## NO. 12

- 21

- 00090

- CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE: BELLA CORP. D/B/A BROA D WAY POWERSPORTS AND BRADLEY WATSON , RELATOR S § § § ORIGINAL PROCEEDING

OPINION Relators Bella Corp. d/b/a Broadway P owersports and Bradley Watson filed this ori ginal proceeding to challenge R espondent ’ s order granting net worth disc over y. 1 We conditionally
gra nt the writ.

B ACKGROUND Real Parties in Interest J. Green berg Limited Partnership and Trisis Properti es , L.L.C

. ( RPIs ) s ued Relators for tresp ass to real property, unjust enrichment, private nuisance , negligence , negligence p er se, and aiding a nd abetting b ased on allegations that Relators allow ed their customers to test drive vehicles and park ed on the RPIs ’ neighb oring la nd , and sh owcased

me rchandise on the RPIs ’ land without permission

. They sought a te mporary injunction , a per m ane nt injunction , and damages, includin g exemplary damages. A n agreed temporary injunction was signed on November 18, 2019. The RPIs sub sequent ly amended their petition to allege that Relators installed a comm ercial wash pit that drained wastewater ont o the RPIs ’ property

. In November 2020, the RPIs filed a motion for net worth discovery

. O n June 3, 2021, Respondent granted the motion and ord er e d the d iscovery due by June 18

. Relators file d this

1 R es pon dent is the H onorable Austin R. Jackson, Judge of the 114th Di strict Court in Smith Co unty, Texas.2 original proceeding on June 15 and this Court granted the ir r equest for a stay of Respondent ’ s order.

P REREQUISITES TO M ANDAMUS Mandamus will issue to correct a d iscovery order if the order const itute s a clea r abuse of discretion and there is no ade quate 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 dec isio n so arb itrary 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 discr etion in determining what the la w is o r in app lying the law to the facts. Id . at 840

. Thus, a clear failure by the tri al court to analyze or apply the law correctly will constitute an abuse of discretion and may result i n mandamus

. Id

. The relat or has the bu rd en to establish the prerequisites to mandamus

. In re Fitzgerald , 429 S.W. 3 d 886 , 89 1 (Tex

. App.

— Tyler 2014, orig. proceeding )

.

A DEQUATE R EMEDY The RPIs contend that Relators failed to show lack of an adequa te remedy by appeal

. They maintain that Re lators will not be harmed by production of net worth discovery because a pr otective order is in place and net worth discovery will only be presented to the jury in the second pha se of trial should the jury find li ability

. Ho wever , “ [m] andamus relief is available when the trial court compels production beyond the perm issibl e bo un ds of discovery. ” I n re Weekly Hom es, L.P. , 295 S.W.3d 309, 322 (T ex. 2009) (ori g. proceeding )

. W hether Respondent ordere d n et wort h dis covery w ithin the scope of the civil practice and remedies code may be reviewed by mandamus

. S ee In re Boone , No. 04

- 2 0

- 00219

- CV, 2020 WL 3815921 , at *1 (Tex. App.

— San Antonio July 8, 2020, orig. proceeding) (op

. ) ( m a ndamu s review of net worth discovery o rder ); see also In re Daybreak Cmty. Servs. Tex

. , LLC , No. 10

- 19

- 00 395

- CV, 2020 WL 958457 , at *1 (Tex. App.

— Waco Feb. 2 6, 2020, o rig. proceeding) (mem. op.) ( same ) ; In re Islamorad a Fish Co . Tex., LLC , 319 S.W .3d 908, 91 0 (Tex. App.

— Dallas 2010, orig. pro c eeding) (op. on reh ’ g) (same)

.3 A BUSE OF D ISCRETION Relators contend that Respondent abused his discretion by granting net w orth d iscovery beca u se the RPIs failed to demonstrate an entitlement to the discovery

. Applicable Law

“ [I] n cases in which punitiv e or exemplary damages may be awarded, parties may discove r and offer evidence of a defendant ’ s ne t worth

. ” Lun s ford v. Morris , 746 S.W.2d 471, 4 73 (Tex. 1988) , disapproved of on other grou nds by Walker , 827 S.W. 2d at 84 2

. E xemplary damages ma y be awarded only if the claimant proves by clear and convincing evidence that the harm with re spect to which the claima n t seeks recovery of exemplary damages result s from: (1) fraud; (2) malice; or (3) gross neglige nce. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 41.003(a) (West 2015 )

. F or discover y purposes, however , o n a party ’ s motion and after notice and a hea ri ng, a trial c o urt m ay autho rize discovery of a defendant ’ s n et worth if the court finds in a written order that the claimant demonstrated a substantial likelihood o f success on the merits of a claim for exempl ary damages. Id

. § 41. 0115(a) (West Supp. 2020 )

. Acco rding l y, the statute ’ s plain lang uage makes clear th at the mov ant seeking net worth discovery need only show a subst antial l ikelih ood of suc c e ss on the merits , not clear and convincing evidence, to be entitled to net worth discovery

