THE “BEST OF” by wulinqing




      THE “BEST OF”
                              VOLUME 26




  EDITORS                                TOM C OWART                             LITIGATION SECTION OFFICERS                COUNCIL MEMBERS
                                         Windle Turley, P.C.
  E DITOR IN C HIEF                      1000 Turley Law Center                  TALMAGE B OSTON, C HAIR                    TERMS EXPIRE 2004
  L ONNY S. HOFFMAN                      6440 North Central Exp.                 Winstead Sechrest & Minick
  University of Houston Law Center                                               1201 Elm St., Ste. 1500                    K IM J. A SKEW
                                         Dallas Texas 75206
  100 Law Center                                                                 Dallas, TX 75270                           Dallas
  Houston, TX 77204-6060                                                                      A LISTAIR    DAWSON                                                                                                   Houston
                                         A LISTAIR DAWSON
                                         Beck Redden & Secrest                   A NDY TINDEL , C HAIR -E LECT              JUDGE R OYAL F URGESON
  E DITOR E MERITUS                      1221 McKinney, Ste. 4500                Provost & Umphrey Law Firm, L.L.P.         San Antonio
  J. PATRICK H AZEL                      Houston, TX 77010                       304 W. Rusk St.
  University of Texas School of Law                     Tyler, TX 75701                            J AN WOODWARD FOX
                                                                                 DANIEL W. B ISHOP,                         JUSTICE L INDA R. YANEZ
  JEFFREY M. B ENTON                     Friedman, Suder & Cooke                                                            Edinberg
  Univ. of Houston, J.D. exp. May 2005   Tindall Square Warehouse No. 1          VICE -C HAIR
                                         604 East 4th Street, Suite 200          Watson, Bishop, London & Brophy            TERM EXPIRING 2005
  E LVIN HOUSTON                         Fort Worth, Texas 76102                 106 E. 6th St., Ste. 700                   JUDGE L EVI B ENTON
  Univ. of Houston, J.D. exp. May 2004                          Austin, TX 78701                           Houston
  G RAPHIC D ESIGNER                     G EOFFREY L. H ARRISON                                                             FRED B OWERS
  R EBECCA B RIDGES R ICE                Susman Godfrey, L.L.P.                  S USAN I. NELSON, SECRETARY                Lubbock             1000 Louisiana Street, Ste. 5100        The Nelson-Lewis Law Firm, PLLC
                                                                                 River Square Center
                                                                                                                            JEFFREY T. L UCKY
                                         Houston, TX 77002-5096                                                             El Paso
                                            P. O. Box 1
                                                                                 Waco, TX 76703                             E LIZABETH E. M ACK
  EDITORIAL BOARD                        THE HONORABLE                                            Dallas
  K IM J. A SKEW                         K AREN JOHNSON
  Hughes & Luce, L.L.P.                  Judge, 95th Judicial District Court     E DUARDO R. R ODRIGUEZ ,                   M ICHAEL C. SMITH
  1717 Main St., Ste. 2800                                                       TREASURER                                  Marshall
                                         Geo. Allen Courts Building, 3rd Floor
  Dallas, TX 75201-7342                  600 Commerce Street                     Rodriguez, Colvin, Chaney & Saenz L.L.P.   TERM EXPIRING 2006                  Dallas, Texas 75202                     1201 E. Van Buren St.
                                                                                 Brownsville, TX 78522                      WALKER C. FRIEDMAN
                                                                                                                            Fort Worth
  JOE B ROPHY                            JEFFREY K APLAN               
  Watson, Bishop, London, &              Chevron Phillips Chemical Company                                                  G EOFFREY L. H ARRISON
  Brophy, P.C.                           P. O. Box 4910                          JOHN E. SIMPSON, PAST C HAIR               Houston
  106 East Sixth Street, Suite 700       The Woodlands, TX 77387-4910            Splawn & Simpson, Inc.
  Austin, Texas 78701                                P.O. Box 1376                              JUDGE K AREN JOHNSON                                                       Lubbock, TX 79408-1376                     Dallas
                                         TOM K URTH                    
  G REGORY S. C OLEMAN                                                                                                      L INDA S. MC D ONALD
                                         Haynes and Boone, LLP                                                              San Antonio
  Weil Gotshal & Manges, L.L.P           901 Main Street, Suite 3100             L UTHER H. S OULES III
  8911 Capital of TX Hwy., Ste. 4140     Dallas Texas 75202                      PAST C HAIR                                A UGUSTIN R IVERA JR .
  Austin, TX 78759                         Langley & Banack, Inc.                     Corpus Christi                                                          Trinity Plaza II
                                                                                                                            SUPREME COURT LIAISON
                                         E LIZABETH E. M ACK                     745 East Mulberry, Suite 900
                                         Locke Liddell & Sapp L.L.P.             San Antonio, TX 78212-3166                 JUSTICE H ARRIETT O’NEILL
                                         2200 Ross Ave., Ste. 2200     
                                                                                                                            STATE BAR OF TEXAS ADVISORS
                                         Dallas, TX 75201-6776
                                                                                            M ACK BARNHART
                                                                                                                            PAULA W. H INTON
                                         S USAN I. NELSON
                                         The Nelson – Lewis Law Firm, PLLC                                                  TEXAS YOUNG LAWYERS ASSOCIATION
                                         River Square Center                                                                REPRESENTATIVE

      ✯                                  P. O. Box. 1
                                         Waco, TX 76703
                                                                                                                            JOE B ROPHY

VOLUME 26                                M ICHAEL C. SMITH
                                         The Roth Firm
                                         115 N. Wellington, Ste. 200
  SPRING                                 Marshall, TX 75670

                              STATE BAR LITIGATION SECTION REPORT                        1


                          T ABLE OF C ONTENT S
                                      SPRING 2004

E DITOR ’S C OMMENTS by Lonny S. Hoffman                                            2

C HAIRMAN ’S R EPORT by Talmage Boston                                              3

                   T HE “ BE S T O F ” L I T IG AT IO N UP DAT E 20 0 4

S UPREME C OURT U PDATE by Justice Priscilla R. Owen, Julie Buchanan,
     Osler McCarthy, Casey Low & Michel Walter                                      6

     by Nina Cortell, Karen S. Precella & Heather D. Bailey                        45

     by Ladd A. Hirsch & Ester R. Donald                                           61

B USINESS TORT U PDATE by Daniel Bishop                                            73

     by Mark L. Kincaid & Trevor A. Taylor                                         96

     by Luther H. Soules III & Susan S. Patterson                                  114

M ULTI -PART Y I SSUES A FTER H OUSE B ILL 4 by Steve McConnico & Daniel Bitting   136


                                           ✯	✯	✯
                 SEPTEMBER 12TH E RA Excerpt of Speech by Steven Brill
                       (Nov. 13, 2003, Univ. of Houston Law Center)     163

                  O RAL H ISTORY, B ROADUS SPIVEY by Pat Hazel        165
                                             ADVOCATE   ✯   SPRING 2004


                                     EDITOR’S COMMENTS
                                  T  HIS ISSUE OF THE ADVOCATE IS DEVOTED TO providing a
                                      “Best Of” from the 2004 Litigation Update that was held in Austin,
                                      Texas in January. It has been a long-standing tradition of this journal
                                  to republish some of the works from that continuing legal education
                                  program for all members of the Litigation Section.

                                I also want to take this opportunity to preview what we are working
                                on for the remaining two issues in the 2004 calendar year. Our next
                                issue, the Summer 2004 issue (which should be coming out around
                                July 1), will address Privileges, Protective Orders and Confidentiality
                                Agreements. The symposium will undertake a detailed examination
                                of the law relating to these subjects. Articles will also focus on recent
                                and important legislative changes and address several key questions,
                                including: How will the new rules impact these areas of legal practice?
    What can be expected as a result of the changes? How will they influence pretrial and trial strategy?

    The final issue of the year (anticipated publication date of October 2003) will be devoted to the
    subject of depositions and deposition practice in state and federal courts in Texas. Our goal, as always,
    is to put together an issue that makes a serious and useful contribution to the literature on the subject
    for members of this section.

    Finally, a note of correction and apology. Our last issue on Binding Arbitration (Winter 2004)
    included an article, The Basics of Confirming, Vacating, Modifying and Correcting an Arbitration Award
    under the FAA and the TAA, coauthored by David Pluchinsky and John Lynd. We inadvertently failed
    to credit Mr. Lynd for his contribution to this work. I regret the error.

    If you have any questions or comments about this or prior issues, I welcome your feedback.
    My email address is

                                                  Lonny Hoffman
                                                  Editor in Chief
                                         ADVOCATE   ✯   SPRING 2004


                                 CHAIRMAN’S R EPORT
                                E  ACH YEAR, THE SPRING ISSUE OF THE ADVOCATE (per the Spring
                                   2004 issue that follows) is devoted to recognizing some of the best
                                   papers delivered at our annual “Litigation Update” seminar presented
                                every January by the State Bar’s Litigation Section. I am sure this issue
                                shaped under Lonny Hoffman’s able editorial guidance will meet with
                                the reader’s approval. I attended the Update two months ago in Austin,
                                and the presentation that stands out in my memory today was made
                                by Fifth Circuit Judge Patrick Higginbotham on his chosen topic, “The
                                Vanishing Trial.”

                               Judge Higginbotham recited all the statistics about how many fewer jury
                               trials and judge trials there have been in the last five years throughout
                               the country compared to the decades before, and how this downward
                               trend will likely continue. This phenomenon has been previously
recognized in articles appearing in the ABA JOURNAL and LITIGATION magazine over the past eighteen
months, so the speech’s contents did not surprise me.

I was surprised, however, by Judge Higgenbotham’s essential criticism of Alternative Dispute
Resolution as the cause of trials’ decline in that an overabundance of settlements reduces the amount of
precedent created by our judicial system.

Yes, more settlements mean fewer trials, fewer trials mean fewer appeals, and fewer appeals mean
less precedent. A district judge in Dallas has typically tried only 13-15 jury trials per year since the
county courts at law acquired concurrent jurisdiction more than six years ago, and most of those tried
cases involve either car wrecks or grocery store slip-and-falls. Thus, those few lawsuits that go to
trial almost always involve plaintiffs who have their lawyer hired on a contingent fee basis, such that
they essentially have no downside to rolling the dice at trial since it doesn’t cost them any money to

One Dallas district judge told me in early February that the judge had not had a jury trial go past voir
dire since the first week in November. A justice on the Dallas Court of Appeals confirmed the impact
on appellate practice, telling me in late January it had been over two months since the justice had
heard an oral argument.

So the ultimate question for litigators to ask themselves: “Is the Vanishing Trial a good thing or a bad
thing?” Maybe the question deserves some tweaking – “A good thing or a bad thing for whom?” And
therein lies the rub.

Certainly, trials are good things for litigators and judges. Historically, they have been a big part of what
we most enjoy doing in our practice, and where reputations are made and war stories created. They put
the notches in our belts.

In over twenty-five years of practicing as a trial lawyer in downtown Dallas, however, I have yet to
have a client who truly wanted to proceed through the entire litigation process and go to trial when
an acceptable settlement became available. Throughout my career, I have always represented business
people. They don’t like coming out-of-pocket to pay sometimes enormous fees. They don’t like giving
                                               ADVOCATE   ✯    SPRING 2004


    depositions themselves, or having their adversaries respond to deposition questions with “I don’t recall.”
    They don’t like fighting over document production that may involve having to turn over proprietary
    information to a competitor and ultimately shown in court for anyone to see. Overall, they would prefer
    to decide their own fate, over having it decided by a jury, a politically elected or appointed trial judge, or
    an appellate court.

    So, I respectfully disagree with Judge Higginbotham. In my opinion, the vanishing civil trial is not
    caused so much by the influx of Alternative Dispute Resolution; rather, it is a natural result of the
    development of discovery over the last several decades. Amplified and sophisticated discovery took trial
    by ambush out of lawyers’ bags of tricks, and allowed parties assisted by capable counsel to (i) learn and
    evaluate the pertinent facts in a case well before trial, (ii) perform their own internal handicapping as
    to the likelihood for success or failure in the trial, (iii) determine a reliable estimate of how much going
    forward will cost them and how much time it will take, (iv) analyze the ultimate solvency of a defendant,
    and (v) arrive at a settlement that seems prudent in light of all these factors.

    So, the Vanishing Trial – not so good for litigators and judges, but very good for the parties to the
    lawsuit, who our judicial system is supposed to be serving.

    How do you answer the question?

    Our Litigation Section will examine a different angle on the question during the keynote luncheon
    held Friday, June 25, 2004, at the State Bar’s Annual Meeting in San Antonio. A debate between former
    Solicitor General and Special Prosecutor Kenneth Starr and San Antonio’s Court of Appeals’ Chief Justice
    Phil Hardberger, moderated by Court TV legal analyst Roger Cossack, will focus on whether the scope of
    our state and federal judicial systems is being reduced by the expanded reach of both the executive and
    legislative branches of government. We hope you will join us in San Antonio for what should be a very
    lively presentation regarding an issue that should be on every litigator’s radar screen.

                                                   Talmage Boston
                                                   Chairman, Litigation Section


              A DVOCATE

                    PDATES ON RECENT CASE LAW
  UPDATES           in selected topical areas as
                    determined by the Texas
              Supreme Court and intermediate
              appellate courts.

             THE “B EST OF ” L ITIGATION
                   UPDATE 2004
                                                       ADVOCATE      ✯    SPRING 2004


                                          SUPREME COURT UPDATE

I. SCOPE OF THIS ARTICLE                                                 judge’s ruling upholding revocation of a child-care facility’s
This article surveys cases that were decided by the Supreme              license is subject to judicial review. After a hearing before
Court of Texas from October 1, 2002 through December 31,                 the State Office of Administrative Hearings, an administrative
2003. Petitions that have been granted but not yet decided               law judge upheld the revocation. Mega Child Care, Inc. filed
are also included.                                                       suit seeking judicial review of the determination. The trial
                                                                         court dismissed the case for lack of jurisdiction. The court of
I. ADMINISTRATIVE LAW                                                    appeals reversed, holding that a right to judicial review exists
A. Appeal/District Court Jurisdiction/Field Rules                        under Texas Government Code section 2001.171.
1. Tex. R.R. Comm’n v. WBD Oil & Gas Co., 104 S.W.3d 69
(Tex. February 13, 2003) [01-0177]. The issue is whether the             The Supreme Court granted the Texas Department of
district court has jurisdiction under the state’s Administrative         Protective and Regulatory Services’ petition for review to
Procedures Act to review Texas Railroad Commission special               consider whether the trial court had subject matter jurisdic-
field rules adopted after a contested-case proceeding. In this           tion to review the administrative law judge’s ruling. The Court
case, WBD had notice of the hearing involving Panhandle                  heard argument on September 10, 2003.
oil and gas fields, but did not participate in it. When oil and
gas operators sued to force WBD’s compliance with the rules,             C. Public Utility Commission/Jurisdiction
WBD sued the Railroad Commission and the operators to                    1. In re Entergy Corp. & Entergy Gulf States, Inc., argu-
declare the rules invalid. The trial court dismissed WBD’s               ment granted on pet. for writ of mandamus, 46 Tex. Sup. Ct.
lawsuit, but the court of appeals reversed, concluding that              J. 1058 (August 28, 2003) [03-0024]. The issue in this
the field rules are rules of “general applicability” that can be         case is whether a dispute over a private agreement that
subject to a declaratory judgment suit under the administra-             requires Public Utility Commission (PUC) approval to be
tive procedures law.                                                     effective is within the exclusive jurisdiction of the PUC. In
                                                                         1992, Entergy Corp. agreed to purchase Gulf States Utility
The Supreme Court reversed and remanded, holding that                    Company, and the companies merged to form Entergy Gulf
Railroad Commission field rules adopted in a contested-case              States, Inc. (EGSI). In 1993, EGSI customers entered into a
proceeding cannot be challenged in a declaratory-judgment                settlement agreement with EGSI to capture a portion of the
action. The Court compared rule-making and contested-case                expected savings from the merger. The agreement was to be
proceedings, concluding that contested-case procedures limit             implemented via a regulatory plan that required EGSI to file
participation to those directly affected by the dispute, in con-         three Public Utility Regulation Act (PURA) rate cases over
trast to the maximum public participation necessary for rule-            an 8-year period. The PUC entered an order approving the
making. Participants in a contested case would expect any                merger and the regulatory plan. While the second rate case
further challenge to follow immediately after the proceeding             was pending in 1999, the Legislature passed Senate Bill 7,
and that after that time the decision would stand. The court             which made sweeping changes to the electric utility industry
of appeals had suggested that determining field rules is a               to implement retail competition in Texas and created a new
hybrid process, but the Supreme Court said contested-case                and completely different regulatory scheme from that in place
and rule-making procedures are mutually exclusive in that a              when the settlement agreement was made. The PUC issued
rule cannot be adopted without public input and a contested              orders in three subsequent EGSI proceedings altering the
case cannot be decided with it.                                          regulatory plan in the agreement to conform with Senate Bill
                                                                         7, including an order that Senate Bill 7 had eliminated the
B. License Revocation/Review                                             requirement for EGSI to file the third rate case.
1. Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child
Care, Inc., 81 S.W.3d 470 (Tex. App.—Houston [1st Dist.]                 Shearer, an EGSI customer who is not a signatory to the
2002), pet. for review granted, 46 Tex. Sup. Ct. J. 527 (March 27,       Agreement, filed a class action suit for breach of contract
2003) [02-0728]. The issue is whether an administrative law              alleging that Entergy and EGSI failed to pass on all the
                                                     ADVOCATE     ✯    SPRING 2004


merger savings contemplated in the agreement to their                 judgment on the procedural issues. The court of appeals held
Texas customers by not filing the third rate case. Entergy            that (1) the Commission had provided a reasoned justifica-
filed a motion to transfer venue and subsequently a motion to         tion for enacting the fees guideline and that the Commission
dismiss for want of subject matter jurisdiction, arguing that         was not required to republish the fees guideline after minor
PURA grants the PUC exclusive jurisdiction over the case,             alterations because the amendments did not affect anyone
which was essentially a dispute over EGSI’s rates pursuant            who had not already received notice; (2) the Commission
to a PUC-approved regulatory plan. The trial court denied             had made sufficient copies of the fees guideline available and
both motions.                                                         that requiring the Commission to make more copies would
                                                                      be prohibitively expensive because of its length; and (3) the
The Supreme Court heard argument in this original pro-                Commission had not exceeded its statutory authority in set-
ceeding on November 12, 2003.                                         ting caps on medical fees and that the imposition of a time
                                                                      limit on a request for medical dispute resolution complied
D. Worker’s Compensation/Medical Fee Guidelines/                      with the purpose of a statute of limitations. The court of
Promulgation                                                          appeals also held, however, that the Commission exceeded
1. Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex.,           its authority in promulgating the Dispute and Audit Rules
80 S.W.3d 66 (Tex. App.—Austin 2002), pet. for review granted,        because the rules grant the insurance carriers authority to
46 Tex. Sup. Ct. J. 617 (May 1, 2003) [02-0804]. The issue            audit health-care providers’ bills. The court of appeals stated
is whether the Texas Workers’ Compensation Commission’s               that the delegation of the Commission’s authority to conduct
dispute and audit rules impermissibly grant administrative            audits to private insurance carriers was improper because the
authority to a private entity. A related issue raised in this         Commission had not provided “sufficient standards to guide
appeal is whether the court of appeals properly invalidated the       carriers in the performance of their delegated public function.”
rules. Patient Advocates of Texas challenged the validity of a        The court of appeals declared the Dispute and Audit Rules,
series of rules governing workers’ compensation medical-cost          28 Tex. Admin. Code ‘’ 133.301-.305, to be invalid.
guidelines and reimbursement procedures promulgated by the
Texas Workers’ Compensation Commission (Commission).                  The Supreme Court granted the Commission’s petition for
In 1995, the Commission published a Medical Fee Guideline             review and heard argument on September 10, 2003.
that sets caps on the amount a health-care provider may
charge an insurance company for any given medical proce-              II. ARBITRATION
dure provided to an injured worker. The Commission also               A. Enforcement/Employer Reserving Right To Abolish Or
promulgated a set of administrative rules, some of which              Modify Agreement
implement and govern procedures by which insurance carriers           1. J.M. Davidson Inc. v. Webster, S.W.3d , Tex. Sup. Ct.
may audit health care providers’ billing. Patient Advocates           J. (December 31, 2003) [01-0774]. The issue is whether an
challenged the validity of these rules on both procedural             arbitration agreement between an employer and an employee
and substantive grounds. Patient Advocates claimed that               is enforceable when the agreement is contained in a document
the Commission did not follow the procedures mandated                 that reserves to the employer the unilateral right to abolish or
by the Administrative Procedures Act in promulgating the              modify “any personnel policy” without prior notice. In this
fees schedule. Specifically, Patient Advocates argued that the        lawsuit, Chelsey Webster sued his employer, J.M. Davidson,
Commission (1) had not provided a reasoned justification              claiming he had been fired for filing a worker’s compensation
for establishing the fees guideline; (2) had not republished          claim. J.M. Davidson sought to compel arbitration under an
the fees guideline after making changes to it; and (3) had            alternative-dispute resolution policy Webster signed when he
not made sufficient copies of the fees guideline available.           was hired. Under the policy, Davidson reserved the right to
Substantively, Patient Advocates complained that the Medical          abolish or modify “any personnel policy” without notice. The
Fee Guideline imposes an impermissible cap on medical costs.          trial court denied Davidson’s motion to compel arbitration,
Patient Advocates also claimed that the rules impermissibly           and the court of appeals affirmed in a split decision.
delegated the Workers’ Compensation Commission’s auditing
powers to private insurance companies and that the rules              The Supreme Court held that the arbitration agreement was
improperly created a statute of limitations.                          ambiguous as to whether the modification language applied
                                                                      to the arbitration agreement. The question, the Court said,
The trial court granted summary judgment in the Commission’s          was whether the arbitration policy was a “personnel policy,”
favor on all claims. The court of appeals affirmed summary            within the meaning of the agreement, and whether the
                                                       ADVOCATE      ✯    SPRING 2004


reservation of rights rendered the agreement to arbitrate                Mistake
illusory. Because the Court found that it was unclear as to              1. Callahan & Assocs. v. Orangefield Indep. Sch. Dist., 92
whether the arbitration agreement was a personnel policy                 S.W.3d 841 (Tex. December 19, 2002) [01-0993]. The issue
under the agreement, the Court remanded the case to the                  is whether an arbitrator’s refusal to award damages for a
trial court for consideration of that issue. In In re Halliburton,       faulty driveway Callahan designed was an “evident mistake
80 S.W.3d 566 (Tex. 2002), however, the Court previously                 or violated common law,” posing a fact issue that avoided
held that when an employer’s right to modify or terminate                summary judgment on the arbitration award. In this case, the
an arbitration agreement, by its express terms, applies only             arbitrator found both the school district and Callahan at fault
prospectively to unknown claims, requires prior notice, and              for the driveway’s failure and awarded Callahan additional
applies to both the employer’s and the employee’s rights, the            fees for work on the driveway but awarded no damages to
agreement to arbitrate is not illusory.                                  the district.

In dissent, Justice Schneider, joined by Justice O’Neill, said           The Supreme Court held that an arbitrator’s mere failure to
the agreement was not ambiguous and that the company’s                   award damages is not a ground under the Texas Arbitration
promise to arbitrate was illusory. Justice Schneider observed            Act for modifying or correcting an arbitration award. The
that the arbitration policy lacked protections similar to the            Act only permits a court to modify or correct an award that
ones the Court relied on in Halliburton to find the promises             contains an “evident miscalculation of figures” or an “evident
to arbitrate mutually binding.                                           mistake in the description of a person, thing, or property
                                                                         referred to in the award.”
Justice Smith also dissented, agreeing with Justice Schneider
that the arbitration agreement was not ambiguous, but dis-               D. Nonsignatories To Agreement
agreeing that the promise to arbitrate was illusory. Justice             1. In re Weekley Homes, L.P., argument granted on pet. for writ
Smith said that the provision allowing J.M. Davidson to                  of mandamus, 46 Tex. Sup. Ct. J. 1204 (September 25, 2003)
“abolish or modify any personnel policy without prior                    [03-0309]. The issue in this original proceeding is whether
notice” applied to the arbitration policy, but did not waive             nonsignatory minor children are bound to a valid arbitra-
the employee’s right under Texas at-will employment law                  tion clause entered into by their parents concerning the con-
to contemporaneous notice of any change in the company’s                 struction of a family residence. Dawn and Scott Richardson
arbitration policy.                                                      entered into a contract with Weekley for the construction
                                                                         of a residence in Austin, Texas. This contract contained a
B. Enforcement/Fraudulent Inducement Claims                              valid arbitration clause. After five weeks in their new home,
1. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546                 the Richardson family moved out, alleging adverse health
(Tex. October 10, 2002) [01-0630]. The issue is whether man-             effects. The Richardsons sued Weekley, alleging negligence,
damus relief is available to compel arbitration of a fraudulent          gross negligence, fraud, negligent misrepresentation, DTPA
inducement claim under an agreement to arbitrate “all dis-               violations, breach of contract, and products liability claims.
putes involving [the] Agreement,” when the agreement specified           The minor children, however, asserted only negligence, gross
that Colorado law would control and the arbitrator would                 negligence, and products liability claims for their personal
be “appointed and operating under the Uniform Arbitration                injuries. After a hearing, the trial court granted Weekley’s
Act and the procedural rules of the American Arbitration                 motion to compel arbitration with respect to all of the adult
Association.” The trial court denied J.D. Edwards’s motion               Richardsons’ claims, but the court denied Weekley’s motion
to compel arbitration of its fraudulent inducement claim, and            with respect to the children’s claims. The Supreme Court
the court of appeals denied mandamus relief.                             heard argument in this case on December 10, 2003.

The Supreme Court held that the parties’ agreement to arbitrate          III. ATTORNEYS
all disputes “involving” the underlying contract was broad               A. Appointments
enough to encompass the fraudulent inducement claim, relying             1. Gibson v. Tolbert, 102 S.W.3d 710 (Tex. March 27, 2003)
in part on Colorado law. The Court further concluded that                [02-0190]. The question presented in this case is whether
mandamus relief was available because the interlocutory appeal           “exceptional circumstances” were present that required the
provisions of the Texas Arbitration Act did not apply.                   trial judge to appoint counsel in a civil case absent a statutory
                                                                         or constitutional provision requiring such an appointment.
C. Modification of Award/Evident Miscalculation or                       Here, a prison inmate, acting without counsel, sued a prison
                                                      ADVOCATE      ✯    SPRING 2004


doctor for medical malpractice for assigning him to a farm              suspension order and affirmed the judgment after the lawyer,
work detail after a back specialist recommended against such            on rehearing, brought a disqualification challenge to a board
an assignment. The trial court denied Tolbert’s motion to               member based on new facts. After the Court denied review,
appoint him counsel. The court of appeals reversed, holding             the lawyer sued in district court to declare the suspension
that the fact that Tolbert was suing an employee of the very            judgment void based on the disqualification issue. The trial
facility in which he was incarcerated constituted exceptional           court voided BODA’s suspension order. The State Bar of
circumstances warranting appointed counsel.                             Texas and BODA sought mandamus relief directly from the
                                                                        Supreme Court, arguing that the trial court interfered with
The Supreme Court held that an indigent inmate does not have            BODA’s continuing jurisdiction over the lawyer’s suspension
a right to appointed counsel in a civil case merely because the         and litigated an issue already decided by the Court.
inmate’s suit is against an employee of the prison in which
he is incarcerated. In Traveler’s Indemnity Co. v. Mayfield, 923        The Supreme Court conditionally granted mandamus relief,
S.W.2d 590, 594 (Tex.1996), the Court suggested that in                 holding that the district court interfered with BODA’s jurisdic-
exceptional circumstances “justice may best be served by                tion. Texas Rule of Disciplinary Procedure 2.20 establishes
appointing a lawyer to represent an indigent civil litigant.”           that BODA retains jurisdiction during an attorney’s entire
Beyond that, the Court has never considered what might                  suspension period. Based on Rule 2.20, a board judgment
constitute “exceptional circumstances” warranting appointed             revoking a probated suspension cannot be superseded or
counsel. But the mere fact that an indigent inmate has sued             stayed. Incidental district court rulings, which include pleas
a prison employee in the prison in which he is incarcerated             to the jurisdiction, generally are not reviewable by mandamus
does not constitute exceptional circumstances such that                 because an adequate appellate remedy exists. But an exception
it warrants appointed counsel. The Court also noted that                to the general rule arises when, like in this case, one court
Tolbert’s indigence would not prevent him from employing                renders an order that directly interferes with another court’s
counsel on a contingency-fee basis.                                     jurisdiction. In such a situation, the Court has determined
                                                                        that an ordinary appeal is inadequate and mandamus relief
B. Clients/Fiduciary Duty/Lawyer as City Councilman                     is available.
1. Joe v. Two Thirty Nine Joint Venture, 60 S.W.3d 896 (Tex.
App.—Dallas 2001), pet. for review granted, 46 Tex. Sup. Ct. J.         D. Fees/Proof
434 (February 13, 2003) [02-0218]. The issues in this case              1. S. Union Co. v. City of Edinburg       S.W.3d       ,   Tex.
are whether: (1) a lawyer-legislator whose actions as a city            Sup. Ct. J.     (October 31, 2003) [01-0785]. In this appeal
councilman allegedly conflict with the interests of his law             from the City of Edinburg’s claim for underpayment of nat-
firm’s clients is entitled to have his immunity defense ruled           ural-gas franchise fees, the city variously alleged breach of
on before discovery; (2) the lawyer-legislator and his law firm         contract, fraud, and tortious interference with the franchise
have a duty to the firm’s clients to check for and inform clients       agreement. Among the issues raised on appeal was whether
of potential conflicts between the clients’ interests and the           the court of appeals erred by finding joint liability based
lawyer’s position as a city councilman on public issues; and            on the gas supplier and its related subsidiaries operating a
(3) the lawyer-legislator is entitled to absolute or qualified          “single business enterprise.” Edinburg’s claims arose from its
immunity. The Supreme Court heard oral argument in this                 contract with Rio Grande Valley Gas Co. (RGVG) to supply
case on April 9, 2003.                                                  gas to Edinburg customers. Under the franchise agreement,
                                                                        RGVG agreed to pay the city 4 percent of gross income from
C. Disciplinary Proceedings/State Bar of Texas/                         gas it sold in the city. The dispute started after subsidiaries
Jurisdiction                                                            of the company that owned RGVG—and eventually other
1. In re State Bar of Tex. [02-0293], consolidated with In              companies—began supplying Edinburg industrial customers
re State Bar of Tex. [02-0294], In re Bd. of Disciplinary               at spot-market rates lower than the regulated rates RGVG
Appeals [02-0343], and In re Bd. of Disciplinary Appeals                charged, but using RGVG’s pipelines to deliver the gas.
[02-0344], 113 S.W.3d 730 (Tex. July 3, 2003). In this case,            Eventually, RGVG transferred its entire gas-transportation
the Supreme Court considered whether a party is entitled                system to a related subsidiary. The City claimed breach of
to mandamus relief when a trial court voids a judgment                  contract and fraudulent inducement, among other things,
by the Texas Board of Disciplinary Appeals suspending a                 and sought a finding that certain companies were jointly and
lawyer from practicing law. The Supreme Court denied the                severally liable to the City under a theory of “single business
lawyer’s petition to review the Board of Disciplinary Appeals’          enterprise,” under which separate corporations may be
                                                      ADVOCATE     ✯    SPRING 2004


jointly and severally liable for the debts of another, based           appeals affirmed the trial court’s class certification.
on a common business purpose. Based on the jury’s findings,
the trial court rendered judgment against the defendants,              The Supreme Court first determined that it had conflicts
jointly and severally, for over $6.5 million in actual damages         jurisdiction over the case. Plaintiffs’ argument that the court
and prejudgment interest, plus over $3.5 million in attorney’s         of appeals’ decision did not conflict with Bernal because the
fees, including conditional appellate attorney’s fees. The court       court did not refuse to follow Bernal did not negate a conflict
of appeals reduced the actual damages award to $774,445,               with Bernal. What is required for conflicts jurisdiction is that
including prejudgment interest, affirmed the award of attor-           the two decisions cannot stand together. The Court said the
ney’s fees, and reversed the awards based on fraud.                    Plaintiffs correctly asserted that Bernal should not be read to
                                                                       require a “trial plan” by that name, set out in a separate docu-
The Supreme Court held that provisions of the franchise                ment, but according to Bernal, Texas Rule of Civil Procedure
agreement reflected the parties’ intent that “gross income             42 does require a rigorous analysis and a specific explanation
derived from all gas sales within the City” (on which the              of how class claims are to proceed to trial. The trial court
franchise fee was to be calculated) meant gross income                 did not set out any plan for trying the plaintiffs’ claims. The
from RGVG’s sales within the city, not sales by other par-             certification order only listed some common issues and simply
ties. Thus, RGVG was not required to pay the fee for gas that          concluded that there is “nothing to indicate” that individual
was transported through its pipeline system and sold within            claims could not be managed. The court of appeals brushed
the city by unregulated affiliated suppliers. The Court did            aside arguments that the trial court had not explained how
not decide whether Texas should recognize the single busi-             other individual issues, like reliance, and other claims, like
ness enterprise theory as an addition to the alter-ego theory          fraud, would be tried. The Supreme Court said, however,
for disregarding corporate structure and the joint-venture,            that Bernal does not permit these issues to be a matter of an
joint-enterprise or partnership theories for imposing joint            appellate court’s confidence in a trial court’s rulings; rather,
and several liability. The Court further said that article 2.21        Bernal requires actual, demonstrated compliance with Rule
of the Texas Business Corporation Act provided the exclusive           42. The court of appeals’ contrary holding thus conflicted
remedy regarding shareholder and affiliate liability and that          with Bernal.
the questions submitted to the jury were intended to embody
article 2.21’s requirements. Finally, the Court held that the          Turning to the merits of the case, the Court reversed and
gas suppliers did not tortiously interfere with the city’s             remanded, holding that the certification order was improper
right to franchise tax revenue from RGVG; and that RGVG                for the following reasons:
did not fraudulently induce the city to enact an ordinance
embodying the franchise agreement and RGVG’s obligation                Reliance. Plaintiffs contended that they had established “class-
to pay franchise taxes.                                                wide reliance” on misrepresentations made by Schein, but
                                                                       this was not supported by the record. The trial court did not
IV. CLASS ACTION                                                       explain in its certification order how plaintiffs could avoid
A. Certification                                                       individual proof of reliance or why the necessity for such
1. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex.                proof would not defeat the predominance requirement for
October 31, 2002) [00-1162]. The issue is whether certifi-             certification. The court of appeals premised its affirmance of
cation of two nationwide classes conflicted with standards             the certification order on the mistaken belief that reliance was
established by Southwest Refining Co. v. Bernal, 22 S.W.3d             not an element of plaintiffs’ principal causes of action.
425 (Tex. 2000). In this case, dentists who bought office-
management software from Schein and two subsidiaries                   Damages. Evidence existed that plaintiffs’ claim for restitution
sued for breach of contract, deceptive trade practices, fraud,         of amounts paid could be proved by Schein’s records or by
negligent misrepresentation, and promissory estoppel. They             checks, charge slips, receipts or other evidence of payment.
alleged the software failed to perform properly and that               The record apparently demonstrated that the determination
they were charged for technical support that should have               of such amounts would be common to the class and would
been free and for upgrades they never requested. They                  not require individual examination of class members except
pleaded actual, consequential, punitive and statutory dam-             in unusual instances. But the same was not true for plaintiffs’
ages. This interlocutory appeal challenged the trial court’s           other damage claims. Consequential damages, for one, would
certification of two classes of purchasers, one for the DOS            have to be determined class member by class member.
version and one for the Windows version. The court of
                                                         ADVOCATE       ✯    SPRING 2004


