THE SUPREME COURT OF TEXAS 

Post Office Box 12248 

Austin, Texas 78711 

Mr. Robert B. Gilbreath 

J enkens & Gilchrist 

1445 Ross Avenue, Suite 3200 

Dallas, TX 75202-2799 

Mr. William W. Speed 

July 03, 1998 

Mr. Donald H. Flanary, Jr. 

Vial Hamilton Koch & Knox 

1717 Main Street, Suite 4400 

Dallas, TX 75201 

Ms. Leslie Kendall Howell 

(512) 463-1312 

Vial Hamilton Koch & Knox 

1717 Main Street, Suite 4400 

Dallas, TX 75201 

Touchstone Bernays Johnston Beall & Smith 

1201 Elm Street, Suite 4700 

Mr. Jerry M. White 

Law Offices of Frank L. Branson 

4514 Cole Avenue, Suite 1800 

Dallas, TX 75205 

Mr. l Hadley Edgar 

Law Offices of Frank L. Branson 

4514 Cole Avenue, Suite 1800 

Dallas, TX 75205 

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 

Dallas, TX 75270-2196 

Mr. Frank L. Branson 

Law Offices of Frank L. Branson 

4514 Cole Avenue, Suite 1800 

Dallas, TX 75205 

Mr. L. Keith Slade 

Tucker Hendryx Taunton Snyder & Slade 

8 Greenway Plaza, Suite 1200 

Houston, TX 77046 

Style: IN RE JERRY'S CHEVROLET-BUICK, INC. 

v. 
.. 

Dear Counsel: 

THE SUPREME COURT OF TEXAS 

Post Office Box 12248 

Austin, Texas 78711 (512) 46>-1312 

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. 

cc: Mr. Earl Bullock 

Sincerely, 

John 

� �

T. Adams, Clerk 

.� by __________________ _ 

Blanca E. Morin, Deputy 

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 plaintiffs 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 § 

41 .009; Transportation Ins. Co. v. Moriel, 879 S.W.2d 1 0, 30 (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. 131 (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. 

OPINION DELIVERED: July 3, 1 998 

3 

Justice