. 2 S ee id .; s ee also ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 899 (Tex. 2017) ( when constr uing a statute , we g ive effect to the Legislature ’ s intent, whi ch requires us to first look to the statute ’ s p lain langu age )

. “ A s ubstan tial like l ihood of success on the merits requires a showing of only likely or probable, rather than certain, success. ” Schiavo ex. R e l. Sc hindler v. Schiavo , 403 F.3d 1223, 1232 (1 1 th Cir. 2005) ; see B LACK ’ S L AW D ICTION ARY 947

2 In re liance on a Texas Court of Criminal Appeals opin ion, t he RPIs maintai n t hat mandamus review is imprope r bec ause the evidentiary standard is a “legal issue of first im pression th at is neither positively c ommanded nor plainly prescrib ed

. ” Assu m ing th at case applies to civil proceedings , the court of crim i nal app eals also stated,

“ Mandamus relief i s inappro p riate if the law surroundin g the court ’ s action is uncle ar

. ” State ex rel. Wi c e v. Fifth Judi cial Dist. Co urt of Appeal s , 581 S.W. 3d 189, 194 (Tex. C rim. App. 2018) (emphasis added )

. Th e San Antonio
a ppel late court has e valuated a net worth discovery cha l lenge and in doing so, add ressed whether the movant est ablished, by clear and convi nc ing evid ence, the elements of gross negligenc e

. See In re Boon e , No . 04

- 20

- 00219

- CV, 2020 WL 3815921 , at * 2 (Tex. A pp.

— San Antonio July 8, 2020, orig. proceeding) (op

. )

. But the statute ’ s plain l anguage clearl y calls for application of the sub stantial likelihood of suc c e ss on the merits standard

. Based on that plai n lan guage, we conclude that the ev ide ntiary standard sur ro un d ing Responden t ’ s action is not unclear and ma ndamus is appropriate

. S ee Wi c e , 581 S.W. 3d at 194 ( “ even an is sue of first impression can q ual ify for ma ndamus re lief when the principle of law is so plai nly prescribed as to be free from doubt ” )

.4 ( 8 th e d. 2004 ) (l ikeli h ood o f suc cess on the merits require s that the moving party “ sh ow a reasonable probability of success i n the litigation or ap peal ” )

. I f exe mp lary or pun i tive damages cl early are not rec overable, net worth in formati on is not relevant and, consequently , no t discoverable. Islamorad a , 319 S.W

. 3 d at 912

. When revi ew in g an order authorizing or denying discovery of net worth evidence , we consider on ly the evidence submitted b y the part ies in support of or in opposition to the motion

. 3 T EX

. C IV

. P RAC

. & R EM

. C OD E A NN

. § 41.011 5( c )

. Evidence The RP Is own the Greenber g North and South Tr act s

. Watson and his wife own Bella , which own e d the neighbor ing B ella Tract until it sol d the property to Heath Hicks in 2019 , after which i t leased the property from Hicks

. Br o adway Powerspo r ts , owned by Bella, operated a business on the Bella Tract , which includ ed the sale of off

- road vehicles

. As previously st ated, the RPI s complain of un authorized ac tivity by Relato rs on the Greenbe r g Tracts , including driving, parking, and showc asin g mer chandise on the South Tract and using a “ wash pit ” that drained onto the North Tract

. According to Watson ’ s de position, he a nd his wife ea c h ow n fifty perce nt of Bell a an d
Watson overs ees operations , “ ordering primarily, inventory. ” He was at Broadway Pow ersports almost daily

. Regarding injuries, h e rec alled a lawsuit involving a Yamah a veh icle and a rollover in which Broadwa y Powersports was named as a defendant. As for the was h pit, h e explained that th e pit appeared to extend past the boun dary line , a fact he did n ot notice until later

. He stated , “

... when they did it, I didn ’ t real ize it was going to ro ll ou t like tha t. I didn ’ t know they were going to roll it out like that. ” As for the test driving, w hen Watson spoke to employee Jonathan Hitt about the South Tract , Hitt did not recall taking any o ne up the track

. Watson identified a p articular area “ where w e were okay w i th people driving the units

... for test

3 The R P Is maintain that we should consider both evidence p resented in the motion for disc overy and response a nd evidenc e presented re garding Relators ’ n o evidence summary judgment motio n on exemplary damages . At the discovery hearing , Relators ’ counsel argued t h at it m ay be beneficial for Respondent to decide th e summary judgment before deci ding the discovery mo tion

. T he RPIs ’ counsel had no objection

. Resp onden t ruled
on the summary judgment motion before r uling on the discovery moti on. The di scovery order s tat e s that Respondent re viewed the R PIs ’ motio n, respo nses thereto, replies (if any), and oral arguments (if any) in reaching his decision