Common legal questions. The lower courts determined that                    Ct. J. 762 (June 5, 2003) [02-0705]. This case involves a
common legal questions predominated because all of plain-                   class action certified under Texas Rules of Civil Procedure
tiffs’ claims should be governed by Texas law. Schein offered               42(b)(2) and 42(b)(4). On January 28, 2000, Hal LaPray
evidence of the differences in the law of other states, but the             filed this class action on behalf of himself and an estimated
Supreme Court said it did not have the benefit of an analysis               1.8 million purchasers against Compaq Computer Corp. The
of those differences by the lower courts. Accordingly, the                  class alleges that Compaq “designed, sold, manufactured,
Court could not say that Texas law would not govern any                     offered for sale or created” computers that contain floppy
of the class members’ other claims besides those for breach                 disk controllers with a defective microcode. The class argues
of licensing agreements with choice-of-law provisions. The                  that the disk controller was defective “in the box” when the
Court could say, however, that plaintiffs failed to demonstrate             class members bought the computers and Compaq failed to
that Texas law should apply to so many of those claims that                 meet recognized industry standards. The class sued Compaq
common legal issues predominated.                                           for declaratory relief, breach of contract, and breach of
                                                                            Compaq’s express warranty. The class sought certification
Superior adjudication. The court of appeals did not discuss                 as a “Nationwide Equitable Relief Class” and a “Nationwide
whether a class action is superior to the pursuit of individual             Damages” class. After a hearing, the trial court certified the
claims. The trial court alluded to the requirement in a single              class as a mandatory declaratory judgment class under Rule
sentence concluding that the economics of pursuing these                    42(b)(2) and alternatively as an opt-out class for damages
claims individually by small-business owners would not be                   under Rule 42(b)(4). The court of appeals affirmed the trial
feasible for the members of both subclasses, but the amount                 court’s certification order.
of recovery might not be so small as to prohibit individual
claims. Plaintiffs specifically pleaded that they would limit               The Supreme Court granted Compaq’s petition for review
their recovery to $74,000 so as to avoid removal to federal                 and heard argument on October 15, 2003.
court, strongly suggesting that individual recoveries could
exceed that figure. Nothing in the record suggested any basis               B. Commonality
for the trial court’s conclusion that claims of the size indicated          1. Union Pac. Res. Group, Inc. v. Hankins, 111 S.W.3d 69
would not be prosecuted individually simply because plain-                  (Tex. July 3, 2003) [01-0836]. In this case, the Supreme Court
tiffs are small businesses. But, more importantly, plaintiffs               determined whether a proposed class met the requirements
failed to satisfy the superiority requirement of Rule 42(b)(4)              for class certification under Texas Rule of Civil Procedure
by failing to show that a class action would be either more                 42. The trial court certified a class consisting of gas royalty
fair or more efficient under the circumstances.                             owners in Crockett County who claimed that the lessees
                                                                            breached an implied duty to “obtain the best current price
In dissent, Justice O’Neill argued that the Court had no jurisdic-          reasonably obtainable.” As certified, the class included some
tion to consider the merits of the trial court’s certification order.       royalty owners whose leases calculated royalty payments on
She observed that class certification decisions present complex             an amount-realized (or proceeds) basis and other royalty
and important issues—concerns that would, perhaps, justify                  owners whose leases calculated royalty payments based on
the Court’s interlocutory review of class-certification orders              current market value. Because a covenant to obtain the best
should the Texas Legislature decide to grant it jurisdiction                price reasonably attainable is implied under Texas law only
to do so. But, Justice O’Neill said, the Legislature has limited            to proceeds leases, and not to market-value leases, the Court
the Court’s jurisdiction over interlocutory appeals like the one            concluded that the royalty owners did not establish that there
in this case unless there is a dissenting opinion in the court              were “questions of law or fact common to the class” sufficient
of appeals or the court of appeals’ decision conflicts with a               to support certification.
prior decision of this court or another court of appeals. Justice
O’Neill remarked that the Court, frustrated by this legislative             C. Opt Out Procedures/Municipalities
constraint, distorted well-established conflicts jurisprudence              1. City of San Benito v. Rio Grande Valley Gas Co., 109
to usurp the power that the Legislature deliberately denied and             S.W.3d 750 (Tex. June 26, 2003) [02-0038]. This case involves
that the important issues presented in this case could not over-            a class action brought by South Texas cities over a franchise-
ride due respect for precedent and legislative boundaries.                  fees dispute related to gas sales within city limits. The prin-
                                                                            cipal issues are (1) whether unnamed class members must
2. Compaq Computer Corp. v. LaPray, 79 S.W.3d 779 (Tex.                     have intervened in the trial court to appeal either the denial
App.—Beaumont 2002), pet. for review granted, 46 Tex. Sup.                  of their opt-out requests or the final judgment approving the
                                                       ADVOCATE      ✯    SPRING 2004


class settlement, and (2) whether the court of appeals erred             acknowledged that under TMAP, other medical assistance is
by refusing to allow the cities to opt out of the class because          provided upon a showing of medical need. TLIWT alleged that
their decisions to do so allegedly failed to comply with the             TMAP’s implicit incorporation of the Hyde amendment’s abor-
Texas Open Meetings Act. The trial court certified the class             tion funding limits violates Texas’s Equal Rights Amendment,
and set an opt-out deadline. San Benito and other cities in              Equal Protection Clause, and privacy guarantees. Both parties
this appeal, with one exception, gave opt-out notice before              moved for summary judgment.
the deadline. Although the respective city councils had not
specifically approved the decision to opt-out before the opt-            The trial court granted the State’s motion and rendered judg-
out deadline, many later voted to ratify the opt-out decisions.          ment for the State. On appeal, the court of appeals held that:
The trial court ruled that those cities did not comply with              (1) TLIWT’s declaratory action under the Maternal-Infant
the open meetings law and that later ratification of the opt-            Health Act program was not ripe because the State ceased
out decision did not “relate back” to make the opt-out notice            funding for the program in 1991, but (2) TMAP “effects an
timely and valid. The court of appeals dismissed the cities’             impermissible form of sex discrimination against pregnant
appeal for lack of jurisdiction and denied their petition for            women” in violation of the Texas Equal Rights Amendment
mandamus relief.                                                         because TMAP applies a different standard of medical neces-
                                                                         sity to men than it does to women, without a compelling
The Supreme Court held that an unnamed class member is                   state interest to justify the different treatment. Accordingly,
not required to intervene in order to appeal its objections to           the court of appeals dismissed the Maternal-Infant Health
a class settlement or its opt-out request and that the cities            Act claim, reversed the trial court’s summary judgment, ren-
could authorize their attorneys to opt out of the litigation             dered judgment granting TLIWT declaratory and injunctive
without formal action in an open meeting. The Court said                 relief, and remanded the case to the trial court to determine
that the Cities’ attorney had implied authority under the cities’        attorney’s fees and costs.
contracts to take them out of the class, similar to an attorney’s
authority to nonsuit a client’s claim; thus, the cities were not         The Supreme Court held that the restriction on medically
required to specifically authorize the opt-out requests. The             necessary abortions does not violate the Texas Equal Rights
Court also said that requiring intervention before a settlement-         Amendment because it does not discriminate by gender, is
fairness hearing creates more work with no corresponding                 rationally related to a legitimate governmental interest, and
benefit, and that a timely request to opt out is sufficient notice       does not violate State privacy or State equal-protection rights.
to preserve a complaint for appellate review.                            Regarding the specific constitutional challenges, the Court
                                                                         said the following:
A. Equal Rights Amendment                                                Equal Rights Amendment. Because the State treats indigent
1. Bell v. The Low Income Women of Tex., 95 S.W.3d 253                   women seeking abortions differently from all others, plaintiffs
(Tex. December 31, 2002) [01-0061]. The issue is whether                 established the first prong of the analysis in In re McLean,
Texas statutes that effectively limit state funding for abor-            725 S.W.2d 696 (Tex.1987) (plurality opinion) that equality
tions are constitutional. The Low-Income Women of Texas                  under the law has been denied. But the next question under
(TLIWT) sought a declaratory judgment against the State                  McLean is whether equality has been denied “because of”
of Texas, challenging both the Maternal-Infant Health Act                gender. If the State were to deny funding of all medically
and the Texas Medical Assistance Program (TMAP), Texas’s                 necessary pregnancy-related services, the classification might
Medicaid program. Under TMAP, the Department of Health                   be comparable to overt gender-based distinction. Texas pays
and Human Services “may not authorize the provision of any               for all other medically necessary pregnancy-related services,
service to any person under the [State’s Medicaid] program               but not abortions. The classification is not so much directed
unless federal matching funds are available to pay the cost of           at women as a class as it is at abortion as a medical treatment.
service.” TEX. HUM. R ES. CODE ‘ 32.024(e). The Hyde amend-              To analyze whether the Texas Medicaid scheme is merely a
ment, under federal law, restricts federal matching funds                pretext designed to prefer males over females for health care
available for abortions to cases involving rape or incest, or            requires examination of the Medicaid funding scheme as a
in which the pregnancy threatens the mother’s life. Because              whole, which involves the interplay between the limitation on
federal matching funds are available for abortions only in these         Texas Medicaid treatment to what the federal government pays
limited circumstances, Texas’s Medicaid program only covers              for and the Hyde Amendment. Federal law provides guidance
abortions under the same limited circumstances. The State                as to how courts should decide the issue when classification
                                                    ADVOCATE     ✯    SPRING 2004


is not overtly gender-based and arises at least in part from         Texas Medicaid abortion restriction was rationally related to
a law neutral on its face. The Court noted that in Village of        the underlying legislative purpose and did not violate state
Arlington Heights v. Metropolitan Housing Development Corp.,         equal protection.
429 U.S. 252 (1977), the U.S. Supreme Court established
that discriminatory intent could be shown by available cir-          B. First Amendment/Free Speech/Texas Highway
cumstantial and direct evidence, including disproportionate          Beautification Act
impact, the context for the challenged action, the sequence          1. Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86 (Tex.
of events leading to it, departures from normal procedural           July 3, 2003) [01-0414]. In this case, the Supreme Court
and substantive course, and the legislative or administrative        determined whether the Texas Highway Beautification
history. In this case, the Texas Legislature intended from its       Act violated Barber’s free-speech rights by forbidding him
beginning to conform the Texas Medicaid program to the               from placing a sign on his property that warned drivers
federal program’s contours, and the record demonstrated the          on the interstate highway about police searches. Barber, an
State has never deviated from it. And, to the extent federal         attorney, erected a sign that said “Just say NO to searches”
money has been available, Texas has consistently paid for            and included a phone number that directed callers to a
medically necessary abortions. The Court thus determined             voice message warning motorists that officers do not have
that the historical background of the Medicaid program’s             blanket authority to search cars they stop. TxDOT sought
creation and administration supported the conclusion that            a court order requiring Barber to take the sign down, and
the abortion-funding restriction did not discriminate because        Barber challenged the Act’s constitutionality as applied to his
of gender. As for the Hyde Amendment, the Court said its             expression of noncommercial, ideological speech under both
abortion restriction implements a legitimate governmental            the federal and state constitutions. Barber argued, in part,
purpose, a value judgment condoned by the U.S. Supreme               that the law is unconstitutionally content-based because it
Court favoring childbirth over abortion. Although the Court          allows, among other things, political-campaign signs along
recognized that the Texas Medicaid scheme could give rise to         the highway and signs for businesses at their locations. The
an inference of discriminatory purpose, the inference was not        trial court ordered Barber to take down the sign. The court
proved. Because the Court found that the Medicaid restric-           of appeals reversed, holding the state law unconstitutional
tion on medically necessary abortions was rationally related         as applied to Barber because it discriminates against purely
to legitimate governmental purposes, it did not violate the          ideological” speech.
Equal Rights Amendment.
                                                                     The Supreme Court reversed, holding that (1) the Act is
State Right to Privacy. Plaintiffs argued that paying for            “content-neutral” and constitutes a valid, constitutional time,
medical expenses for childbirth but not for medically                place and manner restriction on Barber’s free-speech rights as
necessary abortions effectively coerced a woman’s deci-              applied to his billboard and (2) the Texas Constitution affords
sion whether to terminate or continue a pregnancy, but the           him no more protection under the circumstances than the
Court noted that the U.S. Supreme Court has distinguished            U.S. Constitution. The Court stated that the U.S. Supreme
between direct state interference with a protected right and         Court has indicated a willingness to treat some content-
state encouragement of an alternative. Citing Harris v. McRae,       based regulations as content neutral if the regulations are
448 U.S. 297 (1980), the Court concluded that the funding            motivated by permissible content-neutral purposes, citing
restriction leaves an indigent woman with at least the same          City of Renton v. Playtime Theatres,475 U.S. 1132 (1986), Ward
range of choice to obtain a medically necessary abortion as          v. Rock Against Racism, 491 U.S. 781 (1989), City of Ladue v.
she would have had if the State had chosen not to subsidize          Gilleo, 512 U.S. 43 (1994), and Metromedia Inc. v. City of San
health-care costs at all.                                            Diego, 453 U.S. 490 (1981). The Court determined that the
                                                                     Highway Beautification Act is not content-based because it
State Equal Protection Clause. The Court said that the               permits commercial and noncommercial speech in all areas
Legislature’s intent from the Medicaid program’s inception           if the speech relates to an activity on the property and per-
has been to provide indigent health care only to the extent          mits both types of speech in all commercial and industrial
that federal matching funds are available. Even under the more       areas, even if the speech does not relate to an activity on the
rigorous standard of rational basis review under the Texas           property. Moreover, the Texas Legislature did not adopt the
Equal Protection Clause advocated by the plaintiffs—that             Texas Highway Beautification Act because it disagreed with
a statutory classification must be related to the very object        any particular type of message, but instead adopted the Act
or subject of the legislation—the Court concluded that the           to control the secondary effects of billboards and signs along
                                                      ADVOCATE      ✯    SPRING 2004


the interstate and primary highway system. Because the Act’s            rights to their twin boys based on the parents’ voluntary
purpose is unrelated to expressive content, it is deemed neu-           affidavits of relinquishment. The principle issues are: (1)
tral, even if it has an incidental effect on some speakers or           whether the adoption attorney’s failure to translate the affi-
messages but not others. And because the Court concluded                davit of relinquishment into the father’s native language vio-
that the Texas Act is content-neutral, the constitutional test          lated his constitutional right to due process; and (2) whether
the Court applied is whether the Act is narrowly tailored               the mother’s signature on the affidavit of relinquishment
to serve a substantial state interest. The Court found the              was procured by undue influence or overreaching. At the
Act sufficiently narrowly tailored to serve a substantial state         conclusion of a bench trial, the trial court terminated the
interest because it contains exemptions to accommodate as               parent-child relationship between natural parents and their
much speech as possible and still accomplish the goals of               twin sons, concluding that their affidavits of relinquishment
preserving the landscape and promoting travel safety.                   were voluntarily executed and were not procured by undue
                                                                        influence, coercion or overreaching. The court of appeals
As for broader state constitutional protection, the Court said          affirmed.
Barber did not articulate any reasons based on the text, history
or purpose of Article I, section 8 of the Texas Constitution to         The Supreme Court held that the father did not preserve the
show that its protection of noncommercial speech is broader             issue he presented for appellate review. The father’s answer
than that provided by the First Amendment of the United                 and counterclaim to the termination proceedings cited no
States Constitution under the circumstances presented.                  constitutional authority and he did not raise the due-pro-
                                                                        cess issue in any post-judgment motion. The Court said
In a dissenting opinion, Justice Owen, joined by Justice Hecht          that allowing appellate review of unpreserved error would
and Justice Smith, said that the Texas Highway Beautification           undermine the Legislature’s intent that parental-termination
Act cannot be distinguished from the city ordinance held                cases be expeditiously resolved.
unconstitutional in City of Ladue v. Gilleo. As a result, the
reasoning in that case, as well as other U.S. Supreme Court             In an opinion joined by Justices Enoch, Schneider and Smith,
opinions dealing with restrictions on signage, compels the              Justice O’Neill said that the mother also failed to preserve her
conclusion that the Act is constitutionally infirm. Justice Owen        undue-influence and fraud complaints. The mother argued
questioned in the first instance whether the restrictions the Act       in the Supreme Court that she agreed to sign a voluntary
imposes are content-neutral, noting that the Act permits on-            affidavit of relinquishment based on unenforceable prom-
site commercial speech and some noncommercial speech, but               ises made by the adoptive parents to send her pictures and
prohibits a property owner from expressing a broad range of             updates about the children, but she did not plead or move
noncommercial speech. According to Justice Owen, the Act is             after trial to challenge the enforceability of the adoptive
content based because whether a sign is prohibited could only           parents’ promises. Justice O’Neill also said that the mother
be determined by examining its contents. Even if the Act were           never raised in the trial court her complaint that the police
content neutral, however, it would still be unconstitutional            detective and his wife and the mother’s sister acted illegally
under City of Ladue, Justice Owen said. Although the sign at            as adoption intermediaries and never secured a ruling on
issue in this case was larger than the sign at issue in City of         this theory in the trial court.
Ladue and was erected on private property that was not the
residence of the owner, Justice Owen said the U.S. Supreme              In a concurring opinion, Justice Wainwright said that when
Court’s decision in City of Ladue could not be so narrowly read         a “voluntarily” executed relinquishment affidavit is the sole
as to turn entirely on the size of the sign or, more importantly,       ground for terminating parental rights, placing the burden
on whether a private property owner resides on the property.            on the parents to set aside the affidavit—as the court of
Justice Owen also stated that nothing in the legislative history        appeals and the parties did—may run afoul of constitutional
or the record of the case suggested that the secondary effects          and statutory mandates. The burden of proof issue, however,
of signs like Barber’s distinguish such signs from speech that          was not briefed, nor was it expressly decided in the courts
is permissible under the Act. In short, Barber’s sign was no            below, Justice Wainwright said. Moreover, Justice Wainwright
more harmful than the types of signs the law permits.                   concluded that the mother’s appeal was unsuccessful regard-
                                                                        less of whether or not she carried the burden of proof, so a
C. Preservation of Claim                                                decision on that issue was not necessary in this case.
1. In re L.M.I., 119 S.W.3d 707 (Tex. September 18, 2003)
[02-0244]. In this case, the trial court terminated parents’            In a concurring and dissenting opinion joined by Chief
                                                       ADVOCATE      ✯    SPRING 2004


Justice Phillips and joined in part by Justice Hecht and Justice         that, they argued, the districts had no meaningful discretion
Jefferson, Justice Owen stated that there was no clear and               in setting their tax rates, making the school-finance system
convincing, legally sufficient evidence that material parts of           an unconstitutional state property tax.
the affidavit the father signed were disclosed to him and,
thus, that he actually swore to and agreed to be bound by the            The State filed special exceptions to the school districts’ plead-
affidavit. Although the Court concluded that the trial court             ings, and the trial court dismissed the lawsuit, ruling that
could have surmised that he understood more English than                 the school districts failed to state a cognizable constitutional
he and others said he could, Justice Owen pointed out that               claim because they failed to allege in their pleadings that they
surmise is no evidence at all, much less clear and convincing            were taxing at or near the maximum rates allowed by state
evidence.                                                                law in order to meet state-mandated accreditation require-
                                                                         ments. The trial court equated school accreditation with the
In dissent, Justice Hecht, joined by Justice Jefferson, said that        constitutional standard for providing a minimum public
the father did enough to preserve his due process claim in the           education—“general diffusion of knowledge.” The court also
lower courts. According to Justice Hecht, the father’s appellate         set a threshold that at least close to half the State’s school
lawyer clearly called the termination of his parental rights             districts must be taxing at the maximum rate to establish that
a due-process violation. And although his trial lawyer did               the state-financing system had become an unconstitutional,
not use those same words, Justice Hecht said termination of              statewide property tax. Because the court concluded that the
parental rights, which are fundamental and constitutional in             school districts could not show that a sufficient number of
their magnitude, should not turn on trifling points regarding            the state’s school districts were taxing at the maximum rate,
the construction of appellate briefs. The father had clearly             the court determined that the districts could not show an
argued in the trial court and on appeal that he did not vol-             unconstitutional tax and denied their request to replead their
untarily relinquish his rights to his children because he did            case. The court of appeals affirmed the trial court’s decision
not understand the affidavit of relinquishment he signed and             to dismiss the suit, but rejected the trial judge’s analysis that
it was not translated into his native tongue.                            close to half the school districts taxing at the maximum rate
                                                                         would establish an unconstitutional statewide property tax.
D. School Finance                                                        The court of appeals focused on the question of whether any
1. W. Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558               of the districts were forced to tax at the maximum rate just
(Tex. May 29, 2003) [02-0427]. This case involves a con-                 to provide an accredited education.
stitutional challenge to Texas’s school-finance system. The
principal issues are (1) whether to present a legally cognizable         The Supreme Court reversed and remanded, reaffirming the
challenge to the system West Orange-Cove and three other                 “meaningful discretion” test from Carrollton-Farmers Branch
school districts were required to plead that they, and half or           Independent School District v. Edgewood Independent School
close to half of all other school districts, were forced to tax at       District, 826 S.W.2d 489 (Tex. 1992) (Edgewood III), to decide
the highest allowable tax rate to provide an accredited educa-           whether a state-imposed taxing scheme is an unconstitutional
tion, and (2) whether the school districts should have been              ad valorem tax, noting that the determining factor is the extent
given an opportunity to amend their pleadings or conduct                 of the state’s control over the taxation process, and holding
discovery after the trial court or the court of appeals decisions.       that the school districts should be allowed to replead their
The overriding issue in this case and two previous challenges            case and offer proof that they are taxing at the maximum
to Texas’s school finance system is whether the state has                allowable rate either to satisfy accreditation standards or a
imposed an unconstitutional statewide property tax. In the               general diffusion of knowledge. The Court disagreed with
last decision upholding the state’s school-financing scheme,             the trial court on the number of districts that have to be
Edgewood Independent School District v. Meno, 917 S.W.2d 717             taxing at or near the maximum rate to state a constitutional
(Tex. 1995) (Edgewood IV), the Court noted that “some” school            claim, holding that a single district can state a claim of an
districts eventually “may be forced to tax at the maximum                unconstitutional property tax if it alleges it is constrained by
allowable rate just to provide a general diffusion of knowl-             the state to tax at a particular rate.
edge” and that “general diffusion of knowledge” establishes the
constitutional requirement for the Sate’s support of its public          In reviewing the trial court’s dismissal on the pleadings, the
schools. In this case West Orange-Cove and the other districts           Court said that to obtain dismissal the State must establish as
alleged that they were taxing at or near the maximum tax                 a matter of law that the school districts are not forced to tax
rate to “educate their students,” citing Edgewood IV Because of          at maximum rates either to meet accreditation standards or to
                                                      ADVOCATE     ✯    SPRING 2004


provide a general diffusion of knowledge, but the State failed         in Dallas. Grizzle asserted that her son’s trust lost value in the
to meet its burden. In addition, the Court said that the State         Dallas bank in part because proceeds from the former account
was also not entitled to dismissal on its argument that the            were not reinvested for forty-two days and because the son’s
mere existence of local-option homestead exemptions shows              trust was charged improper fees and expenses attributed to
that the school districts are not forced to tax at maximum             liquidating the investments in the former account. The trial
rates unless the State establishes that fact as a matter of law,       court granted summary judgment to the banks, and the court
which it failed to do. The school districts were thus entitled         of appeals reversed.
to attempt to show that homestead exemptions do not afford
them meaningful discretion in setting tax rates. The Court             The Supreme Court reversed and rendered judgment in favor
also said that the school districts need not actually be taxing        of the banks, holding that section 113.059 of the Trust Code
at maximum rates if they can show that they couldn’t meet              applies to trusts created under Chapter 142 of the Property
accreditation standards or provide a general diffusion of              Code and the Trust Code allows an exculpatory clause to
knowledge even if they were.                                           relieve a corporate trustee from liability for self-dealing
                                                                       (defined as misapplying or mishandling trust funds), unless
In a concurring opinion, Justice Enoch said the Legislature,           those activities violate the prohibitions in sections 113.052
through the Texas Education Code, requires only that school            and 113.053 of the Code. Realizing an investment tax loss
districts provide an accredited education. Thus, on the                and assessing fees in connection with the bank swap was
narrow question in this case, Justice Enoch said the Court             not evidence of gross negligence, fraud, or bad faith under
was correct that the school districts should be afforded the           the Grizzle Trust, which gave its trustee broad authority to
opportunity to plead that they must tax at the tax rate set            manage the trust, including the authority to sell assets and
by the State to provide an accredited education. But Justice           reinvest them. The Grizzle Trust also recognized that such
Enoch argued that the school districts should not be allowed           transactions may produce tax consequences and result in
to raise a claim that the school finance system constitutes an         fees being charged to the trust.
unconstitutional state ad valorem property tax by asserting
the need to tax at maximum rates to provide a general dif-             B. Claim by Contractor on Subcontractor’s Behalf/
fusion of knowledge.                                                   Privity
                                                                       1. Interstate Contracting Corp. v. City of Dallas, certified
In dissent, Justice Smith argued that the Court lacked subject         question accepted, 46 Tex. Sup. Ct. J. 486 (March 6, 2003)
matter jurisdiction to decide the case and that the Court’s            [03-0152]. In this certified question from the United States
holding that school districts have a legal obligation to comply        Court of Appeals for the Fifth Circuit, the Court must deter-
with the general diffusion of knowledge standard contained             mine whether under Texas law a contractor can assert a
in article VII, section 1 of the Texas Constitution transforms a       claim against an owner on a subcontractor’s behalf when
putative taxpayer suit brought under article VIII, section 1-e         there is no privity of contract between the subcontractor
into an article VII, section 1 “adequacy” challenge.                   and the owner (called a “pass through” claim). Interstate
                                                                       (the general contractor) filed suit against the City of Dallas
VI. CONTRACTS                                                          (the owner) on Mine Services’ (the subcontractor) behalf,
A. Breach/Exculpatory Clauses/Self Dealing                             asserting claims for breach of contract, quantum meruit,
1. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240 (Tex.            breach of implied warranty, and fraudulent inducement.
December 31, 2002) [01-0211]. The principal issues are: (1)            Over the City’s objection, the federal district court permitted
whether, as the result of a bank exchange, the banks can be            Interstate to bring these claims. After an eleven-day trial,
held liable when a trust in one bank allegedly lost money              the jury found that the City breached its contract with
because of asserted self-dealing when investments were sold            Interstate and its implied warranty to provide accurate and
pursuant to federal law to establish an investment account in          suitable plans and specifications pertaining to the subsoil
one of the newly acquired banks; and (2) whether a settle-             conditions at the excavation site. On appeal to the Fifth
ment offer established an absolute defense to a deceptive              Circuit, the City argued, among other things, that Interstate
trade practices claim. Grizzle brought a class action in part          lacked standing to sue on Mine Services’ behalf and that
for breach of contract and breach of fiduciary duty, as well           Mine Services could not sue on its own because it was not
as deceptive trade practices, against Texas Commerce Bank              in privity with the City. The cause was argued before the
and Frost Bank. These claims arose when Texas Commerce                 Supreme Court on April 23, 2003.
traded a Corpus Christi bank to Frost in exchange for a bank
                                                      ADVOCATE      ✯    SPRING 2004


C. Lease/Ambiguity/Implied Obligation                                   And express contractual language requiring the landlord to
1. Universal Health Servs., Inc. v. Renaissance Women’s Ctr.            acquire and maintain permits and insurance-provider agree-
of Austin, L.P., S.W.3d , 47 Tex. Sup. Ct. J. 20 (September             ments for a hospital during the lease term was also not an
30, 2003) [02-0193]. In this breach of contract and fraud               obligation to operate the hospital for the entire term of the
case, the Supreme Court decided whether a landlord was                  doctors’ lease.
obligated to continue operating a hospital for the benefit of
doctors who leased offices in the same building so they could           VII. DAMAGES
be close to the hospital even though there was no express               A. Broad-Form Submissions
provision for continuous operation in the parties’ agree-               1. Harris County v. Smith, 96 S.W.3d 230 (Tex. December
ments. In 1995, Universal Health Services, Inc. (“Universal”)           19, 2002) [01-0531]. The issue is whether the presumptive
invited Renaissance Women’s Group and other physicians                  harm rule of Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378
(“Physicians”) to participate in the “Renaissance concept,” a           (Tex. 2000), applies to errors in broad-form damages submis-
new innovation in women’s health care. The concept involved             sions. Deputy Sheriff Spurgeon and the Smiths were in a car
creating the Renaissance Women’s Health Center of Austin,               crash in 1994, causing injuries to the Smiths. The Smiths
L.P., a two-story facility consisting of a women’s hospital             sued the County, and a jury found that Spurgeon’s negligence
on the first floor and obstetrician/gynecology offices on the           caused the Smiths’ injuries. The County did not challenge the
second floor. According to the joint business plan, Universal           negligence finding but did object to the inclusion of certain
would develop the facility and manage the first-floor hospital,         damage elements in the broad-form submissions to the jury.
and would lease the second-floor offices to the Physicians.             The jury was asked to consider physical pain and mental
The lease agreement provided that Universal would lease the             anguish, loss of earning capacity, physical impairment, and
office space to the Physicians for a ten-year term with the             medical care in deciding the amount of Mr. Smith’s damages.
option to renew for an additional five years.                           The County objected to including lost earning capacity, as
                                                                        there was no evidence of Mr. Smith’s income before or after
Although initial losses were expected, the hospital suffered            the accident. The jury awarded Mr. Smith $90,000 in dam-
financially. In contrast, the Physicians’ practices thrived,            ages. The jury was similarly asked to consider physical pain
earning as much as the hospital lost. Because the hospital was          and mental anguish, physical impairment, and medical care
struggling financially, Universal decided to close the hospital         in deciding the amount of Ms. Smith’s damages. The County
after just two years. When Universal informed the Physicians            objected to including physical impairment, as there was no
of its decision to close, the Physicians sued Universal for             evidence that her injury constituted a separate and substantial
breach of contract and fraud, alleging that under the par-              or extremely disabling loss beyond pain and suffering. The
ties’ written agreements, Universal was obligated to run the            jury awarded Ms. Smith $3,100. The court of appeals agreed
hospital for the entire term of the lease. The jury returned a          with the County that the trial court erred by including in
verdict in favor of the Physicians, finding that Universal agreed       its broad-form damages submission the elements of loss of
to operate the women’s hospital for the entire lease term and           earning capacity for Mr. Smith and physical impairment for
awarding the Physicians actual damages of $5.6 million on               Ms. Smith. But the court of appeals held that these errors
their breach of contract claims, which included $4 million              were harmless because the jury could have awarded damages
in lost profits. The court of appeals affirmed, holding that,           for the Smiths’ medical costs and physical pain and mental
under an ambiguous contract theory, the evidence was legally            anguish. It thus affirmed the trial court’s judgment.
sufficient to support the trial court’s judgment.
                                                                        The Supreme Court held that the reasoning in Crown Life
The Supreme Court held that language from the lease and                 Insurance Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000), applies
subsequent letter agreements was unambiguous and neither                equally to broad-form damage questions. Casteel held that
expressly imposed an obligation to operate the hospital for             commingling valid and invalid theories on liability could be
the entire lease term nor could be reasonably read to do so.            harmful error when the basis for the jury’s finding could not
The Court said that a letter agreement containing statements            be determined for appellate review.
that the landlord and physicians were bound throughout
the lease term did not impose an obligation to operate the              Justice O’Neill dissented, arguing Harris County did not
hospital for the entire lease term. Likewise, other language            contend the evidence was legally insufficient to support
describing the concept of doctors’ offices on one floor and a           the jury’s award. Nevertheless, because one unsupported
hospital on the other did not constitute a binding obligation.          damage element was included in each plaintiff’s broad-form
                                                      ADVOCATE     ✯    SPRING 2004


jury charge, the Court presumed reversible harm. To do                 The Supreme Court held that parents cannot recover for loss
so, Justice O’Neill said, the Court assumed, contrary to               of consortium for a child who suffered a non-fatal injury. In
longstanding precedent, that the jury failed to follow the             so holding, the Court distinguished Reagan v. Vaughn, 804
trial court’s instructions. According to Justice O’Neill, the          S.W.2d 463, 468 (Tex. 1990), in which the Court had previ-
Court’s decision will encourage granulated and confusing               ously held that a child is entitled to seek damages for loss of
jury charges, the very problem broad-form submission was               consortium when a parent suffers a serious, permanent and
designed to prevent. Justice O’Neill argued that a distinction         disabling injury, because the child’s role in the parent-child
between a broad-form submission unsupported by the sub-                relationship, unlike the parent’s role, is vulnerable and depen-
stantive law, as presented in Casteel, and one that presents           dent and profound harm might befall a child who has been
an element or theory lacking evidentiary support, as in this           deprived of a parent’s love, care, companionship and guidance.
case, has been recognized by the U.S. Supreme Court, legal             The Court also noted that several other states—including the
commentators, and Texas civil procedure rules.                         first two that recognized a child’s consortium rights—have
                                                                       held that the parent-child relationship is not reciprocal like
B. Expert Calculations/Reliability/Gas Well                            husband and wife and that the child needs special protec-
1. Kerr-McGee Corp. v. Helton, 2002 WL 110433 (Tex.                    tion. Because the parent has a less dependent role than that
App.—Amarillo 2002), pet. for review granted, 46 Tex. Sup.             of the child in the relationship, extending consortium rights
Ct. J. 49 (October 24, 2002) [02-0356]. This case involves             here could logically lead to the recognition of such rights
whether a damages expert’s calculations were reliable for a            in other nondependent relatives or even in close friends,
hypothetical gas well in a royalty owner’s gas drainage lawsuit.       given appropriate facts. Texas and no other state have gone
The expert calculated more than $2.4 million in royalties if           so far. The Court also held that the trial court did not err in
Kerr-McGee had drilled a third offset well after two such              applying the settlement credits or calculating Dr. Roberts’s
wells failed to produce in paying quantities. The trial court          proportionate liability.
rendered judgment in Helton’s favor and assessed damages
totaling $1,432,618.11. The court of appeals affirmed. The             In dissent, Justice Jefferson, joined by Justices O’Neill and
Supreme Court granted Kerr-McGee’s petition for review and             Schneider, said that the Court’s holding that parents may
heard argument on January 22, 2003.                                    not recover for loss of filial consortium is contrary to the
                                                                       Court’s longstanding precedent, counter to the majority of
C. Loss of Consortium by Parents/Non-Deadly Injury                     jurisdictions that have considered the issue, and unduly tol-
1. Roberts v. Williamson [01-0766], consolidated with                  erant of the anomaly the Court’s decision creates in the law.
Williamson v. Roberts [01-0765], 111 S.W.3d 113 (Tex. July             Moreover, Justice Jefferson said, the theme underlying the
3, 2003). The principal issues in this medical malpractice             Court’s decision—that a parent’s loss of consortium claim
case are whether parents can recover damages for their own             must be rejected because adults require less protection than
loss of consortium with a child who has suffered a nonfatal            children—makes little sense in light of the Court’s repeated
injury and whether settlement credits must be deducted from            declarations that parents may recover consortium damages
the jury’s damages award before a nonsettling defendant’s              for the death of their children, and its holding in Reagan that
proportionate liability is calculated. When the Williamsons’           even adult children are entitled to consortium damages for
daughter was born, she went into distress. During her treat-           the death of, or serious injury to, their parents.
ment, the parents claimed, the proper medicine was not used
and the ventilator to help the child breathe did not work for          D. Measurement/Breach of Oral Stock Option Contract
several minutes. The child suffered brain damage, resulting            1. Miga v. Jensen, 96 S.W.3d 207 (Tex. October 31, 2002)
in, among other things, seizures, a weak left side, walking            [00-0932]. In this case, the Supreme Court determined (1)
problems that require her to use braces and developmental              how damages should be calculated for an option-contract
problems. The Williamsons sued the hospital and several                breach and (2) whether the defendant lost his right to appeal
doctors, including Dr. Roberts. The hospital and two doctors           by paying the judgment ostensibly to avoid interest charges.
settled their cases before trial. At trial, a jury decided one         Miga claimed Jensen refused to tender stock options Miga had
doctor was not responsible and found Dr. Roberts’s liability           been promised when he helped develop Jensen’s long-distance
amounted to 15 percent. The trial court ordered Dr. Roberts            telephone enterprises. The jury determined the stock-option
to pay $451,500 out of the jury’s total award of just over $3          agreement had been breached and awarded slightly more
million. The court of appeals affirmed.                                than $1 million in contract damages and $17.7 million in lost
                                                                       profits on the stock options (apparently based on the stock
                                                      ADVOCATE     ✯    SPRING 2004


price at the time of trial). Jurors also awarded $17.7 million         pocket books who cannot afford to play the interest game in
on Miga’s fraud claim and $43 million in punitive damages.             the financial market.
The trial court’s judgment struck the fraud claim and punitive
damages awards. The court of appeals affirmed.                         E. Measurement/Permanent Injury to Land
                                                                       1. Coastal Transp., Inc. v. Crown Cent. Petroleum Corp.,
The Supreme Court held that the proper measure of dam-                 38 S.W.3d 180 (Tex. App.—Houston [14th Dist.] 2001), pet.
ages was the value of the stock on the date the stock option           for review granted, 45 Tex. Sup. Ct. J. 1145 (August 29, 2002)
agreement was breached, minus the exercise price. Although             [01-0301]. The issues in this case include: (1) whether an
the award was labeled lost profits, the jury awarded Miga the          objection to the introduction of expert testimony is neces-
1997 market gain in the stock Jensen refused to sell him in            sary to challenge the legal sufficiency of that testimony in a
1994. But, the Court said, the rule in Texas has long been             directed verdict; (2) what evidence is necessary to support
that contract damages are measured at the time of breach               a jury finding of gross negligence; (3) what constitutes per-
and not by the bargained-for goods’ market gain as of the              manent injury to land; and (4) what the proper measure of
time of trial. As for Jensen’s payment toward the judgment             damages for permanent injury to land is. A gasoline truck
voiding his right to appeal, the Court said the Texas rule is          owned by Coastal Transport overflowed while being filled
not, and never has been, that any payment toward satisfying a          at a bulk loading facility owned by Crown Central. A fire
judgment, including a voluntary one, moots the controversy.            resulted, destroying Crown Central’s facility. Crown Central
Whether a party wishes to avoid the accrual of post-judgment           sued Coastal Transport and another company for negligence
interest, particularly on a multi-million dollar judgment, is a        and gross negligence. The trial court rendered judgment
question that party should be able to decide without fear of a         against Coastal Transport based on the jury’s findings, but
Hobson’s choice—that is, that the party might presumptively            rendered a directed verdict against Crown Central as to exem-
waive its appellate prospects. Payment on a judgment will              plary damages. Based on the jury’s finding that the loading
not moot an appeal of that judgment if the judgment debtor             facility’s damage was “temporary,” the trial court determined
clearly expresses an intent to exercise his right of appeal, and       that Crown Central’s prior settlement with another party was
appellate relief is not futile.                                        for a greater amount than its damages. And because Coastal
                                                                       Transport made a prior written settlement credit election,
Justice O’Neill dissented, stating that the Court’s time-of-           the trial court rendered a take-nothing judgment against
breach damage measure was founded on an economic fiction               Crown Central. The court of appeals affirmed the finding
that woefully deprived Miga of the benefit of his bargain, and         of “temporary” damages, but held that the directed verdict
it would encourage promisors to breach stock-option agree-             concerning Coastal Transport’s alleged gross negligence was
ments in a rising market, allowing them to cap their liability         improper and remanded the matter for further proceedings.
while reaping the very profit potential that was promised in           The Supreme Court granted Crown Central’s and Coastal
exchange for the promisee’s performance. According to Justice          Transport’s petitions for review and heard argument on
O’Neill, the Court should have applied a damage measure                December 4, 2002.
that minimizes the potential to over- or under-compensate
the injured party and more closely approximates the value              F. Proportionate Responsibility Statute/Applicability
of the benefit lost; that is, the stock’s highest intermediate         1. Southwest Bank v. Info. Support Concepts, Inc., 85 S.W.3d
value between the date of breach and a reasonable period in            462 (Tex. App.—Fort Worth 2002), pet. for review granted,
which the injured party could have entered the market and              46 Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-0946]. The
replaced the stock.                                                    issue in this case is whether the proportionate responsibility
                                                                       statute applies to an action for conversion against a bank
Justice Schneider also dissented. According to Justice                 under section 3.420 of the Uniform Commercial Code. An
Schneider, the Court wrongly concluded that Jensen’s pay-              employee of Information Support Concepts (“ISC”) stole over
ment did not moot the appeal. By accepting Jensen’s argu-              $300,000 in checks made payable to ISC and deposited them
ment as a legitimate basis for holding the appeal was not              into her personal account at Southwest Bank. Although none
moot—regardless of whether the federal or Texas approach               of the stolen checks bore ISC’s endorsement and ISC did
applies—the Court’s opinion, Justice Schneider said, allows            not have an account with the Bank, the Bank accepted her
judgment debtors facing significant damages awards to pay              deposits and obtained payment on the checks. ISC sued the
the judgment, avoid post-judgment interest, and still appeal           Bank under the Uniform Commercial Code, TEX. BUSINESS
simply because they have a “leg up” over parties with smaller          & COMMERCE CODE § 3.420, for conversion, seeking actual
                                                     ADVOCATE     ✯    SPRING 2004


