in Re Jerry's Chevrolet-Buick, Inc.

THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 787 1 1 (512) 463-1312
July 03, 1998
Mr. Robert B . Gilbreath Mr. Donald H. Flanary, Jr.
Jenkens & Gilchrist Vial Hamilton Koch & Knox
1445 Ross Avenue, Suite 3200 1717 Main Street, Suite 4400
Dallas, TX 75202-2799 Dallas, TX 75201
Mr. William W. Speed Ms. Leslie Kendall Howell
Vial Hamilton Koch & Knox Touchstone Bernays Johnston Beall & Smith
1717 Main Street, Suite 4400 1201 Elm Street, Suite 4700
Dallas, TX 75201 Dallas, TX 75270-2 196
Mr. Jerry M. White Mr. Frank L. Branson
Law Offices of Frank L. Branson Law Offices of Frank L. Branson
45 14 Cole Avenue, Suite 1 800 4514 Cole Avenue, Suite 1800
Dallas, TX 75205 Dallas, TX 75205
Mr. l Hadley Edgar Mr. L. Keith Slade
Law Offices of Frank L. Branson Tucker Hendryx Taunton Snyder & Slade
4514 Cole Avenue, Suite 1800 8 Greenway Plaza, Suite 1200
Dallas, TX 75205 Houston, TX 77046
Ms. Mary Colchin Johndroe
Cantey & Hanger
801 Cherry Street, Suite 2100
Fort Worth, TX 76102
RE: Case Number 98-0492
Court of Appeals Number: 05-98-00868-CV
Trial Court Number: 97-07370-B
Style: IN RE JERRY'S CHEVROLET-BUICK, INC.
v.
. .
THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 787 1 1 (512) 46>-1312
Dear Counsel:
Today, the Supreme Court of Texas denied the relator's petition for writ of mandamus in the
above numbered and styled case.
Stay order of June 1, 1998, is lifted. Motion for reconsideration of stay order dismissed as
moot.
Opinion dissenting on denial of petition for writ of mandamus by Justice Gonzalez, joined by
Justice Hecht.
Sincerely,
John T. Adams, Clerk
by � �.�
___________________
Blanca E. Morin, Deputy
cc: Mr. Earl Bullock
Ms. Lisa Rombok, Clerk
The Honorable Ed Kinkeade
The Honorable Carlos Lopez
IN THE SUPREME COURT OF TEXAS
No. 98-0492
IN RE JERRY'S CHEVROLET-BUICK, INC., RELATOR
ON PETITION FOR WRIT OF MANDAMUS
JUSTICE GONZALEZ, joined by JUSTICE HECHT, dissenting from the denial of the petition for
writ of mandamus.
I dissent from the denial of the petition for writ of mandamus in this case.
Underlying this request for mandamus relief is a personal injury action brought by Jace and
Theresa Conger against Jerry's Chevrolet-Buick, Inc. ("Jerry's"), Texas Utilities Electric Company,
and Texas Utilities Services, Inc. Jace, a claims adjuster, was asked to inspect Jerry's roof for hail
damage. While on the roof, Jace came in contact with a power line owned by Texas Utilities Electric
Company, which allegedly caused the injuries for which he is now suing.
The Congers claim that Jerry's and its general manager had actual knowledge of a dangerous
condition created by the power line for almost two years prior to the accident. They allege that
someone from Texas Utilities came to Jerry's to inspect the power line, and the inspector informed
Jerry's that a guy wire supporting the line had been ,cut, causing the power line to sag dangerously
close to the roof on which Jace was working. It is Jerry's actual, subjective awareness of the
condition and alleged failure to warn Jace or remedy the problem that form the bases for the
Congers' gross negligence claim and punitive damages request.
To that end, the Congers have requested discovery of Jerry's financial statements for years
1 994- 1 997 in order to determine Jerry's net worth, which would be relevant to the proper amount
of punitive damages that may be awarded. Lunsford v. Morris, 746 S.W.2d 47 1 , 473 (Tex. 1 988).
Over Jerry' s objections, Judge Carlos Lopez allowed the discovery. Jerry's filed a petition asking
this Court to issue mandamus relief preventing discovery of their financial statements due to the
confidential and sensitive nature of such information. We granted a stay to consider Jerry' s request,
but much to my chagrin, that stay will be lifted and the discovery will go forward because of the
Court's refusal to hear this case.
Jerry's contends that it should not be required to produce financial statements to the Congers
until they have stated a factual basis for recovery of exemplary damages and have made a prima facie
showing that they are entitled to recover exemplary damages. I agree.
I have suggested before that a plaintiff should be required to demonstrate a factual basis for
punitive damages before being allowed to discover fmancial information from which net worth can
be determined. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 33 1 -32 (Tex. 1 993) (Gonzalez,
J., concurring). Furthermore, it is also my view that plaintiffs should make a prima facie showing
that punitive damages are appropriate before they may discover net worth information. This
procedure would protect defendants from intrusive and pointless discovery of sensitive, private, and
confidential net worth information based upon a plaintiff s mere assertion of gross negligence in a
petition. !d. Moreover, this procedure is consistent with and complements the requirement that trials
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of cases involving claims for exemplary damages be bifurcated. TEX. CIV. PRAC. & REM. CODE §
4 1 .009; Transportation Ins. Co. v. Moriel, 879 S.W.2d 1 0, 3 0 (Tex. 1 994).
Although the Court acknowledges the sensitivity of financial and net worth information,
Moriel, 879 S.W.2d at 30 (stating that wealth of a defendant has great potential to prejudice a jury's
determination of disputed issues in a tort case), we have yet to address when and on what basis a
party is entitled to discover that information. These issues are significant and demand the Court' s
attention. We have been willing to address these issues on two previous occasions. The Court
granted petitions for writ of mandamus in Aramark Uniform Services, Inc. v. Tyson, 40 Tex. Sup.
Ct. J. 84 (November 1 5, 1 996), and Perry Home Contractors, Inc. v. Patterson, 39 Tex. Sup. Ct. J.
237 (February 9, 1 996), in which we were to determine whether a plaintiff must make a prima facie
showing of entitlement to exemplary damages before discovering evidence of a defendant' s net
worth. However, we were unable to decide the issue because those cases were dismissed pursuant
to settlement. Perry Home Contractors, Inc. v. Patterson, 40 Tex. Sup. Ct. J. 398 (March 6, 1 997);
Aramark Uniform Servs. , Inc. v. Tyson, 40 Tex. Sup. Ct. J. 1 3 1 (December 1 3, 1 996).
The Court now has that opportunity again, and I lament its refusal to take advantage of it.
It would benefit the bench and bar if we would clarify the standards for discovering net worth
information and establish the procedures for plaintiffs to demonstrate their entitlement to exemplary
damages.
Justice
OPINION DELIVERED: July 3, 1 998
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