. The rec ord does n ot reveal that Respondent considered the summ ary j udgment evidence when ruling on t he discovery mo tio n , but even so, Section 41.0 11 5 (c) expressly l imits our review to evidence submitted by t he parties in suppo rt of or in opposi tion to the motion for net worth discovery. T EX

. C IV

. P R AC

. & R EM

. C ODE A N N

. § 41.0115( c ) (West Supp. 2020 ). Accordingly, we w ill limit our review to the discovery evidence in acc ordance with the sta tute

.5 driving, ” which included Greenberg property. He added that customers were allowed to test dr ive on “ what we now und erstand ” t o be the Greenberg property

. W atson did not see customers

o r employees drivi ng off

- r oa d v ery often, and not at all after the RPIs ’ request to stay off t he property. In an other deposition , Tray W hit eside , a former Bella emp loyee, testified t hat Bella mechanics dro ve on the So uth Tra ct during his employ and t his ac tivity probably began b efore his employment. H e never asked the mechanics if they ha d permission to drive on the South Tract. H e al so drove on the South Tract and assumed it wa s okay to do s o. In 2009 or 201 0, h e

s toppe d allowing employees to drive on the South Tract a fter a Broadway Powerspor ts service technician had an accide nt on the South Tract

. H e d id not want emplo yees dri ving on the tract because of th e di rt , erosion , and safety issues

. He acknowledg ed that someone could be hurt. He later lea rned that “ they di dn ’ t want a nyb od y over there. ”
I n his declaration, Sam G reenberg averred that he never gave Watson , Bell a , or anyone associated with them, perm issi on to use the Greenberg tracts t o park ve hicles , test dri ve vehicle s, or d rain wa stewater/chemic als. But he ha s seen Bell a employees and cus tomers park on the South Tra ct and s ho wc ase merchandise on the South Tra ct , and he has seen the off

- road trails that ru n from the Be lla Tract though the South Tr a ct . Sam explained that t he trails a r e con sistent with off

- ro ad tracks of the t ype of vehicl es sold by Relato rs and that no one associate d w ith the
RPIs created the trai ls. The declara tion incorporates a photo grap h, wh i ch S am states depicts three vehi cles , no ne of which belo ng 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 sta t es that the “ tr espasses ” caused erosion of so il because the off

- r oad vehicles turn the soil into fine sa nd and destro y the vegetation. He did not feel comfortable enter ing the property, knowi ng someone else may be on the property without
pe rmission

. He e specially felt this way after seeing a photograph on Broadwa y Powersports ’ website , which de pict ed an employee seated on a vehicle and “ wie lding f irearms on th e Greenberg Land

. ” Sam exp lained that th e tre sp ass caus ed annoyance, men t al anguish, and di scom fort be cause of the kn owledge that Relators used the property without pe rmission and

someone could be ha rmed by the una uthor ized activity

. According to Sam, the trespassing continued despi te two c ease and desist l etters and calls t o law enforcement to war n Rel ators ’ employee s off the Greenberg property

. He explained that, after filing the lawsui t, he lea rned th at6 Relators “ se cretly ” op erat ed a commerci al wash pit that used the North Tract “ as a du mping ground for w astewater and sl u dge. ” Sam installed cam eras, which ca u ght video f ootage of Rela tors ’ employees drai ning wastewater , debris, and che m ical s ludge onto the North Tra c t

. In his declaration, Michael J. Col lins sta ted that he went to Br oadway Power s ports on August 28, 2019 , and encountered a trai ler and several t rucks on the South Tract

. It was apparent to him that the eq uipment and trucks b el onged to Bella employees or other people at Broadway Powersports

. On Septe mber 3, he returned to Bro adway Powers ports an d the salesman , Hitt, of fered a te st d ri v e

. Hitt ro d e with Collins and di re cted Collins to drive “ over in the dirt behind the cars, ” which Collins knew to be t he S outh Tract. Collins stated, “ so it was clear he was directing me to drive further into the Greenberg South Tract. ” He dr ove th e ve hicle partiall y up the South Tract ’ s slope. Colli ns test drove a second vehicle , with H it t r iding along, al so driving onto the South Tract. Atto rney Jon Row an stated in his d eclaration that he sent a l etter to Bella and Watson on the RPI s ’ behalf, which instructed them to immedi ate ly cease and desis t from using Greenberg la nd. Sp ecifically, a l e tter dated September 19, 2017 states :

It has come to our attention that you are tr espassing upon my clients ’ properties for the purpose s of o ffering vehicles for sale and conducting i llegal and inapprop ri ate “ test drives ” , amongs t possi bly other things

. The Greenb erg interests therefo re demand that you imme diately cease s uch activities and any ot her activity on m y clients ’ properties, and desis t from such activ ity in the future, and co mply with other req ui rements set forth in this letter

.

... The contin ue d use by y ou and your business of my client ’ s P r operti es creates an u nsafe situation and cause s damage to my cl ients ’ real property.

