Petition for Writ of Mandamus Denied and Memorandum Opinion filed
October 21, 2014.




                                      In The

                     Fourteenth Court of Appeals

                                NO. 14-14-00637-CV



                        IN RE SARAH BOOTH, Relator


                           ORIGINAL PROCEEDING
                             WRIT OF MANDAMUS
                               240th District Court
                             Fort Bend County, Texas
                       Trial Court Cause No. 10-DC-186164

                          MEMORANDUM OPINION

      On August 7, 2014, relator Sarah Booth filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also
Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable
Thomas R. Culver, III, presiding judge of the 240th District Court of Fort Bend
County, to set aside his July 17, 2014 order granting real party in interest’s motion
to compel discovery.
       The underlying facts are not disputed. On August 2, 2010, Booth was a
passenger in the vehicle her husband, Sean Michael McGuire, was driving when he
struck and killed David Stidman, who was on a motorcycle.                    McGuire was
convicted of murder and failure to stop and render aid and sentenced to eighteen
years’ and five years’ incarceration, respectively.

       The procedural facts are not disputed. In December 2010, David’s father,
Dwayne Stidman, sued McGuire.             In April 2012, Stidman added Booth as a
Defendant.     On June 11, 2014, Stidman filed Plaintiff’s Amended Motion to
Compel Sarah Booth’s Response to Plaintiff’s Discovery Requests seeking tax
returns, and additional net worth data. Booth responded that Stidman was not
entitled to the information sought because (a) Stidman was not entitled to punitive
damages; (b) the requests were overbroad; and (c) “Booth has already provided
Plaintiff with complete documentation of her net worth and Plaintiff has no
evidence that the documentation provided by Sarah Booth is inaccurate.” The
associate judge heard the motion and ordered the production, including tax returns.

       Booth appealed pursuant to Section 54A.111 of the Texas Government Code
and sought a de novo hearing before the trial court below. See Tex. Gov’t Code
Ann. § 54A.111 (West 2013). The trial court ordered Booth to update and verify
the list of her assets and liabilities, and disclose information about any trust in
which she was a beneficiary or had an interest or received distributions from July
17, 2013 to July 17, 2014; however, the district court vacated the order to produce
tax returns. Booth seeks relief from the district court order.1


       1
         Booth urges mandamus upon the trial court’s oral pronouncement of the relief granted.
See In re Liberty Mut. Fire Ins. Co., No. 14-09-00876-CV, 2010 WL 1655492, at *3 n.2 (Tex.
App.—Houston [14th Dist.] Apr. 27, 2010, orig. proceeding) (mem. op.); In re Bill Heard
Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding);
In re Vernor, 94 S.W.3d 201, 206 n.8 (Tex. App.—Austin 2002, orig. proceeding). We note,
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       Booth raises two issues in support of her argument that the trial court abused
its discretion in compelling the discovery at issue: (1) there is no cause of action
that will support an award of punitive damages in this case; and (2) the appellate
courts should revisit the issue of whether a plaintiff must make a prima facie
showing of entitlement to punitive damages before obtaining net-worth
information.

       To be entitled to mandamus relief, a relator must demonstrate (1) the trial
court clearly abused its discretion; and (2) the relator has no adequate remedy by
appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). The
party resisting discovery bears the heavy burden of establishing an abuse of
discretion and an inadequate remedy by appeal. In re CSX Corp., 124 S.W.3d 149,
151 (Tex. 2003) (orig. proceeding) (per curiam).

       Moreover, regarding our review of discovery mandamus, we have held that:

           • “A discovery mandamus cannot be used to obtain an advance
             adjudication of the merits.” In re Citizens Supporting Metro
             Solutions, Inc., No. 14-07-00190-CV, 2007 WL 4277850, at *3 (Tex.
             App.—Houston [14th Dist.] Oct. 18, 2007, orig. proceeding) (mem.
             op.).

           • “The scope of discovery is measured by the live pleadings regarding
             the pending claims.” Id.

           • As an intermediate court, we are bound to follow the 25-year old
             Texas Supreme Court precedent, Lunsford v. Morris, rejecting a prima
             facie showing before pretrial discovery on punitive damages. See In
             re Jacobs, 300 S.W.3d 35, 40 (Tex. App.—Houston [14th Dist.] 2009,
             orig. proceeding [mand. dism’d]) (citing Lunsford v. Morris, 746
             S.W.2d 471, 473 (Tex. 1988) (orig. proceeding), overruled on other


however, that the trial court signed a publicly-available order on this matter on August 13, 2014,
granting relief substantially as recited in the July 17, 2014 hearing.

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            grounds, Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) orig.
            proceeding)).
       The mandamus record establishes that (a) Stidman’s live pleading 2 includes
allegations against Booth individually for, inter alia, negligence, negligent
entrustment, gross negligence; and fraudulent transfers or conveyances of assets;
(b) Booth’s live pleading asserts as an affirmative defense Chapter 41 of the Civil
Practice and Remedies Code’s limitations on liability and damages; 3 and (c) the
trial court did not adjudicate any of Stidman’s claims or Booth’s defenses prior to
ordering the subject discovery.

       On this record, we conclude that Booth has not established that the trial
court clearly abused its discretion in compelling the specific discovery or that she
is entitled to mandamus relief. Accordingly, we deny her petition for a writ of
mandamus.

                                                          PER CURIAM

Panel Consists of Justices McCally, Brown, and Wise.




       2
         The mandamus record suggests that Stidman’s fifth amended petition, filed June 16,
2014, is the live pleading at the time of the de novo hearing before the district court. Booth
supplemented the mandamus record with Stidman’s seventh amended petition filed September
13, 2014; however, we do not consider this pleading for purposes of evaluating whether the trial
court abused its discretion in ordering discovery on July 17, 2014 or August 13, 2014.
       3
           See Tex. Civ. Prac. & Rem. Code Ann. § 41.005(a) (West 2008).

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