TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-26-00519-CV
In re John Constantine
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
On June 8, 2026, Relator John Constantine filed a petition for writ of mandamus
and emergency motion for temporary relief, seeking a stay of the district court’s orders
permitting and compelling discovery of Constantine’s net worth. We granted the motion,
temporarily stayed the district court’s orders pending the resolution of this original proceeding,
and requested a response from real party in interest Natalie Arriaga. In response, Arriaga filed a
motion to abate this proceeding and for limited remand and a supplement to her motion. For the
following reasons, we conditionally grant Constantine’s petition and dismiss Arriaga’s motion
and the supplement to her motion as moot.
BACKGROUND
In the underlying suit, Arriaga seeks damages against Constantine and others for
injuries she sustained in a May 2024 motor vehicle accident between Arriaga and Diego Osorio.
At the time of the accident, Osorio was working for Constantine as a babysitter and driving
Constantine’s vehicle with Constantine’s minor child as a passenger. Arriaga’s asserted claims against Constantine include negligent entrustment and gross negligence, and she seeks
exemplary damages based on Constantine permitting Osorio to drive his vehicle. Arriaga alleges
that Constantine knew or should have known that Osorio was “incompetent and unfit to safely
operate a vehicle” and that he was a “medically impaired driver.” In May 2023, which was
approximately one year before the accident, Osorio suffered a stroke caused by Moyamoya
disease. 1 Osorio underwent three months of inpatient rehabilitation and was discharged, but he
has continued to suffer some physical impairments.
Central to this original proceeding, Arriaga filed a motion with the district court
seeking to conduct discovery of Constantine’s net worth for her exemplary damages claim. See
Tex. Civ. Prac. & Rem. Code § 41.0115 (addressing procedure for obtaining authorization to
conduct discovery of defendant’s net worth for exemplary damages claim). In support of her
motion, Arriaga attached her petition, property-damage photographs, and transcripts of Osorio’s
and Constantine’s depositions. The evidence submitted to the district court showed that:
(i) Osorio had Moyamoya disease and suffered from physical impairments as a result of his
stroke; (ii) Osorio had been able to drive after the stroke without incident until the accident;
(iii) Osorio had not had any other car accidents or received a driving citation; (iv) Osorio had a
valid, unrestricted Texas driver’s license at the time of the accident; and (iv) at the scene of the
accident, EMS evaluated and cleared Osorio to go home. 2
1
In his deposition, Osorio testified that Moyamoya disease is a genetic disorder that does not have any symptoms but that it “causes strokes.”
2
In his deposition, Osorio testified that he suffered a stroke caused by his Moyamoya disease in May 2023, that he underwent three months of inpatient rehabilitation, and that the lingering effect from the stroke was a left-side “drop foot” making walking more difficult. In his deposition, Constantine testified that he knew that Osorio suffered a stroke and underwent inpatient rehabilitation for the stroke but that he did not know Osorio had Moyamoya disease.
2
In his response to Arriaga’s motion to conduct discovery of Constantine’s net
worth, Constantine argued that Arriaga had not demonstrated a substantial likelihood of success
on the merits to satisfy either the subjective or objective elements of her exemplary damages
claim of gross negligence. See id. § 41.001(11) (defining “gross negligence”); U-Haul Int’l, Inc.
v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012) (describing subjective and objective elements of
gross negligence).
Following a hearing, the trial court signed an order on March 9, 2026, granting
Arriaga’s motion to conduct discovery of Constantine’s net worth. Arriaga then sought to take a
second deposition of Constantine and filed a motion to compel. Constantine filed a motion for
reconsideration of the district court’s March 9, 2026 order or in the alternative for a protective
order and to quash the notice of his deposition. The district court denied Constantine’s motion
and granted Arriaga’s motion to compel discovery of Constantine’s net worth. After requesting
a stay at the district court, Constantine filed this original proceeding challenging the district
court’s orders permitting and compelling discovery of his net worth.
ANALYSIS
Standard of Review
Mandamus is an extraordinary remedy and will issue only if the lower court has
clearly abused its discretion and the relator has no other adequate remedy by appeal. In re
H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding). A trial court abuses
its discretion, and mandamus is available when the trial court orders discovery “beyond the
permissible bounds of discovery” and the trial court’s discovery error cannot be adequately
He also testified that Osorio had been driving after his stroke and recovery and that Osorio confirmed to him that he was “medically cleared to drive.”
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remedied on appeal. In re Weekley Homes, 295 S.W.3d 309, 322 (Tex. 2009); see In re Juniper
Ventures of Tex., LLC, 679 S.W.3d 177, 182 (Tex. App.—San Antonio 2023, orig. proceeding)
(granting mandamus relief to remedy order improperly compelling discovery as to net worth).