The refore , The Greenberg i nte r ests demand that Bell a Corp., Broadway P ow ersports, its employees, clients and owners imme di ately ceas e and desist from all further use of my clie nts ’ properties for any purpos es. Additi onall y, my client s demand that you warn any emplo yees, invited gue sts , and others to abide by these demands. My client further demands that y ou provide a wri tt en confirm ation to my clients [] stating your intention to change your policy with re spect to “ test drives ” and any continued use of my cl ients ’ property by the clo s e of business on Sept ember 27, 2017. Any f ailure or delay in comply ing wit h these demands wi ll likely compound the damages for which you may be li able. If my cli ents do not rec eive a tim ely and satisfact ory response, they are pre pared to use all remedi es a vailable, including t he filing of a civi l lawsuit to restrain these action s, compensate fo r damages an d reimburse out of po cket expenses including attorneys ’ fee s without furth er not ice to you. I will al so advise my client to con tact t he local authorit ies to report this behavi or should it contin ue to
occur.7 The letter fu rther s tates that Rowan informed Wa tson “ several years ago ” that the RPIs owned the properties to the south and n orth and h ave owned th ese p roperties the entire time that W atson
op erated hi s business

. Rowan states that h e follo wed up with a telephone call to Watson

re iterating t hat he must sto p using Greenber g land. H e sen t a second lett er to Bella and Watson
to again instruct t hat they refrain from ente ring G reenberg land for any reason

. That letter , dated Novemb er 9, 2 017, referenced a telepho ne conv er sation between Wats on an d Rowan regarding activity on t he Greenberg pr operty. The le t ter states:

Pu r s uan t to our conversation, and in an attempt to avoi d any confusion in the future , yo u a re to
r e frai n from enterin g up o n the Greenberg property fo r any r eason whatsoever at any t ime . Safety i s of utmo st concer n for my client a nd any entry o nto this proper ty will co m promi se t h ese sa feties and will be unaccep table.

In respon se to Greenber g ’ s requests for admission, Relators admitted that the RPIs own th e Green berg land, Bella has parked vehicles on the South T ract , and Bella custo mers have test driven vehicle s and/or eq uipment on the So uth Tract

. Also, i n 2018 , Watso n made an offer to
pur chas e a po rtion of the South Tract, but the RPI s declined to sell the property

. In his affid av it att ached to Relators ’ resp onse to the motion for discover y, Watson s tated that he is an aut ho rized representat ive and sharehol der of Bel la , who leased or owne d th e Bell a Tract during the relevant time peri od

. Watson stated tha t he did n ot individuall y own or lease the Bella Tract , have any e mployees , customers, or merchan dise, or use the Greenb er g property ; rathe r, his involveme nt in the propert ies and claims at i ssue i s limited to his role as a prin cipal of Bella. He explained that th e concrete pave m ent, t rough, and metal grate ( wash pit) was desi gned and cons tructed to level the area to allo w crates to be stac ked and to allow Bella ’ s f orkli ft to be safely op erat ed in t hat area. Before this install ation , crates could not be safely stacked an d the fo rklift c ould n ot be safely operated

. Vehicles are also rinsed in that area. W atson acknowledged that t he rinse water dr ains on to the No rth Tract, but stated t hat it was not appar e nt to him or to Bella that was hing the vehicles on the Bella Tract could ad v ersely a ffect the North Tract and the re was no visible indication that the was hing had any adverse af fe ct on the No rth
T ract

. According to Watson , the washing activity ceas ed on o r about January 13, 2020. Wat son also s tated that an employee injury oc curr ed in approx imatel y 2010 , but he was u naware of any
custo mers being injured du ring a test drive.8 The RPIs ’ experts, Donny Hear n and Leslie Jesk e , offered their declarat io ns r egardi ng the damage done to the Greenberg Tracts. Hear n and Jeske each op ined tha t the operation an d use of the wa sh pi t cont aminated the North Tract because of the pur poseful discharge of
waste water and solid

- state sludge resid ue associated wit h clea ning , degr easing, and removing sed im ent, fuel, oil, gre a se, a nd other unkno wn substanc es from various ve hicles , and by the

a

pplication of solvents to perform these cleaning and degreasing activities

. Hear n e xplai ned as f ollows:

The following Chemica ls of Conc ern or “COCs” were found in th e soil samples taken from t he Greenberg N ort h Tract immediately below the commercial wash pit and in the direct dow nstream path of the wast e water flowing from the commerc ial wash pit: TP H C6

- C12, TPH >C12

- C28, TPH > C28

- C 35, B enzene , Ethylbenzene, Toluene, T rime thylbenzene (1, 2, 4

- ), Trimethyben zen e (1, 3 , 5

- ), Xylene (o

- ), Xylenes (total ), a nd Benzo(a)p yrene. These C OCs were a t levels excee ding both the respective critica l T ier 1 Commerc ial/Industrial Soil PCL and t he cr itica l Tier 1 Residential Soil PCL. N apht halene was found in t he same area a t l evels e xceeding critical T ier 1 Residenti al S oil PCL. In plain English, the soil on the Greenbe rg Land has been contaminated, a nd the source of that contamination is the co mmerc ial w ash pi t on the Bella Tract.