and exemplary damages. The Bank raised several affirmative            trial, holding that the trial court erred in excluding evidence
defenses, including contributory negligence, assumption of            of Hall’s actual damages, evidence essential to determine
risk, and failure to mitigate damages, and sought to join the         whether Hall was eligible for a larger damage award under
employee, her husband, and the chief financial officer of ISC         section 41.008’s statutory cap formula.
as responsible third parties under the proportionate respon-
sibility statute. The trial court granted partial summary judg-       The Supreme Court granted Diamond Shamrock’s petition
ment in favor of ISC on the Bank’s affirmative defenses and           for review and heard argument on October 1, 2003.
denied the Bank’s motion to join the employee, her husband,
and the CFO under the proportionate responsibility statute.           H. Punitive Damages/Legal Sufficiency
The trial court also granted summary judgment in favor of             1. Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214 (Tex.
ISC on liability for conversion and actual damages claims but         App.—Corpus Christi 2001), pet. for review granted, 46 Tex.
refused to allow ISC to recover exemplary damages from the            Sup. Ct. J. 779 (June 12, 2003) [01-1142]. The issues in this
Bank. The court of appeals affirmed the trial court’s judgment.       workers’ compensation retaliation case are (1) whether legally
The Supreme Court granted the Bank’s petition for review              sufficient evidence supported the award of punitive damages;
and heard argument on November 5, 2003.                               (2) whether sufficient evidence existed to prove causation;
                                                                      (3) whether Southwestern Bell waived its complaint that the
G. Punitive Damages/Applicability of Statutory Cap                    liability question was defective; and (4) whether the liability
1. Diamond Shamrock Ref. Co. v. Hall, 82 S.W.3d 5 (Tex.               question was in fact defective. David Garza sued Southwestern
App.—San Antonio 2001), pet. for review granted, 46 Tex. Sup.         Bell Telephone Company for workers’ compensation retalia-
Ct. J. 584 (April 17, 2003) [02-0566]. This case concerns             tion. The trial court rendered judgment for Garza, awarding
the legal sufficiency of evidence supporting a jury finding           $1,034,108 in actual damages, $1,000,000 in punitive dam-
of gross negligence, the applicability of the punitive damage         ages, prejudgment interest, and costs. The court of appeals
cap provisions of Chapter 41 of the Texas Civil Practices             held that Southwestern Bell failed to timely and specifically
and Remedies Code, and the propriety of the exclusion of              object to the liability question and that, regardless of the
evidence of actual damages in an employee-death case under            waiver, the liability question was not improper. Furthermore,
the Texas Workers’ Compensation Act.                                  the court of appeals held that the trial court did not err in
                                                                      admitting evidence over Southwestern Bell’s objections and
Charles Hall, a Diamond Shamrock Refining Co. employee,               that legally and factually sufficient evidence supported the
died from workplace injuries caused by an explosion at the            finding that Southwestern Bell violated the anti-retaliation
oil refinery’s compressor building. Diamond Shamrock used             statute and the awards for mental anguish and punitive dam-
a refinery design that presented a risk that liquids might            ages. The court of appeals also refused to order remittitur of
enter the compressor, despite its knowledge that the entrance         the awards for mental anguish and punitive damages.
of even a small amount of liquid would likely produce an
explosion. Donna Hall, Charles Hall’s surviving spouse, sued          The Supreme Court granted Southwestern Bell’s petition for
Diamond Shamrock under the Texas Worker’s Compensation                review heard argument on October 15, 2003.
Act and Article 16, Section 26 of the Texas Constitution to
recover punitive damages based on a gross negligence claim.           VIII. DECEPTIVE TRADE PRACTICES ACT
The trial court granted Diamond Shamrock’s motion to pro-             A. Agent Liability/Scope of Employment/ Fraud
hibit any evidence of Hall’s actual damages.                          1. Miller v. Keyser, 90 S.W.3d 712 (Tex. November 5, 2002)
                                                                      [01-0541]. The issue is whether a home builder’s sales agent
The jury found in favor of Hall and awarded her $42.5 million         is exempt under the Deceptive Trade Practices Act (DTPA)
in punitive damages based on her gross negligence claim. The          from liability for alleged misrepresentations about lot sizes
trial court granted Diamond Shamrock’s motion to limit the            he sold in the course of his employment. The Millers and
punitive damage award to $200,000 pursuant to the statutory           others who paid a premium for deeper lots for larger back-
cap provided in section 41.008 of the Texas Civil Practices           yards in a subdivision claimed Keyser had misrepresented the
and Remedies Code. The court of appeals found the evidence            lot sizes. After fences were built, a drainage district claimed
legally and factually sufficient to support the punitive damage       the fences intruded on its easement and had to be moved at
award based on the gross negligence claim and recognized              the owners’ expense. The jury found that Keyser was liable
the applicability of section 41.008 to limit Hall’s punitive          for deceptive trade practices but that he did not commit
damage award. But the court reversed and remanded for a new           fraud and acted solely within the scope of his employment
                                                      ADVOCATE      ✯    SPRING 2004


for the homebuilder. The court of appeals reversed.                     The jury found for JMB, and the trial court rendered judgment
                                                                        for JMB, awarding it treble damages under the 1973 version of
The Supreme Court held that an agent may be personally liable           the DTPA, for a total of over $14 million. The trial court also
for misrepresentations he makes when acting within the scope            awarded over $1.7 million in attorney’s fees and $412,400 in
of his employment because the DTPA allows a consumer to                 appellate attorney’s fees. The court of appeals affirmed. The
bring suit against “any person.” The DTPA broadly defines               Supreme Court granted PPG’s petition for review and heard
“person” as “an individual, partnership, corporation, associa-          argument on November 20, 2002.
tion, or other group, however organized” and, according to
the Legislature, is to be construed liberally to promote its            IX. DISCOVERY
central purpose to protect consumers. The Court said that its           A. Federal Privacy Statutes
analysis on agent liability was not affected by the agent’s or          1. In re CI Host, Inc., 92 S.W.3d 514 (Tex. November
the employee’s position in the company or whether the cor-              21, 2002) [00-1150]. This case involves the relationship
porate agents were officers of the corporation. Rather, agents          between the federal Electronic Communications Privacy
are personally liable for their own torts, and the Court held           Act and Texas’s discovery rules. CI Host is a web-hosting
that there was no basis for concluding differently based on             company. Several CI Host customers sued CI Host alleging
DTPA claims.                                                            it violated several guarantees. Because some of the Plaintiffs’
                                                                        complaints involved CI Host’s alleged failure to backup files
B. Assignability of Claims/Consumer                                     as guaranteed, the Plaintiffs requested copies of CI Host’s
1. PPG Indus., Inc. v. JMB/Houston Ctr. Partners Ltd. P’ship,           backup tapes from March 1, 2000. The trial court ordered
41 S.W.3d 270 (Tex. App.—Houston [14th Dist.] 2001), pet.               CI Host to produce the tapes. CI Host objected, claiming that
for review granted, 45 Tex. Sup. Ct. J. 1107 (August 22, 2002)          while some information on the tapes is discoverable, other
[01-0346]. The issues in this case are: (1) whether a Deceptive         information is protected from disclosure by the Electronic
Trade Practices Act claim is assignable; (2) if so, whether the         Communications Privacy Act. The court of appeals denied
assignee has to qualify as a “consumer” in its own right; (3)           CI Host’s petition for writ of mandamus. The Supreme Court
whether the amendatory language of the DTPA that “[t]his                granted CI Host’s petition for writ of mandamus to decide
Act applies to all actions or claims commenced on or after              whether the trial court abused its discretion by ordering CI
the effective date of this Act” refers to the entire act, or only       Host to produce the tapes.
to those changes made by the amendment; (4) whether, as
a matter of law, JMB’s lawsuit was barred by limitations; (5)           The Supreme Court ultimately denied mandamus relief, ruling
whether the trial court erred in finding the existence of a             that CI Host failed to support its objection to the requested
20-year warranty as a matter of law; and (6) whether the                discovery of the tapes as required by Texas Rule of Civil
award of a $300,000 “bonus” to the prevailing party’s lawyer            Procedure 193.4 because CI Host failed to produce evidence in
was reasonable and necessary or an abuse of discretion by               the trial court that only the type of information protected from
the trial court.                                                        disclosure by section 2702 of the ECPA exists on the backup
                                                                        tapes. The trial court therefore did not abuse its discretion
In 1976 and 1977, Houston Center Corporation purchased                  in ordering CI Host to produce the tapes. The Court further
and had installed in their new office building over 12,000              concluded that because the parties acknowledged that the
PPG Industries products known as “Twindows.” Twindows                   tapes contained both privileged and nonprivileged informa-
were discontinued in the latter part of 1977 when the pro-              tion, and that some of the information might be considered
duction process was found to be flawed, but PPG continued               confidential by CI Host’s customers, the trial court would
to produce them for replacement purposes. Between 1983                  have to take any third-party privacy concerns into account
and 1985, PPG replaced approximately 3,000 units when                   in any further proceedings in the case.
Houston Center complained that some of the seals on the
Twindows were failing. In 1989, JMB, a business with assets             B. Sanctions/Abuse of Discretion
of over $25 million, purchased Houston’s building. A provi-             1. Cire v. Cummings, 74 S.W.3d 920 (Tex. App.—Amarillo
sion in the Bill of Sale conveyed all “assignable warranties,           2002), pet. for review granted, 46 Tex. Sup. Ct. J. 584 (April
guarantees, representations or covenants” to JMB. After the             17, 2003) [02-0670]. This case involves death penalty sanc-
sale, many of the Twindows failed, and in 1994, JMB sued                tions imposed on the plaintiff for discovery abuse. The court
PPG, alleging breach of warranty under the five and twenty              of appeals held that the trial court abused its discretion by
year warranties and DTPA violations.                                    striking the plaintiff’s pleadings without indicating that it had
                                                      ADVOCATE      ✯    SPRING 2004


first considered lesser sanctions and without explaining why            to determine composition of the rubber coating that holds
such lesser sanctions would not suffice. The issues raised by           Firestone’s tires’ steel belts together. They alleged insuffi-
the parties are: (1) whether the imposition of lesser sanc-             cient adhesion caused tire-tread separations in Ford Explorer
tions is a prerequisite to the imposition of death penalty              automobile accidents and argued that Firestone’s and Ford
sanctions for discovery abuse; (2) whether the trial court              Motor Company’s own investigations concluded that skim-
abused its discretion in imposing death penalty sanctions;              stock deficiencies could be partly to blame for the accidents.
and (3) whether a trial court must conduct an oral hearing              Firestone argued that the plaintiffs had not demonstrated
in reviewing a motion to compel or a motion for sanctions.              the need for the formula under the “necessity” standard set
The Supreme Court heard oral argument in this case on                   out in In re Continental General Tire, 979 S.W.2d 609 (Tex.
October 1, 2003.                                                        1998), for discovery of trade-secret information because (1)
                                                                        in the high-heat manufacturing process the materials in the
2. Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. April 24,                 formula change composition; (2) the plaintiffs could test
2003) [02-0443]. This case involved the death of a patient in           their defect theories on finished tires; and (3) the plaintiffs’
a restraint vest whose calls to nurses were allegedly ignored.          experts’ testimony regarding need was only that the “best
The issue on appeal was whether the trial court abused its              way” to determine what’s supposed to be in the tires is to
discretion by ordering, as a sanction for discovery abuse,              know the formula. The trial court ordered disclosure under
that the jury in a medical-negligence case take certain state-          a protective order of the formula used in Firestone’s Decatur,
ments as true. The hospital withheld certain statements by              Ill., plant. The court of appeals affirmed.
its patient-care staff based on the attorney work-product
doctrine. Then, 31 days before trial, the hospital produced             The Supreme Court conditionally granted mandamus relief,
the statements, stating that recent case law persuaded it that          holding that the evidence of unfairness in this case was essen-
the statements were discoverable. As sanctions, the trial court         tially no different from the evidence in Continental General Tire.
ordered that the jury take as established that the patient’s            The Court said the test in Continental General Tire cannot be
four calls for assistance were ignored and that he was in the           satisfied merely by general assertions of unfairness. Plaintiffs
restraint without a physician’s order. The court of appeals             had conceded that tests on a finished tire are more proba-
affirmed.                                                               tive of a defect than an analysis of the skim-stock formula
                                                                        would be and acknowledge that they had no other skim-
The Supreme Court held that the sanctions were excessive                stock formulas to compare Firestone’s skim-stock formula
and the error was prejudicial. The Court applied the two-               to. Neither side could point to a single case in which a court
prong analysis of TransAmerican Natural Gas Corp. v. Powell,            had ordered the formula disclosed. In short, the plaintiffs
811 S.W.2d 913 (Tex. 1991), to conclude that sanctions that             had not shown how knowledge of the formula was linked
inhibit presentation of a case should be reserved for fla-              to their allegations, let alone how it was necessary to a fair
grant bad faith or counsel’s callous disregard for discovery            adjudication of their claims.
responsibilities and concluded that late production of witness
statements did not justify the severe sanctions ordered in              In concurrence, Justice O’Neill argued that determining
this case. The error was harmful, the Court said, because by            what evidence is necessary for a fair adjudication should
instructing the jury to presume that nurses ignored the calls,          be more than ad hoc. According to Justice O’Neill, the fol-
it essentially proved the hospital breached its duty of care and        lowing general principles could be distilled from decisions in
effectively precluded the hospital from offering testimony by           other jurisdictions: (1) trade-secret information is generally
two nurses that would have contradicted the statement that              discoverable when not allowing discovery would signifi-
nurses ignored the patient’s calls.                                     cantly impair a party’s ability to establish or rebut a mate-
                                                                        rial element of a claim or defense; and (2) a party’s ability is
C. Trade Secrets                                                        significantly impaired when the information is unavailable
1. In re Bridgestone/Firestone, Inc., 106 S.W.3d 730 (Tex. May          from any other source and no adequate alternative means of
22, 2003) [01-1165]. The issue in this products-liability case          proof exist. Justice O’Neill also said that discovery of trade
is whether the trial court abused its discretion by ordering            secrets is necessary when the party seeking trade secret infor-
disclosure of Firestone’s trade-secret tire-manufacturing               mation could not knowledgeably cross-examine opposing
formula on the grounds that it was necessary to the litiga-             witnesses without it, or when the party’s experts would be
tion. The plaintiffs in this case, alleging tire-tread separation       unable to formulate opinions supported by an adequate factual
defects, sought Firestone’s trade-secret “skim stock recipe”            foundation. On the other hand, information that is merely
                                                      ADVOCATE     ✯    SPRING 2004


cumulative would not be necessary for a fair adjudication.             jury’s verdict. Canchola raised questions about the adequacy
                                                                       and fairness of Wal-Mart’s investigation as evidence that the
2. In re Bass, 113 S.W.3d 735 (Tex. July 3, 2003) [02-0071].           store was motivated to fire him because of his disability. But
This case involves a discovery dispute in which the trial court        the Court said that although that was some evidence assailing
ordered Bass to disclose seismic data that he contended was a          the quality of the store’s investigation, it did not, by itself,
trade secret. A brother and sister sued Bass, alleging, among          prove that Canchola’s heart condition was a motivating factor
other things, that (1) they held “executive” and “bonus” min-          in his termination. The relevant inquiry, the Court explained,
eral rights in South Texas ranch land Bass acquired from               is not whether the complaints made against Canchola were a
their sister; (2) Bass misappropriated confidential and valuable                                                  .
                                                                       pretext, but what they were a pretext for Canchola offered no
geophysical data and converted their executive mineral rights;         evidence to show that Wal-Mart was motivated to fire him
and (3) Bass breached duties he owed to them by preventing             because of his heart condition. His allegations about Wal-Mart’s
or discouraging reasonable exploration, development and pro-           investigation, even if true, did not amount to extreme and
duction of minerals on property in which they held royalty             outrageous conduct as a matter of law.
interests. When Bass refused to produce seismic data from
a survey Exxon conducted of the subject property and an                B. Drug Testing/Termination of At-Will Employee
adjacent tract Bass owned, the trial court granted a motion            1. Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d
to compel disclosure of the information under a protective             705 (Tex. May 15, 2003) [01-0292]. This case presents an
order. Bass sought mandamus relief from the court of appeals,          issue of first impression in Texas law: whether an employer
but the court of appeals denied the petition.                          owes a duty to an at-will employee to exercise reasonable
                                                                       care in conducting a mandatory drug test that led to his
The Supreme Court held that geological seismic data are                dismissal. Mission selected Solomon, one of its drivers, for
trade secrets and that the nonparticipating royalty interest           a random drug test using one of its own employees to col-
owners failed to establish the existence of a claim against            lect a urine sample. When the drug test showed evidence
the mineral estate owner justifying discovery of the trade             of marijuana use, Mission fired Solomon and registered the
secret data. The Court applied the Restatement of Torts’               test result in an industry-wide computer network the federal
six-factor test for trade secrets (now incorporated into the           government required. Solomon later alleged Mission did not
Restatement [Third] of Unfair Competition) and concluded               follow testing protocol established by the federal Department
that Bass met his burden to show that geological seismic data          of Transportation and offered a hair analysis to refute the
are trade secrets. Therefore, under the Court’s holding in In          alleged marijuana use. He sued Mission in part for negligently
re Continental Tire, 979 S.W.2d 609 (Tex. 1998), the plaintiffs        handling his urine sample. The jury awarded Solomon more
had to show that discovery of that information was necessary           than $900,000, including punitive damages. The court of
for a fair adjudication of their claims. Because the record did        appeals affirmed.
not establish the existence of a duty to develop or that Bass
breached a fiduciary duty, the royalty owners did not make             The Supreme Court reversed and rendered judgment,
the requisite showing of necessity.                                    holding that a common-law duty should not be imposed
                                                                       on employers collecting urine samples themselves because
X. EMPLOYMENT LAW                                                      federal Department of Transportation regulations adequately
A. Disability Discrimination/Evidence of Pretext                       govern how samples are collected and processed and allow
1. Wal-Mart Stores, Inc. v. Canchola, S.W.3d , 46 Tex.                 employees to challenge false-positive test results. In testing
Sup. Ct. J. 1116 (September 4, 2003) [02-0232]. The issue              conducted under the federal Transportation protocols,
is whether evidence supporting a disability discrimina-                employees can contest urine-collection procedures that
tion verdict was legally sufficient. In this case, Canchola,           violate federal regulations and request an independent
a department manager for Wal-Mart, complained that his                 medical review officer’s assessment of the collection proce-
firing for alleged sexual harassment was a pretext for firing          dures. Companies that do not adhere to collection procedures
him because of a disabling heart condition. Canchola sued              can be penalized. Solomon did not use these protections.
for disability discrimination and for intentional infliction of        Instead he signed a specimen chain-of-custody form and
emotional distress. A jury found for Canchola, and the court           did not raise Mission’s alleged protocol violations. Because
of appeals affirmed the judgment.                                      employees can protect themselves from harm, the incentive
                                                                       is less to create a duty of ordinary care on employers col-
The Supreme Court held there was no evidence to support the            lecting drug-test specimens.
                                                      ADVOCATE     ✯    SPRING 2004


Justice Enoch concurred, arguing that the Court’s discus-              question was in fact defective. David Garza sued Southwestern
sion of the employment-at-will doctrine was unnecessary.               Bell Telephone Company for workers’ compensation retalia-
Justice Schneider, concurring separately, stated that, although        tion. The trial court rendered judgment for Garza, awarding
imposition of a common-law duty would not disrupt the bal-             $1,034,108 in actual damages, $1,000,000 in punitive dam-
ance in policies underlying the federal drug-test regulations,         ages, prejudgment interest, and costs. The court of appeals
Solomon’s negligence claim still failed because he did not             held that Southwestern Bell failed to timely and specifically
produce any evidence that the steps or procedures Mission              object to the liability question and that, regardless of the
Petroleum failed to follow in collecting the urine sample              waiver, the liability question was not improper. Furthermore,
caused the positive test result for marijuana use.                     the court of appeals held that the trial court did not err in
                                                                       admitting evidence over Southwestern Bell’s objections and
C. Preemption/Texas Commission on Human Rights                         that legally and factually sufficient evidence supported the
Act                                                                    finding that Southwestern Bell violated the anti-retaliation
1. Hoffman-LaRoche, Inc. v. Zeltwanger, 69 S.W.3d 634 (Tex.            statute and the awards for mental anguish and punitive dam-
App.—Corpus Christi 2002), pet. for review granted, 46 Tex.            ages. The court of appeals also refused to order remittitur of
Sup. Ct. J. 68 (October 31, 2002) [02-0120]. The principal             the awards for mental anguish and punitive damages.
issue is whether the Texas Commission on Human Rights
Act preempts a claim for intentional infliction of emotional           The Supreme Court granted Southwestern Bell’s petition for
distress in a sexual harassment and retaliatory discharge law-         review and heard argument on October 15, 2003.
suit. Based on favorable jury findings, the trial court awarded
Zeltwanger damages against Hoffman-LaRoche as follows:                 XI.EVIDENCE
(1) sexual harassment—$347,036 for back pay, $500,000 in               A. Expert Testimony/Causation/Legal Malpractice
front pay, plus prejudgment interest; (2) intentional inflic-          1. Alexander v. Turtur & Assocs., Inc., 86 S.W.3d 646 (Tex.
tion of emotional distress—$1 million for mental anguish               App.—Houston [1st Dist.] 2001), pet. for review granted,
and $23,000 for past medical expenses, plus prejudgment                46 Tex. Sup. Ct. J. 1204 (September 25, 2003) [02-1009].
interest on both. The trial court also awarded $50,000 for             The main issue in this case is whether expert testimony is
future medical expenses, plus $8,000 in exemplary damages.             required to prove causation in a trial malpractice case. Turtur
The trial court also awarded Zeltwanger damages against                & Associates, Inc. (T&A) sued Tom Alexander, individually,
Webber, Zeltwanger’s supervisor at Hoffman-LaRoche,                    and his law firm, Alexander & McEvily, for malpractice and
for intentional infliction of emotional distress as follows:           DTPA violations related to Alexander’s representation of T&A
$30,000 for mental anguish, plus prejudgment interest, and             in a dispute with McKellar Ranch in bankruptcy court. T&A
$7,500 exemplary damages. The trial court also rendered                alleged that Alexander’s and his firm’s negligence resulted
a take nothing judgment against Zeltwanger on her claim                in an unfavorable outcome in the trial. The Turtur Family
against Hoffman-LaRoche for retaliatory discharge, and                 Partnership was later added as a plaintiff and alleged that
rendered a take nothing judgment as to all claims brought              Alexander and his firm had also conducted an unauthor-
by Hoffman-LaRoche and Webber. The court of appeals                    ized sale of the Partnership’s cattle. The sale had occurred
affirmed, rejecting Hoffman-LaRoche’s arguments that it                in connection with Alexander & McEvily’s representation of
could not be held liable for intentional infliction of emotional       the Partnership in a different case involving an ownership
distress for Webber’s conduct. The Supreme Court granted               dispute with McKellar over the cattle. The trial court granted
Hoffman-LaRoche’s petition for review and heard argument               partial summary judgment for Alexander on the Partnership’s
on February 5, 2003.                                                   claims for unauthorized sale of cattle on statute of limita-
                                                                       tions grounds. During the trial on the remaining claims,
D. Retaliation/Evidence/Causation                                      T&A presented expert testimony on Alexander’s breach of
1. Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214 (Tex.            the ordinary standard of care, but not specifically on causa-
App.—Corpus Christi 2001), pet. for review granted, 46 Tex.            tion. The jury rendered a verdict favorable to T&A on the
Sup. Ct. J. 779 (June 12, 2003) [01-1142]. The issues in this          remaining claims and awarded damages far in excess of
workers’ compensation retaliation case are (1) whether legally         T&A’s underlying claim in the bankruptcy proceeding. The
sufficient evidence supported the award of punitive damages;           trial court denied T&A leave to file a trial amendment to
(2) whether sufficient evidence existed to prove causation;            conform the pleadings with the damages awarded, held that
(3) whether Southwestern Bell waived its complaint that the            no evidence supported the jury’s damages award, disregarded
liability question was defective; and (4) whether the liability        the jury’s findings on causation, and entered a take-nothing
                                                      ADVOCATE      ✯    SPRING 2004


judgment in Alexander’s favor. The court of appeals reversed            (3) whether the Texas probation statute restores a convicted
in part, holding that expert testimony was not necessary to             felon’s jury service eligibility; and (4) whether the trial court
prove causation in this case and that there was legally and             abused its discretion by admitting the testimony of the plain-
factually sufficient evidence of causation. The court of appeals        tiff’s accident-reconstruction expert. On November 26, 1996,
also held that the trial court did not abuse its discretion in          Haley Sperling was driving a 1996 Volkswagen Passat when
denying T&A’s motion for leave to file the post-verdict trial           she collided with a Camaro and crossed the median into
amendment and remanded to the trial court to enter judg-                opposing traffic. Ms. Sperling’s Passat collided head-on with
ment awarding T&A damages in the amount of the under-                   a 1995 Ford Mustang driven by Diana Ramirez Guerra and
lying bankruptcy claim. The court of appeals affirmed the               occupied by her daughter, Jacquelyn Guerra. Ms. Sperling and
trial court’s grant of summary judgment on the Partnership’s            Diana Guerra died in the accident, and Jacquelyn Guerra was
claims for unauthorized sale of cattle, holding that the claim          seriously injured. The families sued Volkswagen of America,
was barred by the statute of limitations. The Supreme Court             Inc., the driver of the Camaro, and others for money damages,
granted both parties’ petitions for review and heard argument           alleging product defects and negligence. The Sperling family’s
on December 3, 2003.                                                    claims were severed from the Ramirez family’s claims. This
                                                                        case involves only the Ramirez family’s claims.
B. Outcry Testimony
1. In re Z.L.B., 102 S.W.3d 120 (Tex. March 13, 2003)                   Two trials were held in this case. In the first trial, the jury
[01-1209]. In this child sexual-abuse case involving a juve-            returned a unanimous verdict in favor of Volkswagen, but
nile offender, the Supreme Court considered who bears the               the trial court granted the Ramirez family’s motion for a new
burden to produce evidence of an earlier statement from an              trial “in the interest of justice” without providing further
“outcry” witness when the defendant claims the prosecution’s            explanation. After the second trial, ten of the twelve jurors
proffered outcry witness was not the first person to hear a             returned a verdict in favor of the family, awarding them $15.9
qualifying outcry statement. The prosecution had offered a              million in actual damages. The court of appeals affirmed the
day-care director’s testimony that the 5-year-old victim com-           trial court’s judgment.
plained that his 12-year-old brother had touched his “privates”
and he wanted him to stop. The defense maintained that the              The Supreme Court granted Volkswagen’s petition for review
day-care director was not the appropriate out-cry witness               and heard oral argument on April 23, 2003.
because the victim had previously made similar statements
to his mother.                                                          XII. HABEAS CORPUS
                                                                        A. Contempt Order
The Court held that once the prosecution lays the initial               1. In re Sheshtawy, 2003 WL 1922869 (Tex. App.—Houston
predicate, the burden shifts to the defendant to prove the              [1st Dist.] 2003), argument granted on pet. for writ of habeas
child made an earlier statement to another person, and in               corpus, 46 Tex. Sup. Ct. J. 1124 (September 11, 2003) [03-
this case, the defendant failed to introduce evidence of a              0766]. The issue in this case involving a contempt order is
sufficient earlier statement to the mother. The Court noted             whether the trial court or appellate court has enforcement
that the Court of Criminal Appeals has held in adult criminal           power over a spousal-maintenance order when an appeal of
cases that the outcry statement must be one that “in some               the decree is pending. The Supreme Court heard argument
discernible manner describes the alleged offense,” more than            in this case on November 19, 2003.
a general allusion of child abuse.
                                                                        XIII. INTENTIONAL TORTS
C. Videotaped Statement/Unidentified Witness                            A. Business Disparagement
1. Volkswagen of Am., Inc. v. Ramirez, 79 S.W.3d 113 (Tex.              1. Forbes Inc. v. Granada Biosciences Inc., S.W.3d , Tex.
App.—Corpus Christi 2002), pet. for review granted, 46 Tex.             Sup. Ct. J. (December 19, 2003) [01-0788]. In this business
Sup. Ct. J. 489 (March 6, 2003) [02-0557]. The issues in this           disparagement case, two publicly held companies sued Forbes
personal injury case arising from an automobile accident are            over an article on the parent company’s chairman and the
(1) whether an order granting a new trial is reviewable on              parent company’s troubled finances. The subsidiaries claimed
appeal after the second trial; (2) whether the trial court abused       that stock prices in both companies fell and that credit to
its discretion by admitting a TV news crew’s videotaped wit-            each evaporated after the article’s publication. They alleged
ness statement when the witness refused to identify himself             actual malice based in part on an error pointed out to the
on the video and was not available for cross-examination;               author, who assured the companies that the error could be
                                                      ADVOCATE      ✯    SPRING 2004


corrected but who gave that assurance after the magazine                employee, her husband, and the CFO under the proportionate
had already been printed and distributed. The trial court               responsibility statute. The trial court also granted summary
granted summary judgment for the magazine, but the court of             judgment in favor of ISC on liability for conversion and actual
appeals reversed. The principal issue on appeal was whether             damages claims but refused to allow ISC to recover exemplary
the plaintiff companies offered evidence that Forbes acted              damages from the Bank. The court of appeals affirmed the
with actual malice by knowingly publishing false statements             trial court’s judgment. The Supreme Court heard oral argu-
about the companies.                                                    ment in this cause on November 5, 2003.

The Supreme Court held that the companies did not offer                 C. Infliction of Emotional Injury
sufficient evidence to show Forbes acted with actual malice.            1. Tiller v. McLure, S.W.3d , 46 Tex. Sup. Ct. J. 632 (May
In so holding, the Court stated that the actual malice inquiry          8, 2003) [02-0136]. The issue is whether repeated complaints
focuses on the defendant’s state of mind at the time of publica-        by a customer to a contractor’s wife about work performance
tion and observed that the article was printed and in distri-           during a time when the contractor was dying is legally suf-
bution before the writer assured the chairman that mistakes             ficient evidence of intentional infliction of emotional distress.
would be corrected. The Court further said that the court               In this case Tiller, who contracted with Barbara McLure’s com-
of appeals erred in applying the “single publication” rule’s            pany for construction of self-storage units on Tiller’s property,
definition of when a defamatory statement is published (on              complained to McLure after she wrote Tiller to assure him the
the last day of the mass distribution of copies of the printed          project would be completed on time despite her husband’s
matter) because that definition applies only for statute of limi-       illness. When McLure, through her son, then informed Tiller
tations purposes and does not bear on whether the publisher             that the construction site would be closed for her husband’s
acted with malice. The Court likewise held that Forbes’s use            funeral, Tiller threatened to terminate the contracts, claiming
of the name “Granada” as a generic reference for the parent             the project was behind schedule. Tiller called McLure at home
company at best established that the magazine was guilty                as many as 60 times, often at night and weekends, from the
of using imprecise language, but by itself, was not evidence            time her husband became ill to the time the project ended
that the magazine either entertained serious doubts as to               and then refused to make a final $37,000 payment. On her
the truth of statements in the article or had a high degree of          emotional-distress claim, a jury found for McLure, but the
awareness of their falsity.                                             trial court rendered a judgment for Tiller notwithstanding
                                                                        the verdict. The court of appeals reversed.
B. Conversion/Proportionate Responsibility Statute
1. Southwest Bank v. Info. Support Concepts, Inc., 85 S.W.3d            The Supreme Court reversed the court of appeals’ judgment
462 (Tex. App.—Fort Worth 2002), pet. for review granted,               and rendered judgment, holding that Tiller’s conduct, often
46 Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-0946]. The               callous and insensitive, never involved threats unrelated to
issue in this case is whether the proportionate responsibility          the contract (for which, as a corporate officer, McClure was a
statute applies to an action for conversion against a bank under        designated contact) or severe verbal abuse. Tiller’s persistent
section 3.420 of the Uniform Commercial Code. In this case,             calling was never excessive on any one day and his complaints
an employee of Information Support Concepts (“ISC”) stole               and threats were related to an ordinary, albeit contentious,
over $300,000 in checks made payable to ISC and deposited               commercial contract dispute. Thus, the conduct did not rise
them into her personal account at Southwest Bank. Although              to the level of extreme and outrageous conduct.
none of the stolen checks bore ISC’s endorsement, and ISC
did not have an account with the Bank, the Bank accepted                2. Hoffman-LaRoche, Inc. v. Zeltwanger, 69 S.W.3d 634, (Tex.
her deposits and obtained payment on the checks. ISC sued               App.—Corpus Christi 2002), pet. for review granted, 46 Tex.
the Bank under the Uniform Commercial Code, TEX. BUSINESS               Sup. Ct. J. 68 (October 31, 2002) [02-0120]. The principal
& COMMERCE CODE § 3.420, for conversion. The Bank raised                issue is whether the Texas Commission on Human Rights
several affirmative defenses, including contributory negli-             Act preempts a claim for intentional infliction of emotional
gence, assumption of risk, and failure to mitigate damages,             distress in a sexual harassment and retaliatory discharge law-
and sought to join the employee, her husband, and the chief             suit. Based on favorable jury findings, the trial court awarded
financial officer of ISC as responsible third parties under the         Zeltwanger damages against Hoffman-LaRoche as follows:
proportionate responsibility statute. The trial court granted           (1) sexual harassment-$347,036 for back pay, $500,000 in
partial summary judgment in favor of ISC on the Bank’s                  front pay, plus prejudgment interest; (2) intentional inflic-
affirmative defenses and denied the Bank’s motion to join the           tion of emotional distress-$1 million for mental anguish and
                                                     ADVOCATE     ✯    SPRING 2004


