dissenting.
I respectfully file this dissent for I see no abuse of discretion committed by Judge Shuffield in ordering the production of requested documents. What I do see is an effort by the trial judge to create a level playing field. In agreeing with the majority that mandamus is the proper remedy here, I disagree that the conditional granting of same is appropriate in this case.
Relator David E. Carriere, was at the time of the accident on January 11, 1993, business agent for the plumbers local, and on straight salary. Since Mr. Carriere was deposed in this lawsuit, Mr. Carriere and his wife purchased a plumbing business, being granted a Certificate of Incorporation on January 8, 1996, by the office of Secretary of State. Articles of Incorporation for Jeffeo Plumbing Co., Inc., list David Carriere and Laura Jill Carriere as Directors of the corporation, with *865David Carriere being shown as the incorpo-rator.
The majority proffers, “The materials filed in this proceeding contain neither any evidence or allegations that any of the circumstances detailed above [referring to majority’s verbatim citing of portion of Sims v. Western Waste Indus., 918 S.W.2d 682, 684 (Tex.App. — Beaumont 1996, writ denied) ] are present in the current case.” This would seem to be a misplacement of the burden in this mandamus proceeding. It is Relator’s burden to show this Court and the trial court below, how and why the discovery refusal is justified under Sims. The majority requires Real Party In Interest to carry such burden which Relator did not do below, nor, in my opinion, has he done so in this original proceeding.
Just what is “materials filed in this proceeding” is problematic at least. There is no transcript nor statement of facts. The only reviewable exhibits are attached to Relator’s Mandamus Application, labeled A through P, thus our review is limited to those exhibits.
Reviewing Relator’s exhibits, it becomes glaringly apparent to this writer that there are materials addressing Sims, and why the trial court correctly disregarded Relator’s efforts to rely on corporate fiction.
In David Carriere’s lawsuit against real party in interest, Charles A. Kiker, Jr., and Charles A. Kiker, III, Individually and D/B/A Kiker Cattle Co., Mr. Carriere alleges:
Plaintiff suffered severe personal injuries as a proximate result of the negligent acts and/or omissions of the defendants. Plaintiff will seek to recover all damages allowed by law, including money damages to compensate him for the following:
5. Loss of earnings and loss of earning capacity in the past and in the future;
Therefore, the plaintiff will ask the jury to find an amount of compensatory damages that are fair and reasonable under the circumstances. Plaintiff believes that the evidence in this case will justify an award in excess of the minimum jurisdictional limits of this Court.
The majority opinion sets out the six specific discovery requests by defendant. In view of plaintiffs claim for “Loss of earnings and loss of earning capacity in the past and in the future,” Judge Shuffield notified all counsel by written letter dated September 24,1996, the following:
September 24, 1996
Re: No. D-148,239 David E. Carriere v. Charles A. Kiker, Jr., et al
TO ALL COUNSEL OF RECORD:
I have now had an opportunity to consider the plaintiffs Motion to Quash the notice to take the deposition by written questions of the custodian of records for Jeffeo Plumbing filed in connection with the above-captioned matter. As requested, the parties have provided briefing on the issue of the discoverability of such records.
In essence, the plaintiff argues that the records requested are harassing, overly broad with regard to the intended purpose of establishing the plaintiffs wage earning capacity. In response, the defendant argues that the plaintiff is the sole owner of the business and the overall financial management is relevant to determine the plaintiffs true earning capacity.
In its original memorandum of authorities opposing the plaintiffs Motion to Quash, defendant actually states “It is believed that Jeffeo was the company owned solely by the plaintiff’. In a subsequent letter memorandum, the defendant states that the plaintiff is “the sole owner of the business”.
This would seem to be an important factor in the Court’s determination as to whether the records sought would be considered relevant or reasonably calculated to lead to the discovery of admissible evidence. Nonetheless, for purposes of this ruling, the Court will presume that the plaintiff was, in fact, the sole owner or a principal of the business in question.1
*866Given the fact that the issue to be resolved is the plaintiffs earning capacity, the overall financial management of the company, vis a vis, the plaintiff, would seem relevant or reasonably calculated to lead to the discovery of admissible evidence on the issue of the plaintiffs earning capacity.
Therefore, the plaintiffs Motion to Quash the notice to take deposition by written questions will be granted in part and denied in part.
Absent any showing that the plaintiff was not a principal or sole owner of the business in question, the plaintiffs Motion to Quash will be granted insofar as the deposition on written questions of the custodian of records seeks to discover records prior to the plaintiffs acquisition of his interest. Likewise, it will be denied as to any such records subsequent to the date of acquisition.
Defendant should prepare an Order in accordance with the above.
Very truly yours,
/§/
Judge Milton Gunn Shuffield
JMG/ml
On October 3, 1996, Judge Shuffield the following Order:
CAUSE NO. D-148,239
IN THE DISTRICT COURT OF JEFFERSON COUNTY, TEXAS 136TH JUDICIAL DISTRICT DAVID E. CARRIERE vs. CHARLES A KIKER, JR. AND CHARLES A. KIKER, III, INDIVIDUALLY AND D/B/A KIKER CATTLE COMPANY
ORDER REGARDING PLAINTIFF’S MOTION TO QUASH NOTICE TO TAKE DEPOSITION BY WRITTEN QUESTION
The Court having considered the “Plaintiffs Motion to Quash Notice to Take Deposition by Written Questions”, Defendant’s and Plaintiffs Memorandums of Authorities, and the argument of counsel, enters the following Order:
(1) Absent a showing by Plaintiffs counsel that the Plaintiff is not the principal or sole owner of the Jeffco Plumbing Company business in question, the Plaintiffs Motion to Quash is DENIED as to any records after the date Plaintiff acquired his interest in such business; and
(2) The Plaintiffs Motion to Quash is GRANTED insofar as the deposition on written questions of the custodian of records seeks to discover records prior to the Plaintiffs acquisition of any ownership interest in the business in question. SIGNED this the 3rd day of October, 1996.
(s¿
JUDGE MILTON GUNN SHUF-FIELD
. If this is disputed, plaintiff should submit additional evidence as to this fact.