J es ke ’ s declaration vi rtuall y mirrors this ex planat ion

. He adds that u se of the wash pit caused significant erosion to the creek bank that runs through the North Tract. H e s tated that da mages

measure d by the costs o f pr oper r em e dia tion of the North Tract to tal over $ 200,000. Jeske further opine d t hat th e destruction to the South Tract ’ s veg e tation , along w ith sig nificant destabilization and soil erosion , is consist ent with the con tinuous use of off

- road utili ty vehicles

. The cost of re mediation tota led $68,000 to $75,000. Jame s Justice , a licensed real estate
appra iser, provided a declarat ion stating that the dim inution in value to the North Tract resulting from c ont amination tot als $507,763.36. H e further op ined that the d iminut ion i n value to the
Nor th Track resulting fr om erosi on cau sed by ATV traff ic totals $17 2,578.16.
In Relators ’ d esignation of expert witnesses, they state t hat Dr. Victoria Harkins , a prof essional engi ne e r, was expected to testify (1) to minor TPH co ntamin ation that has alre ady demonstrated natural degradation and w ill continue to degrade naturally wi th time , (2) that contami nation is limited to “ less than a 10 ’ squared area ; ” a n y additional contamina tion is not

reas onably expected to be larger than five feet h o rizon tally and two feet v ertically; (3) that remedi ation by introduc t ion of a bio

- amendment ca n be completed for $9,3 90 ; (4) that th e volume of water discharged fro m washin g activities is insufficient to cause erosion or creek bed damage on th e Nort h T rac t ; and (5) tha t the damage to the South Tract, if any, allegedly cause d9 by Relators could be remedied for $3, 3 35 by ap plication of hy d r o mulch , but that this was

unnece ssary because the area would revegetate naturally

. R elators anticipated that Joe B ill Th omp son , a real estate appraiser , would t estify that the dim inution in market value to the North Tract associa ted with alleged c ontamination i s $140,000 and t here is no diminution in value to the South Tract

. 4 Analysis The question before us is wheth er the RPIs d emonstrated a substantial likelihood o f

success on the merits o f a claim for exempl ary damages ; specifically, w hether the RPI s presented some evidence of fraud , m alice , or gross neglige nce. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § § 41. 0115(a) , 41.003 (a)

. I n th eir motion for net worth discovery, the RPIs a rgued that Re lat or s ’ conduct met the sta ndards for malice and gross negligence. 5 W e firs t address mali ce

. Ma lice c onstitu tes a specific i ntent by the defendan t to cause substantial injury or harm t o t he c laimant. Id

. § 41.001( 7 ) (West Supp. 2020 )

. “ S pecific intent means that the actor desires to cause the conseq uences of h is act, or that he believes the
consequences are su bstan tially certai n to result from it. ” Vaughn v. Drennon , 202 S.W.3d 308, 32 1 (Tex. App.

— Tyler 2006 , no pet. )

. M a lice may be proven by direct o r circumstantial evidence. Id . at 322. A corpo ration is liable for exemplary dam ages only if it (1) authorizes or ratifies an agent ’ s malice, (2) maliciously hires an unfit agent , or ( 3) acts with malice throu gh a vice principal

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

4 Relators argue that evidence predating the appli cable statute of limitations cannot be considered , i.e., evidence of actions before September 2017

. This would include evid e nce such as the employee injury in 2010 , Whiteside ’ s testimony to actions that occurred before September 2017 , and the pho tograph of the employee holding f irear ms . But g i v en our disposition of this proceedin g, we need not address this contention

.

5 Th e RP Is con tend that mandamus should be denied because gr anting relief would require us to address the following dis puted areas of fact: (1) whether Relators had the requisite intent for malice; (2) whether Rel ators had the requisite intent for gross neglig en ce ; (3) the extent and lev el of danger involved with R elators’ test

- driving activities on the South Tr act; and (4) the extent and level of danger involved with Relators’ use of the commercial wash pit that d ischarged contaminated water onto the North Tra ct

. A n appellate court may not deal with disputed
are as of fact in an original mandamus proceeding. In re Angelini , 186 S.W.3d 558, 560 (Tex. 2006) (orig. pro ceeding)

. I t is within the trial court ’ s province to reso lve matters regarding witness credib ility and the weig ht to be assigned the evidence. See I n re Walton , No. 11

- 16

- 00230

- CV, 2017 WL 922418, at * 2 (Tex. App.

— E astland Feb. 28, 2017, orig. proceeding) (mem. op.) ; In re M.C.W

. , 4 0 1 S.W.3d 906, 907 (Tex. App.