$23,000 for past medical expenses, plus prejudgment interest          nuisance; and (3) whether the trial court abused its discre-
on both. The trial court also awarded $50,000 for future              tion in denying a motion for continuance of the underlying
medical expenses, plus $8,000 in exemplary damages. The               summary judgment hearing. Andrea Bates and seventy-eight
trial court also awarded Zeltwanger damages against Webber,           other individuals residing near the Houston Ship Channel
Zeltwanger’s supervisor at Hoffman-LaRoche, for intentional           sued Schneider National Carriers, Inc. and several other
infliction of emotional distress as follows: $30,000 for mental       operators of industrial facilities near the plaintiffs’ homes.
anguish, plus prejudgment interest, and $7,500 exemplary              The plaintiffs allege that they and their personal and real
damages. The trial court also rendered a take nothing judg-           property have been adversely affected by air contaminants,
ment against Zeltwanger on her claim against Hoffman-                 light pollution, and noise from the defendants’ facilities. The
LaRoche for retaliatory discharge, and rendered a take nothing        plaintiffs filed various affidavits in support of their claims,
judgment as to all claims brought by Hoffman-LaRoche and              but the defendants argued in a partial motion for summary
Webber. The court of appeals affirmed, rejecting Hoffman-             judgment that the nuisance claim is time barred because the
LaRoche’s arguments that it could not be held liable for inten-       affidavits conclusively establish that the alleged nuisance is
tional infliction of emotional distress for Webber’s conduct.         permanent. The trial court granted the defendants’ partial
The Supreme Court granted Hoffman-LaRoche’s petition for              summary judgment on limitations, but the court of appeals
review and heard argument on February 5, 2003.                        reversed and remanded, holding that fact issues exist as to
                                                                      whether the alleged nuisance is temporary or permanent.
D. Nuisance
1. Holubec v. Brandenberger, 111 S.W.3d 32 (Tex. May 22,              The Supreme Court will hear argument in this case on
2003) [01-1214]. The principal issue in this nuisance lawsuit         January 28, 2004.
against feedlot operators is whether the Holubecs established
a defense based on when the feedlot began operation or when           E. Tortious Interference with Contract/Damages
the effects of it began to be known. Brandenberger, who lived         1. Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80 (Tex.
on property adjacent to the Holubecs’ farm, sued over flies,          February 13, 2003) [01-1181]. The issue in this case is whether
odors, noise and night lighting after the Holubecs built an           one who tortiously interferes with the relationship between an
enclosed feedlot near the Brandenberger house. The Holubecs           attorney and his client by suing them in the same action can
had pastured sheep on their property for years before con-            be liable to the attorney for the value of the attorney’s time
structing an enclosed feedlot in March 1997. Brandenberger            and the expenses he incurred in defending himself. Here,
sued in July 1998. The Holubecs argued that Texas Agriculture         the McCalls represented a client who sued Tana in Fayette
Code section 251.004(a) (the Right to Farm Act) bars nuisance         County in a mineral lease dispute. Several weeks later Tana
suits filed more than a year after an agricultural operation          sued the McCalls and their client in Nueces County, alleging
begins, not when the effects are known. The trial court               the Fayette County lawsuit was based on claims that were
ruled against the Holubecs and ordered them to abandon                previously settled. The McCalls then sued Tana in Travis
the feedlot and remove fencing, pens and lights. The court            County, alleging tortious interference with their attorney-
of appeals affirmed.                                                  client relationship and seeking to recover for the value of the
                                                                      time and expenses they incurred in defending themselves in
The Supreme Court reversed and remanded, holding that                 Nueces County. The Travis County trial court granted Tana a
the one-year ban on nuisance actions is a statute of repose,          directed verdict before the McCalls had presented their case.
not a statute of limitations. According to the Court, section         The court of appeals reversed.
251.004(a) was intended to bar a nuisance suit one year after
commencement of the conditions or circumstances providing             The Supreme Court reversed and rendered judgment in
the basis for the suit.                                               favor of Tana, holding that a causal relationship did not exist
                                                                      between the tortious interference the McCalls alleged and the
2. Schneider Nat’l Carriers, Inc. v. Bates, 95 S.W.3d 309             only damages they claimed—the value of the time they spent
(Tex. App.—Houston [1st] 2002), pet. for review granted, 47           defending themselves in the Nueces County lawsuit. Such
Tex. Sup. Ct. J. 105 (November 21, 2003) [03-0236]. The               damages could not have been caused by Tana’s interference
principal issues in this case are: (1) whether air and noise          with their legal representation in the Fayette County suit
pollution allegedly produced by Houston Ship Channel                  anymore than if they’d been sued by an unrelated party. The
industrial facilities is a permanent or temporary nuisance;           Court emphasized that the McCalls did not merely fail to plead
(2) whether the continuing tort doctrine applies to the alleged       a viable damage claim; rather they affirmatively limited their
                                                      ADVOCATE      ✯    SPRING 2004


claim to damages they could not recover as a matter of law.             B. Conflicts Jurisdiction/Dicta in Court of Appeals’
As a result, the trial court did not err in dismissing the case.        Opinion
Although the McCalls argued that Tana’s suit against them               1. State Farm Mut. Auto. Ins. Co. v. Lopez, S.W.3d , 46
was purely tactical and without merit, the Court said they              Tex. Sup. Ct. J. 129 (October 31, 2002), pet. for review granted
failed to explain why their remedies of sanctions under Rule            on reh’g and prior opinion withdrawn, 46 Tex. Sup. Ct. J. 129
13 of the Texas Rules of Civil Procedure and chapter 10 of              (May 8, 2003) [01-0540]. The threshold issue in this case
the Texas Civil Practice and Remedies Code were inadequate              is whether the court of appeals’ opinion reviewing a class
or why they had not moved the court in Nueces County to                 certification order in the underlying lawsuit conflicts with
sanction Tana. The Court observed that it was not that the              Southwestern Refining Co. v. Bernal, 22 S.W.3d 425 (Tex. 2000).
McCalls were without a remedy for the wrong they alleged; it            State Farm asserts that Bernal requires rigorous analysis of all
was that the remedy they pursued was not open to them.                  the prerequisites to class certification, but that the court of
                                                                        appeals held that rigorous analysis was limited to common-
2. Latch v. Gratty, Inc., 107 S.W.3d 543 (Tex. February 27,             ality and predominance. State Farm also complains that the
2003) [01-0773]. The issue was whether a corporate presi-               court of appeals’ statement that a “trial plan” is not required
dent tortiously interfered with a contract with one company             in all class certification orders conflicts with Bernal.
by signing a second contract with another company to sell
the same assets. The Supreme Court held that there was no               The Supreme Court concluded that the court of appeals’
evidence of tortious interference because, as a matter of law,          opinion was not so narrow in its analysis and the court of
the corporate president was not a stranger to the contract.             appeals’ statement about a trial plan that was dicta could
The mere fact that the president signed the second agreement            not support conflicts jurisdiction. This opinion, however,
without indicating his agency was no evidence that he acted             was withdrawn when State Farm’s petition was granted
individually. Because no evidence existed in the record that            on rehearing. The cause has not yet been set for oral argu-
the president was not acting as an agent for the company                ment.
selling the franchise and assets, the company that originally
agreed to buy the franchise and assets could not recover                C. Conflicts Jurisdiction/Prior Supreme Court Opinions
unless it could show that the president acted “so contrary to           1. Tex. Dep’t of Parks & Wildlife v. Miranda, 55 S.W.3d
the corporation’s interests that his or her actions could only          648 (Tex. App.—San Antonio 2001), pet. for review granted
have been motivated by personal interest.” The trial court did          on reh’g, 45 Tex. Sup. Ct. J. 999 (July 3, 2002) [01-0619].
not find, and no evidence existed in the record that showed,            The issue is whether the trial court should have considered
that the president was acting against the principal’s interests.        evidence beyond the pleadings before denying the State’s plea
The complaining party also did not produce evidence that                to the jurisdiction based on governmental immunity and the
the president’s company complained of his conduct.                      Mirandas’ alleged failure to show the state’s gross negligence
                                                                        under the Recreational Use Statute. The Mirandas sued the
XIV. JURISDICTION                                                       State after Maria Miranda suffered severe injuries when a
A. Adequate Appellate Remedy/Interference with                          pecan branch fell on her head at a Garner State Park campsite.
Jurisdiction                                                            They alleged the tree posed a danger that the department rec-
1. In re Houston Northwest Partners, Ltd. [03-0252], 98                 ognized but failed to fix and about which it consciously and
S.W.3d 777 (Tex. App.—Austin 2003), argument granted on                 deliberately failed to warn them. The State responded that the
pet. for writ of mandamus, 46 Tex. Sup. Ct. J. 1124 (September          Mirandas’ claim was controlled by the Recreational Use Statute
11, 2003), and consolidated for oral argument with Gonzalez             because they raised a premises defect at a campground. The
v. Reliant Energy, Inc. [03-0469 & 03-0470], 102 S.W.3d                 State argues that, under the statute, the Mirandas had to prove
868 (Tex. App.—Houston [1st Dist.] 2003). The principal                 the department was grossly negligent, but they could not do
issue in these cases is whether a statutory probate court can           so based on State park employees’ testimony that the tree was
transfer to itself a wrongful death or personal injury case             in good health and showed no indication that a branch was
from a district court in another county where venue has been            ready to drop. The court of appeals affirmed the trial court’s
properly established. In the Gonzalez actions, the issue is Texas       denial of the state’s jurisdictional plea. The court reasoned
Probate Code section 5B (estate administration). In Houston             that the trial court could not delve into the substance of the
Northwest Partners the issue concerns Probate Code section              Mirandas’ claims because the State did not specifically allege
608 (guardianship). The Supreme Court heard argument in                 the Mirandas’ pleadings were a sham to wrongfully obtain
these cases on November 19, 2003.                                       jurisdiction. The State argues that the Supreme Court has
                                                      ADVOCATE     ✯    SPRING 2004


jurisdiction to hear this case because the court of appeals’           the requisite standard of care. Before the hearing on the defen-
decision conflicts with prior Supreme Court decisions. The             dants’ motion, the plaintiffs asked for a 30-day grace period
Supreme Court granted the State’s petition for review and              under the Medical Liability and Insurance Improvement Act,
heard argument on October 30, 2002.                                    TEX. R EV. CIV. STATS. ANN. art. 4590i, § 13.01(g), which allows
                                                                       a grace period if the failure to meet the deadline “was not
XV. MEDICAL MALPRACTICE                                                intentional or the result of conscious indifference but was
A. Borrowed Employee/Joint Enterprise/Joint Venture/                   the result of an accident or mistake.” The trial court denied
Ratification and Mission                                               the grace period request and dismissed the suit. The court
1. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. November             of appeals reversed.
5, 2002) [99-1192]. The principal issue in this case is whether
St. Joseph Hospital in Houston could be held liable for medical        The Supreme Court held that, when an expert report omits a
malpractice allegedly committed in part by a resident doctor           required element under the Medical Liability and Insurance
working in one of its programs in Austin. The doctor was in            Improvement Act, a purportedly mistaken belief that the
training at Austin’s Brackenridge Hospital in a surgery resi-          report complied with the statute does not negate a finding
dency program sponsored by St. Joseph and conducted by the             of intentional or conscious indifference. A denial of a grace
Central Texas Medical Foundation. Wolff’s parents alleged              period under section 13.01(g) is reviewed for abuse of discre-
that the doctor’s negligence in treating their daughter after a        tion. Some mistakes of law can negate intentional conduct or
car accident led to her permanent brain damage.                        conscious indifference. But in this case, the Court said the
                                                                       expert reports failed to address the standard of care or the
The Supreme Court held that no evidence supported the                  manner in which the standard was breached, both required by
jury’s findings of joint enterprise, joint venture, “mission” or       section 13.01(r)(6). Although the plaintiffs’ attorney testified
non-employee respondeat superior, or ratification and that             that he believed the reports complied with the statute, that
undisputed evidence proved as a matter of law that when the            testimony does not establish the “sufficient excuse” necessary
resident treated the patient he was acting as the borrowed             to find a mistake of law given the clear statutory requirements
employee of the medical institution supervising him—the                to the contrary. The Court also held that the plaintiffs’ due
Foundation.                                                            process rights were not violated even though they were not
                                                                       given notice that the expert reports did not comply with
In concurrence, Justice O’Neill, joined by Chief Justice               the law. According to the Court, the Constitution does not
Phillips, said the Court’s judgment was correct but that she           require prior notice that the law is serious about a clearly
did not agree with all of the plurality’s analysis                     stated consequence for failing to comply with its terms.

Justice Enoch, joined by Justices Hankinson and Rodriguez,             C. Expert Preliminary Report/Timely Filing/Waiver of
dissented, arguing that the Court’s reasoning was “nonsense.”          Right to Dismissal
On the one hand, Justice Enoch observed, the plurality                 1. Jernigan v. Langley, 111 S.W.3d 153 (Tex. July 3, 2003)
acknowledged that St. Joseph controlled what medical ser-              [02-0575]. The issue in this medical malpractice case is
vices its residents could perform, but then concluded that St.         whether the defendant physician waived the right to move
Joseph didn’t control those very same medical services. Justice        for a dismissal with prejudice under the Medical Liability
Enoch asserted that the jury could find from the extensive             and Insurance Improvement Act (TEX. R EV. CIV. STATS.
record that the resident worked for both St. Joseph and the            ANN. art. 4590i, § 13.01(e)) when he did not object to the
Foundation.                                                            plaintiff’s expert reports as inadequate for over 600 days
                                                                       after they were filed, engaged in discovery, filed a motion
B. Expert Preliminary Report/Timely Filing/Extension                   for summary judgment on other grounds and amended his
1. Walker v. Gutierrez, 111 S.W.3d 56 (Tex. June 19, 2003)             answer to delete references to the plaintiff’s failure to follow
[01-0841]. In this case, the Supreme Court considered                  statutory prerequisites to suit. The trial court granted the
whether the trial court abused its discretion by refusing to           defendant physician’s motion to dismiss. A divided court of
grant medical-malpractice plaintiffs a 30-day grace period             appeals reversed, concluding that the physician had waived
to file an expert report when a first expert report was filed          his statutory right to dismissal.
on time but was defective. Although the plaintiffs filed their
expert report within the statutory time limit, the defendants          The Supreme Court held that the physician did not waive his
moved to dismiss the suit because the report failed to address         right to move for dismissal. Section 13.01 imposed a deadline
                                                      ADVOCATE      ✯    SPRING 2004


on the claimant to file an expert report, but it did not, at that       [02-0405]. The first issue in this case is whether Donna
time, impose a deadline for a health care provider to file a            Jacobo’s claim should be reviewed as an “informed consent”
motion to dismiss. The Court said that the mere fact that the           claim or as an allegation of misdiagnosis and negligent
defendant waited to move for a section 13.01(e) dismissal was           treatment. The second issue is whether the court of appeals
insufficient to establish waiver unless the defendant’s silence         properly reviewed Dr. Binur’s no-evidence motion for sum-
or inaction showed an intent to yield the right to dismissal            mary judgment under the traditional summary judgment
based on the report’s insufficiency. To establish an intent             standard. The final issue is whether Dr. Binur acted as Dr.
to waive the right to dismissal under section 13.01(e), the             Schmidt’s co-surgeon or assistant surgeon for Jacobo’s mas-
defendant’s silence or inaction must have been inconsistent             tectomy procedure.
with the intent to rely upon the right to dismissal.
                                                                        Donna Jacobo sought medical attention because of her
D. “Good Samaritan” Statute                                             growing concerns that she could develop breast cancer based
1. McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. June 26, 2003)             on a family history of breast cancer. Dr. Schmidt examined
[01-1203]. The principal issue is whether a doctor seeking              Jacobo’s mammogram and determined it showed no presence
summary judgment on the affirmative defense that he acted               of cancer, but he recommended that Jacobo undergo a “pro-
as a “Good Samaritan” during an emergency childbirth must               phylactic mastectomy,” a process designed to remove breasts
establish both (1) that he did not intend to charge for his             as a preventative measure. Dr. Schmidt referred Jacobo to Dr.
services and (2) that he was not legally entitled to payment            Binur, a plastic surgeon, to discuss the possibility of plastic
for his services. In this case, Ramirez sued Dr. McIntyre over          surgery to reconstruct the breast if she had the mastectomy.
neurological injuries her son allegedly sustained as a result of        After signing a consent form, Jacobo had the prophylactic
the doctor’s manipulation of the newborn during a compli-               mastectomy and later underwent seven more surgeries to
cated birth. Dr. McIntyre was not Ramirez’s attending physi-            correct the unsuccessful reconstructive procedures Dr. Binur
cian, but he answered an emergency call when complications              performed.
developed during her labor and her attending physician had
left the labor-and-delivery area. In support of his motion for          Jacobo sued both Dr. Schmidt and Dr. Binur, alleging they
summary judgment, Dr. McIntyre submitted evidence that he               failed to obtain her informed consent for the mastectomy.
did not intend to charge for his services when he responded             With respect to Dr. Binur, Jacobo alleged that he informed
to the emergency call and that it was not customary to do               her that she would without question develop cancer in her
so. The trial court granted summary judgment in his favor,              breasts and that her decision to have the procedure was based
but the court of appeals reversed, holding that McIntyre had            on Dr. Binur’s alleged comments. The trial court granted Dr.
not established that he was not “legally” entitled to payment           Schmidt’s motion for summary judgment, but Jacobo’s claim
for his services.                                                       against Dr. Binur went to trial, resulting in a hung jury and a
                                                                        mistrial. After the mistrial, Dr. Binur asserted both traditional
The Supreme Court reversed, holding that a person claiming              and no-evidence summary judgment motions. The trial court
the Good Samaritan defense need not establish that he or                granted Dr. Binur’s motion for summary judgment, but the
she is not “legally” entitled to remuneration. Rather, the              court of appeals reversed.
defendant must prove only that he or she would not ordi-
narily receive or ordinarily be entitled to receive payment             The Supreme Court granted Dr. Binur’s petition for review
under the circumstances. Because the summary judgment                   and heard oral argument on April 23, 2003.
evidence conclusively established that Dr. McIntyre satisfied
these statutory requirements, the Court reversed the court              F. Medical Liability and Insurance Improvement Act/
of appeals’ judgment, but remanded the case to that court to            “Health Care Liability Claims”
consider Ramirez’s argument that Dr. McIntyre’s rendition               1. Garland Cmty. Hosp. v. Rose, 87 S.W.3d 188 (Tex.
of services came within a specific statutory exception to the           App.—Dallas 2002), pet. for review granted, 46 Tex. Sup. Ct.
Good Samaritan defense.                                                 J. 1058 (August 28, 2003) [02-0902]. The issue in this case
                                                                        is whether negligent credentialing claims against a hospital
E. Informed Consent or Misdiagnosis and Negligent                       are “health care liability claims” under article 4590i of the
Treatment                                                               Medical Liability and Insurance Improvement Act. The plain-
1. Binur v. Jacobo, 70 S.W.3d 330 (Tex. App.—Waco 2002),                tiff underwent various cosmetic surgery procedures performed
pet. for review granted, 46 Tex. Sup. Ct. J. 488 (March 6, 2003)        at Garland Community Hospital. She sued the doctor, alleging
                                                      ADVOCATE      ✯    SPRING 2004


that his negligence in performing the procedures caused her             the trial court properly calculated prejudgment interest before
damages. She also sued the hospital, claiming it was vicari-            applying the settlement credits; and (3) whether the profes-
ously liable for the doctor’s negligence as well as directly            sional associations are jointly and severally liable for the
liable for its own negligence in granting, renewing, and con-           judgment or vicariously liable for each others’ negligence
tinuing the doctor’s staff privileges. The plaintiff timely filed       under a joint-venture theory.
an expert report and supplemental expert report pursuant to
the Medical Liability and Insurance Improvement Act, TEX.               In this case, Mark Alexander was injured and ultimately died
R EV. CIV. STAT. art. 4590i, § 13.01, but the hospital moved to         after receiving anesthesia during a routine out-patient surgery.
dismiss the negligent credentialing claims on the ground that           His family sued TOPS Surgical Specialty Hospital, Drs. Carl
the expert reports were insufficient. The trial court granted           Battaglia and Tommy Polk and their respective professional
the motion to dismiss and severed the claims against the                associations, a nurse, and Dr. Laverna Jane Crowder. Before
doctor and the vicarious liability claims against the hospital          trial, the hospital and the nurse settled with the Alexanders.
into a separate action. The court of appeals reversed and               The trial court granted a directed verdict in favor of Dr. Polk.
remanded, holding that the negligent credentialing claims               The jury found Dr. Battaglia was not negligent and allocated
were not “health care liability claims” governed by article             liability between the nurse, Dr. Crowder, and the two profes-
4590i and that Rose therefore was not required to file an               sional associations. The court of appeals affirmed, holding that
expert report. The Supreme Court granted the hospital’s peti-           (1) the evidence was sufficient to support the jury’s finding
tion for review and heard argument on November 5, 2003.                 that the professional associations were negligent; (2) the pro-
                                                                        fessional associations were jointly and severally liable under
G. Negligence/Legal Cause                                               proportionate liability statute; and (3) prejudgment interest
1. IHS Cedars Treatment Ctr. of Desoto v. Mason, 2001 WL                should be calculated on the amount of past damages.
915215 (Tex. App.—Dallas 2001), pet. for review granted, 46
Tex. Sup. Ct. J. 69 (October 31, 2002) [01-0926]. The prin-             The Supreme Court granted Battaglia’s petition for review
cipal issues are whether a mental health care facility and              and heard argument on October 15, 2003.
its nurse and doctors were negligent in discharging Mason
and another patient together, at their request, and whether             XVI. NEGLIGENCE
such negligence was a legal cause of Mason’s injuries in a car          A. Duty of Care
accident involving both patients two days after they left the           1. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30 (Tex. October
hospital. The trial court granted summary judgment in favor             31, 2002) [00-0889]. The Supreme Court considered in this
of the health care providers. The court of appeals reversed in          case whether the operator of a home for the mentally retarded
part, affirmed in part, and remanded the case for trial. The            owed a duty of care to a murder victim killed by one of its
court of appeals held that the summary judgment evidence                residents. Dixon, living at a care home under a court order,
raised fact issues about whether the health care providers              killed the Peavys’ daughter when he tried to steal her car on
had breached duties of care to Mason. The court of appeals              a weekend pass to his mother’s home in Houston. The Peavys
further held that Mason had alleged sufficient facts to show            claimed that Texas Home Management, the home operator,
probable cause and that Mason’s testimony regarding the                 was negligent and grossly negligent when it allowed Dixon’s
mental state of the other patient at the time of the accident           unsupervised Houston visit because of his criminal history.
was admissible. The Supreme Court granted Cedar Treatment               The trial court granted summary judgment for Texas Home
Center’s petition for review and heard oral argument on                 Management. The court of appeals reversed.
September 3, 2003.
                                                                        The Supreme Court held that Texas Home Management did
H. Professional Association Liability                                   not establish as a matter of law that it had no duty. The home
1. Battaglia v. Alexander, 93 S.W.3d 132 (Tex. App.—Houston             operator argued that the State retained legal custody of Dixon
[14th Dist.] 2002), pet. for review granted, 46 Tex. Sup. Ct. J.        and both federal and state regulations encouraged frequent
781 (June 12, 2003) [02-0701]. The issues are (1) whether               visits to his mother’s home in Houston. But those regulations
legally sufficient evidence supported a negligence finding              did not mandate such visits, which required authorization
against two anesthesiologists’ professional associations                by a mental retardation professional and a physician. The
despite a failure to find either doctor negligent; (2) how to           Court said this case differs from Van Horn v. Chambers, 970
allocate settlement credits between past and future damages             S.W.2d 542 (Tex. 1998), in which the Court found no special
absent an allocation in the settlement agreement and whether            relationship to establish a right to control a patient to protect
                                                      ADVOCATE     ✯    SPRING 2004


others. In this case, a right to control arose from Texas Home         resulted, destroying Crown Central’s facility. Crown Central
Management’s contract with the State. Dixon’s danger could             sued Coastal Transport and another company for negligence
be foreseen, based on his history of assaults, which were              and gross negligence. The trial court rendered judgment
greater in previous visits to Houston than at the home. The            against Coastal Transport based on the jury’s findings, but
State could have retained sufficient control over the details          rendered a directed verdict against Crown Central as to exem-
of the home’s operation to excuse the home’s duty, but the             plary damages. Based on the jury’s finding that the loading
operator’s summary-judgment evidence did not establish such            facility’s damage was “temporary,” the trial court determined
authority by either the State’s mental health agency or by the         that Crown Central’s prior settlement with another party was
court that ordered his placement.                                      for a greater amount than its damages. And because Coastal
                                                                       Transport made a prior written settlement credit election,
Justice Owen concurred in the judgment but argued that                 the trial court rendered a take-nothing judgment against
the Court should have held that the duty Texas Home                    Crown Central. The court of appeals affirmed the finding
Management owed to third parties such as the murder victim             of “temporary” damages, but held that the directed verdict
in this case was to report promptly to the State’s mental              concerning Coastal Transport’s alleged gross negligence was
health agency and appropriate law enforcement authorities              improper. The court of appeals accordingly affirmed in part,
all pertinent facts about Dixon’s violations of the law and            reversed in part, and remanded the matter for further pro-
any serious aggressive acts. If the Peavys could demonstrate           ceedings. The Supreme Court granted Crown Central’s and
that State actors would have taken actions that would have             Coastal Transport’s petitions for review and heard argument
prevented their daughter’s murder, then the Peavys would               on December 4, 2002.
have established a cause of action. But to the extent that their
claims rested on the failure of Texas Home Management or               C. Legal Cause
its agents to diagnose and treat Anthony Dixon’s violent pro-          1. IHS Cedars Treatment Ctr. of Desoto v. Mason, 2001 WL
clivities properly, Justice Owen said, those claims could not          915215 (Tex. App.—Houston [14th Dist.] 2002), pet. for review
survive based on the Court’s decisions in Thapar v. Zezulka,           granted, 46 Tex. Sup. Ct. J. 69 (October 31, 2002) [01-0926].
994 S.W.2d 635 (Tex. 1999), Van Horn v. Chambers, and Bird             The principal issues are whether a mental health care facility
v. W.C.W., 868 S.W.2d 767 (Tex. 1994).                                 and its nurse and doctors were negligent in discharging Mason
                                                                       and another patient together, at their request, and whether
Justice Hecht dissented, arguing that the Court had never              such negligence was a legal cause of Mason’s injuries in a car
before called something like Texas Home Management’s                   accident involving both patients two days after they left the
authority over Dixon “control.” Close to the facts of this case,       hospital. The trial court granted summary judgment in favor
Justice Hecht observed, the Court has held that a physician            of the health care providers. The court of appeals reversed in
does not exercise such control over a patient’s treatment as           part, affirmed in part, and remanded the case for trial. The
to render him liable to hospital employees for the patient’s           court of appeals held that the summary judgment evidence
violence, nor does a psychiatrist exercise such control over           raised fact issues about whether the health care providers had
a patient as to render him liable for the patient’s murder of          breached duties of care to Mason. The court of appeals further
his stepfather.                                                        held that Mason had alleged sufficient facts to show probable
                                                                       cause and that Mason’s testimony regarding the mental state
B. Gross Negligence/Legal Sufficiency of Evidence                      of the other patient at the time of the accident was admissible.
1. Coastal Transp., Inc. v. Crown Cent. Petroleum Corp.,               The Supreme Court granted Cedar Treatment Center’s petition
38 S.W.3d 180 (Tex. App.—Houston [14th Dist.] 2001), pet.              for review and heard argument on September 3, 2003.
for review granted, 45 Tex. Sup. Ct. J. 1145 (August 29, 2002)
[01-0301]. The issues in this case include: (1) whether an             D. Liability/Resuscitating Premature Infant/Parental
objection to the introduction of expert testimony is neces-            Consent
sary to challenge the legal sufficiency of that testimony in a         1. Miller v. HCA, Inc., 118 S.W.3d 758 (Tex. September 30,
directed verdict; (2) what evidence is necessary to support            2003) [01-0079]. The narrow question presented in this case
a jury finding of gross negligence; (3) what constitutes per-          of first impression is whether Texas law recognizes a claim
manent injury to land; and (4) what the proper measure of              by parents for either battery or negligence against a hospital
damages for permanent injury to land is. A gasoline truck              because the hospital allowed physicians to provide resuscita-
owned by Coastal Transport overflowed while being filled               tive medical treatment to their premature infant without their
at a bulk loading facility owned by Crown Central. A fire              consent. In this case, approximately eleven hours before the
                                                      ADVOCATE      ✯    SPRING 2004


parents’ child was born four months prematurely, the parents            for summary judgment on the sexual-abuse claim, holding
had given oral instructions that “heroic” measures should not           that it was a health-care liability claim under TEX. R EV. CIV.
be performed on their daughter. When the child was born                 STAT. art. 4590i, § 1.03(a)(4) and was time-barred. The court
alive but in distress, the treating physician provided life-sus-        of appeals reversed, holding that the claim was for ordinary
taining medical treatment. The child survived, but suffered             negligence, not a health care-liability claim, so the statute of
from serious disabilities, and the parents sued the hospital            limitations was tolled for the plaintiff’s legal disability.
for battery and negligence. The parents’ negligence claim was
premised on the hospital’s policies regarding treatment of              The Supreme Court granted Diversicare’s petition for review
an infant without parental consent, not on any physician’s              to determine whether Rubio’s sexual-abuse claim is a health-
negligence in treating the child. A jury found for the parents,         care liability claim. The Court heard argument on September
but the court of appeals reversed, concluding that parents              24, 2003.
cannot refuse life-sustaining treatment for an infant whose
condition is not certifiably terminal.                                  F. Premises Liability/Independent Contractor’s
The Supreme Court affirmed the court of appeals’ judgment,              1. Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. October
but for different reasons. The Court noted that there was no            17, 2002) [99-0929]. The issue is whether Dow retained
dispute that the infant could not be fully evaluated for medical        sufficient control over a subcontractor’s work to impose a
treatment until her birth. Thus, the Court said, any decisions          duty on the company (the premises owner) to protect an
concerning the infant’s treatment could not be fully informed           independent contractor’s employee from the contractor’s neg-
decisions until that time, and the evidence established that            ligence. Bright sued Dow after a pipe secured by a co-worker
when the infant was born, the physician attending the birth             for the independent contractor fell on him. Dow required its
was faced with emergent circumstances—i.e., the child might             contractors to comply with its safety regulations and hired a
survive with treatment but would likely die if treatment was            supervisor to oversee compliance. The supervisor had Dow’s
not provided before either parental consent or a court order            authority to stop the contractor’s work for safety reasons and
overriding the withholding of such consent could be obtained.           had responsibility for issuing safe work permits each morning
The Court therefore held that the emergent circumstances in             before work began. The trial court granted summary judgment
this case provided an exception to the general rule imposing            for Dow, but the court of appeals reversed, concluding that
liability on a physician for treating a child without parental          a fact issue existed about the extent of Dow’s “supervisory
consent. The Court made it clear, however, that a doctor                control.”
cannot create emergent circumstances from his or her own
delay or inaction.                                                      The Supreme Court held that Dow did not owe a duty to
                                                                        Bright either because of a contractual right to control or actual
E. Nursing Home Assault/Limitations/Health-Care                         control over the contractor’s work. By contract, the right of
Liability Claim                                                         control must be (1) over the means, methods or details of the
1. Diversicare Gen. Partner, Inc. v. Rubio, 82 S.W.3d 778               independent contractor’s work, (2) must relate to the injury
(Tex. App.—Corpus Christi 2002), pet. for review granted,               the negligence causes and (3) must grant the contractor at
46 Tex. Sup. Ct. J. 528 (March 27, 2003) [02-0849]. The                 least the power to direct the order in which the work is to
issue is whether a nursing-home resident’s claim against the            be done. Dow’s contract with the independent contractor
nursing home based on a sexual assault by another resident              required it to comply with Dow’s safety rules and regula-
is a claim against a health-care provider under TEX. R EV.              tions in a safety manual, but the agreement did not delegate
CIV. STAT. art. 4590i § 1.03(a)(4). Maria Rubio, an 82-year-            to Dow the right to control means, methods or details of the
old Alzheimer’s patient, allegedly suffered sexual abuse from           contractor’s work nor did it grant Dow the power to direct
a co-resident of her nursing home in 1995. Rubio and her                the order in which work should be done. Dow’s actual con-
daughter (as next friend) brought suit against the nursing              trol of the contractor’s work may subject Dow to negligence
home in 1999. Diversicare asserted that the sexual-abuse                liability, the Court said, but the control must be more than a
claim was a health-care liability claim. Because the statute            general right to recommend a safe manner of work and must
of limitations for a health-care liability claim is not tolled by       be control relating to the injury the negligence causes. By
the plaintiff’s legal disability, Diversicare asserted that the         requiring the contractor to comply with safety regulations,
claim was time-barred and moved for summary judgment                    Dow owed the contractor’s employees a narrow duty that its
on that claim. The trial court granted Diversicare’s motion             safety requirements and procedures not unreasonably increase
                                                     ADVOCATE     ✯    SPRING 2004


the probability and severity of injury. The summary-judgment          46 Tex. Sup. Ct. J. 245 (December 12, 2002) [02-0381].
evidence showed the contractor assigned Bright his duties             The principal issues are: (1) whether Texas Civil Practice &
and Dow did not instruct him how to perform his job and               Remedies Code chapter 33’s apportionment of responsibility
was not involved in how or when to secure the pipe that fell          in tort cases applies to third-party claims brought under the
on him. Dow’s safe-work permit system did not unreason-               Dram Shop Act (Texas Alcoholic Beverage Code section 2.02)
ably increase the probability and severity of Bright’s injury         without an allegation that the plaintiff was negligent; and (2)
and was not evidence that the contractor and Bright were              whether the trial court abused its discretion by severing the
not free to do work in their own way or that Dow controlled           convenience store’s contribution claim against the drunken
the work. Dow’s safety representative did not approve how             driver.
the pipe was secured or instruct Bright to perform his work
knowing of the dangerous condition. Dow was, therefore,               Several members of a family suffered injuries after being
entitled to summary judgment.                                         hit by a drunken driver. The family brought suit under the
                                                                      Dram Shop Act against the convenience store that sold alcohol
G. Premises Liability/Knowledge of Danger                             to the intoxicated driver. The convenience store brought a
1. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706 (Tex.              contribution claim against the driver. The trial court sev-
March 27, 2003) [01-1148]. The issue in this premises liability       ered the contribution claim and granted a partial summary
case is whether there was some evidence to support the jury’s         judgment to the plaintiffs, holding that the proportionate
finding that an injured plumber lacked actual knowledge of            responsibility act should not apply in dram-shop cases. The
the dangerous condition that caused his injuries. In this case,       court of appeals affirmed, holding that the Dram Shop Act
a plumber sued after he fell on wet stairs stacked with boxes.        imposed vicarious liability on the alcohol seller and that the
The plumber alleged that Wal-Mart failed to warn him about            proportionate responsibility act is inapplicable to third-party
the stairs’ dangerous condition. The trial court granted Wal-         dram shop actions in the absence of any allegation that the
Mart’s motion for a judgment notwithstanding the verdict.             plaintiffs themselves were negligent. The Supreme Court
The court of appeals, in a divided decision en banc, reversed         granted F.F.P.’s petition for review and heard argument on
the trial court, holding that there was some evidence that the        March 5, 2003.
plumber lacked knowledge of the dangerous condition.
                                                                      I. Proximate Cause/Cause in Fact/Legal Sufficiency
The Supreme Court held that Wal-Mart did not have a duty              1. Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. May
to warn the plumber of the danger or to make conditions               22, 2003) [01-0870]. The issue in this personal injury case
safe because no evidence supported a finding that he lacked           is whether there was legally sufficient evidence that alleged
actual knowledge of the dangerous condition. Wal-Mart owed            premises defects proximately caused the plaintiff’s injuries.
no duty to a licensee so long as the evidence conclusively            Pitzner, an air-conditioning repairman, alleged he sustained
established the licensee perceived the alleged dangerous              severe injuries after falling off the roof of a building Marathon
condition. The court of appeals relied on the plumber’s tes-          occupied as a tenant when he came into contact with elec-
timony that he did not notice the stairway was slippery until         trical lines while servicing Marathon’s air conditioning units,
he was halfway up the stairs and did not notice the boxes             which Marathon conceded did not comply with building code
blocked the handrail until he was on his way down. But the            requirements. There were no witnesses to the incident, and
plumber’s undisputed testimony was that he noticed, before            Pitzner had no recollection of how he sustained his injuries.
he went up, that there were boxes along the sides of the stairs       The evidence showed that Pitzner was found lying uncon-
and that some stairs were slippery, and he also noticed, as he        scious on the ground beside Marathon’s building with a burnt-
headed down the stairs, that boxes obstructed his handrail            tipped screwdriver beside him and his ladder missing. He
access. The plumber’s co-worker’s corroborating testimony             had not yet completed the repair job on the air conditioning
supported that conclusion. Because the evidence conclusively          units. Marathon argued, among other things, that there was
established that the plumber had knowledge of the stairs’             no evidence that the alleged code violations caused Pitzner
dangerous condition, the trial court correctly rendered judg-         to sustain an electrical shock and fall from the building.
ment notwithstanding the verdict.                                     Marathon argued that the evidence was equally consistent
                                                                      with Pitzner having become dizzy or fainting from working
H. Providing Alcohol                                                  on an asphalt roof in 90-plus-degree heat without water or
1. F.F.P. Operating Partners L.P. v. Dueñez, 69 S.W.3d 800            having been the victim of a criminal assault. Jurors found
(Tex. App.—Corpus Christi 2002), pet. for review granted,             for Pitzner, and the court of appeals affirmed.
                                                      ADVOCATE     ✯    SPRING 2004


The Supreme Court reversed and rendered judgment, holding              on land and instead circumscribed the limitation on liability
that the evidence was legally insufficient to show proximate           by, among other things, defining “recreation” with a detailed
cause. The experts’ opinions that Pitzner sustained an elec-           list of activities. Justice Hankinson argued that although that
trical shock and fell off the roof because of premises defects         list is not exhaustive, it must have some meaning.
piled speculation on speculation and inference on inference
and, thus, did not constitute any evidence of causation.               XVII. PROCEDURE—PRETRIAL
Based on the evidence presented at trial, the jury could               A. Correcting Pleading/Supplemental or Amended
only speculate as to (1) whether Pitzner actually fell from            Petition
the roof; (2) whether he actually came into contact with a             1. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46 (Tex.
high-voltage wire on Marathon’s roof; and (3) whether and              May 22, 2003) [02-0179]. This case involving a limited part-
how the alleged code violations were a substantial factor in           nership that sued under a wrong name raises three issues:
causing Pitzner’s injuries.                                            (1) whether legally sufficient evidence exists that Sixth RMA
                                                                       Partners used “RMA Partners, L.P.” as an assumed name so that
J. Recreational Use Statute                                            the original petition filed under the name RMA Partners was
1. City of Bellmead v. Torres, 89 S.W.3d 611 (Tex.                     effective to sue on behalf of Sixth RMA Partners; (2) whether
November 5, 2002) [01-0299]. The issue is whether using                Sixth RMA Partners’ second supplemental pleadings were
playground equipment is “recreation” within the meaning                effective to substitute its correct legal name; and (3) whether
of the Recreational Use Statute, which limits a landowner’s            Sixth RMA Partners is prohibited from prosecuting its claims
liability in certain circumstances. In this case, Torres, who          in Texas courts because it has never filed an assumed name
had played in a softball tournament at a City-owned complex            certificate. In this case, Sibley defaulted on two notes owned
in 1996, sued the City after she was injured when a swing              by Sixth RMA Partners, a separate legal entity among 16
in which she was sitting broke as she watched the subse-               limited partnerships operating under the general name RMA
quent championship game. The City moved for summary                    Partners. After Sibley sued “RMA Partners” to declare he did
judgment, contending that it was not liable for negligence             not owe anything on the notes, “RMA Partners” sued to collect
under the Recreational Use Statute. The statute at that time           on the notes. Four years after the suit began, “RMA Partners
defined recreation as “an activity such as hunting, fishing,           a/k/a Sixth RMA Partners” filed the supplemental petition
swimming, boating, camping, picnicking, hiking, pleasure               designating Sixth RMA Partners as the proper party name. In
driving, nature study, cave exploration, and waterskiing and           response to Sibley’s summary-judgment motion, Sixth RMA
other water sports.” The Legislature in 1997 added “any other          Partners answered for the first time using its name as the
activity associated with enjoying nature or the outdoors” to           party name. Sibley argued that use of a supplemental peti-
the list. The trial court granted summary judgment for the             tion was improper to change the party name and Sixth RMA
City. The court of appeals reversed.                                   Partners was an improper plaintiff, so the statute of limitations
                                                                       expired on the suit to collect on the notes. The trial court
The Supreme Court held that sitting on a swing is an activity          ruled against Sibley. The court of appeals reversed, holding
the Legislature intended to include as “recreation” when it            the statute of limitations barred the collection claim because
enacted the Recreational Use Statute. The City, however, owed          Sixth RMA Partners never entered the lawsuit properly by
Torres the duty not to injure her through willful, wanton, or          an amended petition.
grossly negligent conduct, and because Torres did not plead
any willful, wanton, or grossly negligent conduct, she could           The Supreme Court reversed and remanded, holding (1) that
not recover from the City as a matter of law.                          some evidence supported the trial court’s implied finding
                                                                       that Sixth RMA Partners used the name RMA Partners as
Justice Hankinson dissented, arguing that the Court’s inter-           an assumed name; (2) that Sixth RMA Partners’ second
pretation of “recreation” essentially wrote out of the statute         supplemental pleadings were effective to substitute its
the definition of recreation and the policy choices represented        correct legal name; and (3) that Sibley waived any claim that
by that definition. Under the Court’s interpretation of the            Sixth RMA Partners’ failure to file the required assumed name
Recreational Use Statute, Justice Hankinson said, the fact that        certificate precluded its suit because the claim was not prop-
someone is outside when he or she is injured is the sole fact          erly raised in the trial court.
triggering that statute’s limitation of liability on the part of
the landowner. The Legislature did not, however, draft such a          B. Enforcement of a Forum-Selection Clause
broad exception to the traditional duties of care owed entrants        1. In re AIU Ins. Co., argument granted on pet. for writ of mandamus,
                                                       ADVOCATE      ✯    SPRING 2004


