In Re Williams Brothers Construction Co., Inc. v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas

MEMORANDUM OPINION

No. 04-25-00407-CV

IN RE WILLIAMS BROTHERS CONSTRUCTION CO., INC.

Original Proceeding 1

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice
Lori I. Valenzuela, Justice
H. Todd McCray, Justice

Delivered and Filed: November 26, 2025

PETITION FOR WRIT OF MANDAMUS GRANTED

On June 26, 2025, relator, Williams Brothers Construction Co., Inc., filed this petition for

writ of mandamus requesting the issuance of an order directing respondent to withdraw or vacate

her “Order on Plaintiffs’ Motion for Net Worth Discovery” dated June 16, 2025 (hereinafter

“Order”). The Order directs relator to (1) provide evidence of its net worth through the deposition

testimony of a corporate representative, including the value of its total assets and all active

contracts with the Texas Department of Transportation (“TXDOT”) and (2) produce its 2022 and

2023 tax returns within 14 days of the date of the Order. This court issued a stay of the Order on

1
This proceeding arises out of Cause No. 2024-CI-01176, styled Larrie Ferdinand and Johanne Ferdinand,
Individually and as Next Friend of I.F., Minor, as Heirs to the Estate of Justin Ferdinand, Deceased v. Williams
Brothers Construction Co., Inc. and Reynaldo Barrera, pending in the 438th Judicial District Court, Bexar County,
Texas, the Honorable Antonia Arteaga presiding.
04-25-00407-CV

June 30, 2025, and authorized the real parties in interest and respondent to submit any response to

the petition. The real parties in interest filed a response and the relator has replied. For the reasons

set forth more fully below, we conditionally grant the petition in part and deny the petition in part.

I. BACKGROUND

This is a wrongful death action filed by Larrie and Johanne Ferdinand, individually, and as

next of friend to I.F., a minor as heirs to the estate of Justin Ferdinand (“Ferdinand”). Ferdinand

died early in the morning on July 10, 2024, when the car he was driving struck a crane boom that

had entered into active traffic along the access road adjacent to the Loop 1604/IH-10 interchange

in Bexar County. Williams Brothers Construction Co. is a highway construction contractor that

was tasked with performing and supervising the road work at the location for the Texas Department

of Transportation.

That morning, relator’s crew attempted to reposition a crane adjacent to the access road as

part of the interchange project. Relator’s crew, directed by the foreman on duty, sought to swing

the approximately 80-foot boom towards an open roadway instead of disassembling it, which

would not have required the closure of any lanes of traffic. The foreman testified that he measured

the boom and determined that it would not extend past the far-left lane of the access road. However,

discrepancies exist in his testimony suggesting that he may have determined that the boom would

enter the second from the left lane and instructed a sub-contractor to close that lane as well.

Ultimately, the foreman admitted that he made “no effort” to verify that the second from the left

lane was closed before proceeding with the crane’s movement. The boom entered into the open

lane and was struck by Ferdinand, who died from his injuries.

The real parties in interest filed a motion for net worth discovery seeking copies of the

relator’s 2022 and 2023 tax returns. Relator filed an opposition and the real parties in interest

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replied. An evidentiary hearing was held on June 13, 2025, to determine whether the real parties

in interest had demonstrated a substantial likelihood of success on the merits of their exemplary

damages claims against relator. Both parties introduced evidence at the evidentiary hearing.

The real parties in interest introduced the testimony and sworn statements of relator’s

assigned foreman, which they contend include conflicting and mutually exclusive statements

demonstrating that he was aware of and exhibited a conscious indifference to the extreme risk

presented by repositioning the crane boom in the manner utilized that day. The real parties in

interest also introduced deposition excerpts from a vice principal that was not present at the time

of the collision that ratifies the methods of the day. The real parties in interest entered into evidence

relator’s corporate safety policies that they alleged were breached. The real parties in interest

contend that this evidence establishes that relator was aware of the extreme risk of repositioning

the crane in the manner utilized and was consciously indifferent to it.

For its part, the relator contended that the foreman adopted a “very thoughtful approach”

to the crane’s repositioning that evidenced care, not conscious indifference towards public safety.

Relator further asserted that the vice principal could not ratify the foreman’s conduct after the fact.

It introduced evidence regarding the extent of the foreman’s authority to act on relator’s behalf

and bind it to his decisions. According to relator, there was nobody present at the job site that

morning with sufficient authority for relator to be held liable for gross negligence. Relator also

introduced evidence of third-party culpability, including that of the subcontractor who was

allegedly responsible for closing the second from the left lane of traffic to facilitate the

repositioning of the crane.