In this proceeding, our review also concerns factual issues. “In determining
whether the trial court abused its discretion with respect to resolution of factual matters, we may
not substitute our judgment for that of the trial court and may not disturb the trial court’s
decision unless it is shown to be arbitrary and unreasonable.” In re Sanders, 153 S.W.3d 54, 56
(Tex. 2004) (orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992)
(orig. proceeding)). In this context, “a trial court will be held to have abused its discretion only
if the relator establishes that the trial court could have reached but one decision, and not the
decision it made.” In re Levien, No. 03-18-00079-CV, 2018 WL 2170825, at *4 (Tex. App.—
Austin May 11, 2018, orig. proceeding) (mem. op.) (quoting In re Eurecat US, Inc., 425 S.W.3d
577, 582 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding)).
Discovery of Net Worth
Before pursuing discovery of an opposing party’s net worth for an exemplary
damages claim, a party must obtain a court order under Section 41.0115 of the Texas Civil
Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 41.0115. To obtain this order,
the party must demonstrate “a substantial likelihood of success on the merits of a claim for
exemplary damages.” Id. § 41.0115(a). “Substantial likelihood of success” in this context
means the party is required to show “likely or probable, rather than certain, success” on its
exemplary damages claim. In re Juniper Ventures of Tex., LLC, 679 S.W.3d at 181 (quoting
In re Bella Corp., 648 S.W.3d 373, 378 (Tex. App.—Tyler 2021, orig. proceeding)).
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When reviewing a Section 41.0115 order, “the reviewing court may consider only
the evidence submitted by the parties to the trial court in support of or in opposition to the
motion.” Tex. Civ. Prac. & Rem. Code § 41.0115(c). The question before the reviewing court is
whether there is some evidence from which the trial court could have reasonably concluded that
the party seeking net-worth discovery “demonstrated a substantial likelihood of success on the
merits of a claim for exemplary damages.” In re Juniper Ventures of Tex., LLC, 679 S.W.3d at
181; accord In re Kimco Devs., Inc., No. 14-24-00361-CV, 2024 WL 5250445, *3 (Tex. App.—
Houston [14th Dist.] Dec. 31, 2024, orig. proceeding) (mem. op.).
The trial court abused its discretion by permitting and compelling discovery of Constantine’s net worth.
In his petition for writ of mandamus, Constantine argues that the district court
abused its discretion by allowing discovery of his net worth under Section 41.0115(a) because
there was no evidence that would support a substantial likelihood of success on the merits as to
Arriaga’s claim for exemplary damages. 3
3
In his petition, Constantine also argues that he is entitled to mandamus relief because the district court’s orders do not comply with the statutory requirements of Section 41.0115: (i) to make a written finding of a substantial likelihood of success and (ii) to confine the authorized discovery of net worth to the least burdensome method. See Tex. Civ. Prac. & Rem. Code § 41.0115(a) (requiring finding in written order), (b) (requiring court authorizing discovery under Subsection (a) to use “least burdensome method available to obtain the net worth evidence”). Because we conclude that the district court abused its discretion based on the lack of evidence to support the substantial likelihood of success on the merits of Arriaga’s exemplary damages claim, we do not address Constantine’s other arguments in support of granting mandamus relief. See Tex. R. App. P. 47.1, 52.8(d).
In her motion to abate and for limited remand and in the supplement to her motion, Arriaga seeks to abate this proceeding for a limited remand to the trial court to make a written finding of a substantial likelihood of success before this Court evaluates the merits of whether there is a substantial likelihood of success on the merits. She does not address the substance of Constantine’s argument concerning the lack of evidence to support her exemplary damages claim
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In the underlying proceeding, Arriaga seeks exemplary damages based on her
allegation of gross negligence, which “has both an objective and a subjective component.”
Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789, 796 (Tex. 2012); see Tex. Civ. Prac. &
Rem. Code §§ 41.001(11) (defining “gross negligence”), .003(a)(3) (authorizing exemplary
damages when claimant’s harm resulted from gross negligence). Because it is dispositive, we
limit our review to the subjective element of Arriaga’s gross negligence claim. 4 See In re
Juniper Ventures of Tex., LLC, 679 S.W.3d at 181 (requiring proof of both subjective and
objective elements for finding of gross negligence to be proper).
The subjective element of Arriaga’s gross negligence claim in the context of her
Section 41.0115 motion required her to submit some evidence that Constantine had “actual,
subjective awareness of the risk involved, but nevertheless proceed[ed] in conscious indifference
to the rights, safety, or welfare of others.” See Medina v. Zuniga, 593 S.W.3d 238, 247 (Tex.
2019) (quoting Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001)); see also
Tex. Civ. Prac. & Rem. Code §§ 41.001(11)(B) (defining subjective element of “gross
negligence”). Arriaga was required to submit evidence that Constantine “knew about the peril,
and concedes that the district court’s orders are defective because they do not include the required written finding of a substantial likelihood of success. She interprets Section 41.0115 to confine this Court’s review to an actual written finding made by a trial court in an order. Interpreting the plain language of the statute, we decline to adopt her interpretation that would limit our review here. See Miles v. Texas Cent. R.R. & Infrastructure, Inc., 647 S.W.3d 613, 619 (Tex. 2022) (stating well-settled principles for interpreting statutes based on plain language).