46 Tex. Sup. Ct. J. 478 (March 6, 2003) [02-0648]. This                  that, they argued, the districts had no meaningful discretion
mandamus proceeding involves a trial court order denying                 in setting their tax rates, making the school-finance system
enforcement of a forum-selection clause. AIU Insurance Co.               an unconstitutional state property tax.
contracted with Louis Dreyfus Natural Gas Corp. to provide
insurance coverage. The insurance contract provided that                 The State filed special exceptions to the school districts’ plead-
all litigation, arbitration, or other form of dispute resolution         ings, and the trial court dismissed the lawsuit, ruling that
would take place in New York. Louis Dreyfus Natural Gas                  the school districts failed to state a cognizable constitutional
sought a defense under the insurance contract. AIU denied                claim because they failed to allege in their pleadings that they
coverage. Louis Dreyfus sued AIU in Texas state court. AIU               were taxing at or near the maximum rates allowed by state
requested a jury trial, answered discovery and waited five               law in order to meet state-mandated accreditation require-
months before moving to dismiss. Louis Dreyfus responded                 ments. The trial court equated school accreditation with the
to the motion to dismiss by asserting AIU waived its right to            constitutional standard for providing a minimum public
rely on the forum-selection clause and that the public interest          education—“general diffusion of knowledge.” The court also
of Texas precluded enforcement of the clause. The trial court            set a threshold that at least close to half the State’s school
denied the motion to dismiss without stating its reasons. The            districts must be taxing at the maximum rate to establish that
court of appeals denied mandamus relief.                                 the state-financing system had become an unconstitutional,
                                                                         statewide property tax. Because the court concluded that the
In its petition for review to the Supreme Court, the parties             school districts could not show that a sufficient number of
have raised the following issues: (1) whether AIU’s actions              the state’s school districts were taxing at the maximum rate,
waived its right to rely on the forum-selection clause; (2)              the court determined that the districts could not show an
whether the public interest of Texas precludes enforcement               unconstitutional tax and denied their request to replead their
of the forum-selection clause; and (3) whether there is an               case. The court of appeals affirmed the trial court’s decision
adequate remedy by appeal. The Supreme Court heard oral                  to dismiss the suit, but rejected the trial judge’s analysis that
argument on September 3, 2003.                                           close to half the school districts taxing at the maximum rate
                                                                         would establish an unconstitutional statewide property tax.
C. Special Exceptions                                                    The court of appeals focused on the question of whether any
1. W. Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558               of the districts were forced to tax at the maximum rate just
(Tex. May 29, 2003) [02-0427]. This case involves a con-                 to provide an accredited education.
stitutional challenge to Texas’s school-finance system. The
principal issues are (1) whether to present a legally cognizable         The Supreme Court reversed and remanded, reaffirming the
challenge to the system West Orange-Cove and three other                 “meaningful discretion” test from Carrollton-Farmers Branch
school districts were required to plead that they, and half or           Independent School District v. Edgewood Independent School
close to half of all other school districts, were forced to tax at       District, 826 S.W.2d 489 (Tex. 1992) (Edgewood III), to decide
the highest allowable tax rate to provide an accredited educa-           whether a state-imposed taxing scheme is an unconstitutional
tion, and (2) whether the school districts should have been              ad valorem tax, noting that the determining factor is the extent
given an opportunity to amend their pleadings or conduct                 of the state’s control over the taxation process, and holding
discovery after the trial court or the court of appeals decisions.       that the school districts should be allowed to replead their
The overriding issue in this case and two previous challenges            case and offer proof that they are taxing at the maximum
to Texas’s school finance system is whether the state has                allowable rate either to satisfy accreditation standards or a
imposed an unconstitutional statewide property tax. In the               general diffusion of knowledge. The Court disagreed with
last decision upholding the state’s school-financing scheme,             the trial court on the number of districts that have to be
Edgewood Independent School District v. Meno, 917 S.W.2d 717             taxing at or near the maximum rate to state a constitutional
(Tex. 1995) (Edgewood IV), the Court noted that “some” school            claim, holding that a single district can state a claim of an
districts eventually “may be forced to tax at the maximum                unconstitutional property tax if it alleges it is constrained by
allowable rate just to provide a general diffusion of knowl-             the state to tax at a particular rate.
edge” and that “general diffusion of knowledge” establishes the
constitutional requirement for the Sate’s support of its public          In reviewing the trial court’s dismissal on the pleadings, the
schools. In this case West Orange-Cove and the other districts           Court said that to obtain dismissal the State must establish as
alleged that they were taxing at or near the maximum tax                 a matter of law that the school districts are not forced to tax
rate to “educate their students,” citing Edgewood IV Because of          at maximum rates either to meet accreditation standards or to
                                                      ADVOCATE     ✯    SPRING 2004


provide a general diffusion of knowledge, but the State failed         working on the case. When Cimarron refused to take the
to meet its burden. In addition, the Court said that the State         late response and rejected a continuance request, Carpenter
was also not entitled to dismissal on its argument that the            asked the court to accept the late response and attached it
mere existence of local-option homestead exemptions shows              to the motion. The trial court rejected the motion, granted
that the school districts are not forced to tax at maximum             Cimarron’s traditional and no-evidence summary judgment
rates unless the State establishes that fact as a matter of law,       motions and denied Carpenter’s motion for a new trial. The
which it failed to do. The school districts were thus entitled         court of appeals reversed, holding that a “default” summary
to attempt to show that homestead exemptions do not afford             judgment occurs when the trial court refuses to accept a
them meaningful discretion in setting tax rates. The Court             late response and that Craddock applies to default summary
also said that the school districts need not actually be taxing        judgments.
at maximum rates if they can show that they couldn’t meet
accreditation standards or provide a general diffusion of              The Supreme Court held that the Craddock rule does not
knowledge even if they were.                                           apply to a motion for new trial filed after summary judg-
                                                                       ment is granted when the other side failed to respond in
In a concurring opinion, Justice Enoch said the Legislature,           time despite its notice of the hearing and its opportunity to
through the Texas Education Code, requires only that school            use court rules to alter the deadlines that Texas Rule of Civil
districts provide an accredited education. Thus, on the                Procedure 166a imposes. The rules provided Cimarron an
narrow question in this case, Justice Enoch said the Court             opportunity to get the trial court’s permission to file a late
was correct that the school districts should be afforded the           response to the summary judgment motion. The equitable
opportunity to plead that they must tax at the tax rate set            Craddock standard should not apply. The Court further held
by the State to provide an accredited education. But Justice           that leave to file a late summary judgment response should
Enoch argued that the school districts should not be allowed           be granted when the responding party establishes good cause
to raise a claim that the school finance system constitutes an         by showing that the failure to respond on time (1) was not
unconstitutional state ad valorem property tax by asserting            intentional or the result of conscious indifference, but the
the need to tax at maximum rates to provide a general dif-             result of an accident or mistake, and (2) that allowing the late
fusion of knowledge.                                                   response will not result in undue delay or otherwise injure
                                                                       the party seeking summary judgment. Because Cimarron
In dissent, Justice Smith argued that the Court lacked subject         did not establish good cause, the trial court did not abuse
matter jurisdiction to decide the case and that the Court’s            its discretion in denying its motion to file the response late.
holding that school districts have a legal obligation to comply        Nor did the trial court err in denying Cimarron’s motion for
with the general diffusion of knowledge standard contained             new trial on this basis. The Court remanded the case to the
in article VII, section 1 of the Texas Constitution transforms a       court of appeals for consideration of issues Cimarron raised
putative taxpayer suit brought under article VIII, section 1-e         that the court did not address.
into an article VII, section 1 “adequacy” challenge.
                                                                       Justice Hecht, concurring, stated that the Craddock standards
D. Summary Judgment/Craddock Standard                                  should not apply because the failure to timely answer a peti-
1. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d                 tion and the failure to timely respond to a motion for summary
682 (Tex. December 31, 2002) [01-0002]. In this case, the              judgment are very different situations.
Supreme Court determined whether the equitable rule in
Craddock v. Sunshine Bus Lines Inc., 133 S.W.2d 124 (Tex.              E. Venue/Motion to Transfer
1939), regarding granting a new trial after a “default” judg-          1. Garza v. Garcia, 70 S.W.3d 362 (Tex. App.—Corpus
ment should extend to overturning a summary judgment                   Christi 2002), pet. for review granted, 46 Tex. Sup. Ct. J. 16
when the summary-judgment response was rejected for late               (October 10, 2002) [02-0300]. The principal issue is whether
filing. Cimarron sued Carpenter and his companies after a              the court of appeals properly reversed the trial court’s venue-
well-casing leak developed. An initial summary judgment                transfer order brought under sections 15.002(a) and (b) of
hearing was continued because Carpenter hired a new                    the Texas Civil Practice and Remedies Code when the order
attorney. Carpenter’s new attorney then missed the dead-               did not specify the grounds for transferring venue. Garcia
line for filing a response to the summary judgment motion.             was injured in an automobile accident occurring in Hidalgo
In an affidavit, his attorney explained that by mistake, a             County. She brought suit against Garza and his employer,
notice of the hearing had never been given to an associate             J&R Valley Oilfield Services, in Starr County. Garza at
                                                       ADVOCATE      ✯    SPRING 2004


various times stated that he resided in Starr County and in              retaliation. The trial court rendered judgment for Garza,
Hidalgo County. Before trial, Garza and J&R filed a motion               awarding $1,034,108 in actual damages, $1,000,000 in
to transfer venue to Hidalgo County. The Starr County trial              punitive damages, prejudgment interest, and costs. The court
court granted the motion over Garcia’s objections. A trial was           of appeals held that Southwestern Bell failed to timely and
held in Hidalgo County, and Garcia was awarded $120,000.                 specifically object to the liability question and that, regard-
Garcia appealed, asserting venue error or venue fraud. The               less of the waiver, the liability question was not improper.
court of appeals reversed and remanded the case, ordering the            Furthermore, the court of appeals held that the trial court
case to be transferred to Starr County. The court of appeals             did not err in admitting evidence over Southwestern Bell’s
held that a person may have more than one residence for                  objections and that legally and factually sufficient evidence
venue purposes. The court concluded that because Garcia                  supported the finding that Southwestern Bell violated the
had filed suit in a county of proper venue, it was reversible            anti-retaliation statute and the awards for mental anguish
error to transfer venue, even if the county of transfer would            and punitive damages. The court of appeals also refused to
also have been proper if originally chosen by Garcia.                    order remittitur of the awards for mental anguish and puni-
                                                                         tive damages.
The Supreme Court granted Garza’s petition for review and
heard argument on January 22, 2003.                                      The Supreme Court granted Southwestern Bell’s petition for
                                                                         review and heard argument on October 15, 2003.
A. Procedure-Trial and Post-Trial/Batson Challenge                       C. Jury Instruction/Spoliation
1. Gen. Motors Corp. v. Iracheta, 90 S.W.3d 725 (Tex.                    1. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex.
App.—San Antonio 2002), pet. for review granted, 46 Tex.                 May 22, 2003) [01-0441]. The principal issue is whether the
Sup. Ct. J. 1204 (September 25, 2003) [02-0932]. The main                trial court abused its discretion by submitting an instruction
issue in this products liability case is whether there was legally       against Wal-Mart on missing evidence. Johnson, a customer,
sufficient evidence that an alleged design defect caused the             sued the retailer after he was cut when a decorative reindeer
death of two children in an automobile accident. The chil-               fell from an upper shelf as an employee repositioned mer-
dren’s grandmother sued General Motors Corporation (GM),                 chandise. Just after Johnson was hit, he told store employees
alleging the car they were riding in had a defectively designed          that he was not hurt, then later developed neck pain that
fuel system that caused the post-collision fire that killed the          led to surgery. Johnson and Wal-Mart disputed the com-
children. A jury found the design defect caused one child’s              position, weight and size of the reindeer. Wal-Mart failed
death, awarded the estate $10,004,500 for pain and suffering,            to produce the reindeer and its witnesses testified that the
found that GM acted with malice, and awarded $750,000 in                 reindeer were either sold or thrown away. A store manager
exemplary damages. The court of appeals affirmed the trial               took notes from the employee and photographs, including
court’s judgment. GM’s petition for review also raises an                one of the scene that did not show much about the reindeer.
issue about whether the trial court erred in overruling GM’s             At trial Wal-Mart offered employee testimony on the size,
Batson challenge after Iracheta used two peremptory strikes              composition and weight of the reindeer. Over Wal-Mart’s
to eliminate two white venire members, resulting in an all-              objection, the trial court instructed the jury that it could
Hispanic jury. The Supreme Court granted GM’s petition for               presume the missing evidence would have been unfavorable
review and heard argument on December 3, 2003.                           to Wal-Mart if the retailer knew or should have known it
                                                                         would be trial evidence. The jury decided for Johnson. The
B. Jury Instruction/Liability/Waiver                                     court of appeals affirmed.
1. Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214 (Tex.
App.—Corpus Christi 2001), pet. for review granted, 46 Tex.              The Supreme Court reversed and remanded, holding that
Sup. Ct. J. 779 (June 12, 2003) [01-1142]. The issues in this            the trial court abused its discretion by giving the jury the
workers’ compensation retaliation case are (1) whether legally           spoliation instruction. The beginning and end of the Court’s
sufficient evidence supported the award of punitive damages;             analysis concerned the duty to preserve evidence. The Court
(2) whether sufficient evidence existed to prove causation;              said such a duty arises only when a party knows or reason-
(3) whether Southwestern Bell waived its complaint that the              ably should know that a substantial chance exists that a claim
liability question was defective; and (4) whether the liability          will be filed and that evidence in its possession or control
question was in fact defective. David Garza sued Southwestern            will be material and relevant to that claim. Under an objec-
Bell Telephone Company for workers’ compensation                         tive test, nothing about the investigation or circumstances
                                                      ADVOCATE     ✯    SPRING 2004


surrounding the accident would have put Wal-Mart on notice             XIX. PRODUCTS LIABILITY
of a substantial chance that Johnson would pursue a claim.             A. Evidence of Causation
And because an unnecessary spoliation instruction by its               1. Gen. Motors Corp. v. Iracheta, 90 S.W.3d 725 (Tex.
nature “nudges’ or “tilts” the jury, the Court found that such         App.—San Antonio 2002), pet. for review granted, 46 Tex.
an instruction when erroneously given is particularly likely           Sup. Ct. J. 1204 (September 25, 2003) [02-0932]. The main
to cause harm.                                                         issue in this products liability case is whether there was legally
                                                                       sufficient evidence that an alleged design defect caused the
D. Motion for New Trial/Timeliness                                     death of two children in an automobile accident. The chil-
1. Williams v. Flores, 88 S.W.3d 631 (Tex. October 10, 2002)           dren’s grandmother sued General Motors Corporation (GM),
[02-0035]. The issue is whether the court of appeals properly          alleging the car they were riding in had a defectively designed
dismissed the appeal by holding that Williams’ motion for              fuel system that caused the post-collision fire that killed the
a new trial was late.                                                  children. A jury found the design defect caused one child’s
                                                                       death, awarded the estate $10,004,500 for pain and suffering,
The Supreme Court concluded that Williams’ new-trial                   found that GM acted with malice, and awarded $750,000 in
motion, filed May 29, 2001, from a judgment dated April 27,            exemplary damages. The court of appeals affirmed the trial
2001, was timely because the 30th day after the judgment fell          court’s judgment. GM’s petition for review also raises an
on a Sunday and the following Monday was a legal holiday.              issue about whether the trial court erred in overruling GM’s
The Court also determined that Williams filed within time              Batson challenge after Iracheta used two peremptory strikes
limits a motion for extension of time on his notice of appeal,         to eliminate two white venire members, resulting in an all-
which he filed 12 days after the 90-day deadline.                      Hispanic jury. The Supreme Court granted GM’s petition for
                                                                       review and heard argument on December 3, 2003.
2. Moritz v. Preiss, S.W.3d , 46 Tex. Sup. Ct. J. 784
(June 12, 2003) [01-1270]. The principal issue is whether              B. Learned Intermediary Doctrine/Sophisticated User
a judgment that disposed of all issues in an action, but did           Doctrine
not name all defendants, was final. In this case the court             1. Humble Sand & Gravel, Inc. v. Gomez, 48 S.W.3d 487
of appeals reversed the trial court’s denial of an amended             (Tex. App.—Texarkana 2001), pet. for review granted, 45 Tex.
motion for new trial raising a juror-disqualification issue            Sup. Ct. J. 712 (May 30, 2002) [01-0652]. The principal issues
and remanded. The amended motion was filed more than                   are: (1) whether the learned intermediary and sophisticated
30 days after the trial court issued the original judgment.            user doctrines rendered Humble’s warning about the haz-
The motion was denied, then was denied again on a motion               ards of high-silica abrasive blasting adequate as a matter of
to reconsider when the trial court revised its judgment to             law; and (2) whether the trial court prevented Humble from
include the omitted defendant.                                         adequately presenting its causation defenses by excluding
                                                                       from evidence a portion of Gomez’s fifth amended petition and
The Supreme Court reversed and rendered judgment,                      answers to requests for admissions. Humble supplied silica
holding that the original judgment was final for purposes              sand to Spincote who used it for abrasive blasting. The sand
of establishing a deadline for a new-trial motion and that             was supplied in bags that had a warning printed on them.
the untimely amended new-trial motion did not preserve                 Gomez worked for Spincote from 1984 to 1987. Part of his job
issues for appellate review. Finality, the Court said, will be         involved sand blasting with silica sand. Although Gomez read
presumed for judgments following a full trial on the merits of         the warnings on the bag and inquired into proper safety mea-
the case when there is no indication that the trial court did          sures, the safety measures Spincote supplied were allegedly
not intend to dispose of the entire case. As for the amended           in violation of Occupational Safety & Heath Administration
new-trial motion filed after the deadline, the Court said that         standards. Gomez was diagnosed with silicosis, and he sued
the trial court’s granting leave to file the untimely motion           Humble. At trial, Humble attempted to assert the “sophis-
and hearing argument did not permit appellate review of                ticated user” defense. But the trial court denied Humble’s
the trial court’s denial of the untimely motion (citing Texas          request for a “sophisticated user” jury instruction. The jury
Rules of Civil Procedure 5 and 329(b) and overruling Jackson           found that Humble’s warning on the bags was insufficient, and
v. Winkle, 660 S.W.2d 807 (Tex. 1983) to the extent that it            that Humble’s negligence was the cause of Gomez’s silicosis.
allows appellate review of a trial court’s denial of an untimely       The trial court rendered judgment accordingly. The court of
new-trial motion).                                                     appeals affirmed. The Supreme Court granted Humble’s peti-
                                                                       tion for review and heard argument on October 30, 2002.
                                                       ADVOCATE      ✯    SPRING 2004


C. Physical Impairment                                                   of appeals clearly applied the so-called “zero damages rule,”
1. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757                 that doing so was inconsistent with Pool, and that the Court
(Tex. September 11, 2003) [01-0007]. The issue in this case              should have expressly disavowed the zero-damages rule.
involving facial and eye injuries is whether the court of appeals
used a proper factual sufficiency standard of review to reverse          D. Stream of Commerce/Release of Product to Third-Party
a jury’s zero damages award for physical impairment other                Contractor
than for vision loss. Jackson suffered an eye injury, facial             1. FFE Transp. Servs., Inc. v. Fulgham, 2002 WL 1801596
fractures and a broken nose when his hand slipped while he               (Tex. App.—Dallas), pet. for review granted, 46 Tex. Sup. Ct.
demonstrated a new sport-hunting bow. Jackson spent 12 days              J. 838 (June 26, 2003) [02-1097]. The issues in this case are:
in the hospital and suffered vision problems and headaches               (1) whether an entity that leases or relinquishes possession
after the accident. In a lawsuit alleging products liability and         of a product to a third party to further its own purposes has
negligence, his medical expert testified that surgery repaired           released a product into the stream of commerce such that
the broken bones and corrected a double-vision problem,                  it can be subject to a products liability claim; (2) whether
but permanent problems left Jackson with trouble doing                   the court of appeals applied the correct standard of review
close-up or detailed work. The jury found Golden Eagle and               in determining the necessity of expert testimony; and
Jackson both negligent and awarded Jackson damages for                   (3) whether expert testimony is necessary to establish the
medical expenses, pain and suffering, and vision loss, but               applicable standard of care and breach of the standard of
not for other physical impairment. Jackson argued that his               care.
fracture injuries required the jury to find he suffered physical
impairment and to award some damages for that impair-                    Larry Fulgham and FFE Transportation Services (FFE)
ment. The court of appeals reversed the jury’s zero damages              had a long-haul trucking agreement. On March 7, 1998,
award, reasoning that Jackson’s many facial injuries were                as Fulgham was hauling a load for FFE, the upper-coupler
“demonstrative of impairment beyond pain and suffering,                  assembly broke from his trailer, causing the trailer to detach
loss of earning capacity and loss of vision.”                            from the tractor. Fulgham was injured when he lost control
                                                                         of the tractor and it overturned. Fulgham alleged that the
The Supreme Court held that the court of appeals did not                 bolts holding the upper-coupler assembly to the base of the
properly apply the factual sufficiency standard of review set            rail of the trailer were rusted and weakened. The Fulghams
forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986).             sued for negligence and products liability against FFE. The
The Court also established a factual sufficiency standard of             trial court granted FFE’s motion for directed verdict, holding
review when evidence pertains to more than one element                   there was no evidence of breach of duty or causation and that
of damages. This review standard differs from the standard               no evidence showed that FFE put the trailer into the stream
applied when the jury is asked to award a single amount of               of commerce. The court of appeals reversed and remanded,
damages, but is told that it may consider various elements               holding that: (1) expert testimony was not necessary to
in arriving at that amount. The Court said that, when only               establish the applicable standard of care; (2) there was at
one category of damages is challenged on the basis that the              least some evidence that FFE breached its duty to inspect
award in that category was zero or was too low, an appellate             the trailer; and (3) the agreement between Fulgham and FFE
court should consider only whether the evidence unique to                constituted a lease in which FFE introduced its trailer into
that category is so against the great weight and preponder-              the stream of commerce such that FFE could be held strictly
ance of the evidence as to be manifestly unjust, shock the               liable for the defect.
conscience, or clearly demonstrate bias. When, as in this
case, the jury’s failure to find greater damages in more than            The Supreme Court granted FFE’s petition for review and
one overlapping category is challenged, the court of appeals             heard argument on October 29, 2003.
should first determine if the evidence unique to each category
is factually sufficient. If it is not, the court of appeals should       XX. REAL PROPERTY
then consider all the overlapping evidence along with the                A. Boundary Dispute/Declaratory Action/Attorney’s Fees
evidence unique to each category to determine if the total
amount awarded in the overlapping categories is factually                1. Martin v. Amerman, 83 S.W.3d 858 (Tex. App.—Texarkana
sufficient.                                                              2002), pet. for review granted, 46 Tex. Sup. Ct. J. 616 (May
                                                                         1, 2003) [02-0731]. This case concerns the proper action to
In a concurring opinion Justice O’Neill said that the court              resolve a boundary line dispute between adjacent private
                                                         ADVOCATE       ✯    SPRING 2004


properties. The Supreme Court will also consider whether                    and that it could use the easement for its cable under TEXAS
attorney’s fees are recoverable in such an action. The Martins              UTILITY CODE § 181.102, which allows a cable provider in
and Amermans own adjacent residential lots in Beaumont,                     an unincorporated area to install and maintain a cable line
Texas. The Amermans removed the Martins’ fence, claiming it                 “through, under, along, across, or over” utility easements,
encroached onto their property thirty-feet beyond the correct               public roads, alleys or public water. The Krohns countered
property line. Originally, the Martins filed a trespass to try              that the trend in the law of other states did not apply in this
title action, a request for declaratory judgment to declare the             case because of the specific language of the easement and the
correct boundary line, a request for injunctive relief, and a               fact that the Utility Code section applies only to public, not
declaratory judgment action to quiet title, but they nonsuited              private, property. The trial court granted summary judgment
their trespass to try title action during trial. The Amermans               for Marcus. The court of appeals reversed.
filed a cross action for trespass to try title and injunctive relief.
The jury found that the Martins’ survey represented the cor-                The Supreme Court held that the easement in this case, by
rect boundary line and that the Amermans’ survey cast a cloud               its terms, permitted transmission facilities for electricity. The
on the Martins’ title, and awarded the Martins attorney’s fees.             issue was not whether the proposed use resulted in a material
The trial court entered judgment for the Martins, granted a                 burden. While cable television may utilize electrical impulses
permanent injunction enjoining the Amermans from entering                   to transmit communications, as Marcus claimed, television
the Martins’ property as described by the Martins’ survey and               transmission is not a more technologically advanced method
awarded $25,000 in attorney’s fees.                                         of delivering electricity. To construe Utility Code § 181.102 to
                                                                            cover private property, as Marcus proposed, was not supported
The court of appeals affirmed the trial court’s judgment but                by legislative intent and could have significant implications
modified the judgment to delete the attorney’s fees award.                  as a constitutional taking.
The court of appeals determined that attorney’s fees are not
available in a suit to quiet title. Further, the court of appeals           Justice Hecht dissented and would have held that the ease-
refused to follow the Supreme Court’s comments in Brainard                  ment in this case could be shared with a cable television
v. State, 12 S.W.3d 6, 29 (Tex. 1999), in which the Court said              provider if the servient estate was not additionally burdened.
that a declaratory judgment action is available to resolve a                Since the easement in the present case did not expressly
boundary dispute and may result in an attorney’s fee, asserting             allow for telephone lines, the Court concluded that it did not
that the Court’s statements were dicta.                                     permit any use for purposes of communication. But electric
                                                                            power is used for communication in the sense that neither a
The Supreme Court granted Martin’s petition to decide                       television nor a telephone will operate without it. According
whether a declaratory judgment action is a proper means                     to Justice Hecht, it is not true that an easement for telephone
to resolve a dispute over the correct boundary line between                 wires contemplates the use of communication devices and
adjacent properties, and whether attorney’s fees are avail-                 an easement for electric current does not.
able in such a suit. The Court heard argument on October
1, 2003.                                                                    2. Hubenak v. San Jacinto Gas Transmission Co., 65 S.W.3d
                                                                            791 (Tex. App.—Houston [1st Dist.] 2001) [02-0213], pet.
B. Condemnation/Easements                                                   for review granted and consolidated for oral argument with
1. Marcus Cable Assocs. L.P. v. Krohn, 90 S.W.3d 697 (Tex.                  Hubenak v. San Jacinto Gas Transmission Co., 65 S.W.3d 791
November 11, 2002) [01-0291]. The principal issue is whether                (Tex. App.—Houston [1st Dist.] 2001) [02-0214], Wenzel
a power-line easement granted to an electricity cooperative                 v. San Jacinto Gas Transmission Co., 65 S.W.3d 791 (Tex.
can be shared with a cable-television company for cable lines.              App.—Houston [1st Dist.] 2001) [02-0215], Kutach Family
The Krohns, who own close to 12 acres with a power-line                     Trust v. San Jacinto Gas Transmission Co., 65 S.W.3d 791
easement through it, sued Marcus after Marcus strung cable                  (Tex. App.—Houston [1st Dist.] 2001) [02-0216], Cusack
on the co-op’s utility poles without the Krohns’ permission.                Ranch Corp. v. MidTexas Pipeline Co., 71 S.W.3d 395 (Tex.
The easement permitted an “electric transmission or distribu-               App.—Corpus Christi 2001) [02-0217], MidTexas Pipeline
tion line or system” and its maintenance and provided that                  Co. v. Dernehl, 71 S.W.3d 852 (Tex. App.—Texarkana 2002)
“whenever necessary, words used in this instrument in the                   [02-0320], MidTexas Pipeline Co. v. Wright, 2002 WL 264833
singular shall be construed to read in the plural.” Marcus                  (Tex. App.—Texarkana 2002) [02-0321], MidTexas Pipeline
argued that the trend in the law from other states is to allow              Co. v. Wright, 2001 WL 1636640 (Tex. App.—Texarkana
easements to be apportioned for cable-television providers                  2001) [02-0326], and Cusack v. MidTexas Pipeline Co., 2002
                                                      ADVOCATE     ✯    SPRING 2004


WL 368639 (Tex. App.—Corpus Christi 2002) [02-0359],                   1998, when the City downzoned Sheffield’s property from
pets. for review granted, 46 Tex. Sup. Ct. J. 237 (December            6,500 to 12,000 square foot lots.
12, 2002). These consolidated pipeline-condemnation cases
involve the construction of Texas Property Code § 21.012(b),           Sheffield sued Glenn Heights, asserting that the moratorium
which requires a party seeking condemnation to file a peti-            and subsequent downzoning of the property were takings
tion that includes, among other things, a statement that the           requiring adequate compensation from the city. In a bifurcated
condemning entity and the landowner are “unable to agree”              trial, the trial court held that the city’s downzoning, but not
on damages. The issues raised are: (1) whether the “unable             the moratorium, was a taking of Sheffield’s property without
to agree” requirement is a jurisdictional prerequisite to suit         compensation, for which the jury later awarded damages of
or a statutory prerequisite; (2) whether pre-suit negotiations         $485,000. The court of appeals held that the downzoning
must have been conducted “in good faith” and be accom-                 substantially advanced a legitimate governmental interest,
panied by a “bona fide” offer to comply with the “unable to            but it held that the downzoning nevertheless constituted
agree” requirement; and (3) whether the condemning entity              a taking under the “unreasonable interference” test articu-
can satisfy the “unable to agree” requirement by negotiating           lated in Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex.
to purchase only those rights the entity is legally entitled to        1998). The court reasoned that the downzoning interfered
condemn and ultimately seeks to condemn. The Supreme                   with Sheffield’s distinct investment-backed expectations,
Court granted the parties’ petitions for review and heard              and that a 38% diminution in the property’s value satisfied
argument on February 19, 2003.                                         the economic impact prong of Mayhew’s test. The court of
                                                                       appeals held that the moratorium was a taking as well. The
C. Condemnation/Taking                                                 court rendered judgment that the City compensate Sheffield
1. Sheffield Dev. Co., Inc. v. City of Glenn Heights, 61 S.W.3d        for this temporary taking and remanded the issue of damages
634 (Tex. App.—Waco 2001), pet. for review granted, 45 Tex.            to the trial court.
Sup. Ct. J. 996 (July 3, 2002) [02-0033]. The issue is whether
the City of Glenn Heights’ moratorium on development and               Glenn Heights filed a petition for review in the Supreme
subsequent downzoning of Sheffield Development Company’s               Court, arguing that the downzoning and moratorium were not
property constituted a taking requiring compensation under             takings under Mayhew, and Sheffield filed a petition arguing
the Texas Constitution. In 1996, Sheffield purchased approx-           that the court of appeals was wrong to hold that the City’s
imately 194 acres of undeveloped land in Glenn Heights.                downzoning substantially advanced a legitimate governmental
This property is part of a 240-acre tract known as Planned             interest. The Supreme Court granted both parties’ petitions
Development District 10 (“PD 10”). The property was zoned              for review and heard argument on October 30, 2002.
in 1986 for high density, single-family residential uses of
primarily 6,500 square feet.                                           2. Town of Flower Mound v. Stafford Estates Ltd. P’ship,
                                                                       71 S.W.3d 18 (Tex. App.—Fort Worth 2002), pet. for review
In 1995, the City adopted a “unified development code”                 granted, 46 Tex. Sup. Ct. J. 244 (December 12, 2002)
(“the code”) and rezoned all properties in the city, except            [02-0369]. The principal issues are: (1) whether the rough
the fourteen PDs, to lot sizes of primarily 20,000 square              proportionality standard in Dolan v. City of Tigard, 512 U.S.
feet. PD 10 was one of the fourteen districts not rezoned. The         374 (1994), applies to all development conditions or only
code stated that the PDs’ zoning would be carried forth in             to conditions requiring the property’s dedication to public
full force and effect. In 1996, the City began the process of          use; (2) whether Dolan’s standard applies to all development
rezoning the PDs to lower development density and achieve              determinations or only to adjudicative decisions; (3) whether
a greater consistency between the PDs and the code. During             Flower Mound’s requirement that the developer reconstruct
that summer, Sheffield entered into a contract to purchase             and improve an abutting street constituted a taking under
the property at issue. Prior to closing, Sheffield conducted a         the Dolan standard; and (4) whether the developer was the
due diligence investigation and explored with city officials the       prevailing party to recover attorney’s fees and expert-witness
possibility that the property would be rezoned. In November            fees under 42 U.S.C. § 1983 and 1988.
1996, Sheffield closed on the property. On January 6, 1997,
the City Council enacted a thirty-day development morato-              Flower Mound approved Stafford’s plat application for a resi-
rium which prohibited the filing and acceptance of plats while         dential subdivision on the condition that Stafford upgrade an
the City completed the PD rezonings. The moratorium was                existing abutting road, owned by the town, from asphalt to
extended a number of times, finally terminating on April 27,           concrete. The upgrade was completed at Stafford’s expense.
                                                        ADVOCATE      ✯    SPRING 2004


Flower Mound’s Land Development Code requires all devel-                  As part of an expansion of Highway 290, TxDOT occupied
opers to upgrade abutting streets when those streets do not               and destroyed a portion of Jones Road in Sunset Valley, a
meet Flower Mound’s minimum standards. Flower Mound                       small general-law municipality. Sunset Valley brought various
denied Stafford’s request for a variance. Stafford filed suit,            claims against TxDOT including nuisance and inverse con-
claiming that the plat approval condition was an uncon-                   demnation under the Transportation Code, common law, and
stitutional taking under both the Texas and United States                 Texas Constitution, seeking the cost of a substitute road.
Constitutions. The trial court agreed with Stafford and                   TxDOT filed a plea to the jurisdiction based on sovereign
awarded 87.8% of the total cost of improvements, as well as               immunity. The trial court denied the plea and the court
attorney’s fees. The court of appeals held that the plat con-             of appeals affirmed. On remand, the city’s mayor and one
dition was unconstitutional under the Texas Constitution,                 council member intervened against TxDOT, alleging equal
but it reversed the award of attorney’s fees because Stafford             protection violations.
recovered under the Texas Constitution rather than the
United States Constitution, thereby rendering 42 U.S.C. §                 The trial court rendered judgment against TxDOT, awarding
1988(b) inapplicable. The Supreme Court granted both Flower               damages to the city for inverse condemnation and violations
Mound’s and Stafford’s petitions for review and heard oral                of the Transportation Code and granting declaratory relief
argument on March 5, 2003.                                                based on violations of various environmental regulations. The
                                                                          trial court also granted injunctive relief to the city and the
D. Inverse Condemnation                                                   intervenors on their nuisance claims and awarded attorney’s
1. Tarrant Reg’l Water Dist. v. Gragg, 43 S.W.3d 609 (Tex.                fees, prejudgment interest, and costs. Without addressing the
App.—Waco 2001), pet. for review granted, 45 Tex. Sup. Ct.                common law or constitutional grounds, the court of appeals
J. 813 (June 13, 2002) [01-0362]. The principal issues in                 affirmed the trial court’s judgment that Sunset Valley was
this inverse condemnation case are: (1) whether plaintiffs’               entitled to compensation for the taking of Jones Road under
evidence was legally sufficient to support the trial court’s con-         the Transportation Code. The Court of Appeals reversed the
clusion that the Tarrant Regional Water District’s releases from          trial court’s grant of declaratory relief regarding TxDOT’s
a reservoir during heavy rainfall and flooding caused flood               violations of the administrative code, reversed the damage
damage that occurred 8 to 25 miles downstream at plaintiffs’              award, and remanded the case for a determination of com-
ranch; (2) whether the trial court erred by not bifurcating the           pensation by the Texas General Land Office as provided in
trial of this case; and (3) whether plaintiffs failed to prove an         the Transportation Code.
intentional taking for public use. In 1991, plaintiffs brought
this action against the District claiming that the District, by its       The Supreme Court will hear argument in this case on
intentional actions, caused their properties to be subjected to           February 4, 2004
increased flooding. The District objected to scientific evidence
plaintiffs offered and asserted that any claims alleged were              E Landlord-Tenant/Duties Owed By Landlord
actually negligence claims rather than inverse condemna-                  1. Shell Oil Co. v. Khan, 71 S.W.3d 890 (Tex. App.—Texarkana
tion claims. The trial court overruled the District’s objections          2002), pet. for review granted, 46 Tex. Sup. Ct. J. 246 (December
and, based on the jury’s findings, awarded a “permanent and               12, 2002) [02-0401]. The issue in this personal injury case
perpetual flowage easement,” plus $10,214,422 in damages.                 is what legal duties a lessor owes when the lessor retains
The court of appeals affirmed. The Supreme Court granted                  some right to control the security on leased property. Shell
Tarrant Regional Water District’s petition for review and heard           Oil Company owned a service station that it leased to L.A.
argument on October 16, 2002.                                             Sani, Inc. Saleem Syed owned L.A. Sani, Inc. and managed
                                                                          the station. Mohamed Khan was employed by L.A. Sani, Inc.
2. Tex. Dept. of Transp. v. City of Sunset Valley, 92 S.W.3d              to operate the station. Khan alleged that he was shot at the
540 (Tex. App.—Austin 2002), pets. for review granted, 47                 station by an armed robber who emerged from an unlighted
Tex. Sup. Ct. J. 127 (Dec. 12, 2003) [03-0041]. The prin-                 area of the station while Khan was outside. Khan and Jamila
cipal issues presented are whether a municipality can assert              Williams sued Shell, seeking damages for Khan’s injuries
an inverse condemnation claim against the State under                     and claiming improper security precautions. The trial court
either the Transportation Code or the Texas Constitution                  granted summary judgment for Shell. The court of appeals
and whether residents of that municipality can raise equal                reversed and remanded, concluding that there was some
protection challenges against the State based on the Texas                evidence of facts that may have imposed a duty on Shell
Department of Transportation’s construction of a highway.                 based on the contract between Shell and L.A. Sani, Inc. The
                                                        ADVOCATE      ✯    SPRING 2004


Supreme Court granted Shell’s petition for review and heard               municipal utility district, had a contractual right to reim-
oral argument on March 5, 2003.                                           bursement for the facilities. The interest Turboff attempted to
                                                                          enforce against N.P. was simply an interest in a contract that
F. Maintenance Fees                                                       Turboff could not now honor. Because Turboff had no right
1. Brooks v. NorthGlen Ass’n, 76 S.W.3d 162 (Tex. App.—                   to reimbursement, he had no claim to force N.P. to transfer
Texarkana 2002), pet. for review granted, 46 Tex. Sup. Ct.                title for the facilities to the district.
J. 426 (February 13, 2003) [02-0492]. The issue of first
impression in this case is the statutory interpretation and               H. Wrongful Condemnation/Damages
constitutionality of Chapter 204 of the Property Code as it               1. Pinnacle Gas Treating, Inc. v. Read, 104 S.W.3d 544
applies to certain deed restrictions for a subdivision in Harris          (Tex. April 17, 2003) [02-0169]. This case involved two
County. Homeowners sued their homeowners association for                  suits for wrongful condemnation and possession of utility
a declaratory judgment to determine the application Chapter               and construction easements. The condemnor had obtain a
204 of the Property Code to maintenance fees designated in                writ of possession for the easements, but the writ was sub-
the homeowners agreement.                                                 sequently dissolved and a trial was had on the condemnee’s
                                                                          claims for wrongful condemnation and possession under
The Supreme Court granted the homeowners’ petition for                    the dissolved writ. Shortly before the trial, the condemnor
review and heard argument on September 3, 2003.                           instituted a second condemnation proceeding and obtained
                                                                          a second writ of possession for the easements. After a final
G. Subsequent Purchasers/Prior Contractual Obligation                     judgment was entered on the condemnee’s damages in the
1. N.P., Inc. v. Turboff, 111 S.W.3d 40 (Tex. May 22, 2003)               first condemnation proceeding, the condemnor appealed,
[01-1167]. The principal issue is whether a developer who lost            arguing among other things that the original writ of posses-
property after defaulting on his loan or the company that later           sion was wrongfully vacated. The court of appeals declined
bought the property is entitled to a municipal utility district’s         to consider the merits of the condemnor’s claim on mootness
payment for utility improvements on the property. In this                 and equity grounds.
case, Turboff sued to declare his right to be reimbursed for
the improvements, claiming it came from the settlement of a               The Supreme Court held that the court of appeals should
dispute with the lender over the loan default just before the             have addressed the issue because the court’s disposition of
lender went into receivership. In that settlement, the lender             the matter would affect the parties’ interest in the judgment
retained title to the development property and utility facili-            on the condemnee’s claims for wrongful condemnation and
ties but gave up any claim to reimbursement costs by the                  possession.
utility district. N.P., which later acquired title to the property,
claimed it had rights to the utility district’s payment under             The Honorable Priscilla R. Owen was elected to the Supreme
a later agreement with the utility district. The trial court              Court of Texas in 1994 and reelected in 2000. Julie Buchanan &
determined that Turboff was entitled to the reimbursement.                Osler McCarthy are Staff Attorneys for the Supreme Court of
The court of appeals affirmed.                                            Texas. Casey Low & Michel Walter are Law Clerks for the Supreme
                                                                          Court of Texas. The authors extend special thanks to all the Staff
The Supreme Court reversed and rendered judgment, holding                 Attorneys and Law Clerks at the Court for their substantial
that N.P., the subsequent purchaser, held a property right                contributions. ✯
in the utility facilities and, by virtue of its contract with the
                                                      ADVOCATE      ✯    SPRING 2004


