Opinion
No. 05-10-00344-CV
Opinion issued June 28, 2010.
Original Proceeding from the 68th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 08-03765-C.
Before Justices O'NEILL, FITZGERALD, and LANG-MIERS.
OPINION
Islamorada Fish Co. Texas, L.L.C. filed this mandamus proceeding seeking relief from the trial court's order compelling it to produce information about its net worth. We conclude that the trial court abused its discretion and conditionally grant the writ of mandamus.
Candy Kovar Greenwood and C.S. sued Islamorada alleging that it served excessive amounts of alcohol to Kris Ayres. They allege that Ayres became intoxicated at Islamorada and later drove her vehicle across the median and hit Greenwood's vehicle. C.S. was a passenger in Greenwood's vehicle. Both were injured and sought compensatory and punitive damages under the common law and the Texas Dram Shop Act. See Tex. Alco. Bev. Code Ann. §§ 2.01-.03 (Vernon 2007). In requests for production, Greenwood and C.S. sought information about Islamorada's net worth. Islamorada objected to the requests arguing, among other things, that its net worth is not relevant in this case because punitive damages are not recoverable. Greenwood and C.S. moved to compel Islamorada's responses. After a hearing on the motion, the trial court concluded that punitive damages are recoverable under the Dram Shop Act and that information about Islamorada's net worth is "now relevant and discoverable." It ordered Islamorada to produce the requested financial information. Islamorada seeks relief from the trial court's order.
The plaintiffs in the action below are Greenwood and Eddie Semchenko as next friend of C.S., a minor.
Mandamus relief is appropriate when the trial court abuses its discretion and relator has no adequate appellate remedy. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). The scope of discovery generally is within a trial court's discretion. CSX, 124 S.W.3d at 152. A trial court abuses its discretion by ordering discovery that exceeds the scope permitted by the rules of procedure. Id. Rule 192.3 states, "[A] party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action. . . ." Tex. R. Civ. P. 192.3. We conclude that Islamorada has met its burden.
Net worth is relevant and discoverable when punitive damages may be awarded. Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex. 1988) ("In a suit in which exemplary damages may be recovered, we hold the defendant's net worth is `relevant' and therefore discoverable under [the rules of civil procedure]."), disapproved of on other grounds by Packer, 827 S.W.2d at 842. The corollary to that rule is that when punitive damages clearly are not recoverable, information about net worth is not relevant and, as a result, not discoverable. See Wilson v. K.W.G., Inc., No. 11-03-00084-CV, 2004 WL 1925599, at *1-2 (Tex. App.-Eastland Aug. 31, 2004, no pet.) (mem. op.); Al Parker Buick Co. v. Touchy, 788 S.W.2d 129, 130-31 (Tex. App.-Houston [1st] 1990, orig. proceeding).
Texas law provides that "[i]n an action arising from harm resulting from an assault, theft, or other criminal act, a court may not award exemplary damages against a defendant because of the criminal act of another." Tex. Civ. Prac. Rem. Code Ann. § 41.005(a) (Vernon 2008). In Greenwood and C.S.'s live pleading in this case, they judicially admit that Ayres was legally intoxicated at the time of the accident. In their response to Islamorada's motion for summary judgment, they attached evidence showing that Ayres pleaded guilty to two charges of intoxication assault arising from the accident that caused their injuries. Because this lawsuit arises from the harm caused by Ayres's intoxication assaults, section 41.005(a) prohibits the trial court from assessing punitive damages against Islamorada. See Tex. Civ. Prac. Rem. Code Ann. § 41.005(a); Wilson, 2004 WL 1925599, at *2. Consequently, Islamorada's net worth is not relevant to the issues in this case. See Wilson, 2004 WL 1925599, at *1-2; Touchy, 788 S.W.2d at 130-31.
Section 41.005(b) contains exceptions from the exemption provided in subsection (a), but none of those exceptions applies here. See Tex. Civ. Prac. Rem. Code Ann. § 41.005(b).
When a trial court orders discovery that is not relevant, it abuses its discretion and the resisting party has no adequate remedy by appeal. CSX, 124 S.W.3d at 153 ("where a discovery order compels production of `patently irrelevant . . . documents,' . . . there is no adequate remedy by appeal"). Consequently, we conditionally grant Islamorada's petition for writ of mandamus. A writ will issue only if the trial court fails to (1) vacate the portion of its February 2, 2010 "Order Regarding Plaintiff's First Amended Motion to Compel" that requires Islamorada to produce documents in response to request for production nos. 1, 2, 4, and 6, and (2) render an order denying the motion to compel responses to request for production nos. 1, 2, 4, and 6.