In re Garth

• Decision Date: 18 January 2007
• Docket Number: No. 09-06-527 CV.,09-06-527 CV.
• Citation: 214 S.W.3d 190
• Parties: In re Tyrell GARTH, Robert Verde, Mike Fuljenz and Ed Hein.
• Court: Texas Court of Appeals

214 S.W.3d 190

In re Tyrell GARTH, Robert Verde, Mike Fuljenz and Ed Hein.

No. 09-06-527 CV.

Court of Appeals of Texas, Beaumont.

Submitted December 11, 2006.

Decided January 18, 2007.

D. Ferguson McNeil, Catherine B. Smith, Vinson & Elkins LLP, Ronald D. Krist, Krist Law Firm, P.C., Houston, Bruce M. Partain, Gary J. Linthicum, Wells, Peyton, Greenberg & Hunt, LLP, Paul F. Ferguson, II, Provost Umphrey Law Firm, LLP, Beaumont, for relator.

Glen Morgan, Chris Portner, Reaud, Morgan & Quinn, LLP, Beaumont, William S. Shepherd, Ronald H. Thrash, Shepherd, Smith and Edwards LLP, Houston, for real parties in interest.

Before McKEITHEN, C.J., KREGER and HORTON, JJ.

OPINION

PER CURIAM.

This dispute involves Mary Ann Kaiser's discovery requests in which she sought to discover the net worth information of certain individuals in a civil case. In addition to the claims she asserts against the individual defendants, she also seeks punitive damages. Relators are individuals that served in various capacities for entities that are also defendants in Kaiser's lawsuit.

It appears that only one of these individuals, Ed Hein, had direct contact with Kaiser during the transactions that form the basis of Kaiser's underlying lawsuit. The punitive damages that Kaiser seeks to recover against Tyrell Garth, Robert Verde, and Mike Fuljenz are premised upon her claim of conspiracy.

In their petition seeking a writ of mandamus, Relators assert that Kaiser's pleadings are insufficient to allow a punitive damages claim to be submitted against them. As a result, they contend they should not be required to produce their net worth information in discovery. Relators further contend that Kaiser should be required to make a prima facie showing regarding her conspiracy claims before they are subjected to the discovery of their net worth information. Relators do not assert that Kaiser's discovery requests are insufficiently specific, overly broad, or that complying with her requests would be unduly burdensome. Included among Kaiser's requests for production are requests for each of the individual's tax returns.

The trial court held two hearings on Kaiser's motion to compel discovery. At the second hearing, Kaiser argued that she was not required to make a prima facie case on her conspiracy claim in order to obtain discovery of the respective individual's net worth information. Kaiser presented no evidence at the hearing. Except for their request that the trial court judicially notice Kaiser's First Amended Petition, the individuals also presented no evidence at the two hearings concerning their objections to Kaiser's discovery requests.

First, we discuss whether Kaiser's pleadings are sufficient to support the admission of evidence on a claim for punitive damages against the individual defendants. Relators argument is premised on the contention that Kaiser's pleadings are insufficient to give them fair notice of the factual bases of her claims.

At the time the trial court entered its order, Plaintiff's First Amended Petition was the pleading before the court. Although very broad, the First Amended Petition clearly alleges a conspiracy by the individual defendants, asserts that they committed overt acts, and seeks punitive damages against them. Although the individuals assert they filed special exceptions to the First Amended Petition, the record before us does not include their special exceptions or reflect that the trial court heard them. Because the respective individual's special exceptions are not in the record, we cannot determine whether they made any complaint regarding the sufficiency of Kaiser's allegations about their involvement in the alleged conspiracy.

Our rules regarding pleading a claim require that the petition provide "fair notice" to the defendant of the plaintiff's claims. TEX.R. CIV. P. 45(b) and 47(a). Where a party fails to create a record demonstrating a complaint consistent with the one asserted on appeal, we follow the rule that pleadings are construed liberally in favor of the party that filed the pleadings. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000). "A court should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged." Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993). Because we construe Kaiser's pleadings in her favor, we hold that her pleadings are sufficient to notify the individual defendants that she sought to hold them liable for punitive damages through a conspiracy theory. Based on the claims made in Kaiser's First Amended Petition, we hold the individuals had fair notice that the trial court would admit testimony regarding their net worth. See Auld at 896-97.

We next turn to the individuals' argument that a prima facie showing of a conspiracy was necessary before Kaiser could discover their net worth. Currently, Texas law does not require that a prima facie showing be made before a trial court can exercise its discretion to order the production of documents relevant to a damage claim asserted by the plaintiff in a plaintiff's pleadings. With respect to the discovery on net worth, our Supreme Court held in Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex.1988) that:

Our rules of civil procedure and evidence do not require similar practices [i.e., that a prima facie right to punitive damages be established or delaying the production until the jury hears evidence sufficient to submit a punitive damage issue] before net worth may be discovered. Absent a privilege or specifically enumerated exemption, our rules permit discovery of any "relevant" matter; thus, there is no evidentiary threshold a litigant must cross before seeking discovery.

The individual defendants note that the Supreme Court has two mandamus petitions pending before it in which it could choose to modify Lunsford. See In re Bottling Group, L.L.C., No. 06-0754 (Tex. Aug. 28, 2006, order) (not designated for publication); In re Mariner Health Care of Nashville, Inc., No. 06-0239 (Tex. March 28, 2006, order) (not designated for publication). While the Supreme Court may choose to change or modify its prior opinion, we cannot say that the trial court clearly abused its discretion by following the law as articulated in Lunsford. In re Smith Barney, Inc., 975 S.W.2d 593, 598 (Tex.1998) (orig. proceeding). "It is not the function of a court of appeals to abrogate or modify established precedent." Lubbock County, Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002).

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