                           THE PROGENY OF C ASTEEL

A     S THE LAW CONTINUES TO DEVELOP under Payne and                    to trial courts requiring them to submit requested questions
      Casteel, preservation of charge error may grow easier             to the jury if the pleadings and any evidence support them.”
      in certain circumstances but strategy calls may grow              Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992); see Interstate
more difficult as theories and form options increase. This              Northborough P’ship v. State, 66 S.W.3d 213 (Tex. 2001) (trial
paper outlines the basic principles and most recent cases               court did not err in refusing instruction when no evidence
in preserving charge error, identifying charge error, and                                                   ,
                                                                        supported request); Mandlbauer 34 S.W.3d at 911 (proper
applying the harmless error rule. An additional section is              instruction must find support in evidence and pleadings);
included that lists recent charge error holdings on specific            Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663 (Tex.
claims and issues. The principles outlined in the paper are             1999) (court must submit questions, instructions and defi-
designed to aid in making the difficult strategy calls neces-           nitions raised by the pleadings and evidence); Knighten, 976
sary in deciding if and when to preserve charge error in the            S.W.2d at 676 (sudden emergency instruction proper when
unique circumstances of your case.                                      found support in evidence); Aquila Southwest Pipeline, Inc. v.
                                                                        Harmony Expl., Inc., 48 S.W.3d 225 (Tex. App.—San Antonio
I. General categories of charge error                                   2001, pet. denied) (trial court did not err in including “best
A trial court has broad discretion to formulate questions,              efforts” question when pleadings supported submission);
instructions and definitions that will enable the jury to render        Guerra v. Wal-Mart Stores, Inc., 943 S.W.2d 56, 61-62 (Tex.
a verdict and resolve the controlling disputed fact issues. See,        App.—San Antonio 1997, writ denied); Varme, 881 S.W.2d at
e.g., Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676          881 (error to deny fraud submission by improper conditioning
(Tex. 1998) (instruction is proper if it will aid the jury in           when theory found support in pleadings and evidence); Texas
answering the issues presented to the jury); Green Tree Fin.            Dept. of Transp. v. Ramming, 861 S.W.2d 460, 463 (Tex. App.—
Corp. v. Garcia, 988 S.W.2d 776, 783-84 (Tex. App.—San                  Houston [14th Dist.] 1993, writ denied) (a court’s “discretion
Antonio 1999, no pet.) (refusal to submit instruction erro-             is subject to the requirement that the questions submitted
neous only if it was “reasonably necessary to enable the jury           must control the disposition of the case, be raised by the
to render a proper verdict”); Jobe v. Penske Truck Leasing Corp.,       pleadings and evidence, and properly submit the disputed
882 S.W.2d 447, 451 (Tex. App.—Dallas 1994, no writ) (trial             issues for the jury’s deliberation”); Soto v. Southern Life & Health
court has broad discretion in formulating charge); Varme v.             Ins. Co., 776 S.W.2d 752, 754 (Tex. App.—Corpus Christi
Gordon, 881 S.W.2d 877, 881 (Tex. App.—Houston [14th                    1989, no writ) (all controlling issues supported by pleadings
Dist.] 1994, writ denied) (same); Weitzul Constr., Inc. v.              and some evidence must be submitted to jury).1
Outdoor Environs, 849 S.W.2d 359, 364 (Tex. App.—Dallas
1993, writ denied) (same); Bernal v. Garrison, 818 S.W.2d 79,           B. Uses inaccurate statement of the law.
83 (Tex. App.—Corpus Christi 1991, writ denied) (same).                 See Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749,
That discretion, however, is not without limitation. Plainsman          755 (Tex. 1998) (inapplicable statutory provision erroneously
Trading Co. v. Crews, 898 S.W.2d 786, 790 (Tex. 1995). This             included in charge);2 State v. Williams, 940 S.W.2d 583, 584-85
section lists the most common categories that constitute an             (Tex. 1996) (trial court erred in submitting issue that mis-
abuse of discretion in formulating and submitting the court’s           stated premises defect law); City of San Antonio v. Rodriguez, 931
charge.                                                                 S.W.2d 535, 536 (Tex. 1996) (same). But not every accurate
                                                                        statement of the law belongs in the charge. See, e.g., Kansas
A. Omits a controlling issue raised by the pleadings and the            City S. Ry. v. Stokes, 20 S.W.3d 45, 48 (Tex. App.—Texarkana
evidence, or submits an issue not raised by the pleadings               2000) (“Mere fact that an instruction is a correct statement
and evidence.                                                           of law does not mean that a trial court should include it in
Rule 278 “provides a substantive, non-discretionary directive           the charge”).3
                                                      ADVOCATE      ✯    SPRING 2004


C. Fails to submit all elements of a claim or defense.                  346 (Tex. App.—Corpus Christi 2003, pet. denied) (failure
See Torrington v. Stutzman, 46 S.W.3d 829, 838-39 (Tex. 2000)           to object or request damage submission waived any error on
(charge error occurred when broad-form negligence ques-                 legal theory of recovery); Housing Auth. of City of El Paso v.
tion omitted elements necessary to establish undertaking                Guerra, 936 S.W.2d 946, 952 (Tex. App.—El Paso 1998, pet.
claim); Keetch v. Kroger 845 S.W.2d 262, 265 (Tex. 1992)                denied) (any error on improper measure of damage waived
(broad-form question proper if accompanied by instruc-                  by failure to object); St. Gelais v. Jackson, 769 S.W.2d 249, 259
tions on all elements of claim); Vecellio Ins. Agency, Inc. v.          (Tex. App.—Houston [14th Dist.] 1988, no writ) (improper
Vanguard Underwriters Ins. Co., 2003 WL 22382553, *3-4                  refusal to instruct on proper measure of damage waived by
(Tex. App.—Houston [1st Dist] 2003) (charge erroneously                 failure to object); see also State Farm Life Ins. Co. v. Beaston, 907
omitted a predicate question establishing the commission of             S.W.2d 430, 440 (Tex. 1995) (Gammage, J., concurring).
a tort by an agent to support vicarious liability in an action
for indemnity).                                                         H Inquires into questions of law or undisputed issues of
D. Improperly conditions one question on another (and                   See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223
denies claim or defense).                                               (Tex. 1992) (court should submit only disputed fact issues);
See Varme v. Gordon, 881 S.W.2d 877, 881 (Tex. App.—Houston             Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 50 (Tex. App.—
[14th Dist.] 1994, writ denied) (improper predication that              Corpus Christi 2001, no pet.) (court must submit controlling
precludes the jury from answering a question on a ground of             issues of fact); Park v. Larison, 28 S.W.3d 106, 112-113 (Tex.
recovery or defense constitutes reversible error); see also Byrne       App.—Texarkana 2000, no pet.) (duty is a question of law
v. Harris Adacom Network Servs., Inc., 11 S.W.3d 244, 247-48            for the court and instruction on duty unnecessary for jury
(Tex. App.—Texarkana 1999, pet. denied) (refusing to find               to render a verdict); C&C Partners v. Sun Expl. & Prod., 783
conditional submission harmful when error not preserved                 S.W.2d 707, 715 (Tex. App.—Dallas 1987, writ denied) (court
and evidence did not support claim purportedly eliminated               should not submit questions of law). But cf. Union Pacific R.R.
by conditioning).                                                       Co. v. Williams, 85 S.W.3d 162, 169-70 (Tex. 2002) (8th Circuit
                                                                        patterns on foreseeability aspect of FELA duty requirement
E. Fails to track applicable statutory language.                        correct form); Stokes, 20 S.W.3d at 50 (instructions of duty
See Borneman v. Steak & Ale of Texas, Inc., 22 S.W.3d 411, 413          under FELA cases improper only because of failure to relate
(Tex. 2000) (“when a statutory cause of action is submitted, the        to reasonable care standard).
charge should ‘track the language of the provision as closely
as possible’”); Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d       I. Assumes the truth of a controverted fact.
154, 157 (Tex. 1994) (same); Brown v. American Transfer &               See Placencio v. Allied Indus. Int’l, Inc., 724 S.W.2d 20, 21 (Tex.
Storage Co., 601 S.W.2d 931 (Tex. 1980) (same); Texas Workers’          1987) (assuming controverted fact constitutes comment on
Comp. Ins. Fund v. Bridewell, 2003 WL 22510858, *3 (Tex.                weight of the evidence).
App.—Houston [14th Dist.] 2003, n.p.h.) (failure to define
“course and scope” using all three sentences of the statutory           J. Submits inferential rebuttal issues.
definition in TEXAS L ABOR CODE § 401.001(12).                          A trial court has no discretion to submit inferential rebuttal
                                                                        issues as questions; those issues can go to the jury only by
F. Fails to properly place the burden of proof.                         instruction. TEX. R. CIV. P. 277; see Lemos v. Montez, 680
See Wiggins v. Cameron, 763 S.W.2d 434, 436 (Tex. App.—                 S.W.2d 798, 801 (Tex. 1984); Scott v. Atchison, Topeka, & Sante
Houston [14th Dist.] 1988, writ denied); Greenstein, Logan &            Fe Ry. Co., 572 S.W.2d 273, 278-79 (Tex. 1978); Yarborough v.
Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 182 (Tex. App.—             Berner, 467 S.W.2d 188, 192-93 (Tex. 1971); Weitzul Constr.,
Waco 1987, writ denied).                                                Inc. v. Outdoor Environs, 849 S.W.2d 359, 365 (Tex. App.—
                                                                        Dallas 1993, writ denied); Soto v. Southern Life & Health Ins.
G. Fails to submit a proper measure of damage.                          Co., 776 S.W.2d 752, 754 (Tex. App.—Corpus Christi 1989,
See Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex. 1987) (failure to         no writ). Specifically, “[a]n inferential rebuttal issue is one
relate damage measure to theories of recovery represents error,         that seeks to disprove the existence of an essential element
if preserved); Fraser v. Baybrook Bldg. Co., 2003 WL 21357316           submitted in another issue.” Weitzul, 849 S.W.2d at 365
(Tex. App.—Houston [1st Dist.] 2003, pet. filed) (memo opin.)           (material breach is inferential rebuttal issue).
(party must object and request if proper measure of damage
not included in charge); Morales v. Morales, 98 S.W.3d 343,
                                                        ADVOCATE      ✯    SPRING 2004


K. Comments on the weight of the evidence.                                the risk the jury will become confused and answer questions
TEX. R. CIV. P. 277; In re VLK, 24 S.W.3d 338, 343 (Tex.                  inconsistently”); Cropper v. Caterpillar Tractor Co., 754 S.W.2d
2000) (a trial court’s instruction that no parental custody               646, 651 (Tex. 1988) (“Under the current practice of issue
presumption applied could be error, even though a correct                 submission, defensive issues may be submitted by instruc-
statement of the law, if it commented on the weight of the                tion or be otherwise combined with non-defensive issues,
evidence); Maddox v. Denka Chem. Corp., 930 S.W.2d 668,                   provided that the burden of proof is properly placed.”); see
670-72 (Tex. App.—Houston [1st Dist.] 1996, no writ) (state-              also Missouri Pac. R.R. Co. v. Lemon, 861 S.W.2d 501, 509
ment regarding general rule of duty was correct statement                 (Tex. App.—Houston [14th Dist.] 1993, writ dism’d by agr.).
of law but constituted harmful comment on the weight of                   (“The fact that a jury question contains more than one factual
the evidence). “To be a direct comment on the weight of the               predicate to support an affirmative answer to a controlling
evidence, the issue submitted must suggest to the jury the                question, or more than one element of a cause of action, does
trial court’s opinion on the matter.” H.E. Butt Grocery Co. v.            not render it defective.”).
Bilotto, 985 S.W.2d 22, 23 (Tex. 1998).
                                                                          Several recent decisions from the supreme court suggest that
L. Informs the jury of the legal effect of their answers.                 those propositions may no longer hold true in all circum-
TEX. R. CIV. P. 277. “[T]o directly advise the jury of the legal          stances, particularly when a legal or evidentiary complaint
effect of its answers, the issue submitted must instruct the              about a sub-part has been properly preserved. See Harris
jury how to answer each question in order for the plaintiff               County v. Smith, 96 S.W.3d 230 (Tex. 2002); Crown Life Ins.
or defendant to prevail.” Bilotto, 985 S.W.2d at 24.                      Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000) (“[I]t may
                                                                          not be feasible to submit a single broad-form question that
M. Unfairly submits the case or otherwise confuses or                     incorporates wholly separate theories of liability.”).
misleads the jury.
While a somewhat elusive concept, courts of appeals do assess             B. Clearly erroneous combinations
the “fair submission” of a case. See Clayton Williams, Jr., Inc. v.       1. Failure to limit jury’s consideration to the conduct and
Olivo, 912 S.W.2d 319, 325-27 (Tex. App.—San Antonio 1995),               theories at issue
rev’d in part, 952 S.W.2d 523 (Tex. 1997); Varme v. Gordon,               Particularly in broad-form submissions, instructions must
881 S.W.2d 877, 881 (Tex. App.—Houston [14th Dist.] 1994,                 properly limit the jury’s consideration to the theories at issue
writ denied). Likewise, courts look to whether the charge                 and secure the proper findings for each theory of recovery or
confused or mislead the jury. See, e.g., Plainsman Trading Co.            defense. As the supreme court noted in Spencer v. Eagle Star
v. Crews, 898 S.W.2d 786, 790 (Tex. 1995).                                Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994), “[l]iability
                                                                          cannot be imposed on any of the claims asserted . . . on so
II. Errors in Multi-Theory Submissions                                    broad and ill-defined a finding.” Thus, what instructions the
Errors in multi-theory submissions can range from those                   trial court includes with an issue will often determine the
arising from mistakes in the form of the charge to errors in              viability of the broad-form submission. See Adams v. Valley
law to failure in the proof. Courts of appeals have consis-               Federal Credit Union, 848 S.W.2d 182, 185 (Tex. App.-Corpus
tently reversed over time some types of broad-form errors,                Christi 1992, writ denied) (“With the use of broad form
particularly those errors that deny a party a claim for relief            submission, instructions become even more important than
or defense. In the last several years based on Casteel and                                                            ,
                                                                          under the old rules.”); Rampel v. Wascher 845 S.W.2d 918,
Harris County, however, several additional types of broad-                924 (Tex. App.—San Antonio 1992, writ denied) (“A proper
form errors have emerged—some of which are difficult for a                broad form jury question asks an ultimate issue and instructs
party or the trial court to predict in advance. Finally, there            the jury about the elements of the ground of recovery or
are several types of error that are still “percolating” through           defense that the jury must find before giving a ‘yes’ answer
the system to the supreme court. This section describes those             to the issue.”).
categories of error.
                                                                          The omission of instructions can render an issue too broad to
A. Acceptable combinations                                                stand. Indeed, the supreme court has recognized on several
The supreme court in the past has suggested that a single                 occasions that the failure to confine the jury’s consideration
question suffices for multiple legal or factual theories. See             to the conduct at issue represents error. See Galveston County
Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex.                                         ,
                                                                          Fair & Rodeo v. Glover 940 S.W.2d 585, 586 (Tex. 1996)
1999) (such a submission might even be “necessary to avoid                (“While the trial court had the discretion to submit ques-
                                                       ADVOCATE      ✯    SPRING 2004


tions separately . . . or to submit an instruction . . . limiting        negligence issue and entered a take-nothing judgment against
the jury’s consideration of that single broad issue, it did not          the plaintiffs. Id. In short, the broad question without adequate
have discretion to refuse to make any correction.”); Spencer     ,       instruction eliminated an entire theory from the case.
876 S.W.2d at 157 (Insurance Code “by its express terms
does not refer to every such practice imaginable but only                3. Instructions eliminate a theory of recovery or defense
to those specified by certain other statutes and regulations.            Like questions, instructions can also improperly remove
Without an instruction specifying the actions for which [the             a theory from the jury’s consideration.4 For example, in
insurer] could be liable, [the question] was improper.”); see also       Harry v. University of Texas Sys., 878 S.W.2d 342, 345 (Tex.
Green Tree Fin. Corp. v. Garcia, 988 S.W.2d 776, 783-84 (Tex.            App.—Austin 1994, no writ), the court of appeals found that
App.—San Antonio 1999, no pet.) (failure to properly instruct            it was not feasible, under the facts of that case, to submit
on Hammerly Oaks bases allowed jury to award punitive dam-               multiple theories of recovery in a single question. In that
ages against corporation based on a broad range of conduct               worker’s compensation case, the plaintiff sought both lifetime
including acts that could not satisfy Hammerly Oaks as a matter          medical benefits and compensation benefits. The trial court
of law). But cf. Texas A&M Univ. v. Bishop, 105 S.W.3d 646 (Tex.         submitted an issue that combined an inquiry on course and
App.—Houston [14th Dist.] 2003, Rule 53.7(f) motion filed)               scope with the incapacity issue. The plaintiff complained
(holding no abuse in refusing instruction excluding certain              of the trial court’s refusal of a separate issue on course and
allegations when other allegations supported negligence claim            scope. The court of appeals agreed that the plaintiff could
excepted from sovereign immunity defense).                               recover medical benefits based upon an affirmative course and
                                                                         scope finding—even without findings to support a recovery
2. Question eliminates theories of recovery or defense                   of compensation benefits.
The opposite—but equally problematic—of the “too inclusive”
instructions is a question so broad with such inadequate                 The jury in Harry could have answered “no” to the broad-
instruction that it eliminates a theory of recovery or defense.          form question based on the incapacity inquiry alone. Without
See Clayton Williams, Jr., Inc. v. Olivo, 912 S.W.2d 319, 325-27         a separate finding on course and scope, the court could not
(Tex. App.—San Antonio 1995), rev’d in part, 952 S.W.2d 523              determine whether the plaintiff was entitled to the future
(Tex. 1997); Matthiessen v. Schaefer 27 S.W.3d 25, 32 (Tex.              medical benefits (but not the compensation benefits). Id. The
App.—San Antonio 2000, pet. denied) (wording of statute                  court found the broad-form submission erroneous because it
of limitations discovery question rendered it impossible to              denied the plaintiff a submission on one of her grounds for
determine whether jury’s answer represented date of discovery            relief. Id. Because the court found res judicata principles would
or date the plaintiff should have discovered a defect and                bar the plaintiff from later seeking the medical benefits, the
left court unable to determine whether statute of limitations            court found the erroneous submission harmful. Id.
had run); Kajima Int’l, Inc. v. Formosa Plastics Corp., USA, 15
S.W.3d 289, 291-94 (Tex. App.—Corpus Christi 2000, pet.                  In making its holdings despite recognizing the broad-from
denied) (trial court erred in refusing requested instruction             mandate, the court noted that whether the broad-form sub-
when court’s limitation of fraud question to fraudulent induce-          mission “was ‘feasible’ under the pleadings and the evidence
ment denied plaintiff a fraud theory supported by pleadings              of this case depends in part on whether the issue of injury
and evidence). Cf. Wells v. Lewis, 2002 WL 1933228 (Tex.                 could be raised” in a subsequent lawsuit. Id. In other words,
App.—Dallas 2002, pet. denied) (n.d.p.) (no error in instruc-            the court recognized that the pleadings and evidence in any
tion that did not preclude jury from finding that owner held             given case would determine whether a broad-form submis-
legal title but allowed jury to find another could hold title            sion was feasible—even if the broad-form issue submitted
for owner).                                                              conformed to a pattern jury charge.

An example of the elimination of a theory can be found in                4. Predication eliminates theory of recovery or defense
Olivo. In that premises defect case, the trial court submitted           Predication can eliminate a theory of recovery (but even if
a single broad negligence question without an instruction                preserved can result in harmless error when other theories
on the premises defect elements. 952 S.W.2d at 529. The                  establish a claim or defense). Floating Bulk Terminal, LLC v.
plaintiffs had requested an issue that included the premises             Coal Logistics Corp., 2002 WL 1733670 (Tex. App.—Houston
defect elements but failed to complain of the refusal of that            [14th Dist.] 2002, pet. denied) (n.d.p.) (predication error not
issue on appeal. The supreme court held that the omitted                 preserved and thus resulted in loss of right to recover under
premises defect elements were not necessarily referable to the           alternate theory).
                                                      ADVOCATE     ✯    SPRING 2004


5. Single damage question tied to liability theories having            example, in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378,
 different measures of damage                                          389 (Tex. 2000), the charge included a single question with
Instructions should tie the theory of recovery to proper               a single answer that could have been based on any one of
measure of damage; if not, a properly preserved complaint              thirteen independent grounds. Of the five DTPA laundry list
will result in reversal. See Wilgus v. Bond, 730 S.W.2d 670,           grounds included, the plaintiff did not satisfy the required
672 (Tex. 1987).                                                       consumer status on four of those grounds. The jury could
                                                                       have based its affirmative answer solely on one or more
6. Secures improper predicate for punitive damages                     of the erroneously submitted theories. Id. at 387-88. As a
If the charge does not clearly establish liability based on            result, the court held that “when a trial court submits a
conduct that could support punitive damages against the                single broad-form liability question incorporating multiple
party from whom they are sought, error can result. See, e.g.,          theories of liability, the error is harmful and a new trial is
Green Tree Fin. Corp. v. Garcia, 988 S.W.2d 776, 783-84 (Tex.          required when the appellate court cannot determine whether
App.—San Antonio 1999, no pet.) (failure to properly instruct          the jury based its verdict on an improperly submitted invalid
on Hammerly Oaks factors allowed jury to award punitive                theory.” Id. at 388.
damages against corporation based on a broad range of con-
duct including acts that could not satisfy Hammerly Oaks as            Most courts of appeals apply Casteel only when the error leaves
a matter of law).                                                      the court unsure whether the jury based its finding on a valid
                                                                       legal theory of liability. See North Am. Van Lines, Inc. v. Emmons,
7. Question cannot support different types of relief                   50 S.W.3d 103, 122-24 (Tex. App.—Beaumont 2001, pet.
sought                                                                 denied) (no error in combining multiple grounds when each
To adequately form a judgment based on the relief sought,              theory valid); Samedan Oil Corp. v. Intrastate Gas Gathering, Inc.,
a party may need to secure separate findings on the various            78 S.W.3d 425, 452-53 (Tex. App.—Tyler 2001, pet. dism’d by
factual bases at issue. See, e.g., Chromalloy Gas Turbine Corp.        agr.) (no error when issue submitted valid theories and were
v. United Tech. Corp., 9 S.W.3d 324, 329 (Tex. App.—San                supported by evidence); Excel Corp. v. Apodaca, 51 S.W.3d
Antonio 1999, pet. denied) (finding that jury finding estab-           686 (Tex. App.—Amarillo 2001) (holding Casteel inapplicable
lished conduct occurring at some indeterminate time in the             when (1) no alternative theories of liability were involved,
past [which might have supported actual damages] did not               (2) no unsettled law was involved, and (3) no theories of
establish continuing illegal activity [as necessary to require         which the trial court was unsure whether to submit), rev’d on
injunctive relief]). In Pine v. State, 921 S.W.2d 866, 875 (Tex.       other grounds, 81 S.W.3d 817 (Tex. 2002); Ramex Constr. Co. v.
App.—Houston [14th Dist.] 1996, writ dism’d w.o.j.), the state         Tamcon Servs., Inc., 29 S.W.3d 135, 140 (Tex. App.—Houston
instituted forfeiture proceedings against an individual. The           [14th Dist.] 2001, no pet.) (concurring opinion on rehearing)
state sought divestment of ownership of 14 animals based               (when one party failed to plead waiver and other party pleaded
upon a conviction for cruelty to the animals. The individual           waiver but charge failed to limit waiver instruction to proper
claimed on appeal that the trial court erred in inquiring              party, concurring judge reasoned that court could not be
collectively whether the animals had been cruelly treated,             satisfied that “properly submitted theories constituted the
rather than resolving whether each animal had been cruelly             basis of the jury’s verdict”); In re Stevenson, 27 S.W.3d 195,
treated. The court of appeals rejected the complaint because           202 (Tex. App.—San Antonio 2000, pet. denied) (although
the evidence failed to show that any of the animals were               not citing Casteel, holding that instructing jury that it could
treated any differently than any of the others. Id. Implicitly,        terminate parental rights under either of two grounds, one
however, the court’s analysis suggests that if the animals             of which was improperly submitted, caused harmful error
had been treated differently, separate factfindings as to each         when court could not determine whether jury relied on proper
animal would have been required to resolve the forfeiture              theory); Kansas City S. Ry. v. Stokes, 20 S.W.3d 45, 51 (Tex.
issue on each animal.                                                  App.—Texarkana 2000) (when trial court submitted various
                                                                       duty instructions throughout charge, some of which were
C. Potentially erroneous combinations                                  improper, court held reversal required under Casteel when
1. Commingled valid and invalid legal theories of                      court unable to determine whether jury relied on proper or
liability                                                              improper instructions).
Commingling valid and invalid theories of liability represents
reversible error—although the trial court may not know of              One court held that Casteel should apply to affirmative
or agree with the invalidity at the time of submission. For            defenses as well. Pantaze v. Welton, 1999 WL 673448 (Tex.
                                                       ADVOCATE      ✯    SPRING 2004


App.—Dallas 1999, no pet.) (n.d.p.). As a result, when                   In addition to the failure of evidence, refusal to segregate
one broad-form excuse question with a single answer                      damages over objection could cause error in the context of
allowed the jury improperly to base its answer on waiver or              legal theories as well. See TEX. CIV. PRAC. & R EM. CODE §
properly to base its answer on equitable estoppel, the court             41.008 (calculating cap with economic and noneconomic
held reversible charge error occurred. Id. But cf. El Paso               damages); TEX. FIN. CODE § 304.1045 (applies to final judg-
Refining, Inc. v. Scurlock Permian Corp., 77 S.W.3d 374, 386-87          ments signed or subject to appeal on or after Sept. 1, 2003, and
(Tex. App.—El Paso 2002, pet. filed) (noting applying Casteel            precludes prejudgment interest on future damages); Roberts
to affirmative defenses troublesome when many defenses must              v. Williamson, 111 S.W.3d 113 (Tex. 2003) (holding Texas
be submitted as inferential rebuttal instructions).                      does not recognize action for parent’s loss of consortium for
                                                                         non-fatal injury to child).
Thus, as noted in the next two subsections, the combining of
legal theories—whether claims or defense—when a question                 However, while the no-evidence problem of Harris County
as the validity of a theory exists opens the door to potential           argues for separate damages blanks, the new factual suffi-
reversible error.                                                        ciency standard of review announced in Golden Eagle Archery,
                                                                         Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003), seems to argue
2. Unsettled law on an alternative theory of liability                   for broadform submission of damages elements.
“[S]ubmitting alternative liability standards when the gov-
erning law is unsettled might very well be a situation where             Golden Eagle is a products liability case in which the jury
broad-form submission is not feasible.” Westgate, Ltd. v. State,         found liability and awarded damages in five separate cat-
843 S.W.2d 448, 455 n.6 (Tex. 1992).                                     egories, including (1) medical care, (2) physical pain and
                                                                         mental anguish, (3) physical impairment of loss of vision,
3. Uncertainty as to applicability of a particular theory                (4) disfigurement, and (5) loss of earnings in the past. Id.
of liability                                                             at 760. In answer to a sixth category—physical impairment
“[W]hen the trial court is unsure whether it should submit               other than the loss of vision—the jury awarded $0 damages.
a particular theory of liability, separating liability theories          Id. The trial court did not define physical impairment. And,
best serves the policy of judicial economy underlying Rule               instead of defining the six damage categories such that they
277 by avoiding the need for a new trial when the basis for              did not overlap, the court, following PJC 8.2, instructed the
liability cannot be determined.” Crown Life Ins. Co. v. Casteel,         jury to “[c]onsider the elements of damages listed below
22 S.W.3d 378, 390 (Tex. 2000).                                          and none other. Consider each element separately. Do not
                                                                         include damages for one element in any other element.”
4. Commingled valid and invalid elements of damages                      Id. at 770.
Prior to Casteel, courts regularly upheld damage questions
with a lump-sum answer, if the evidence supported that                   The court of appeals agreed with plaintiff’s argument on
amount for any sub-part (or element) of the damages. 5 Citing            appeal that the $0 finding on physical impairment other than
to its rationale in Casteel, however, the supreme court recently         the loss of vision was against the great weight of the evidence.
clarified that a broad-form (or lump-sum or unsegregated)                The supreme court reversed and announced a new standard
damage finding may cause reversible error. Harris County                 for conducting a factual sufficiency review when some of the
v. Smith, 96 S.W.3d 230 (Tex. 2002). Specifically, the court             categories of damages are not defined and are not cleanly and
held: “[T]he trial court erred in overruling [the defendant’s]           clearly segregated. Id. at 770-73.
timely and specific objection to the charge, which mixed
valid and invalid elements of damage in a single broad-form              The court ruled that when only one category of damages is
submission, and that such error was harmful because it pre-              challenged on the basis that the award in that category was
vented the appellate court from determining ‘whether the                 zero or was too low, a court should consider only whether
jury based its verdict on an improperly submitted invalid’               the evidence unique to that category is so against the great
element of damage.” Id. at 234; see also City of Garland v. Dallas       weight and preponderance of the evidence as to be manifestly
Morning News, 2002 WL 31662724 (Tex. App.—Dallas 2002,                   unjust, shock the conscience, or clearly demonstrate bias.
no pet.) (n.d.p.) (although prior to Harris County, reversing            When the jury’s failure to find greater damages in more than
when trial court submitted unsegregated fee finding over                 one overlapping category is challenged, the court of appeals
objection when a portion of fees were not recoverable and                should first determine if the evidence unique to each cat-
could be segregated).                                                    egory is factually sufficient. If it is not, the court of appeals
                                                    ADVOCATE     ✯    SPRING 2004


should then consider all the overlapping evidence, together          Int’l, Inc. v. National Union Fire Ins. Co., 77 S.W.3d 253, 273)
with the evidence unique to each category, to determine if           (Tex. 2002) (Baker, J., dissenting) (using traditional harmless
the total amount awarded in the overlapping categories is            error analysis to assess objection to charge that one of several
factually sufficient. Id. at 773.                                    theories submitted did not have support in the evidence).6
                                                                     But, because Harris County involved failure of sub-parts of a
With regard to the charge, the Court suggested that the              damage question on legal sufficiency of the evidence grounds,
limiting instruction of PJC 8.2 (and the similar instruction         that case may foretell the result when the supreme court
in PJC 110.27) may need to be refined to comport with the            reaches the issue, which it may have the opportunity to do
“clearer” instruction from French v. Grigsby:                        with several pending cases.

In answering this special issue you shall not award any sum              a. Employment law: discrimination or discharge
of money on any element if you have otherwise, under some            The PJC recommends submitting discharge and discrimina-
other element, awarded a sum of money for the same loss,             tion on the basis of disability in a single question. The Corpus
that is do not compensate twice for the same loss, if any.           Christi court agreed that both theories are valid and can be
                                                                     submitted in a single question. See Haggar Apparel Co. v. Leal,
567 S.W.2d 604, 608 (Tex. Civ. App.—Beaumont, writ ref’d             100 S.W.3d 303, 312 (Tex. App.—Corpus Christi 2002, pet.
n.r.e., approved, 571 S.W.2d 867 (Tex. 1978).                        filed) (also holding a lack of preservation by failing to object to
                                                                     the broad-form submission precluded reversal in any event).7
The supreme court also rejected Golden Eagle’s argument that         The court held legally sufficient evidence supported the jury’s
the splitting of physical impairment into two separate ele-          finding that “disability discrimination was a motivating factor
ments (“physical impairment of loss of vision” and “physical         in [the] decision to terminate” and that “disability was a
impairment other than loss of vision”) violated the broad-form       motivating factor in [the] decision to discharge” the plaintiff.”
mandate of Rule 277. The court stated that “[a]lthough the           If both are legally valid theories and both are supported by
trial court granulated physical impairment into two separate         pleadings and evidence, then a Casteel issue would not come
categories, Golden Eagle did not explain how it was harmed           into play as currently formulated.
by the submission, particularly in light of the jury’s award
of ‘$0’ for physical impairment other than loss of vision.”          The Corpus Christi court had previously upheld a ques-
Id. at 776.                                                          tion that submitted disqualification and discrimination in
                                                                     a single question. S.W. Bell Tel. Co. v. Garza, 58 S.W.3d 214
D. Unanswered issues on combinations                                 (Tex. App.—Corpus Christi 2001, pet. granted) (any error
Several issues remain for resolution after Casteel and Harris        as to commingling discrimination and discharge theories
County. Those issues center primarily upon (1) evidentiary           waived when not brought to trial court’s attention). The
failures in multi-theory questions and (2) failure of theories       supreme court recently granted the petition in Garza (and
tried together in the charge by conditioning.                        is holding the petition in Leal) in which the defendants
                                                                     argue that “disqualification” is not a statutory ground for
1. Evidentiary grounds of broad-form liability question              recovery, not pleaded as a ground for recovery, and not caus-
The supreme court has yet to agree if the holding of Casteel         ally related to the damages recovered. (See Briefing on the
applies to the failure of part of a broad-form question on           Merits.) As a result, if the defendant prevails on any one of
evidentiary grounds. See City of Fort Worth v. Zimlich, 29           those grounds, the disjunctive submission could fall under
S.W.3d 62, 69 n.1 (Tex. 2000) (“The City has not argued              the Casteel rationale.
that it would be entitled to a new trial if the evidence was
legally insufficient to support one or more of these theories           b. Family law: grounds for termination of parental
of liability. Therefore, whether our decision in Crown Life          rights
Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000), should          Numerous cases assert a Casteel argument arising from an
be extended to cases in which there is no evidence to sup-               ”
                                                                     “E.B. submission of two or more statutory grounds in the
port one or more theories of liability within a broad form           disjunctive in termination of parental rights cases. Although
submission is not a question before us.”). But see In re A.V.,       holding such an error was not preserved in B.L.D., the supreme
113 S.W.3d 355, 358 (Tex. 2003), (refusing to review com-            court noted: “While the court of appeals in this case states
plaint on broad-form submission without objection to form            that E.B. does not control the resolution of this case, see 56
or to evidentiary support of any theory submitted); Rocor            S.W.3d at 216 n. 15 (referring to the relevant discussion in
                                                     ADVOCATE     ✯    SPRING 2004


E.B. as “dictum”), we observe that our courts of appeals are          For now, the scope in question appears limited to legal suf-
now divided on this issue.” In re B.L.D., 113 S.W.3d 340, 349         ficiency, and several pending cases may give the supreme
n.8 (Tex. 2003) 8 The supreme court also reviewed several             court an opportunity to clarify the application of Casteel and
other cases on the same or similar issue but found the error          Harris County to evidentiary failures in multi-theory liability
unpreserved in those cases as well. See In re A.V., 113 S.W.3d        questions.
355, 358 (Tex. 2003); In re K.N.R., 113 S.W.3d 365 (Tex. 2003);
In re A.F., 113 S.W.3d 363 (Tex. 2003). As a result, that issue       2. Multiple liability questions tied to single damage
remains open for resolution.                                          question
                                                                      Prior to Casteel, courts also upheld a single damage finding
    c. Fraud theories: misrepresentations, nondisclosure,             even if one or more of the multiple liability findings on which
constructive                                                          it was predicated failed.9 But, since Casteel, courts have dis-
 Mixing fraud theories, such as fraud by nondisclosure with           agreed on whether such tying can result in error.
affirmative fraud when a duty to disclose is unclear, may
be another circumstance in which problems arise after the             Some courts hold Casteel does not apply and no error results
verdict comes in. See Baribeau v. Gustafson, 107 S.W.3d 52            from the failure of one of the tied theories of liability. See
(Tex. App.—San Antonio 2003, Rule 53.7(f) motion filed)               Durban v. Guajardo, 2002 WL 1042161 (Tex. App.—Dallas
(finding error not preserved on improper mixing of actual             2002, no pet.) (n.d.p.) (judgment can rest on damage finding if
and constructive fraud in a single question).                         either of underlying liability findings find support in law and
                                                                      evidence); Z.A.O., Inc. v. Yarbrough Drive Center Joint Venture, 50
   d. Other theories: negligence, DTPA, defamation                    S.W.3d 531 (Tex. App.--El Paso 2001, no pet.) (even though
Other theories of liability can likewise raise broad-form             several of questions on different theories of liability failed,
issues. See, e.g., City of Fort Worth v. Zimlich, 29 S.W.3d 62,       remaining question also tied to same damage question did
69 n.1 (Tex. 2000) (negligence); Mars, Inc. v. Gonzalez, 71           not leave the court wondering whether jury based its award
S.W.3d 434, 442 (Tex. App.—Waco 2002, pet. denied) (no                on valid theory); Colonial County Mut. Ins. Co. v. Valdez, 30
evidence of publication but dissent arguing that failure to           S.W.3d 514, 518-19 (Tex. App.—Corpus Christi 2000, no
remove exhibited materials should support publication ele-            pet.) (Casteel error in one question to which single damage
ment of defamation claim under broad-form submission).                question tied rendered harmless in light of survival of other
Harris County used Casteel’s logic to reach its conclusion of         liability question tied to same damage question); see also
commingling an element or theory without evidentiary sup-             Samedan Oil Corp. v. Intrastate Gas Gathering, Inc., 78 S.W.3d
port resulted in harmful error. But, notably, in Casteel and          425, 452-53 (Tex. App.—Tyler 2001, pet. dism’d by agr.) (any
Harris County (as do Garza and the parental rights termination        error from multiple liability/single damage submission waived
cases), the questions listed the theories of DTPA practices and       when no objection made to damage question for predication
the elements of damage, respectively.                                 on multiple theories).

