                       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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