in Re Jerry's Chevrolet-Buick, Inc.

Opinion

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

2 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