sufficient evidence both against and in support of the trial 

court’s decision, then mandamus will not lie because weighing conflicting evidence is a trial court function.” In re 

Pirelli Tire, L.L.C., 247 S.W.3d 670, 686 (Tex. 2007) (orig. proceeding) (Johnson, J., dissenting); see also Walton, 

2017 WL 922418, at *1. Thus, we will not disturb Respondent’s ruling so long as it is supported by the evidence.
10

Relators contend there is no evidence to support a finding of specific intent on the part of 

Relators or anyone associated with them. The RPIs argue the following evidence supports

specific intent: “(1) Relators had actual knowledge of their boundary line but used the Greenberg 

Land anyway; (2) the Greenberg Family repeatedly told Relators to stop using the Greenberg 

Land; (3) Relators wished to purchase the Greenberg Land but the Greenberg Family refused to 

sell to them; and (4) Relators continued their conduct despite (1), (2), and (3).” The RPIs 

maintain that Bella authorized and ratified the actions of its employees and customers because it

knew the test drives and washing activities were occurring and was put on notice by Rowan’s

letters, but continued authorizing the activities, took no action against employees and no action 

to stop customers, accepted the activities and profited from sales secured by illegal test drives, 

and benefitted from the washing activities. They further maintain that Bella’s vice-principals 

committed malicious and grossly negligent acts, arguing that Watson, Whiteside, and Adam 

Ward, another Bella employee, are all vice-principals. 

There is evidence from which Respondent could reasonably conclude that Watson is a 

vice-principal. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 922 (Tex. 1998) (“Vice 

principal” encompasses corporate officers, those with authority to employ, direct, and discharge 

servants of the master, those engaged in the performance of nondelegable or absolute duties of 

the master, and those to whom the master has confided the management of the whole or a 

department or a division of the business). Watson acknowledged that he oversees operations, 

owns fifty percent of Bella, and was at Broadway Powersports almost daily. The pertinent 

record does not speak to Ward’s duties, but does contain some indication that Whiteside may 

have acted in a managerial capacity. 

And we agree that the pertinent record contains evidence showing that the RPIs own the 

Greenberg Tracts, Relators were aware of the RPIs’ ownership and the boundary lines, Relators 

admitted that customers test drove on the Greenberg Tracts and equipment was parked on 

Greenberg land, Relators were told to stop using the Greenberg Tracts, but the activities

continued despite warnings from law enforcement and the RPIs’ counsel, and the activities on 

the Greenberg Tracts caused some damage. The record also contains evidence that Relators 

were advised that their continued activities on the Greenberg Tracts “creates an unsafe situation 

and causes damage to [the RPIs’] real property” and that “entry onto this property will 

compromise these safeties and will be unacceptable.” 
11

But none of this evidence establishes that Relators desired the consequences of any 

unauthorized activities on the Greenberg Tracts, i.e., erosion and contamination of the land or 

injury to others, or that they believed such consequences to be substantially certain to result from 

their actions. Rowan’s letters did not identify the types of harm or injury that Relators’ activities

allegedly caused; thus, the letters did not place Relators on notice that their actions were causing 

substantial damage to the land itself. Regarding the wash pit, Respondent was free to disbelieve

Watson’s statements that he did not realize it would “roll out like that” and that an adverse affect 

was not apparent. Even so, there is no evidence that Relators built and used the wash pit with any 

desire to contaminate the North Tract or with any belief that contamination was substantially 

certain. See c.f. Vaughn, 202 S.W.3d at 323-24 (Vaughn wanted Drennons to move, wanted 

their property for himself, and was unhappy with the Drennons’ refusal to install drainage 

ditches in front of their house; evidence showed Vaughn desired to cause flooding by use of 

dams or that flooding was substantially certain to result); c.f. Withrow v. Armstrong, No. 10-05-

00320-CV, 2006 WL 3317714, at *5 (Tex. App.—Waco Nov. 15, 2006, pet. denied) (mem. op.)

(Withrow disliked Armstrong and inserted poison into tree’s roots with specific intent of 

damaging tree in order to cause substantial injury to Armstrong; “Withrow’s conduct was 

certainly not designed to promote some good purpose, but was initiated with ‘complete 

disregard’ for Armstrong’s property rights and with the intent of damaging her neighbor’s 

property”). 