At the hearing, the real parties in interest moved the trial court to consider granting net

worth discovery via corporate deposition in lieu of producing the tax records. The trial court issued

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an order on June 16, 2025, finding that the real parties in interest had demonstrated a substantial

likelihood of success on the merits on their claim for exemplary damages against relator and that

the discovery requested constituted the least burdensome method available to determine relator’s

net worth. Respondent specifically ordered relator to provide corporate deposition testimony

regarding its net worth, including the value of all active contracts with TXDOT, and to produce

copies of its 2022 and 2023 tax returns.

Relator filed this petition for writ of mandamus challenging the June 16, 2025 order.

Relator contends that respondent abused her discretion in issuing the order because a corporate

defendant’s net worth is not relevant to any issue of liability or actual damages. It is only relevant

to a determination of exemplary damages. Relator contends that the real parties in interest cannot

establish a substantial likelihood of success on the merits of their exemplary damages claim

because they cannot establish that the corporation itself is liable for gross negligence. Relator

further contends that respondent ordered the production of its tax returns without first establishing

that any material information contained therein cannot be obtained from another source.

II. MANDAMUS STANDARD

Mandamus is both an extraordinary remedy and a discretionary one. In re Garza, 544

S.W.3d 836, 840 (Tex. 2018). It is proper only to correct a clear abuse of discretion or the violation

of a duty imposed by law, and there is no other adequate remedy at law. In re Columbia Med. Ctr.

of Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding).

A trial court clearly abuses its discretion when it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly

analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig.

proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). We may not substitute our

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judgment for that of the trial court in the resolution of factual matters unless the relator establishes

that the trial court could have reasonably only reached one decision and that the trial court’s

decision is arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig.

proceeding); Walker, 827 S.W.2d at 839–40. In other words, we give deference to a trial court’s

factual determinations that are supported by evidence, but we review the trial court’s legal

determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig.

proceeding). “A trial court's ruling that requires production beyond what our procedural rules

permit is an abuse of discretion.” In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig.

proceeding); In re Berridge Mfg. Co., No. 04-20-00462-CV, 2020 WL 7365455, at *1 (Tex.

App.—San Antonio Dec. 16, 2020, no pet.).

Relator must also establish that it has no adequate remedy by appeal. In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). This determination is neither “abstract or

formulaic.” Id. Rather, it requires a “practical and prudential” balancing of both public and private

interests. Id. “It resists categorization.” Id. A party lacks an adequate appellate remedy of a

discovery error when a traditional appeal could not cure the error. Walker, 827 S.W.2d at 843. This

may occur when the trial court orders the disclosure of privileged information, such as material

protected by attorney-client privilege or trade secrets without adequate protections to maintain

confidentiality. Id. It may also occur when a party is ordered to produce patently irrelevant or

duplicative materials such that the discovery constitutes harassment. Id.; see also In re Weekley

Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009) (orig. proceeding) (“Intrusive discovery

measures…require, at a minimum, that the benefits of the discovery measure outweigh the burden

imposed upon the discovered party.”).

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III. APPLICABLE LAW

a. Net Worth Discovery

A party’s net worth is not generally discoverable because it is not relevant to issues of fault

or compensatory damage. TEX. R. CIV. P. 192.3 (discovery must be relevant and material to the

subject matter of the pending action); see Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex. 1998)

(orig. proceeding) (discussing Texas’s history of disallowing net worth discovery and elaborating

on its relevance to determinations of punitive damages), overruled on other grounds, Walker, 827

S.W.2d at 842. It may become relevant when a party is potentially subject to exemplary damages.

See Lunford, 746 S.W.2d at 473 (“A defendant's ‘ability to pay’ bears directly on the question of

adequate punishment and deterrence.”); see also TEX. CIV. PRAC. & REM. CODE § 41.001(5).

To this end, the legislature requires a party seeking evidence of a party’s net worth to

demonstrate “a substantial likelihood of success on the merits of a claim for exemplary damages.”

Tex. CIV. PRAC. & REM. CODE § 41.0115. Only upon such a showing after motion, notice, and a

hearing, may a trial court authorize discovery of evidence of a defendant’s net worth. Id. “A

substantial likelihood of success on the merits requires a showing of only likely or probable, rather

than certain, success. In re Juniper Ventures of Tex., LLC, 679 S.W.3d 177, 181 (Tex. App.—San

Antonio 2023, orig. proceeding) (quoting Bella Corp., 648 S.W.3d 373, 377 (Tex. App.—Tyler

2021, orig. proceeding). “Under our abuse of discretion standard, the question before us is whether

there is some evidence from which the trial court could have reasonably concluded [real parties in

interest] demonstrated a substantial likelihood of success on the merits of a claim for exemplary

damages.” Id.