— Amar illo 2013, orig. proceeding) (per curiam)

. “If the record con tains legally sufficient evidence both against and in support of the trial court ’ s decision , then mandamus will not lie becau se weighing conflicti ng evidenc e 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 dist urb Respondent ’ s rulin g so long as it is supported by the evide nce.10 Relators contend the re is no evidence to support a finding of specific intent on the part of Relators or anyone asso ciated with them

. The RPIs argue the foll owing evidence support s specific intent: “( 1) Relators had actual knowledge of their bo undary line but used the Greenberg Land anyway; (2) the Greenberg Family repeatedly told Relators to stop using the Greenberg Land; (3) Re lators wished to purchase the G reenberg Land but the Greenberg Family r efuse d to sell to them; and (4) Relators contin ued th eir conduct des pite (1), (2), and (3) .” The RPIs maintain th at Bella authorized and ratified the actions of its employees and cust o mers b ecause it knew the test d rives and wash ing activities were occurring a nd was put on notice by Row an ’ s letters, but con tinued authorizing th e activities, took no action against employees and no action to stop customers, accepted the activities and pro fited from sales secured by ill egal test drives, and benefitted from the was hing ac tivit ies. They further maintai n that Bel la ’ s vice

- principals committed malicious and grossly negligent acts , arguing that Watson, Whiteside, and Adam Ward , another Bella em ployee , are all vice

- principals

. There is evidence from which Respondent could reasonably conclude that Wa tson 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, dire ct, and discharge servants of the master , tho se 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 th e business ). Watson ackno wledged that he oversees operations, owns fif ty percent of Bella, and was at Broadway Powersp orts almost daily. The pertinent record does not speak to Ward ’ s duties, but does contain some indication that Whiteside may have a cted i n a managerial capacity. And we agree that the pertinent record cont ains evidence showing that t he RP Is own the Gree nber g Tr act s , Relators were aware of the RPIs ’ ownership and the boundary lines, Relators admitted that customers test drove on the Greenb erg Tracts and equipment was parked on Greenberg land , Relators were t old to stop using the Greenberg Tracts , but the activities continue d despite warnings from law enforcement and the RPIs ’ counsel , and the activities on the Greenberg Tracts caused some d amage

. The record also contains e vidence that Relators were advised t hat their contin ued activities on the Greenberg Tracts “ creates an unsafe situation and causes damage to [the RPIs ’ ] real property ” and that “ entry onto this proper ty will compromi se the se safeties and will be unacceptable. ”11 But none of this evidence e stablishe s that Relators des ired the conseq uence s of any

una u thorized activit ies on the Greenberg Tracts, i.e. , erosion and contamination of t he land or injury to others , o r that t hey be lieved such consequences to be substantially cer tain to result f rom th eir acti ons

. Rowan’s letter s did no t id entify th e types of harm or injury that R elators’ activities allegedly caused ; thus, the letters did not place Relators on notice that their action s were causing substantial damage to the land itself

. Regarding the w ash pit , Respondent was free to disbelieve
Watso n ’ s statement s that he did not realize it would “ roll out like that ” and that an adverse affe ct was not apparent. Even so, t here is no evi dence that Relators built and used the wash pit with any desire to con taminate the North Tract or with any belie f that cont amination was substantially certai n

. S ee c.f

. Vaughn , 202 S.W.3d at 3 2 3

- 24 ( Vaughn wanted Drennons to move , wanted
t he ir pro perty for himself, and was unhappy with the Drennons’ refusal to install drain age ditches in front of their house ; evi dence show ed Vaughn desired to cause flooding by use of dams or that flooding was substantially certain to result ) ; c.f. Withrow v. Armstr ong , N o. 10

- 05

- 00320

- CV , 2006 WL 3317714, at * 5 (Tex. App.

— Waco Nov. 15, 2006, pet. denied ) ( mem. op. ) ( Withrow disliked Arm strong and inse rted poison into tree ’ s roots with specific intent of damaging tree in order to cause substantial injury to Armstrong ; “ Wit hrow ’ s conduct was certainly not designed to promote some good purpose, but was initiated with ‘ complete disregard ’ fo r Armstrong ’ s property rights and with the intent of damaging her neighbor ’ s property ” )

. And while the types of vehicles sold by R elator s, such as all

- terrai n vehicles, may be considered dangerous , that fact i s not evidence of a specific intent to cause substantial injury or harm to anyone driving on , parked on , o r present on the South Tract

. This is pa rt icularly tru e given that th e recor d contain s evidence of onl y two vehicle

- related injuries that occurred o ver the several year s in which Bella operated Broadway Powersports

. C omm o n sense dict ates that driving an all

- terrain type vehicle on the South Tract would cause some di sturbanc e to t he soil or

some damage to the vegetation, but the re cord is simply devoi d of evidence reflec t ing that Relators desire d to cause substantial erosion to the t une of thousands in remediation costs, or believed such consequences to be su bstantially certa in

. S ee c.f

. Wile n v. Falkenstein , 191 S.W.3d 791 , 802 (Tex. App.