And while the types of vehicles sold by Relators, such as all-terrain vehicles, may be 

considered dangerous, that fact is not evidence of a specific intent to cause substantial injury or 

harm to anyone driving on, parked on, or present on the South Tract. This is particularly true 

given that the record contains evidence of only two vehicle-related injuries that occurred over the 

several years in which Bella operated Broadway Powersports. Common sense dictates that 

driving an all-terrain type vehicle on the South Tract would cause some disturbance to the soil or 

some damage to the vegetation, but the record is simply devoid of evidence reflecting that 

Relators desired to cause substantial erosion to the tune of thousands in remediation costs, or 

believed such consequences to be substantially certain. See c.f. Wilen v. Falkenstein, 191 

S.W.3d 791, 802 (Tex. App.—Fort Worth 2006, pet. denied) (“that Wilen knew Falkenstein did 

not want Wilen’s tree service to trim his tree, that Wilen knew Falkenstein was out of town on 

vacation, and that Wilen knew Falkenstein wanted to take care of his own trees, but nonetheless 
12

directed his tree service to enter Falkenstein’s property and cut five feet off a tree that was 

obstructing Wilen’s view—is evidence of ill-will, spite, and a specific intent on the part of Wilen 

to cause substantial injury to Falkenstein”); c.f. Holubec v. Brandenberger, 214 S.W.3d 650, 

652 (Tex. App.—Austin 2006, no pet.) (nuisance created by Holubecs was severe enough to 

force Brandenbergers from home, Holubecs were aware of nuisance’s severity but took no action 

to alleviate it, Holubecs denied the existence of conditions and circumstances that a reasonable 

fact finder would not find debatable, evidence showed Holubecs knowingly exacerbated 

nuisance due to ill-will and litigation between parties).

Nor is Watson’s failed attempt to purchase a portion of Greenberg land demonstrative of 

specific intent. Beyond mere speculation, the record contains no evidence from which it could 

be inferred that Relators’ activities continued in retaliation for the failed purchase. See c.f.

Vaughn, 202 S.W.3d at 323-24. And speculation is not evidence. Hurley v. Tarrant County, 

232 S.W.3d 781, 787 (Tex. App.—Fort Worth 2007, no pet.); see Am. Tobacco Co., Inc. v. 

Grinnell, 951 S.W.2d 420, 437 (Tex. 1997) (“Speculation cannot create a fact issue”); see also

McKinney Ave. Prop. No. 2, Ltd. v. Branch Bank & Trust Co., No. 05-14-00206-CV, 2015 WL 

3549877, at *9 (Tex. App.—Dallas June 5, 2015, no pet.) (mem. op.) (while party is entitled to 

reasonable inferences from evidence, party cannot create fact issue based on mere speculation); 

Univ. of Tex. at El Paso v. Muro, 341 S.W.3d 1, 5 (Tex. App.—El Paso 2009, no pet.) (“When 

circumstantial evidence is so slight that the choice between opposing plausible inferences 

amounts to nothing more than speculation, it is legally no evidence at all.”). 

There is simply no evidence in the pertinent record to demonstrate a specific intent by 

Relators, in any capacity, to cause substantial injury or harm to the RPIs. See TEX. CIV. PRAC. &

REM. CODE ANN. § 41.001(7); c.f. Bennett v. Reynolds, 315 S.W.3d 867, 884-85 (Tex. 2010) 

(vice principal used corporate authority to direct corporate employees, on corporation time and 

land, to load neighbor’s cattle and sell them at auction, while using corporate equipment to 

convert the cattle; thus, the Corporation authorized the doing and manner of the conversion, and 

vice principal’s conduct was chargeable to the Corporation for purposes of exemplary damages). 

Accordingly, Respondent could not reasonably conclude that the RPIs demonstrated a substantial 

likelihood of success on the merits of a claim for exemplary damages based on malice. See TEX.

CIV. PRAC. & REM. CODE ANN. § 41.0115(a).

We now address gross negligence, which means an act or omission:
13

(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence 

involves an extreme degree of risk, considering the probability and magnitude of the potential 

harm to others; and

(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless 

proceeds with conscious indifference to the rights, safety, or welfare of others.

Id. § 41.001(11). Under the objective component, “extreme risk” is not a remote possibility or 

even a high probability of minor harm, but rather the likelihood of the plaintiff’s serious injury.

U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). The subjective prong, in turn, 

requires that the defendant knew about the risk, but the defendant’s acts or omissions 

demonstrated indifference to the consequences of its acts. Id. Like malice, gross negligence 

may be proven by direct or circumstantial evidence. Vaughn, 202 S.W.3d at 322. “A

corporation may be liable in punitive damages for gross negligence only if the corporation itself 

commits gross negligence.” Ellender, 968 S.W.2d at 921. As with malice, a corporation may be 

so liable if it authorizes or ratifies an agent’s gross negligence, is grossly negligent in hiring an 

unfit agent, or commits gross negligence through the actions or inactions of a vice principal. Id. 

at 921-22.

Regarding the objective component, Relators contend that the RPIs’ “evidence doesn’t 

show that objectively, from Bella’s perspective at the time, there was any likelihood of the 

[RPIs’] serious injury from the powerwash run-off, any test drives, or anything else the [RPIs]

accuse.” The RPIs maintain that test driving off-road vehicles over the South Tract’s uneven 

terrain, including operating mowing equipment while brandishing firearms, and discharging 

wastewater onto the North Tract involve an extreme degree of risk. 

