Net Worth Discovery - Dallas Court of Appeals Restricts Discovery

Today, the Dallas Court of Appeals, in an opinion written by Justice FitzGerald, granted mandamus relief with regard to an order of the trial court compelling the production of documents purporting to reflect the defendant's net worth. See In re Ameriplan Corp., No. 05-09-01407-CV (Tex. App.-Dallas Jan. 5, 2009, orig. proceeding). What is notable about this case is that it restricts the production of net worth information - at least as far as its relevance to a claim for punitive damages - to only current net worth, not the company's historical net worth. Specifically, the trial court compelled production of the defendant's 2006, 2007, 2008 balance sheets and 2006, 2007, and 2008 income statements. The court of appeals determined that this was too much. Instead, it allowed production of ONLY the 2008 balance sheet (the defendant's most recent one), and refused to allow anything further, concluding that any earlier balance sheets would not show current net worth, and that the income statements would not show net income.

Mandamus - Beware the Certification Requirement!

Happy New Year, indeed. In two opinions issued by the Dallas Court of Appeals on New Year's Eve, the court denied two petitions for writ of mandamus because the petitions did not comply with Texas Rule of Appellate Procedure 53.2(j), which requires that "[t]he person filing the petition [] certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record." In In re Sky Capital Group, Ltd., No. 05-09-01506-CV and In re Weaver & Tidwell, LLP, 05-09-01539-CV, the court denied petitions for writ of mandamus (one arising out of an issue of misjoinder and one arising out of the denial of a motion to compel arbitration, respectively) for this very reason, and in each citing its own prior opinion in In re Butler, 270 S.W.3d 757, 758 (Tex. App.-Dallas 2008, orig. proceeding), as support.

As In re Butler points out, Rule 53.2(j) replaced the old practice in which the lawyer had to verify the petition. Now, in my experience, it simply requires a statement signed by the lawyer that says exactly what the Rule says it should say. And, prior to my review of these cases and In re Butler, I would have thought the failure to comply would have simply resulted in the petition being struck, with the option to re-file. Here, however, the failure to comply results in an outright denial of the petition, the only option being - presumably - a motion for rehearing. Not an enviable position to be in. So, beware. And, happy new year!

The Birth of the Blawg

This is my first attempt at a blawg, inspired - as I often am - by the exploits of my 9-year-old son who just started his own blog. The goal here is simple - to provide a source and summary of important appellate decisions of the Fourteen Texas Courts of Appeal. I practice in Dallas and, so, will focus my efforts on the Dallas Court of Appeals, one of, if not the busiest court in the State. My hope is to eventually have help from practitioners across the State and have this site as a one-stop source for the important opinions from all of the intermediate courts of appeal. Wish me luck!