IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

═════════_= 52;══

No. 04-0961

═════════_= 52;══

Tony Gullo Motors = I, L.P. and=20 Brien Garcia, Petitioners,

Nury Chapa,=20 Respondent

═════════_= 52;══════════= ══════════ = 552;══════════= ;══════════&#= 9552;

On Petition for Review from = the

Court of Appeals for the Ninth = District of=20 Texas

═════════_= 52;══════════= ══════════ = 552;══════════= ;══════════&#= 9552;

Argued October 19,=20 2005

Justice Johnson, = concurring.

I = concur in=20 the Court=92s judgment, and, except for part III.B. as to Exemplary = Damages, I=20 join its opinion.

The = court of=20 appeals properly identified State Farm Mutual Automobile Insurance = Co. v.=20 Campbell, 538 U.S. 408 (2003) and BMW of North America, Inc. v. = Gore,=20 517 U.S. 559 (1996) as guiding authorities for its review of the = $250,000=20 exemplary damages jury award. It then concluded that $125,000 exemplary = damages=20 is constitutionally permissible under this record. That amount is = between 4.33=20 and 4.34 times the actual damages of $28,852 found by the jury. The = court of=20 appeals=92 analysis as to the exemplary damages issue is not as detailed = as that=20 in this Court=92s opinion. But, because the court of appeals did not = give a=20 detailed explanation for its conclusion does not mean that its = conclusion is=20 wrong.

The = United=20 States Supreme Court has not set a bright line constitutional limit for=20 exemplary damages. Some of its specific language bears reviewing:

We decline=20 again to impose a bright-line ratio which a punitive damages award = cannot=20 exceed. Our jurisprudence and the principles it has now established = demonstrate,=20 however, that, in practice, few awards exceeding a single-digit = ratio=20 between punitive and compensatory damages, to a significant degree, will = satisfy=20 due process. In Haslip, in upholding a punitive damages award, we = concluded that an award of more than four times the amount of=20 compensatory damages might be close to the line of constitutional = impropriety. 499 U.S., at 23-24. We cited that 4-to-1 ratio again in=20 Gore. 517 U.S., at 581. The Court further referenced a long = legislative=20 history, dating back over 700 years and going forward to today, = providing for=20 sanctions of double, treble, or quadruple damages to deter and punish.=20 Id., at 581, and n. 33. While these ratios are not binding, = they are=20 instructive. They demonstrate what should be obvious: Single-digit=20 multipliers are more likely to comport with due process, while still = achieving=20 the State=92s goals of deterrence and retribution, than awards with = ratios in=20 range of 500 to 1, id., at 582, or, in this case, of 145 to = 1.

Nonetheless, = because there=20 are no rigid benchmarks that a punitive damages award may not = surpass,=20 ratios greater than those we have previously upheld may comport with due = process=20 [under certain circumstances].

Campbell, 538 = U.S. at 425=20 (emphasis added).

The = Court=20 says that =93The court of appeals=92 judgment at least pushes against, = if not=20 exceeds the constitutional limits.=94 ___ S.W.3d ___. A ratio of 4.33 to = 1 is=20 clearly close to the ratio of 4 to 1 which =93might be close to the line = of=20 constitutional impropriety.=94 Campbell, 538 U.S. at 425. But, = there are no=20 rigid constitutional benchmarks that an exemplary damages award may not = surpass.=20 Id. Unless we determine that the court of appeals misapplied the=20 standards enunciated by the Supreme Court, however, I consider a 4.33 = ratio of=20 exemplary damages to actual damages under this record to be within the=20 discretion lodged in the court of appeals to determine the amount of = remittitur=20 to suggest. I would remand to the court of appeals for reconsideration = of the=20 exemplary damages issue and more complete explanation of its analysis as = to the=20 remittitur. I would not instruct the court of appeals, at this juncture, = that it=20 should determine a different, more appropriate, remittitur.

________________________________________

Phil=20 Johnson

Justice

OPINION = DELIVERED:=20 December 22, 2006