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i. Exemplary Damages

Exemplary damages may be awarded as a penalty or as punishment for a defendant’s

actions in limited circumstances. TEX. CIV. PRAC. & REM. CODE § 41.001(5). They are neither

considered economic or noneconomic damages and are not awarded for compensatory purposes.

Id. They may only be awarded if the claimant proves by clear and convincing evidence that the

harm from which they seek recovery resulted from the fraud, malice, or gross negligence of the

defendant. TEX. CIV. PRAC. & REM. CODE § 41.003(a). The real parties in interest have not asserted

fraud or malice on the part of relator. Accordingly, they must establish gross negligence on the

part of relator.

ii. Gross Negligence

“Gross negligence” means an act or omission: (A) which when viewed objectively from

the standpoint of the actor at the time of its occurrence involves an extreme degree of risk,

considering the probability and magnitude of the potential harm to others; and (B) of which the

actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with

conscious indifference to the rights, safety, or welfare of others.

There does not appear to be any dispute regarding the objective component. The parties

contest only whether the requirements of the second, subjective component are met.

The second element of gross negligence requires a subjective consideration of the

defendant’s actions or inaction “examined prospectively from the perspective of the actor, not in

hindsight.” Nino v. Primoris Energy Services Corp., No. 04-18-00758-CV, 2019 WL 2996969, at

*3 (Tex. App.—San Antonio July 10, 2019, orig. proceeding) “[T]he plaintiff must show that the

defendant knew about the peril, but [through] his acts or omissions demonstrate that he did not

care.” Id.; see also U–Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 141 (Tex. 2012) (“[A] party

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cannot be liable for gross negligence when it actually and subjectively believes that circumstances

pose no risk to the injured party, even if [it is] wrong.”). “Some evidence of simple negligence is

not evidence of gross negligence.” Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.

2001). “Conversely, some evidence of care does not defeat a gross-negligence finding.” Id.

When the defendant is an entity, the plaintiff must establish that there is sufficient evidence

to impute conscious indifference to the entity itself. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917,

921 (Tex. 1998) (“Because a corporation can act only through agents of some character, this Court

has developed tests for distinguishing between acts that are solely attributable to agents or

employees and acts that are directly attributable to the corporation.”) (internal quotations and

citations omitted).

“A corporation is liable for punitive damages if it authorizes or ratifies an agent's gross

negligence or if it is grossly negligent in hiring an unfit agent.” Id. A corporation may also be

liable if it commits gross negligence through the actions or inactions of a vice principal. Id. at 922;

see also Lee Lewis Const., Inc., 70 S.W.3d at 786 (failure to properly supervise and provide proper

safety equipment sufficient to satisfy the subjective element of gross negligence). Vice principals

include corporate officers, those with the authority to employ, direct, and discharge the servants

of the master, those engaged in the performance of nondelegable or absolute duties of the master,

and those to whom the master has confided the management of the whole, a department, or a

division of the business. Id. In determining whether to attribute conduct directly to the corporation,

courts will examine all surrounding facts and circumstances. Id.

“Circumstantial evidence is sufficient to prove either element of gross negligence.” Mobil

Oil Corp., 968 S.W.2d at 921; see also Richard v. Wiatt, No. 14-22-00236-CV, 2023 WL 3071161,

at *3 (Tex. App.—Houston [14th Dist.] Apr. 25, 2023, no pet.) (“Although circumstantial evidence

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may suffice to prove either element of gross negligence, the evidence must do more than create a

mere surmise or suspicion of its existence.”) (internal quotation marks omitted); Miller v. Mullen,

531 S.W.3d 771, 779 (Tex. App.—Texarkana 2016, no pet.). “Evidence of gross negligence is

legally sufficient if, considered as a whole in the light most favorable to the prevailing party, it

rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.”