4
The objective element of a gross negligence claim requires proof of an act or omission, when “viewed objectively from the actor’s standpoint,” involving “an extreme degree of risk, considering the probability and magnitude of the potential harm to others.” Medina v. Zuniga, 593 S.W.3d 238, 247 (Tex. 2019) (quoting Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001)); see Tex. Civ. Prac. & Rem. Code § 41.001(11)(A) (defining objective element of “gross negligence”).
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but his acts or omissions demonstrate[d] [that] he did not care.” See Medina, 593 S.W.3d at 248
(quoting Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 173 (Tex. 2005)). And “[t]he
risk should be ‘examined prospectively from the perspective of the actor, not in hindsight.’” Id.
(quoting Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008)).
In her Section 41.0115 motion, Arriaga asserted that Constantine’s allowing
Osorio to drive Constantine’s minor child while babysitting was grossly negligent. Arriaga
argued Osorio’s ability to drive was impaired from the stroke he suffered and Moyamoya disease
and that Constantine’s knowledge of Osorio’s stroke and rehabilitation show deliberate
indifference to Arriaga’s safety and other drivers. But the evidence that was submitted to the
district court as to Arriaga’s motion was uncontroverted that Osorio held a valid, unrestricted
Texas driver’s license and was cleared by EMS at the scene, and Arriaga did not submit any
evidence that tied his year-old stroke to the accident. 5 During his deposition, Osorio testified
that the lingering effect from his stroke was a left-side “drop foot” making walking more
difficult but that he had been driving without incident after his stroke, that he told Constantine
that he had a “clean” driving record, that he had a Texas driver’s license that did not have
restrictions, and that he did not have anything in his medical history that prevented him from
being able to drive safely. 6 During his deposition, Constantine testified that he knew that Osorio
suffered a stroke and underwent inpatient rehabilitation, but that he did not know what caused
the stroke, that Osorio had Moyamoya disease, or what Moyamoya disease was. He also
5
To the extent that the mandamus record includes redactions to the evidence that was submitted to the district court or references to the opinion of Arriaga’s expert and Osorio’s medical records, our review in this proceeding is statutorily limited to the evidence submitted to the district court as to Arriaga’s motion. See Tex. Civ. Prac. & Rem. Code § 41.0115(c).
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testified that Osorio had been driving after his stroke and recovery and that after Osorio’s stroke,
Constantine asked and Osorio confirmed that he was “medically cleared to drive” before
Constantine permitted Osorio to drive Constantine’s minor child in Constantine’s car. Arriaga
did not present contrary evidence.
Based on our review of the evidence submitted to the district court, we conclude
that Arriaga did not submit any evidence that would demonstrate that Constantine “knew of [a]
peril” based on Osorio’s driving capability and exercised conscious indifference to that risk. See
Medina, 593 S.W.3d at 248; see also Batte v. Hendricks, 137 S.W.3d 790, 791 (Tex. App.—
Dallas 2004, pet. denied) (“The possession of a valid, unrestricted driver’s license is evidence of
a driver’s competency absent any evidence to the contrary.”). There is nothing in the evidence
submitted to the district court demonstrating that Constantine believed that Osorio’s driving
posed a risk to others or that Osorio was an incompetent or impaired driver. See U-Haul Int’l.,
Inc., 380 S.W.3d at 141 (stating that “party cannot be liable for gross negligence when it actually
and subjectively believes that circumstances pose no risk to the injured party, even if they were
wrong”). Thus, there was no evidence from which the district court could have reasonably
concluded that Arriaga demonstrated a substantial likelihood of success as to the subjective
element of her exemplary damages claim. See In re Juniper Ventures of Tex., LLC, 679 S.W.3d
at 182 (concluding that “[t]here is simply no evidence from which the trial court could have
reasonably found that [the claimant] demonstrated a substantial likelihood of success in
establishing the subjective element of gross negligence”). We must conclude then that the
6 Osorio also answered, “I do not,” when asked if he had “any medical conditions that
could potentially affect [his] ability . . . to operate a motor vehicle.”
8
district court abused its discretion by permitting and compelling net-worth discovery from
Constantine. See id.
Additionally, we conclude that Constantine is without an adequate remedy by
appeal because an appellate court would not be able to cure the district court’s improper
discovery orders. See id. at 182 (having concluded that trial court abused its discretion by
granting motion to compel discovery of relator’s net worth, further concluding that relator was
without adequate remedy by appeal and granting mandamus relief (citing In re National Lloyds
Ins. Co., 507 S.W.3d 219, 223 (Tex. 2016) (orig. proceeding))).
CONCLUSION
For these reasons, we conditionally grant Constantine’s petition for writ of
mandamus, direct the district court to vacate its orders permitting and compelling discovery of
Constantine’s net worth, and dismiss as moot Arriaga’s motion to abate and for limited remand
and her supplement to the motion. The writ will issue only if the district court fails to act in
accordance with this opinion.
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Kelly and Theofanis
Filed: October 8, 2026
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