In re Billy Swiney and Patricia Swiney--Appeal from of County

Opinion filed April 5, 2007

In The

Eleventh Court of Appeals

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   No. 11-07-00071-CV

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IN RE BILLY SWINEY AND PATRICIA SWINEY

Original Mandamus Proceeding

M E M O R A N D U M O P I N I O N

Billy Swiney and Patricia Swiney have filed in this court a petition for writ of mandamus. Relators are challenging the trial court=s December 26, 2006 order denying their second amended motion to compel discovery responses of Crest Ridge Homes, Inc. to the plaintiffs= request for Tex. R. Civ. P. 194 disclosures, plaintiffs= fourth set of interrogatories, plaintiffs= supplement and/or restated third request for admissions, plaintiffs= restated and/or supplement to the sixth request for production, and motion for sanctions entered in the 104th District Court in Taylor County in Trial Court Cause No. 5466-D.

Relators filed a Deceptive Trade Practices Act cause of action in the trial court. See Tex. Bus. & Com. Code Ann. '' 17.41-.63 (Vernon 2002 and Supp. 2006). In their petition, relators allege that Crest Ridge committed knowing violations of the DTPA and that, therefore, they are entitled to recover additional damages, including treble damages, under Section 17.50(b)(1) of the DTPA. Treble damages under the DTPA are punitive damages. Pace v. State, 650 S.W.2d 64, 65 (Tex. 1983). Thus, relators have alleged a claim for punitive damages.

When a plaintiff has alleged a claim for punitive damages, the plaintiff may discover evidence of the defendant=s net worth. See Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex. 1988). Although a plaintiff alleging a claim for punitive damages is entitled to discovery of the defendant=s net worth, the relators in this cause have not established that mandamus is the appropriate remedy. Mandamus will not issue when there is an adequate remedy by appeal. Walkerv. Packer, 827 S.W.2d 833, 841 (Tex. 1992). To be entitled to mandamus relief based on a trial court=s denial of discovery, a relator must show that the denial of discovery severely compromised his ability to present a viable claim or that he cannot perfect an adequate appellate record. Id. at 843-44; In re Thornton-Johnson, 65 S.W.3d 137, 138 (Tex. App.CAmarillo 2001, orig. proceeding). Relators have not demonstrated that they lack an adequate remedy by appeal; therefore, they have failed to establish their right to mandamus relief.

We deny relator=s petition for writ of mandamus.

PER CURIAM

April 5, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.