It is axiomatic that there is some danger in driving an off-road vehicle on unimproved 

terrain, but “[t]here is a difference between ‘not very safe’ and a risk so great as to make it highly 

probable that harm would follow.” City of Dalhart v. Latham, 476 S.W.3d 103, 109 (Tex. 

App.—Amarillo 2015, pet. denied). Evidence of two accidents over several years simply does 

not equate with an inordinately risky act or omission. See Medina v. Zuniga, 593 S.W.3d 238, 

249 (Tex. 2019) (“while pedestrian traffic was not negligible, we also cannot conclude that 

driving through the parking lot at unsafe speeds at the day and time in question, while certainly 

risky, would pose an extreme risk as contemplated by the objective component of gross 

negligence”). The same is true of sitting on a stationary vehicle holding unloaded handguns; 

there is no evidence the vehicle was in motion. The pertinent evidence, as it stands, merely gives 
14

rise to a remote possibility of harm resulting from the off-road driving. And a remote possibility 

is insufficient to create an extreme risk. See Waldrip, 380 S.W.3d at 137. 

Nor is there evidence that the wash pit involved an extreme degree of risk. While 

washing and rinsing vehicles, causing chemicals to wash onto the North Tract may be negligent, 

it does not give rise to the type of serious risk that satisfies the gross negligence standard. See 

c.f. Boatman v. Lites, 970 S.W.2d 41, 46 (Tex. App.—Tyler 1998, no pet.) (“destruction of a 

sizable portion of real property by erosion was, objectively, serious harm, and [] the diversion of 

surface waters by the Boatmans constituted an extreme danger that that particular harm would 

occur”); see Terminix, Inc. v. Right Away Foods Corp., 771 S.W.2d 675, 680-681 (Tex. App.—

Corpus Christi 1989, writ denied) (use of twice the normal quantity of poison during fumigation, 

creating conditions favorable to corrosion in warehouse, and failure to adequately instruct 

personnel on how to protect equipment from poison did not amount to evidence of gross 

negligence). Relators’ continued activities on the property, after being told to cease and desist 

because of safety and damages issues, is certainly careless and thoughtless. But a merely 

thoughtless, careless, or not inordinately risky act or omission cannot be grossly negligent. See

Medina, 593 S.W.3d at 249 (“[g]ross negligence can be supported only by an extreme degree of 

risk”).

Based on the pertinent record, we conclude that there is no evidence of an act or 

omission, which when viewed objectively from Relators’ standpoint at the time of its occurrence,

involved an extreme degree of risk, considering the probability and magnitude of the potential 

harm to others. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11)(A). Absent evidence of 

this objective component, we need not address the subjective component. See Medina, 593 

S.W.3d at 250. Respondent could not reasonably find that the RPIs demonstrated a substantial 

likelihood of success on the merits of a claim for exemplary damages based on gross negligence.

See TEX. CIV. PRAC. & REM. CODE ANN. § 41.0115(a). 

DISPOSITION

Having determined that no evidence supports a finding of substantial likelihood of 

success on the merits of an exemplary damages claim, we conclude that Respondent abused his 

discretion by granting the RPIs’ motion for net worth discovery. Accordingly, we conditionally 

grant Relators’ petition for writ of mandamus. We direct Respondent to vacate his June 3, 2021
15

order granting net worth discovery. We trust Respondent will promptly comply with this 

opinion and order. The writ will issue only if the trial court fails to do so within ten days of the 

date of the opinion and order. The trial court shall furnish this Court, within the time of 

compliance with this Court’s opinion and order, a certified copy of the order evidencing such 

compliance. We lift our stay of June 15, 2021. 

BRIAN HOYLE

 Justice

Opinion delivered August 18, 2021.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)
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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

ORDER

AUGUST 18, 2021

NO. 12-21-00090-CV

BELLA CORP. D/B/A BROADWAY POWERSPORTS

AND BRADLEY WATSON,

Relators

V.

HON. AUSTIN R. JACKSON,

Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by Bella 

Corp. d/b/a Broadway Powersports and Bradley Watson; who are the relators in appellate cause 

number 12-21-00090-CV and the defendants in trial court cause number 19-2303-B, pending on 

the docket of the 114th Judicial District Court of Smith County, Texas. Said petition for writ of 

mandamus having been filed herein on June 15, 2021, and the same having been duly 

considered, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition 

for writ of mandamus be, and the same is, hereby conditionally granted.

And because it is further the opinion of this Court that the trial judge will act 

promptly and vacate his order granting net worth discovery of June 3, 2021; the writ will not issue 

unless the HONORABLE AUSTIN R. JACKSON fails to comply with this Court’s order 

within ten (10) days from the date of this order.

By memorandum opinion.

Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.