Thus, those cases leave unclear how the review would apply            Other courts find harm arises from the tying damages to mul-
in cases in which the broad-form submission does not list             tiple theories, one of which fails. See San Antonio Credit Union
such elements (such as negligence)—by looking to all pleaded                      ,
                                                                      v. O’Connor 115 S.W.3d 82, 102 (Tex. App.—San Antonio
practices? Would a broad “no evidence of any theory” suffice          2003, pet. filed) (linking intentional infliction, malicious
to preserve the complaint? Would a party meet such an objec-          prosecution, and defamation to single damage question
tion with a granulated checklist of practices? Where would            reversible error when intentional infliction claim failed as a
that result leave broad-form submissions?                             matter of law); KPH Consol., Inc. v. Romero, 102 S.W.3d 135,
                                                                      159-60 (Tex. App.—Houston [14th Dist.] 2003, Rule 53.7(f)
    e. Factual sufficiency: multiple theories                         motion filed) (not relying on Casteel but holding that linking of
In Harris County, the majority indicated that its segregation         erroneously submitted malicious credentialing question along
holding did not encompass “potential errors, such as factual          with negligence question to single actual damage question
insufficiency.” 96 S.W.3d at 235. But, could an objection to          left court unable to tell which damages caused by what con-
a broad-form submission combined with a later factual suf-            duct); Custom Residential Paint Contracting, Inc. v. Klein, 2001
ficiency complaint preserve error as the dissent suggests? Id.        WL 1318420/2002 WL 660200 (Tex. App.—Dallas 2001)
at 239. That is, would review of the factual sufficiency error        (n.d.p.), (holding jury’s DTPA finding defective and initially
be denied under the reasoning of Casteel and Harris County?           ordering remand for new trial even though contract ques-
                                                     ADVOCATE     ✯    SPRING 2004


tion predicated on same damage finding left in tact but later         If faced with an objection that falls in the “clear error”
accepting remittitur rather than remand), judgment vacated            category above, modifications to the charge may represent the
based on finding of no harm in light of voluntary remittitur,         best strategic choice. But, if faced with objections on potential
2002 WL 660200 (Tex. App.—Dallas 2002).                               or unknown errors, the choices become more difficult. An
                                                                      accurate assessment of the record, the law, and the jury’s
3. Multiple liability questions tied to single apportionment          possible answers becomes critical to making the strategic
question                                                              choices raised in that context.
Similar to the actual damage context, at least one court has
determined that linking a flawed theory of liability to an            For example, ignoring a pure omission of a theory of liability
apportionment question results in error. See KPH Consol., Inc.        or defense, the risk of reversal (or harmful error) most often
v. Romero, 102 S.W.3d 135, 159-60 (Tex. App.—Houston [14th            arises with a question that submits multiple liability and
Dist.] 2003, Rule 53.7(f) motion filed) (not relying on Casteel       defensive theories in a single question. With an affirmative
but holding that linking of erroneously submitted malicious           finding in that context, when one of the multiple theories of
credentialing question along with negligence question to              liability in a single question fails, a reviewing court cannot
single apportionment question left court unable to tell how           determine on what part of the question the jury relied to allow
jury apportioned responsibility on what conduct).                     recovery. With a negative finding, when one of the multiple
                                                                      theories in a single question fails, the reviewing court cannot
4. Multiple liability theories tied to a single penalty               determine whether the jury answered “no” on liability or “yes”
damage question                                                       on a proper or improper defensive theory. Without knowing
Similar to the actual damage context, linking multiple theories       on what basis the jury answered in the negative, it may be
of liability (and thus conduct) to a single penalty question          difficult to hold that the question can stand after the failure
may also cause a potential error if one theory fails on appeal.       of a defensive issue. On the other hand, a “no” to a pure
San Antonio Credit Union v. O’Connor 115 S.W.3d 82, 102 (Tex.         liability question (with no defensive theories included) does
App.—San Antonio 2003, pet. filed) (malice finding linked             not carry the same risk—the jury relied upon none of the
to reversed intentional infliction claim required reversal of         theories and no risk exists of an improper recovery based on
punitive damages); Atrium Cos. v. Bethke, 2002 WL 31892204            an invalid liability theory or a denial of recovery based on
(Tex. App.—Dallas 2002, no pet.) (n.d.p.) (finding of waiver          an invalid defensive theory.
of any Casteel error in linking single knowingly issue to mul-
tiple DTPA findings).                                                 Assuming the combination presents potential error, how
                                                                      serious the risk of reversal is should be assessed. Is there
5. A “general” charge                                                 some evidence of every theory subsumed in the questions and
Rule 290 defines a jury verdict as “general or special.” Tex.         instructions? How clear and strong is the law for or against the
R. Civ. P. 290. At least one court, however, has held that a          submission you seek? As the volume of evidence and strength
jury charge that asks a jury whether it finds in favor of the         of the law increases, the risk of reversal may decrease.
plaintiff or the defendant cannot meet the requirements of
Casteel. Commercial Bank of Texas v. Luce, 92 S.W.3d 636, 639-        As a further example, in the context of segregated damages,
40 (Tex. App.—Beaumont 2002, no pet.) (breach of employ-              submission of multiple damage blanks may make a defendant
ment contract action). Noting that both parties objected to           queasy—are separate blanks the best choice? Instead, as a
the form of the charge, the court of appeals held that the jury       defendant, do you want to allow an unsegregated damage
question did not instruct the jury on the law or submit the           finding without objection: What challenge do you face to gain
controlling fact issues for the jury’s determination. Id.             review and reversal on the sufficiency of the evidence of any
                                                                      one or more damage element? Is that one of the main issues
E. Strategy decisions                                                 in the case or a lesser issue? The answers to those questions
Whether the form of the broad-form question or conditioning           will help balance the need to win at trial with the risks of
of questions creates a risk of reversal depends upon how many         reversal on appeal.
theories of liability and defense a single question combines,
how the jury answered the question(s), how the questions              Thus, practical considerations or matters of strategy may
are tied together, and what fails on what grounds on appeal.          dictate the requested form of submission. The variations for
Thus, strategic options will play an important role in deciding       a multi-theory case are too numerous to outline. Indeed,
how to proceed.                                                       the combinations will vary depending upon, among other
                                                      ADVOCATE      ✯    SPRING 2004


things, (1) how many plaintiffs and defendants the charge will          2003 WL 22495756 (Tex. Oct. 31, 2003). Any veil-piercing
submit,10 (2) how many theories of liability and/or defense the         theory under article 2.21 should track the language of the
charge will submit,11 (3) the strengths and weaknesses of a             statute. Id. at *12.
case—on evidentiary, legal and jury appeal grounds, (4) what
relief or combinations of relief a party will seek in formation         C. Spoliation
of the judgment,12 and (5) the risk of reversal that a party            Submission of a spoliation instruction when it should not
can tolerate to achieve a “winning” verdict. These various              be given (such as in the absence of a duty to preserve the
influences will affect the ultimate submission choices.                 evidence destroyed) is harmful error. Wal-Mart Stores, Inc.
                                                                        v. Johnson, 106 S.W.3d 718, 723-24 (Tex. 2003) (the “very
III. Recent opinions on specific claims or issues                       purpose” of a spoliation instruction is to “nudge” or “tilt” the
The following subsections summarize recent opinions from                jury and “the likelihood of harm from the erroneous instruc-
courts on charge issues in various types of cases over the              tion is substantial, particularly in a closely contested case”).
past year.                                                              But the supreme court has yet to determine what standard
                                                                        would control in determining whether a trial court should
A. Physical impairment                                                  submit a spoliation instruction and what such instruction
In defining physical impairment, the jury should be instructed          should say. Cf. Cresthaven Nursing Residence v. Freeman, 2003
that (1) loss of enjoyment of life is a factor to be considered         WL 253283 (Tex. App.—Amarillo 2003, Rule 53.7(f) motion
in assessing damages for physical impairment; (2) the effect            filed) (involving instruction similar to Wal-Mart instruction
of any physical impairment must be substantial and extend               but holding no abuse of discretion when a scintilla of evidence
beyond pain, suffering, mental anguish, lost wages, or                  supported theory of spoliation); Morgan v. Verlander, 2003
diminished earning capacity; and (3) plaintiff should not be            WL 22360942, *8 (Tex. App.—El Paso, Oct. 16, 2003) (evi-
compensated more than once for the same elements of loss                dence supported submission of instruction that “the failure
or injury. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d            to produce evidence within a party’s control and/or falsifi-
757, 772 (Tex. 2003).                                                   cation or alteration of evidence raises a presumption that if
                                                                        the true evidence were produced it would operate against
Moreover, when it is not feasible to define damage categories           him”); Dunn v. Bank-Tec South, 2003 WL 22438710, *6 (Tex.
in such a way that they do not overlap, a limiting instruc-             App.—Amarillo Oct. 28, 2003, n.p.h.) (no error in refusing to
tion such as PJC 8.2 and PJC 110.27 can be submitted to                 submit instruction on “intentional spoliation or destruction”
avoid double awards of damages, particularly when physical              because no evidence to support submission).
impairment is submitted. Id. at 770. However, PJC 8.2 and
PJC 110.27 may need to be refined to comport with the fol-              D. Facts taken as true
lowing instruction from French v. Grigsby that the court says           Discovery sanctions in the form of instructing the jury to
is “clearer”:                                                           take witness’s statements as true on dispositive issues (when
                                                                        sanction was excessive under TransAmerican and inaccurate
     In answering this special issue you shall not award any            according to the statements) causes harmful error that denies
     sum of money on any element if you have otherwise,                                                                          ,
                                                                        defendant presentation of its case. Spohn Hosp. v. Mayer 104
     under some other element, awarded a sum of money                   S.W.3d 878 (Tex. 2003).
     for the same loss, that is do not compensate twice for
     the same loss, if any.                                             E. Joint enterprise liability
                                                                        Joint enterprise instruction’s third element should require a
Id. (citing French v. Grigsby, 567 S.W.2d 604, 608 (Tex. Civ.           “‘common business or pecuniary interest,’ not a ‘community
App.—Beaumont, writ ref’d n.r.e., approved, 571 S.W.2d                  of pecuniary interest in [the] common purpose, among the
867 (Tex. 1978).                                                        members [of the group].’” St. Joseph Hosp. v. Wolff, 94 S.W.3d
                                                                        513, 530 (Tex. 2002) (holding PJC 7.11 [2000] erroneously
B. Single business enterprise                                           stated third element).
The court found it unnecessary to decide whether a theory
of “single business enterprise” is a necessary addition to              F. Higher standard of care
Texas law regarding the theory of alter ego for disregarding            Failure to instruct on the proper standard of care results in
corporate structure where article 2.21 of the Texas Business            reversible error. Elmer v. Speed Boat Leasing, Inc., 89 S.W.3d
Corporation Act controls. Southern Union Co. v. City of Edinburg,       633, 639 (Tex. App.—Corpus Christi 2002, pet. filed) (car-
                                                      ADVOCATE      ✯    SPRING 2004


riers and amusement operators held to higher standard of                K. Agricultural operator’s repose defense
care and failure to instruct on elevated standard represents            Agriculture Code’s one-year bar of nuisance claims against
reversible error).                                                      agricultural operators did not require plaintiff’s discovery,
                                                                        only existence of conditions or circumstances for more than a
G. Mutually dependent leasehold duties                                  year. Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex. 2003)
The mutually dependent nature of lessee’s duty to pay and               (construing Tex. Agric. Code § 25.004(a), and reversing based
lessor’s warranty of suitability for commercial purpose means           on erroneous submission repose defense).
that refusal of an instruction on “correlative” duties of parties
is not error. Parts Indus. Corp. v. AVA Servs., Inc., 104 S.W.3d        L. Worker’s compensation issue of “no ability to work”
671, 682 (Tex. App.—Corpus Christi 2003, no pet. h.).                   Issue under Labor Code § 408.143 is not whether employee
                                                                        can engage in substantial or gainful employment but whether
H. Sole proximate cause                                                 employee can not engage in any work at all. Humphrey v.
The omission of a defense that finds support in the evidence            American Motorists Ins. Co., 102 S.W.3d 811, 815-16 (Tex.
generally results in reversible error. For example, denial of           App.—Eastland 2003, pet. denied) (instructing on Labor
an instruction on a sole proximate cause defense is reversible          Code § 408.143).
error when some evidence supports its submission. Texas Elec.
Coop. v. Dillard, 2003 WL 1884296 (Tex. App.—Tyler 2003,                M. Condemnation “unable to agree” requirement
pet. filed) (jury not allowed to consider potential ramifica-           Phrase “if it is a bona fide offer” rather than “it must be a
tions of unidentified rancher’s conduct in allowing cows to             bona fide offer” sufficiently submitted the “unable to agree”
wander on highway when sole proximate cause instruction                 element of a condemnor’s claim. Pitts v. Sabine River Auth.
omitted). Cf. Luck v. Baylor Med. Ctr., 2002 WL 31750168 (Tex.          of Texas, 107 S.W.3d 811 (Tex. App.—Texarkana 2003, pet.
App.—Dallas 2002, pet. denied) (n.d.p.) (testimony of treat-            filed) (instructing on Property Code § 21.012).
ment rendered by nonparty physician sufficient to support
sole proximate cause instruction).                                      N. Insurance Code’s action for unfair claim settlement
I. Unavoidable accident                                                 The supreme court reconciled the statutory cause of action for
Just as with exclusion, the inclusion of a defense such as              unfair claim settlement practices with a common law Stowers
unavoidable accident can result in reversible error when                claim and listed the elements of such a claim. Rocor Int’l, Inc.
no evidence supports the submission. Urista v. Bed, Bath,               v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
& Beyond, Inc., 2003 WL 21357307 (Tex. App.—Houston
[1st Dist.] 2003, no pet.) (unavoidable accident instruc-               O. Texas Securities Act aider and abetter action
tion reversible error when no evidence supported theory                 “The language of the [Texas Securities Act] does not require
that nonhuman event caused trash cans to fall and jury                  proof that an aider is generally aware of its role in the securities
returned negative finding to negligence issue in closely                violation to be liable as an aider. . . . [T]the trial court [thus]
contested case). Cf. Evans v. Allwhite, 2003 WL 21659344                did not abuse its discretion by failing to give [the defendant’s]
(Tex. App.—Texarkana 2003, no pet. h.) (evidence of loss of             requested jury instruction on general awareness.” See Sterling
consciousness immediately before auto accident supported                Trust Co. v. Adderley, 2003 WL 21770799 (Tex. App.—Fort
unavoidable accident and sudden emergency instructions);                Worth 2003, pet. filed).
Luck v. Baylor Med. Ctr., 111 S.W.3d 282 (Tex. App.—Dallas
2002, pet. denied) (n.d.p.) (testimony regarding poor phys-             P. Common law indemnity from agent
ical condition sufficient to support unavoidable accident               Question seeking common law indemnity based on respon-
instruction).                                                           deat superior which only asks about undefined “misconduct”
                                                                        is erroneous. The charge should have included (1) a predicate
J. DTPA statute of limitations                                          establishing the commission of a tort by an agent, and (2)
PJC 102.23 suggests submission of DTPA statute of limitations           a question establishing that the Vanguard was vicariously
to determine date “all” false, misleading, or deceptive acts            liable for Vecellio’s tort under the theory of respondeat
should have been discovered. Atrium Cos. v. Bethke, 2002 WL             superior. Vecellio Ins. Agency, Inc. v. Vanguard Underwriters
31892204 (Tex. App.—Dallas 2002, no pet.) (n.d.p.) (agreeing            Ins. Co., 2003 WL 22382553, *3-4 (Tex. App.—Houston
with comment to PJC that plaintiff need only prove that one             [1st Dist] 2003).
act not time-barred).
                                                      ADVOCATE      ✯    SPRING 2004


Q. Chance of survival/proximate cause                                   See Gallagher v. Fire Ins. Exch., 980 S.W.2d 833, 838 (Tex.
Even if “chance of survival” finds support in the evidence              App.—San Antonio 1998, pet. denied) (plaintiff could not
and disregarding the finding is improper, remand may still              complain that court refused instruction defensive in nature,
result when chance of survival was improperly treated as an             particularly when defendant abandoned defense prior to
affirmative defense rather than as part of proximate cause.             trial).
See Vigil v. Montero, 2002 WL 1988173 (Tex. App.—El Paso
2002, pet. filed) (n.d.p.).                                             3. Refusal to submit issues not controlling to outcome.
                                                                        See, e.g., Smith v. Outdoor Sys., Inc., 2002 WL 370200 (Tex.
R. Age discrimination                                                   App.—Houston [14th Dist.] 2002, pet. denied) (n.d.p.) (even
The use of phrase “age was one of the reasons,” rather than             if preserved, question on lease default irrelevant when lease
“motivating factor” as suggested by PJC 107.6, is not error in          terminated during point at issue).
federal age discrimination case. Dallas County Sheriff’s Dept.
v. Gilley, 114 S.W.3d 689 (Tex. App.—Dallas 2003, no pet.               4. Refusal to submit instructions merely because it
h.).                                                                    aids requesting party. See Akin v. Santa Clara Land Co., 34
                                                                        S.W.3d 334, 346 (Tex. App.—San Antonio 2001, pet. denied)
S. Out-of-State Conduct/Punitive Damages                                (additional requested instructions, while correct statements
The United States Supreme Court held as follows: “A state               of law and beneficial to requesting party, not necessary to
cannot punish a defendant for conduct that may have been                enable jury to render verdict).
lawful where it occurred.” State Farm Mut. Auto. Ins. Co. v.
Campbell, 123 S. Ct. 1513, 1522 (2003). “Nor, as a general rule,        5. Refusal to submit instructions, definitions, or questions
does a State have a legitimate concern in imposing punitive             not supported by the evidence (or pleadings). See Excel Corp.
damages to punish a defendant for unlawful acts committed               v. Apodaca, 51 S.W.3d 686 (Tex. App.—Amarillo 2001) (trial
outside of the State’s jurisdiction.” Id. However, “[l]awful out-       court did not err in refusing “sole proximate cause” and “new
of-state conduct may be probative when it demonstrates the              and independent cause” instructions when record contained
deliberateness and culpability of the defendant’s action in the         no evidence to support submission), rev’d on other grounds, 81
State where it is tortious, but that conduct must have a nexus          S.W.3d 817 (Tex. 2002); Turnbull v. McIntosh, 2001 WL 493169
to the specific harm suffered by the plaintiff. A jury must be          (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (n.d.p.)
instructed . . . that it may not use evidence of out-of-state           (trial court did not err in refusing “unavoidable accident” and
conduct to punish a defendant for action that was lawful in             “sudden emergency” instructions when no evidence supported
the jurisdiction where it occurred.” Id. at 1522-23.                    either theory).

IV. Complaint not error or not reversible                               6. Refusal to submit surplus instructions. Surplus instruc-
A trial court’s broad discretion generally protects from review         tions increase the risk of improper comments on the evidence
its decisions in areas outside of the general and broad-form            and confusing or misleading the jury. See Accord v. General
categories of error listed above. But, even if error occurs, no         Motors Corp., 669 S.W.2d 111 (Tex. 1984) (disapproving of
reversal on appeal occurs in the absence of harm. This section          appendage of surplus instruction to PJC); Humble Sand &
lists the general categories of decisions either considered not         Gravel, Inc. v. Gomez, 48 S.W.3d 487 (Tex. App.—Texarkana
erroneous or not harmful.                                               2001, pet. granted) (disapproving of surplus instructions but
                                                                        petition for review complains of omitted instruction as denial
A. No error                                                             of defense); Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 921
1. Refusal to define terms not used in the charge. See                  (Tex. App.—Beaumont 1999, pet. denied) (same).
Texas Workers’ Comp. Ins. Fund v. Mandlbauer 34 S.W.3d 909,
911 (Tex. 2000) (trial court did not err in refusing to define          7. Refusal to submit shades and phases of questions,
“producing cause” when charge submitted “resulting from”                instructions, and definitions. See Excel Corp. v. Apodaca, 51
causation language); Lakey v. Cauley, 2000 WL 33354703 (Tex.            S.W.3d 686 (Tex. App.—Amarillo 2001) (court not required to
App.—Houston [14th Dist.] 2000, pet. denied) (n.d.p.) (trial            submit mere shades or variations of the questions submitted),
court did not err in refusing instruction that did not refer to         rev’d on other grounds, 81 S.W.3d 817 (Tex. 2002); Krishnan v.
a particular term or issue in the charge).                              Ramirez, 42 S.W.3d 205, 220 (Tex. App.—Corpus Christi 2001,
                                                                        pet. denied) (same); Riddick v. Quail Harbor Condominium Ass’n,
2. Refusal to submit defenses abandoned during trial.                   7 S.W.3d 663, 674 (Tex. App.—Houston [14th Dist.] 1999,
                                                      ADVOCATE     ✯    SPRING 2004


no pet.) (same); Bayliner Marine Corp. v. Elder 994 S.W.2d             the other); Vasquez v. Hyundai Motor Co., 2002 WL 1905203
439, 447 (Tex. App.—Beaumont 1999, pet. denied) (same).                (Tex. App.—San Antonio 2002, no pet.) (any error in asking
                                                                       jury to assign percentage of responsibility to driver of car
8. Refusal to de-personalize instructions and defini-                  as responsible third party not properly joined immaterial
tions. See Aboud v. Schlichtemeier 6 S.W.3d 742, 750 (Tex.
                                 ,                                     when jury found no design defect and did not apportion
App.—Corpus Christi 1999, pet. denied) (personalized                   any responsibility to defendant), opinion withdrawn on en banc
definition of malice proper).                                          reconsideration on other grounds, 2003 WL 22023175 (Tex.
                                                                       App.—San Antonio 2003) (en banc); Balusik v. Kollatschny,
B. Invited error                                                       2002 WL 1822360 (Tex. App.—Houston [1st Dist.] 2002, no
“Parties may not invite error by requesting an issue and then          pet.) (n.d.p.) (to extent fiduciary duty instruction erroneous,
objecting to its submission.” General Chem. Corp. v. De la             finding immaterial because no damages awarded based on
Lastra, 852 S.W.2d 916, 920 (Tex. 1993) (party waived any              breach of fiduciary duty); Doe v. Mobile Video Tapes, Inc., 43
error when it requested the very issues sought to be avoided           S.W.3d 40, 50 (Tex. App.—Corpus Christi 2001, no pet.)
on appeal); Dico Tire, Inc. v. Cisneros, 953 S.W.2d 776, 795           (holding that trial court erred in omitting negligent standard
(Tex. App.—Corpus Christi 1997, pet. denied) (although                 of liability for defamation or libel but finding no harm when
party objected to omission of third party in comparative               jury answered predicate question in the negative).
responsibility question, party invited error by requesting
comparative responsibility question without including third            Similarly, even if broad-form or granulation is improper for
party); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 304 (Tex.          some theories or issues, reversal will result only if error is
App.—Houston [14th Dist.] 1995, no writ); (party may not               preserved and harm is shown. See Galveston County Fair &
agree to charge and then attack it on appeal). But cf. Holland                         ,
                                                                       Rodeo v. Glover 940 S.W.2d 585, 586 (Tex. 1996) (holding
v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94-95 (Tex. 1999)               trial court had discretion to submit one question with an
(requesting instruction to issue did not invite error when             instruction or separate questions but finding no harm from
post-verdict complaint was that recovery was not available             error in not doing either when different question supported
under legal theory of plaintiff’s claim, not that recovery would       judgment); City of Brownsville v. Alvarado, 897 S.W.2d 750, 752
not have been available under a different legal theory that            (Tex. 1995) (“Submission of an improper jury question can
would have applied if timely raised).                                  be harmless if the jury’s answers to other questions render
                                                                       the improper question immaterial.”); H.E. Butt Gro. Co. v.
C. Other findings render error immaterial                              Warner, 845 S.W.2d 258, 259-60 (Tex. 1992) (granulated
If other findings render the finding in which a charge error           submission not harmful); Boatland of Houston, Inc. v. Bailey,
appears immaterial, then the charge error is deemed harm-              609 S.W.2d 743, 749-50 (Tex. 1980) (holding error in defen-
less. See, e.g., U.S. Tire-Tech, Inc. v. Boeran, 110 S.W.3d 194,       sive issues harmless when other jury findings supported trial
202-03 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)               court’s judgment); Pack v. Crossroads, Inc., 53 S.W.2d 492 (Tex.
(omission of issue on breach of implied warranty of fit-               App.—Fort Worth, pet. denied) (although error claimed in
ness for particular purpose harmless when jury found no                failing to charge on survivor claim, any error harmless when
timely notice of breach); Koehn v. CST Drilling Fluids, Inc.,          court found no evidence to support causation element of
2003 WL 21189759 (Tex. App.—Amarillo 2003, no pet.                     wrongful death action); Colonial County Mut. Ins. Co. v. Valdez,
h.) (memo opin.) (any error in submitting sole proximate               30 S.W.3d 514, 518-19 (Tex. App.—Corpus Christi 2000, no
cause instruction rendered harmless when no percentage                 pet.) (although DTPA question defectively included improper
assigned to defendant); Delaney v. Scheer 2003 WL 247110               theories and created harm under Casteel, Insurance Code
(Tex. App.—Austin 2003, no pet. h.) (memo opin.) (any error            question tied to same damage question supported judgment
in submitting issue on naming sole managing conservator                and rendered DTPA error harmless).
rendered moot when jury found continued joint managing
conservatorship proper); Lowe v. Garza, 2003 WL 1945379                D. Other issues or instruction resolve factual dispute
(Tex. App.—Houston [1st Dist.] 2003, no pet. h.) (memo opin.)          If other findings have the “same effect” or otherwise resolve
(finding of excuse rendered any perceived error in negligence          the disputed fact issues, courts of appeal are reluctant
question immaterial); Gilbreath v. Hathaway, 2003 WL 1937168           to reverse. See, e.g., Hyundai Motor Co. v. Rodriguez, 995
(Tex. App.—Beaumont 2003, pet. denied) (refusal to include             S.W.2d 661, 663 (Tex. 1999) (separate questions on defect
unavoidable accident instruction harmless when jury heard              for strict-liability and breach of implied warranty claims
evidence of theory and was not required to pick one party or           unnecessary when the controlling issues for both claims were
                                                      ADVOCATE      ✯    SPRING 2004


“functionally identical”); Lee v. Huntsville Livestock Servs.,          employee acting in course and scope negated need to submit
Inc., 2003 WL 1738418 (Tex. App.—Houston [14th Dist.]                   employer in negligence question).
2003, pet. denied) (memo opin.) (circumstantial evidence
instruction sufficed to submit res ipsa loquitur theory);               F. Slight wording errors insufficient to show harm
Superior Laminate & Supply, Inc. v. Formica Corp., 93 S.W.3d            Although “duty” and “breach” are not generally facts issues
445, 448-49 (Tex. App.—Houston [14th Dist.] 2002,                       for the jury, mere inclusion of those words does not always
pet. denied) (novation defense supported by pleading of                 render the charge defective to submit adequately and fairly
doctrine of merger when doctrines had “same effect” and                 the disputed fact issues. See Green v. Gemini Expl. Co., 2003
parties knew defendant intended to argue one contract                   WL 1986859 (Tex. App.—Austin 2003, pet. denied) (memo
supplanted another); Star Enter. v. Marze, 61 S.W.3d 449                opin.) (question on oil and gas drainage claim that included
(Tex. App.—San Antonio 2001, pet. denied) (“proximately                 the phrase “breach its duty” not harmful error when instruc-
cause the occurrence” and “proximately caused the death”                tions required jury to find proper elements to support such
were functional equivalents under the facts and separate                claim). But cf. see Maddox v. Denka Chem. Corp., 930 S.W.2d
submissions were unnecessary); M.D. Mark, Inc. v. PIHI P’ship,          668, 670-72 (Tex. App.—Houston [1st Dist.] 1996, no writ)
2001 WL 619604 (Tex. App.—Houston [1st Dist.] 2001,                     (statement regarding general rule of duty was correct state-
no pet.) (n.d.p.) (fraud and breach of fiduciary duty claims            ment of law but constituted harmful comment on the weight
encompassed same controlling issue and court did not err                of the evidence).
in refusing to submit fiduciary claim separately); Riddick v.
Quail Harbor Condominium Ass’n, 7 S.W.3d 663, 673 (Tex.                 Moreover, a mismatch between the issue and the instruction
App.—Houston [14th Dist.] 1999, no pet.) (single question               may also be deemed insufficient error to cause reversal. See,
submitted controlling fact issue determinative of contract and          e.g., Pitts v. Sabine River Auth. of Texas, 2003 WL 21229541
breach of fiduciary theories of liability and court did not err         (Tex. App.—Texarkana 2003, pet. filed) (condemnation
in refusing to submit each theory separately).                          issue referred to “easement sought” and instruction referred
                                                                        to “taking” but variation insufficient to show jury confusion
E. Deemed findings or “as a matter of law” evidence                     or other error).
fills in omission
A charge that erroneously omits an element of a claim (without          G. No challenge to a $0 damage finding
objection) is harmless if an express or deemed finding sup-             In the absence of a challenge to a $0 damage finding, a court
plies the missing element. See, e.g., In re J.F.C., 96 S.W.3d 256       of appeals will not hear any complaints regarding other pur-
(Tex. 2003) (omission of best interests element in parental             ported errors in the trial of the case. Courts consider such
termination proceeding harmless when trial court made                   failure to render other complaints harmless. See, e.g., Tristan
express finding in judgment and parent failed to object to                        ,
                                                                        v. Walker 2003 WL 21212342 (Tex. App.—Corpus Christi
omission).                                                              2003, pet. filed) (memo opin.) (no complaint on negative
                                                                        defamation finding would be heard when no challenge to
If the issue of liability is established as a matter of law, such       $0 damage findings); Hernandez v. Garcia, 2003 WL 724182
“conclusion of law” may support a jury’s finding of damage.             (Tex. App.—San Antonio 2003, no pet. h.) (memo opin.) (no
See Balusik, 2002 WL 1822360 (n.d.p.) (instructing jury that            complaint of negative finding on negligence would be heard
defendant breached her fiduciary duty supported by evidence             when no challenge made to $0 damage finding); Allchin v.
and law and rendered refusal to instruct on commercial rea-             Chemic, Inc., 2002 WL 1608616 (Tex. App.—Houston [14th
sonableness proper).                                                    Dist.] 2002, no pet.) (n.d.p.) (jury’s malicious breach of fidu-
                                                                        ciary duty findings immaterial and not reviewable on appeal
If not established as a matter of law but no liability finding          when no challenge to $0 damage finding).
is obtained despite an objection, the theory of recovery is
waived. See, e.g., Nat’l Dev. & Research Corp. v. Panda Global          Nina Cortell is a partner and member of the appellate section of
Energy Co., 2002 WL 1060483 (n.d.p.) (Tex. App.—Dallas                  Haynes and Boone, LLP, in Dallas, Texas. Karen Precella is Senior
2002, pet. denied) (failure to request issue on breach of con-          Counsel in the appellate section of Haynes and Boone, LLP, in Fort
tract despite objection pointing out omission of issue resulted         Worth, Texas. Heather D. Bailey is an associate in the appellate
in waiver of right to recover despite jury finding on damage);          section of Haynes and Boone, LLP, in Dallas, Texas. ✯
Rosell v. Central West Motor States, Inc., 89 S.W.3d 643, 653-
54 (Tex. App.—Dallas 2002, pet. denied) (stipulation that
                                                           ADVOCATE       ✯       SPRING 2004


1 A trial court may refuse to submit a controlling issue only if the          6 Prior to Casteel, courts consistently found little problem with mul-
evidence is legally (rather than factually) insufficient to warrant           tiple factual bases for a single theory in one question. Specifically,
its submission. See, e.g., Elbaor, 845 S.W.2d at 243; Bel-Ton Elec.           courts noted that “[t]he fact that a jury question contains more than
Serv., Inc. v. Pickle, 915 S.W.2d 480, 481 (Tex. 1996); Exxon Corp.           one factual predicate to support an affirmative answer to a control-
v. Perez, 842 S.W.2d 629, 630 (Tex. 1992); Moore v. Lillebo, 722              ling question, or more than one element of a cause of action, does
S.W.2d 683, 686 (Tex. 1986); Southwestern Bell Tel. Co. v. Thomas,            not render it defective.” Missouri Pac. R.R. Co. v. Lemon, 861 S.W.2d
554 S.W.2d 672, 673 (Tex. 1977); Garza v. Alviar, 395 S.W.2d 821,             501, 509 (Tex. App.—Houston [14th Dist.] 1993, writ dism’d by
824 (Tex. 1965); Thedford v. Missouri Pac. RR. Co., 929 S.W.2d 39,            agr.) (quoting MCDONALD); see Texas Dept. of Mental Health & Mental
52 (Tex. App.—Corpus Christ 1996, writ denied); Gilgon, Inc. v.               Retardation v. Petty, 848 S.W.2d 680, 682 n.2 (Tex. 1992) (complaint
Hart, 893 S.W.2d 562, 566-67 (Tex. App.—Corpus Christi 1994,                  that question failed to delineate particular employee or particular
writ denied); Walker v. Federal Kemper Life Assur. Co., 828 S.W.2d            conduct found negligent contradicts broad-form submission man-
442, 454 (Tex. App.—San Antonio 1992, writ denied); Soto, 776                 date); Scott v. Atchison, Topeka, & Sante Fe Ry. Co., 572 S.W.2d 273,
S.W.2d at 754; Deviney v. McLendon, 496 S.W.2d 161, 166-67 (Tex.              278-79 (Tex. 1978) (broad-form submission under “Rule 277 can be
Civ. App.—Beaumont 1983, writ ref d n.r.e.)                                   accomplished very simply by listing the relevant acts or omissions
2 In Timberwalk, the court noted that “[e]rror in instructions to the
                                                                              [those raised by both pleadings and evidence) in a broad ultimate
jury is more likely to be harmful in a closely contested case.” 972           fact issue . . . [or] by a complementary instruction”); Merckling v.
S.W.2d at 755; see also Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d          Curtis, 911 S.W.2d 759, 770 (Tex. App.--Houston [1st Dist.] 1995,
718, 723-24 (Tex. 2003); Quantum Chem. Corp. v. Toennies, 47                  writ denied) (different factual bases for medical malpractice case
S.W.3d 473 (Tex. 2000).                                                       did not present extraordinary circumstance that made broad-form
3 In Stokes, over objection, the trial court instructed the jury in a
                                                                              infeasible); Hyundai Motor Co. v. Chandler, 882 S.W.2d 606, 616-
FELA case that the plaintiff was not entitled to workers’ compensa-           17 (Tex. App.—Corpus Christi 1994, writ denied) (charge not
tion under Texas law. Although a correct statement of law, the court          required to establish which design defect caused injury); Crawford
found the instruction improper and harmful. 20 S.W.3d at 48.                  v. Deets, 828 S.W.2d 795, 800 (Tex. App.—Fort Worth 1992, writ
4 “So long as matters are timely raised and properly requested as
                                                                              denied) (different factual bases for medical malpractice case did not
part of a trial court’s charge, a judgment cannot be permitted to             present extraordinary circumstance that made broad-form infea-
stand when a party is denied proper submission of a valid theory              sible); Benjamin Franklin Sav. Ass’n v. Kotrla, 751 S.W.2d 218, 222
of recovery or a vital defensive issue raised by the pleadings and            (Tex. App.—Houston [14th Dist.] 1988, no writ) (single causation
evidence.” Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex. 1992)              question for two theories of recovery based on same conduct did
(citing Rules 277 and 278 for concept of “proper submission”); see            not constitute error under broad-form principles).
Bel-Ton Elec. Serv., Inc. v. Pickle, 915 S.W.2d 480, 481 (Tex. 1996).         7 Two other questions were submitted on retaliatory discharge and

Indeed, refusal to submit a controlling defensive theory may deny             age discrimination. Id.
a constitutional right to trial by jury. Texas & Pac. Ry. Co. v. Van          8 The supreme court cited the following to show the split: “See In

Zandt, 317 S.W.2d 528, 530-31 (Tex. 1958) (citing Section 15 of               re J.M.M., 80 S.W.3d 232, 249 (Tex. App.-Fort Worth 2002, pet.
Article I of Texas Constitution).                                             denied), disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256,
5 See, e.g., Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 921 (Tex.
                                                                              267 n. 39 (Tex. 2002) (“[W]e cannot agree with the B.L.D. [court
App.—Beaumont 1999, pet. denied); Wal-Mart Stores, Inc. v. Garcia,            of appeals’] majority opinion that broad-form jury charge submis-
974 S.W.2d 83, 87-88 (Tex. App.—San Antonio 1998, no pet.);                   sions are per se violative of due process in termination cases.”); In re
Provident Am. Ins. Co. v. Castaneda, 914 S.W.2d 273, 276-77 (Tex.             K.S., 76 S.W.3d 36, 49 (Tex. App.-Amarillo 2002, no pet.) (“We are
App.—El Paso 1996), rev’d on other grounds, 988 S.W.2d 189 (Tex.              bound to follow E.B. unless the Texas Supreme Court overrules or
1998); Dodge v. Watts, 876 S.W.2d 542, 545 (Tex. App.—Amarillo                vitiates it.”); In re M.C.M., 57 S.W.3d 27, 31 n. 2 (Tex. App.-Houston
1994, no writ); Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d            [1st Dist.] 2001, pet. denied) (acknowledging the holding in [the
579, 593-94 (Tex. App.—Corpus Christi 1993, writ denied); Baylor              court of appeals in] B.L.D. but concluding that “E.B. has not been
Med. Plaza Servs. Corp. v. Kidd, 834 S.W.2d 69, 79 (Tex. App.—Tex-            overruled, and this Court must follow it[ ]”).” Other cases have
arkana 1992, writ denied); Worsham Steel Co. v. Arias, 831 S.W.2d             also addressed the issue. See Sawyer v. Texas Dept. of Protective &
81, 85 n. 1 (Tex. App.—El Paso 1992, no writ); Curry v. Girard, 502           Regulatory Servs., 2003 WL 549216 (Tex. App.—Austin 2003, no
S.W.2d 933, 934 (Tex. Civ. App.—Fort Worth 1973, no writ). But                pet.) (memo opin.) (holding error not preserved but noting E.B.’s
cf. Jackson-Strickland Transp. Co. v. Seyler, 123 S.W.2d 928, 935 (Tex.       broad-form mandate does not violate parent’s due process); Cox
Civ. App.—Fort Worth 1938, writ dism’d by agr.). A few cases also             v. Texas Dept. of Protective & Regulatory Servs., 2002 WL 1025066
fell in the time period between Casteel and Harris County. See Norfolk        (Tex. App.—Austin 2002, pet. denied) (noting that disjunctive
S. Ry. Co. v. Bailey, 92 S.W.2d 577, 583 (Tex. App.—Austin 2003,              broad-form submission authorized by E.B. still applies to submis-
no pet.); Barrios v. Orsak, 2002 WL 31429784 (Tex. App.—Houston               sion of statutory allegations); Thornton v. Texas Dept. of Protective &
[1st Dist.] 2002, no pet.).                                                   Regulatory Servs., 2002 WL 246408 (Tex. App.—Austin 2002, pet.
                                                                              denied) (n.d.p.) (locating no invalid theories submitted to put case
                                                            ADVOCATE       ✯   SPRING 2004


within scope of Casteel and holding that E.B. survives Casteel such
that jury’s finding supported termination).
9 See Federal Express Corp. v. Dutschmann, 846 S.W.2d 282 (Tex.