— Fort Worth 2006, pet . denied) ( “ t hat Wilen knew Falkenste in di d not want Wilen ’ s tree service to trim his tree, that Wilen knew Falkenstein was out of town on

vac atio n, and that Wilen knew Falken stein wanted to take care of his own trees, but nonet heless12 directed his tree service to ent er Falkenstein ’ s property and c ut five feet off a tree that was obstructing Wilen ’ s view

— is evidence of ill

- will, spite, and a spec ific intent on the part of Wilen to cause subs tantial injury to Falkenstein ” ) ; c.f. Hol ubec v. Brandenber ger , 214 S.W.3d 650, 652 (Tex. App.

— Austin 200 6, no pet. ) ( nuisance created by Holubecs was severe enough to force Brandenbergers fr om home, Holubecs were a ware of nuisance ’s sev erity but took no action to alleviate i t , Holubecs denied the e x istence of con ditions and circumstances that a reasonable fa ct finder would not find debatable, evidence showed Hol ubecs knowingly exacerbated

n uis ance due to ill

- will and litigati on between parties )

. N or is Watson’s failed attempt to purchase a portion of Greenberg lan d demonstrative of specific intent. Bey o nd mere specula tion , t h e record contains no evidence from w hich it could be inferred that Relators ’ activities continued in retaliation for the fai led pu rchase. S ee c.f

. Vaughn , 202 S.W.3d at 3 2 3

- 2 4

. And speculati on is not evidence. Hurley v. Tarrant County , 232 S.W .3d 781, 787 (T ex. App.

— Fort Worth 2007, no pet.); see Am. Tobacco Co., Inc. v. Grinnell , 951 S.W.2d 420 , 437 (Tex. 1997) (“Speculat ion ca nnot create a fact iss ue”); see also McKinney Ave. Prop. No. 2, Ltd. v. Branch Bank & Trust Co. , No. 05

- 14

- 00206

- CV, 2 015 WL 3549877, at *9 (Tex. App.

— D allas June 5, 2 015, no pet.) (mem. op.) (while party is enti tled to

re asonable inferences from evi denc e, party cannot create f act 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 oppo sing p lausible inferences

amo unts to nothing more than speculation, it is legally no evidence at all.”). The re is simply n o evidence in the pertinent record to demonstrate a specific i ntent by Relators, in any c apacity, to cause substantial injury or har m to t he R PIs

. See T EX

. C IV

. P RAC

. &
R EM

. C ODE A NN

. § 41.001( 7 ) ; c.f

. Bennett v. Reynolds , 315 S.W.3d 867, 884

- 85 (Tex. 201 0) (vice principal used corporate authority to direct corporate employees, on corporation time and land , to load neighbor’s cattle a nd sel l them at auction, while using corporate equipment to convert th e cattle; thus, t he Corporation authorized the doing a nd manner of the conversion, and vi c e principal’s conduct was chargeable to the Corporation for purposes of exemplary damages )

. Acc ording ly, Respondent could not reasonably conclude that the RPIs demon strated a substantial likelihood o f success on the mer its of a claim for exempl ary damages based on malice

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 41. 0115(a)

. We now addre ss gross negli gence, which means an act or omission:13 (A) which when viewed objective ly from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magn itude of the potential harm to oth ers; and (B) o f whic h the actor has actual, subjective awareness of the risk involve d, but never theless proceeds with conscious indifferen ce to the rights, safety, or welfare of others.

Id . § 41.001(11). Under the objecti ve component, “extreme risk” is not a remote p ossibili ty or even a high probability of minor harm, but rather the li kelihood of th e plaintiff’s serious injury. U

- Haul Int ’ l , Inc. v. Waldrip , 380 S. W.3d 118, 137 (Tex . 2012)

. The subjective prong, in turn,
requ ires tha t the defendant knew about the risk, but the defendant’s acts or omissions d emonstrated indifference to the conseque nces of its acts. Id . Like malice, gross negligence may be proven b y direct or circu mstantial evidence. Vaughn , 202 S.W.3d at 322

. “A

co rporation may be liable in punitive damages for gross negligence only if the corporation itself commits gross neglig ence .” Ellender , 968 S.W.2d at 921

. A s with malice, a c orporatio n may be so liable if it authorizes or ratifies an agent ’ s gros s negligence , is grossly negli gent in hiring an unfi t agent, or commits gross negligence through the actions or inactions of a vice principal. Id

. at 921

- 22. Regarding the objective c omponent, Relators contend tha t the RPIs ’ “ evidence doesn’t show that ob jectively, from Bella’s perspective at the time, the re was any likelihood of the [RPIs ’ ] serious injury from the powerwash run

- off, any test drives, or anything else the [RPIs]

accuse. ” The RP Is maintain that test driving off

- road vehicles over the South Tract’s une ven terrain, including operating mowing e quipment while brandishing firearms, and discharging
wastewater onto the North Tract involve an extreme degree of risk.
I t is axio matic tha t there is some danger in driving an off

- road vehicle on unimpr oved 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 . Latha m , 476 S.W.3d 103 , 109 (Te x. App.