Lee Lewis Const., Inc., 70 S.W.3d at 785.

b. Discovery of Tax Records

Information contained in income tax returns is discoverable if it is relevant, material, and

not duplicative. See Hall v. Lawlis, 907 S.W.2d 493, 494 (Tex. 1995) (“Income tax returns are

discoverable to the extent they are relevant and material to the issues presented in the lawsuit.”);

Maresca v. Marks, 362 S.W.2d 299, 301 (Tex. 1962). When a trial court authorizes net worth

discovery, it may only authorize the least burdensome method available to obtain the net worth

evidence. TEX. CIV. PRAC. & REM. CODE at § 41.0115(b). The information therein ceases to be

material or relevant when it may be obtained through less intrusive discovery. In re Brewer

Leasing, Inc., 255 S.W.3d 708, 715 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding)

(ordering production of tax returns was a clear abuse of discretion because the tax returns would

be unnecessarily duplicative of other documents produced to show net worth); Sears, Roebuck &

Co. v. Ramirez, 824 S.W.2d 558, 559 (Tex. 1992) (same); Hall, 907 S.W.2d at 495 (finding an

abuse of discretion “by ordering production of [tax] returns without a showing of relevance”); In

re Zhang, No. 01-22-00856-CV, 2023 WL 3956860, at *5 (Tex. App.—Houston [1st Dist.] June

13, 2023, orig. proceeding) (“The requesting party must also show that sufficient information of

financial status cannot be obtained elsewhere.”).

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Tax returns may contain private information that is neither material nor relevant to the

action in which they are sought. See Maresca, 362 S.W.2d at 300. Constitutional privacy concerns

have resulted in a “reluctance to allow uncontrolled and unnecessary discovery of federal income

tax returns.” Hall, 907 S.W.2d at 495 (quoting Sears, Roebuck & Co., 824 S.W.2d at 559); see

also In re Brewer Leasing, Inc., 255 S.W.3d at 714 (“[T]ax returns are treated differently from

other discovery requests of financial matters [] because federal income tax returns are considered

private and the protection of that privacy is determined to be of constitutional importance.”). The

compelled disclosure of tax returns may not be remedied by appeal “[b]ecause privacy once

broken…cannot be retrieved.” Id. (quoting Maresca, 362 S.W.2d at 301) (internal quotation marks

omitted); Zhang, No. 01-22-00856-CV, 2023 WL 3956860, at *5.

IV. APPLICATION

a. The trial court abused its discretion in ordering the production of relator’s
2022 and 2023 tax returns.

Respondent ordered both the production of the 2022 and 2023 tax returns in addition to the

deposition of relator’s corporate representative regarding its net worth. In ordering both, it

becomes clear that respondent did not consider whether the production of tax records was the least

burdensome method available to obtain evidence of relator’s net worth. The deposition of relator’s

corporate representative may prove more than adequate to establish relator’s net worth. Moreover,

the real parties in interest failed to establish why the 2022 returns would be relevant. See In re

Jacobs, 300 S.W.3d 35, 45 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding) (“[W] e do

not believe the trial court sufficiently narrowed the scope of production because only the relators'

current net worth is relevant.”). Absent such a showing, it was an abuse of discretion for respondent

to order their production. In re Brewer Leasing, Inc., 255 S.W.3d 708, 715 (Tex. App.—Houston

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[1st Dist.] 2008, orig. proceeding); Sears, Roebuck & Co, 824 S.W.2d at 559; Hall, 907 S.W.2d at

495.

b. Relator has not established that the trial court abused its discretion by
ordering net worth discovery. 2

Relator contends that the foreman responsible for repositioning the crane demonstrated a

“very thoughtful approach” and, regardless of this approach, the foreman did not possess sufficient

authority for his actions to be imputed to it. Relator goes so far as to contend that no one with

sufficient authority was present for the repositioning of the crane to hold it liable for gross

negligence. When considered as a whole and viewed in the light most favorable to the real parties

in interest, fair-minded and reasonable people could find that relator’s failure to supervise or have

present a person with sufficient authority to supervise could rise to the level of gross negligence.

Relator has not established that it was an abuse of discretion to order the corporate deposition of a

representative regarding relator’s net worth.

V. CONCLUSION

We conclude that the trial court abused its discretion by requiring the relator to produce its

2022 and 2023 tax returns. We further conclude that relator did not establish that the trial court

abused its discretion by ordering the relator to submit to a corporate deposition on its net worth.

Therefore, we conditionally grant the petition for writ of mandamus in part. Respondent is directed

to vacate that part of its June 16, 2025 ruling requiring relator to produce its 2022 and 2023 tax

returns. The petition for writ of mandamus is otherwise denied. The writ will issue only in the

unlikely event that the trial court fails to comply with our directive.

PER CURIAM

2
Relator has not specifically contested that part of the order requiring disclosure regarding relator’s contracts with the
Texas Department of Transportation. Therefore, we consider only whether the trial court abused its discretion by
ordering net worth discovery.

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