— Amarillo 2015, pet. denied ). E vidence o f two accident s over several years simply does not equate wit h an i nordin ately risky act or omission

. See Medina v. Zuniga , 593 S.W.3d 238, 249 (Tex. 2019 ) ( “ while pedestrian traffic was not negligi ble, we a lso cannot conclude that driv ing through the p arking lot at uns afe speeds at the day and time in question, while ce rtainly risky, would pose an extreme risk as contemplated by the objective component of gross negligence ” ). The same is true of sit ting o n a stationary vehicle holding unloaded handguns ; there is no evid ence the vehicle was in motion

. The pertinent evide nce, as it stands, merely gives14 rise to a r emote possib ility of harm resulting f rom the off

- road driving . And a remote possibil ity is insuff icient to create an extreme risk. See Waldrip , 380 S. W.3d at 137

. N or is there evidence that the wash pit involved an extre me degree of risk. W hile washing and ri nsing vehicles, causing chemicals to wash onto the North Tract may be negligent, it does not give rise to the t ype of serious risk that satisfies the gross negligence standard. See c.f. Boatman v. Lites
, 970 S.W.2d 41, 46 (T ex. App.

— Tyler 1998, no pet.) ( “ destruction of a sizable portion of rea l 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

occu r ” ) ; s ee Terminix, Inc. v. Right Away Foods Co rp. , 771 S.W.2d 675, 680

- 681 (Tex. App.

— Corpus Christi 1989, writ denied) ( use of twice the normal quantity of poison during fumiga tion ,
cre ating conditions favorable to corrosion in warehouse, and failu re to adequately instruct personnel on how to protec t equipment from poison did not amount to evidence of gross negligence)

. Relators ’ continued activities on the property, after bein g told to cease and desist because of safety and damages issues, is cert ainly careless and thoughtless . But a merely though tless, careless, or not inord inat ely risky act or omission cannot be grossly negligent. See Medina , 593 S.W.3d at 249 ( “ [g] ross neg ligence c an be supported only b y an extreme degree of risk ” ).
B ased on the pertinent record , we conclude th at there is no evidence of an act or omission, which when viewed objectively from Re lators ’ standpoint at the time of its occurrence , involve d an e xtreme de gree of risk, considering the probability and magn itude of the potential harm to oth ers

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 41.001(11) (A). Absent evidence of th is objective comp onent, we need not addres s the subjective comp onent. See Medi na , 593 S .W.3d at 250

. Respondent could not reasonably find that the RPIs demonstrated a substantial likelihood o f success on the merits of a claim for exempl ary damages based on gross negl i gence

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 41. 0115(a)

.

D I SPOSITION H aving determined tha t no evidence suppo rts a finding of substan tial likelihood of success on the merits of an exe mplary damages claim, we conclude that R espondent abused his discretio n by granting the RPIs ’ motion for net worth discov ery. Acco rdingly, we con ditionally grant Relators ’ petition for writ of mandamus. W e direct Respondent to vacate h is June 3, 202115 ord er granting net worth discovery

. We trust Respondent will promptly comply with th is opinion and order. The writ will issue only if the t rial court fails to do so within ten days of the date of the opinion and order

. The trial court shall furnish this Co urt, withi n 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.

B RIAN H OYLE Jus tice

Opinion d el iv er ed August 18, 2021. Panel c o nsisted of Wort hen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)16 

## COURT OF APPEALS
T WELFTH COURT OF APPEALS DI STRI C T O F T EXAS
ORDER

AUGUST 18 , 2021
NO. 12

- 21

- 0009 0

- CV

BELL A CO RP. D/B/A BROADWAY POWERSPORTS AN D BR ADL EY WATSON ,

Re lator s V.
HON. AUSTIN R. JACKSON , Respondent

O RIGINAL P ROCEEDING

ON THIS DAY ca me to be heard the petition f or writ o f mandamus fi led by Bella Corp. d/b/ a Br oad way Powersports and Bradley Watson ; who are the relator s in appellate cause number 12

- 21

- 0 0090

- CV and the defenda nts in trial court cause number 19

- 2303

- B , pe nd in g on the docket of the 114th Judicial District Court of Smith County , Texas . Sa id petition for writ of mandamus h aving been f iled her ein on June 15, 2021 , and t he sam e having been du l y considere d, it i s therefore CONS IDERED, ADJUDGED and ORDERED that the said petiti on fo r w rit of mandamus be, a nd the sa m e is, hereby conditionally grant ed

. And beca use it is further t he opinion of thi s C ou rt that the trial judge will act promptly and va cate h is order granting net worth discovery of Ju n e 3, 2021 ; the writ will not issue unless th e HONORA BLE AUSTIN R. JACKSON fails to comply with this Cour t’s order within ten (1 0 ) days from the date of t his ord er. By memorandum op inion. Panel consist ed of Worthen, C.J., Hoyle, J. and Neeley, J.