1993) (actual damages based on contract and statutory claim would
stand upon reversal of contract recovery and affirmance of statu-
tory claim); Automobile Ins. Co. v. Davila, 805 S.W.2d 897, 903 (Tex.
App.—Corpus Christi 1991, writ denied) (single damage question
stands if any one liability question can support it). But cf Putter v.
Anderson, 601 S.W.2d 73, 78 (Tex. Civ. App.—Dallas 1980, writ
ref d n.r.e.) (pre-broad-form mandate case holding that failure of
two of three libel counts resulted in remand when plaintiff secured
only one unapportioned damage question).
10 Joint and several liability (or several liability only) for actual or

punitive damages also presents an array of issues in submission
of a multi-party charge. Those issues are beyond the scope of this
11 For example, a plaintiff might prefer that the trial court not

submit multiple defenses in separate questions because (1) the
jury receives more than one opportunity to thwart the plaintiff’s
recovery, (2) the opportunity for multiple defensive answers might
create an overall perception against liability, (3) the possibility of
conflicts increases with the number of questions submitted, and
(4) a defendant can more easily challenge the evidentiary support
of the jury’s findings. On the other hand, if the jury answers a
multi-theory question adverse to the plaintiff, the plaintiff will face
a difficult task in attacking the jury’s finding.
12 Some damage-related issues to consider in how broadly a court

can combine theories include (1) whether claims have different
measures of damages, (2) whether a party seeks tort based dam-
ages for recovery of punitive damages, (3) whether a party can seek
both punitive and trebled damages, (4) whether attorneys’ fees are
at issue on a particular claim, and (5) the type of relief sought for
various claims or conduct (e.g., forfeiture of different property,
injunctive relief, etc.).
                                                      ADVOCATE      ✯    SPRING 2004


                               LIVING IN A WORLD OF E XPERTISE:
 The Perils of Innocence—Guidelines for Trial Counsel’s Careful Handling of Expert Witnesses
                                      BY LADD A. HIRSCH & ESTHER R. DONALD

I. SCOPE OF ARTICLE1                                                    adds three restrictions to the Texas standard. FRE 702, as
A frequent refrain among at least some trial attorneys is               amended and effective December 1, 2000, imposes on experts’
that: “experts cannot win a case, but they can certainly lose           opinions the additional requirements that: (1) the testimony
one for you.” A less cynical more artistic restatement of this          is based on sufficient facts or data, (2) the testimony is the
notion is that experts are important threads in the fabric of           product of reliable principles and methods, and (3) the expert
a trial—they can make the tapestry stronger or cause the                witness has applied the principles and methods reliably to
entire garment to unravel. As a result, exercising great care           the facts of the case.
in retaining, working with and presenting expert witnesses
will help trial counsel to avoid exposure to unfavorable results        A. Applicable Authorities Governing Admissibility of
at, or even before, the trial takes place.                              Expert Opinions
                                                                        The two oft-cited cases that have emerged as the controlling
This paper is for practitioners—lawyers who actually prepare            authority on this subject in Texas are Daubert v. Merrell Dow
and try cases. It will cover four phases of dealing with expert         Pharms., 113 S.Ct. 2786 (1993) on the federal level, and E. I.
witnesses: locating, retaining, working with and presenting             Du Pont de Nemours and Co. v. C. R. Robinson, et al., 923 S.W.2d
experts in deposition and trial, and is weighted toward                 549 (Tex. 1995) at the state court level. These cases mandate
practical suggestions.                                                  that an expert’s testimony be relevant and reliable. In fact, the
                                                                        amendment to FRE 702 was in direct response to Daubert, and
The focus of this paper to a significant extent is on the initial       incorporated the Supreme Court’s two-pronged, gatekeeper
phases of the attorney/expert relationship. This is not by              approach. Daubert and Robinson have been the subject of much
accident. The time spent by trial counsel in selecting experts          discussion and scholarly writing during the last decade, and
and during the early stages of the relationship with the expert         their standards of relevance and reliability are critical to keep
is likely to pay dividends later in the case. Avoiding the pit-         in mind in retaining any testifying expert. Specifically, the
falls presented when experts are involved in a case (which              two pertinent questions to be addressed when considering
is most cases today) will not only result in a stronger, more           a potential expert are: (1) have this expert’s qualifications
defensible expert opinion, but will also avoid a potentially            and training prepared him to understand the evidence and
fatal outcome—the disqualification of the expert at trial or            utilize the method on which he will base his opinions; and
the striking of the expert’s testimony, in whole or in part.            (2) can this expert tie his expertise to the facts of the case
                                                                        and persuade the court that his opinions are germane?
SELECTION IS CRITICAL                                                   B. Locating a Qualified Testifying Expert
The range of disciplines in which expert testimony may                  The search for a testifying expert to assist in explaining key
be offered is virtually unlimited, but under Texas Rules of             aspects of the clients’ case begins from within the parameters
Evidence (TRE), all testifying expert witnesses must share a            established by Daubert/Robinson. Expert witnesses tend to fall
common attribute. By definition, experts must be qualified              into three broad categories based generally on their back-
“by knowledge, skill, experience, training, or education” to            ground and qualifications and/or on where they are found.
provide “scientific, technical, or other specialized knowledge”         These categories are: (i) professorial experts in, or retired
for the purpose of “assist[ing] the trier of fact to understand         from, academia, (ii) professional or industry experts who
the evidence or to determine a fact in issue.” TRE 702.                 testify frequently as a part of their professional activity, and
                                                                        (iii) “occasional” experts who testify infrequently, but who
The comparable rule in the Federal Rules of Evidence (FRE)              have expertise that is unique or distinctive, which qualifies
                                                        ADVOCATE      ✯    SPRING 2004


them to offer expert opinions in a given case. Sections II.               but often lack the attributes required to serve effectively as
D-F address the relative pros and the cons associated with                a witness. The removal from real world experience can
experts in each of these categories.                                      diminish the professor’s effectiveness in front of a jury; and
                                                                          at its extreme, it can render the expert’s testimony irrelevant,
C. General Goals: Locate a Qualified Testifying Expert                    and vulnerable to a Daubert challenge. See Pack v. Crossroads,
Who is Also Persuasive                                                    Inc., 53 S.W.3d 492 (Tex. App.-Fort Worth 2001).
Although paradoxical, it is advisable for trial counsel to start
with the end in mind when selecting a testifying expert,                  In the Pack case, a seemingly well-credentialed expert in
because this expert will ultimately express opinions to the               nursing home standards of care was limited by the court to
trier of fact at trial regarding a critical portion of the client’s       discussing only the standard of care for a nurse. This dimin-
case. The value of impeccable credentials and academic                    ished the expert’s effectiveness and left holes in the plaintiff’s
renown is not insignificant, but these laurels do not neces-              case. The court imposed this limitation despite the expert’s
sarily convey jury appeal. A well-qualified expert will not               considerable academic and professional credentials. Id. at
be persuasive if he lacks the ability to articulate his conclu-           506, 507. The court was apparently swayed by the expert’s
sions in a convincing, compelling way. An expert witness                  admissions during voir dire that she had limited practical
earns his keep by performing well at trial, and the client is             experience in the field and had not delivered health care to
not well served by paying for a lofty resume and a brilliant              a patient in ten years.
report if they are not also accompanied by a good courtroom
demeanor, inclusive of basic common sense, calm under fire                The professor’s lack of litigation savvy can also be an impor-
and strong presentation skills.                                           tant detriment in addition to his lack of real world experi-
                                                                          ence. By way of example, the academic expert is likely to
D. Consideration of “Professorial” Experts                                be less sensitive to litigation concerns such as the danger of
An academic expert can be the right choice when scholarly                 creating multiple drafts of his report, the risks of making
research and opinions will help the trier of fact with the                ill-considered notes on documents, and other missteps that
subject matter at issue in trial. Universities, colleges, law             create opportunities for effective, if not devastating, cross-
schools and other graduate school programs are the typical                examination at trial.
environments for these professorial experts—many of whom
can be quite lively and charismatic on the witness stand.                 Further, professors may not be attuned to the time commit-
A notable testifying expert often shares many of the same                 ments required of a testifying expert. An academic expert
qualities of an effective classroom instructor. The expert who            may consider this work to be “moonlighting” and fail to spend
loves teaching and has a gift for making a dry subject come               the time required to obtain a nuanced understanding of the
to life can be an invaluable resource in presenting important             case. Some professorial experts tend to focus too much on
ideas and concepts at trial.                                              the big picture and substitute a general knowledge base for
                                                                          a more specific grasp of the vital details of the case.
1. Pros—Attributes that Favor Retaining a Professorial
Expert                                                                    For all these reasons, it is important for trial counsel to
Not all professors are particularly talented in the class-                exercise caution when retaining an academic expert. Multi-
room (or courtroom), but most of them write reasonably                    degreed academics from the finest institutions can help to
well. Therefore, the typical professorial expert is capable               obtain spectacular results in some cases, but the mere fact
of providing a well-written, thoroughly researched report.                that someone is qualified as “the” expert in 18th Century
Academics generally boast impressive resumes and credentials              British Economics does not make that person “the” best
and they have access to information, third-party sources and              expert for a case.
academic support to assist them with research and analysis
of the facts, data and scientific or other theories at issue.             E. Consideration of Professional Experts
                                                                          Professional experts make their living, or a significant
2. Cons—Disadvantages of Retaining the Professorial                       portion of it, by testifying in specific areas of expertise. A
Expert                                                                    number of firms across the country are devoted largely, if not
The stereotype of the “ivory tower” professor contains a grain            entirely, to providing expert testimony in legal proceedings.
of truth and is a factor to be considered when retaining a tes-           Professional experts can be found in a vast array of fields who
tifying expert. In short, professors may be qualified experts,            hold themselves out as qualified to testify on a seemingly
                                                     ADVOCATE     ✯    SPRING 2004


endless number of topics. A number of on-line resources and           in part, because they have “done it before.” Ideally, they
data banks can be helpful in locating a professional expert.          made any mistakes on previous cases (and at another client’s
Trade groups and professional organizations such as the               expense)—providing a more assured result and diminished
AMA (physicians), the AICPA (accountants) can also serve              likelihood of mistakes. The expert’s past experience can
as reliable resources to trial counsel in search of a qualified       carry with it, however, a trail of undesirable associations
testifying expert. Further, there are organizations such as           including, potentially, undisclosed issue conflicts, and
TASA that serve as clearinghouses for expert witnesses in a           impeachable statements or actions that give rise to accusa-
variety of fields, which can be accessed on the internet and          tions of bias. An expert whose prior testimony leans heavily
via traditional means.                                                toward one side may present a perception of bias, which
                                                                      negates the advantages of using a professional expert. In
1. Pros—Advantages to Retaining an Occasional Expert                  sum, the professional expert’s past work makes it essential
There are many benefits that result from retaining a profes-          to conduct due diligence about his work on previous cases
sional testifying expert, who is focused on the assignment            before he is retained.
from trial counsel. By definition, a professional knows what
he is doing and applies his skills effectively. A professional        A “trial court has wide discretion to determine whether pre-
expert knows how to estimate time and use the resources               vious, arguably inconsistent statements of an expert witness
available to him to ensure the best results possible for trial        are relevant to that witness’s credibility.” Collins v. Wayne
counsel and the client. Past experience in testifying often           Corp., 621 F.2d 777, 785 (5th Cir. (Tex.) 1980).2 In a case
makes a professional expert more confident before a jury and          involving a serious bus accident in which the passenger seat
during a difficult deposition or cross-examination. When the          and backrest design were claimed to be faulty, the trial court
testifying expert is experienced at presenting information in         in Collins allowed the expert to be cross-examined regarding
court, it increases the likelihood that his testimony is going        his previous statements concerning backrest failures in a
to be understood and appreciated by the jury.                         different type of vehicle. The appellate court affirmed noting
                                                                      the “possible inconsistency in [the expert]’s testimony that the
The professional expert also tends to be more technologi-             Wayne bus seats were defective and his prior testimony that
cally advanced and adept. For example, an expert with the             the Volkswagen seats were not defective.” Id. To compound
know-how and resources can provide preliminary conclu-                the problem in that case, trial counsel apparently failed to
sions and information in a report that is accessible to the           rehabilitate the expert by asking him to explain why his
attorney via a website, but which is not printed in hard              opinions were not inconsistent. Id.
copy. Once the report has been read and discussed, it can
be revised without any record of earlier drafts. In this way,         The lesson is clear: the trial lawyer must make efforts to
the professional expert avoids the traps of creating multiple         become aware of all potentially-conflicting prior testimony
drafts of the report and any troubling implications arising           of the professional expert and be able to distinguish that
from preliminary items that are excluded or revised in the            testimony if necessary. The Fifth Circuit noted almost thirty
subsequent drafts of the report.                                      years ago that “prior inconsistency is a particularly appropriate
                                                                      weapon for attacking expert testimony, since demonstration
2. Cons—The Disadvantages of Retaining a Professional                 of the inconsistency is designed not to show that the expert
Expert                                                                has erred, but that he is capable of error.” Reyes v. Wyeth
Two distinct disadvantages arise when the decision is made            Laboratories, 498 F.2d 1264, 1283 (5th Cir. (Tex.) 1974).
to retain a professional testifying expert. First, professional       Therefore, trial counsel must assess how damaging the past
experts are typically quite expensive. The fees of professional       statements of an expert will be in deciding whether to retain
experts often exceed the fees that are charged by professorial        his services.
experts, because the professional generally has a sizable staff
that can (and often will) devote numerous hours to the project,       F. Consideration of “Occasional Experts”
which makes it more difficult to control his fees. As a result,       The occasional expert is like the accidental tourist—he has
special care should be taken when discussing the litigation           not studied to become a testifying expert specifically, and is
budget and the anticipated fees of a professional expert.             not seeking opportunities to testify on the subject. Instead,
                                                                      this witness likely works in, or has retired from, an industry
The second, more dangerous risk of retaining a professional           in which he has extensive practical experience, which is the
expert is his track record. Professional experts are valuable,        subject of the issues in dispute in the lawsuit. This expert
                                                       ADVOCATE      ✯    SPRING 2004


may work for (or have previously worked for) a company                   accept this greater level of involvement when retaining an
that is a party to the action, or for a competitor, a vendor or          occasional expert as a testifying expert witness.
customer. The occasional expert can be difficult to locate
and/or reluctant to accept the assignment, but he can also               Finally, from all three categories of experts, the industry
be a valuable find once identified and on board. With an                 insider remains the most likely to waiver from his opinion,
excellent occasional expert, trial counsel has unearthed a               be swayed or persuaded by the other side. While the industry
“diamond in the rough.” The occasional expert can make a                 expert’s jury appeal is generally high, his ability and desire
tremendous difference in a case, but it is also possible that            to persuade the jury may be low if he tends to balance and
his extensive subject knowledge and experience may be out-               validate “both sides of the story.”
weighed by his lack of neutrality, professionalism, savvy and
courtroom experience.                                                    III. RETENTION OF TESTIFYING EXPERTS: ATTENTION
                                                                         TO DETAIL IS ESSENTIAL
1. Pros—Advantages to Retaining an Occasional Expert                     Careful attention at the outset of the relationship with a new,
To a jury, the occasional expert seems uniquely qualified.               testifying expert witness will likely result in fewer surprises
He has real world experience, is hands on, and legitimate.               as the lawsuit proceeds and a better outcome ultimately. A
Industry experts often communicate very well and sincerely               checklist for this process is set forth in Appendix “A” to this
with a jury. An occasional expert is believable and highly cred-         article. A more detailed elaboration of the retention process
ible because he is not seen as personally gaining a great deal           follows.
from his participation in the lawsuit. In fact, the occasional
expert’s credibility may be enhanced if the jury perceives some          A. Conduct Due Diligence
amount of bravery or altruism in his coming forward to offer             Trial counsel should attempt to learn as much as pos-
his opinions in the case. If this person is still active in the          sible about the testifying expert before he is retained. At a
industry, the thinking is that he would not risk expressing              minimum, counsel must review articles by and about the
a controversial opinion unless he truly believed it.                     expert, and review testimony the expert has given in previous
                                                                         depositions and trials on related subjects. For any lawyers
In addition to appearing less “high dollar” or profit-oriented,          working in a firm, a firm-wide conflicts check is mandatory
the occasional expert is, in fact, generally more reasonably             to determine whether other lawyers at the firm have worked
priced than academic or professional experts. He does not                with or against the expert in the past or on current cases.
typically have a large staff and is reasonable in billing for            If so, this internal source of information can help reveal
his expertise. This apparent economy can have a its own                  problems long before they might otherwise surface with a
price-tag, however, if the lack of staff also results in slower          potential testifying expert.
turnaround and less professionalism, responsiveness and
range of capabilities.                                                   Take advantage of technology. Obtain a copy of the expert’s
                                                                         resume and start checking; the internet makes investigating
2. Cons—the Risks of Retaining an Occasional Expert                      productive and also leads to specialized firms that will per-
As previously noted, it can be difficult to locate an industry           form this service for a fee. It is often worth the relatively
expert and equally difficult to persuade him to take on the              modest investment required for a background investiga-
assignment. This type of experts is unproven and carries                 tion. Disasters can take place when little or no checking is
attendant risks, e.g, will he present well at trial, be too accom-       done of an expert’s curriculum vita—particularly when the
modating to opposing opinions, and too middle-of-the-road                opposition is doing its own checking. One example of this
in expressing his own opinions? Many industry insiders shy               lack of foreknowledge took place when an expert medical
away from agreeing to become a testifying expert for fear that           witness lied about his hospital privileges in French v. Brodsky,
it will hurt their reputation in the professional community              521 S.W.2d 670 (Tex. Civ. App.-Hous (1 Dist.) 1975), writ
and prove harmful to their day-to-day livelihood.                        ref’d n.r.e. The doctor who misstated his qualifications was
                                                                         impeached in front of the jury and revealed as a liar. Once
In addition, the industry expert may not fully understand                a misrepresentation has been uncovered, resurrecting the
the nuances of litigation or the requirements of evidentiary             expert’s credibility is difficult, if not impossible.
and procedural rules. This overall lack of familiarity with
the process requires more involvement and hand-holding                   If the early investigation bodes well, an initial meeting with a
by trial counsel. As a result, trial counsel must be willing to          potential testifying expert will help flesh out the information
                                                        ADVOCATE      ✯    SPRING 2004


gathered to that point. The expert should be given some detail            is worth considering, primarily because it grants the expert
about the case to gauge his expertise and familiarity with                the appearance of more independence from the client/party
the issues involved. Even at this stage, missteps can occur.              and, perhaps, a perception of reduced bias. Most importantly,
Copious note-taking or memos prepared by the potential                    however, the attorney should follow one cardinal rule for
expert are likely to create problems for him in deposition                the engagement letter. That is, a testifying expert’s retention
and at trial.                                                             letter should be thoroughly read by the attorney before it is
                                                                          signed and becomes a key piece of evidence used to impeach
This initial meeting presents an excellent opportunity to                 the expert.
ask tough questions of the potential expert. Awkwardness
or embarrassment should not be a barrier at this point. It is             It is important to use care in screening and documentation
imperative that the retaining attorney uncover and consider               even when retaining a consulting expert, because they often
any negative history or previous testimony rather than letting            become testifying experts at a later point in time.
opposing counsel discover and utilize them later. There is
still time at this point to decide against hiring this expert.            IV. EXERCISING CARE WHILE WORKING EFFECTIVELY
Moreover, this advance warning permits trial counsel to assess            WITH A TESTIFYING EXPERT
and develop a plan for dealing with any alleged conflicts or              Practitioners who actively communicate with, guide, monitor
problems that might have to be addressed and defused at trial.            and oversee their experts will receive a better return on their
Appendix “A” includes a suggested list of “tough questions.”              investment and also secure better reports and testimony than
While not exhaustive, the suggested lines of inquiry with                 if the expert is given free rein. The specific steps to achieve a
the potential expert will help unearth potentially damaging               satisfactory result are to confirm that the testifying expert is
facts, if any exist.                                                      qualified, and that he understands the litigation budget, the
                                                                          specific issues in the case and his assignment. The potential
B. Develop an Undocumented Budget                                         danger comes from a tendency to assume that retaining the
Expert fees significantly increase the costs of litigation and can        expert witness largely completes trial counsel’s pre-trial to do
quickly spiral if unchecked. Pitfalls exist, however, if a restric-       list regarding the expert. The fact is, however, that lawsuits
tive budget is imposed. It is important to avoid the appear-              are organic—they take on distinct personalities, and change
ance of overly limiting the expert’s opinions by imposing                 as the litigation proceeds. As a result, trial counsel must
unreasonable budget constraints. A skilled cross-examination              take steps to keep the expert “in the loop” and ensure that
can leave the impression that a restrictive budget limited the            he is updated on key case developments and the progress
expert’s ability to reach the right answer. Therefore, the best           of the case, including any setbacks or changes in litigation
model for achieving a budget with the expert takes the form               strategy.
of a “Gentlemen’s Agreement” in which the expert agrees to
an hourly fee and an acceptable anticipated range of fees that            A. Communicating with the Expert
will not be exceeded without further discussion.                          Opening the lines of verbal communication with the testi-
                                                                          fying expert should take place at an early stage. Specifically,
C. Prepare the Expert’s Engagement Letter                                 trial counsel should outline the expectations and guidelines
The engagement letter with an expert can cause great harm                 under which the expert will be working on the case. Trial
and prejudice as impeachment evidence. Any adverse con-                   counsel must provide thorough, oral instructions regarding
sequences are readily avoidable so that the engagement letter             the handling of written communications, drafts of reports,
remains the innocuous document that both the expert and                   note taking, and email communications before any mistakes
attorney intend. The expert’s engagement letter should outline,           take place. It is dangerous to assume that an expert will use
in simple terms, the work to be performed but none of the                 appropriate litigation procedures, and time must be taken to
conclusions desired. It should specify an hourly fee, but should          provide clear guidance to safeguard the expert’s credibility
not include a written budget. It should state specifically that           and his persuasive abilities.
the fee is to be paid as work is completed, and that payment
is not contingent on any opinions rendered by the expert.                 1. Materials Sent to the Testifying Expert
                                                                          Time and attention should also be given to the consideration
Some lawyers use retention letters specifying that the                    of materials to be provided to the expert. Federal courts
lawyer, or law firm, is retaining the expert, rather than                 require disclosure of all materials that the testifying expert
having the expert retained directly by the client. This tactic            reviews, not merely the documents on which the expert
                                                      ADVOCATE      ✯    SPRING 2004


relied. Trigon Insurance Co. v. U.S., 204 F.R.D. 277, 282 (F.D.         To avoid problems arising from the destruction of materials
Va. 2001), citing Kahn v. Ingersoll-Rand, 168 F.R.D. 633 (N.D.          created or received by experts, several guidelines should be
Ind. 1996). All documents considered by a testifying expert             observed. First, the expert and his staff must be cautioned to
must be disclosed except portions containing counsel’s                  preserve notes and drafts of reports. Consequently, the expert
mental impressions, which would be considered attorney                  should avoid taking notes except when necessary, and should
work product. Haworth, Inc. V. Herman Miller, Inc., 162 F.R.D.          limit the types of notes taken. Detailed interview memos,
289, 293 (W.D. Mich. 1995). In Texas, too, a testifying expert          especially from initial meetings with the lawyer, should
“may be cross-examined on facts and data of which she is                be avoided because they provide such fruitful grounds for
aware, ‘but upon which she did not rely.’” Wheeler v. State,            cross-examination. In short, it is advisable for the expert to
79 S.W. 3d 78, 82 (Tex. App.-Beaumont 2002). A testifying               avoid gratuitous writings that might prove troublesome and
expert must be careful when collecting information and                  which are discoverable.
assembling a file; be sure to counsel a testifying expert in
this regard early on.                                                   4. The Danger of Spoliation of Evidence
                                                                        It is important to consider that courts can and will impose
2. Written Recordings by the Expert                                     sanctions for spoliation—the improper alteration or destruc-
The expert should exercise caution in recording any mat-                tion of evidence. A party must exercise reasonable care in
ters of a substantive nature, because opposing counsel will             preserving relevant evidence. Texas law is split over whether
be looking diligently for ways to present these items in a              spoliation applies only to willful or bad faith destruction of
manner that puts them in negative light undermining the                 evidence (see Crescendo Investments, Inc. v. Brice, 61 S.W. 3d
expert’s opinions. Any writings, notes, drafts or other written         465 (Tex. App.- San Antonio 2001, pet. denied); Anderson v.
communications (emails, particularly) that might convey the             Taylor Publishing Co., 13 S.W. 3d 56 (Tex. App.-Dallas 2000,
expert’s mental impressions should be limited, if not avoided,          pet. denied), or whether even negligent destruction can trigger
during early stages of his work so they are not taken out of            sanctions (see Trevino v. Ortega, 969 S.W.2d 950 (Tex.1998);
context on cross-examination by opposing counsel. Further,              Offshore Pipelines, Inc., v. Schooley, 984 S.W. 2d 950 Tex. App.-
the expert should not send any written communications to                Houston [1st Dist.] 1998, no pet.)) Either way, extreme caution
the client—attorney or party—other than bills or items                  is advised in handling and retaining evidence.
related to scheduling matters. Similarly, the expert should
not exchange or record internal written communications                  Similar care is required regarding evidence which is created by
with staff members. The expert’s staff must be made aware               an expert witness. Spoliation has been found to have occurred
of this requirement and understand that no notes, ideas,                when consulting experts destroyed drafts sent to them for
thoughts, suggestions or ruminations of any kind should be              edit and review by testifying experts in the same case. Trigon
sent or emailed.                                                        Insurance Co. v. United States, supra. The fewer written drafts
                                                                        produced, the better. However, the ones that are produced
3. Preservation of All Drafts and Writings                              should be preserved by the expert in order to protect against
It is advisable to direct the expert to refrain from disposing          spoliation and any negative consequences.
of any writings or materials prepared in connection with the
case. In Andras v. Memorial Hospital System, 888 S.W.2d 567,            5. The Testifying Expert’s Working Notes
570 (Tex. App.-Houston (1 Dist.) 1994, writ denied), a sig-             Of course, it is necessary and appropriate for experts to have
nificant portion of the testimony by the plaintiff’s sole expert        some notes. When the expert’s notes are limited and written
witness was struck because he had destroyed the database on             with depositions and trial in mind, they can be very useful.
which he based his opinions. This case is instructive, because          These notes help refresh the expert’s memory and impressions,
the court had apparently given the expert a second chance               and convey credibility. A good practice is for the expert to
when he testified before trial that he could “recreate that data-       transfer his notes to the computer and allow the attorney to
base if he is called upon to do that.” By the time of trial, the        review the notes on screen. If the expert is later asked whether
discarded database had not been resurrected, and the judge              the notes were shown to the attorney before they were printed
observed that “if he could have reproduced this database he             out, he can respond truthfully that “we discussed the notes
should have done it by now.” Id. The expert testimony was               and I supplemented them . . . .”
struck, the decision was affirmed on appeal, and the plaintiff’s
pleadings were struck and his case dismissed with prejudice.            B. Monitoring the Expert’s Work
This was a devastating, but preventable result.                         Taking an active role with the expert helps to ensure the
                                                       ADVOCATE      ✯    SPRING 2004


best results. Trial counsel needs to become familiar with the            C. Helping Shape the Expert’s Report
expert, with what he is doing on the case and how to guide               Guidance from counsel is also helpful in creating and shaping
him toward a successful outcome. It is also important to know            the expert report. In most cases, the expert will be asked to
the qualifications of the expert’s staff, particularly those who         produce a written report that formalizes his research and
participate in the preparation of the expert’s report.                   findings and sets forth his impressions and conclusions. It is
                                                                         prudent at this point to bear in mind the Daubert and Robinson
1. The Testifying Expert Must Visit “The Scene of the                    requirements of reliability and relevancy and to confirm that
Crime”                                                                   the expert understands them. Items in the report that seem
As a first step in monitoring an expert, the trial counsel               “standard” to the expert should be explained if these items
must make sure the expert has become active. A jury tends                call reliability into question. Daubert challenges can and may
to question an expert if he has never gotten out of his chair.           be raised even in response to standard industry disclaimer
In a case dealing with trade secrets in the recycling industry,          language that is always included in the expert’s report; con-
the expert should actually visit the recycling plant. An expert          sequently, the more care that is taken to explain standard
on business practices in a foreign country needs to visit the            methodologies and industry practices, the less room there
country that is the subject of the lawsuit. For an expert to             will be for Daubert motions.
appear credible, he needs to “go to the scene of the crime.”
                                                                         1. Proper Format Renders the Report More Usable
2. Focus the Testifying Expert’s Time and Attention                      An expert can ensure relevancy and effectiveness by adhering
Trial counsel must keep the testifying expert reined in.                 to an established format for his report. The report should
Experts are expensive, and clients do not want to pay for                begin with a brief summary of the assignment given to the
unnecessary work. An added benefit in keeping an expert                  expert in which he explains the task that he was assigned
focused derives from avoiding extraneous opinions and mus-               to complete. The assignment should, of course, be stated
ings in the report, which can become dangerous on cross-                 objectively in neutral terms, e.g., whether there was defective
examination. This monitoring task can be delegated to an                 design in the product that made it dangerous and, if so, what
associate—but it should not be overlooked.                               was defective about the design. Next should come a summary
                                                                         of opinions that is followed by a more thorough restatement
A failure in supervision must have occurred with the pro-                of the opinions, accompanied by evidentiary support. The
fessorial expert in Celestine v. Petroleos de Venezuella SA, 266         opinions should be “footed”—that is, tied back to the evi-
F.3d 343 (5th Cir.(La.) 2001), a Title VII racial discrimination         dence analyzed by the expert. If the expert is outside the
case. The professor in Celestine designated as the plaintiffs’           financial industry, a helpful analogy may be the accounting
expert on racial harassment provided a deficient and unsup-              expression “ticked and tied.” Auditors use that to express
ported affidavit that was struck by the court, resulting in the          that a specific number or comment is “ticked and tied” once
granting of the defendant’s summary judgment motion. The                 it has been verified to explain the number or the comment
district court refused to accept the affidavit because: “(1) it          as to a company’s financial statement or balance sheet. That
did not contain relevant factual information regarding the               illustration is intended to convey to the expert that everything
actual work environment . . . , and (3) it contained many                in his report should be supportable and defensible based on
inflammatory accusations . . . in general without any specific           evidence or testing in the face of an opposing counsel’s attack
reference whatsoever to the source of such a verbal attack.”             or a rebuttal expert’s adverse conclusion.
Id. at 357.
                                                                         2. Report Content Is Critical
3. The Importance of Deadlines—External and Internal                     Ideally, the trial counsel’s due diligence and investigation of
The final step in monitoring the expert before trial is to set and       the expert’s competency should be enough assurance that
adhere to deadlines. The expert should be promptly advised               the report will be factually strong and accurate. In Slaughter
of filing deadlines, discovery deadlines, Rule 11 agreements             v. Southern Talc Co., 919 F.2d 304 (5th Cir.(Tex.) 1990), a
and any other external deadlines. Internal deadlines should              summary judgment of dismissal that was addressed to the
be established, as well. An expert must know when he is                  credibility of expert testimony was upheld on appeal. The
expected to provide an oral preliminary conclusion, and the              appellate court reasoned that “[i]n our case, data derived
due date for a written draft for review by counsel. Enough time          from medically accepted diagnostic techniques were sloppily
should be allotted to review the expert’s opinion and to allow           compiled.” Although the court noted that the “diagnostic
for supplementation and damage control, if necessary.                    methods used are not questioned, the errors in the reports
                                                       ADVOCATE      ✯    SPRING 2004


render the basis of the resulting opinions suspect.” Id. at              was offered and allowed to testify to illustrate the effects of
307. Daubert was not the problem—poor quality work by the                a delay in an airbag’s deployment. The plaintiff presented
expert was. One way to prevent this fiasco is by retaining               other experts on airbag design and engineering. As a result,
an expert who has proven his bona fides in the past, but the             when Dr. Refroe’s expertise was challenged, the court allowed
expert’s work should still be monitored to be sure he is doing           his expert testimony. The appellate court affirmed that deci-
excellent work in the case at hand.                                      sion, concluding that: “based on Dr. Renfroe’s education and
                                                                         experience, he was qualified to give expert testimony to these
3. Exhibits to the Report must Also Be Handled with                      aspects of airbag deployment and delayed deployment as it
Care                                                                     affected Mrs. Gillespie’s movement. The trial court did not
To bolster his report, an expert will generally create demon-            abuse its discretion in finding Dr. Renfroe qualified as an
strative exhibits. At this stage, it is not necessary that a large       expert.” Id. at 655, 656.
number of demonstratives are produced, but having several
attached to the expert’s report is often beneficial. While these         2. Prevent Redundancy
graphs, charts and other visual depictions can be helpful, they          Clearly delineated boundaries can also help protect an
must be handled carefully. Like the report itself, drafts will be        “extra” expert from being eliminated before or during trial
subject to scrutiny. Trigon, supra. Consequently, a testifying           in a judicial effort to limit redundancy. In the middle of trial
expert must remain sensitive to the fact that creating multiple          in Aetna Cas. & Sur. Co. v. Guynes, 713 F.2d 11887, 1193 (5th
drafts, and destruction of any drafts, is to be avoided. The             Cir.(Tex.) 1983) the trial court decided to limit the number
attorney should always review the demonstratives on line                 of fire investigator experts who could testify for the insured.
(on computer) before they are produced, however, because                 The court then allowed the written report of the excluded
they will be considered part of the expert’s report and can              expert to be used to impeach the remaining expert. Id. The
be attacked and challenged on similar grounds.                           court, in its effort to avoid cumulative testimony, seems to
                                                                         have been swayed by the fact that there were considerable
D. Managing Multiple Experts                                             professional affiliations between the two experts. Id.
In this age of increasing specialization, it is not unusual
to retain multiple experts in the same case. In addition                 It is well established that a district court can limit the number
to adhering to guidelines for communications, deadlines,                 of expert witnesses who testify at trial. Ruud v. United States,
monitoring and reports, several additional factors should be             256 F.2d 460 (9th Cir.), cert. denied 358 U.S. 817, 79 S. Ct.
considered when multiple testifying experts are retained in              28, 3 L. Ed.2d 59 (1958); Chapman v. United States, 169 F.2d
a case. It is important that the experts not be redundant nor            641 (10th Cir.), cert. denied 335 U.S. 860, 69 S.Ct. 134, 93
in conflict with one another. These two opposite, but equally            L.Ed. 406 (1948). To avoid this exercise of discretion, trial
disadvantageous, situations can be avoided with care.                    counsel should attempt to retain experts whose opinions
                                                                         are truly distinct from one another’s as well as to erect clear
1. Establish Boundaries for the Scope of Each Expert’s                   boundaries regarding the scope of each expert’s opinions
Opinion s                                                                and testimony.
Make sure each expert understands the specific scope of the
question that he is investigating and on which he will be                Moreover, multiple experts should refrain from communi-
offering expert opinions. By establishing these boundaries               cating with each other until after their reports are completed.
up front, the expert can be better protected down the road.              This policy will help maintain each expert’s independence
An expert who receives and adheres to a narrowly defined                 and, again, help preserve boundary areas.
assignment can more comfortably defer to another expert
on cross-examination and thereby avoid getting trapped                   IV. CONFIDENTLY PRESENTING AND DEFENDING THE
with questions posed in an area that is truly outside his                TESTIFYING EXPERT
expertise, or worse, disqualified because of a lack of certain           By monitoring and nurturing experts during the first three
expertise.                                                               phases of the relationship with trial counsel, this final stage
                                                                         becomes much more straightforward. Presenting and defending
In Morton International v. Gillespie, 39 S.W.3d 651 (Tex.                a testifying expert occurs in two different venues. Although
App.-Texarkana 2001), a products liability case involving                there is definite overlap between the guidelines for handling
an automobile airbag, good boundaries and delineation pre-               experts at deposition and at trial, there are enough distinctions
served the testimony of an expert. The expert, Dr. Renfroe,              that the topics each deserve individual treatment.
                                                         ADVOCATE      ✯    SPRING 2004


A. Deposition of an Expert Witness                                         3 Consider Attending Opposing Expert ’s Deposition
By the point of deposition, the attorney will know the                     A final consideration is whether to have an expert attend
expert fairly well and be able to tailor suggestions to the                the deposition of an opposing party’s expert. This is worth
expert’s particular personality, style and demeanor.                       considering, particularly if the expert that you retain has
                                                                           been designated as a rebuttal expert, because it will give the
1. Preparation for Deposition                                              expert a better understanding of the witness whose opinions
It is usually true when preparing expert testimony that waiting            he is rebutting. A previous glimpse at the competition can
until the last minute can be problematic. As discovery and the             aid your expert’s trial preparation. Further, sitting in on the
pre-trial phase progresses, experts must be kept apprised of               deposition of an opposing expert will inform your expert of
material new developments so that the expert can integrate                 the strength of the opposing expert’s convictions. Moreover,
them in his thinking and opinions. Some specific examples                  the cost of bringing an expert along may more than pay for
of the type of information that should be shared include new               itself if he can provide meaningful assistance at the deposition.
court rulings, new pleadings filed by opposing parties and                 Often an expert can listen, observe and suggest questions that
new evidence obtained in discovery whether in depositions                  are outside your technical expertise or scope of knowledge.
or documents.                                                              This is particularly true with an industry expert, who will
                                                                           know the terminology and be able to spot the flaws in the
2. Prepare the Witness                                                     opposing theories, which can be invaluable.
It is helpful to prepare for the deposition examination with a
testifying expert through actual practice examination. Using               B. Presenting The Expert at Trial
another attorney to “play the part” of opposing counsel is wise;           On the eve of trial, the only task left for the expert is to plan
if the trial attorney is then able to observe the expert testifying,       for and prepare to seize the opportunity to give the jury the
he is likely to notice and provide better input. Counsel should            benefit of his opinions. This is where an expert truly earns
resist the urge to use video, even if the witness might benefit            his keep. The testifying expert should be able to explain the
from seeing himself testifying, because the videotaped record              key issue persuasively and why it should be decided in favor
is discoverable potentially, thereby causing more harm than                of your client. In short, a skilled expert witness will make
good. For the same reason, no notes or script should ever be               the issues come alive for the jury. The question then is how
given to the expert regarding his testimony.                               to present the issue at trial in a way that is compelling to
                                                                           the jury.
Consider carefully the items that the expert will bring to the
actual deposition. He should have his report, the documents                1. Adding Life and Color for the Jury
that are ticked and tied to his report, plus any references that           At trial, demonstratives are going to be employed extensively.
are cited in the report. It is important that the expert be able           Although new information and opinions cannot be revealed or
to substantiate his opinions at the deposition. Depending on               admitted, new ways and techniques for explaining the expert’s
the subject matter of his testimony, it can be useful for the              opinions and conclusions are welcomed and helpful. There
expert to bring a calculator, as well, to provide support for              exists a vast range of creative methods for the presentation of
calculations and financial or numerical conclusions. It is best            expert opinions. Encourage the expert witness to concentrate
to be cautious in this regard, however, because the expert                 on new ways to present information to the jury. He must hold
may be asked to perform new calculations for which he is not               the jury’s attention—how will that be achieved? This is not
prepared with his own calculator in hand. This can lead to                 an area that can be left to chance.
mistakes or cause the expert to become flustered and/or lose
focus on his opinions. Thus, it is a case-by-case determina-               We live in a visual era and receive messages constantly via
tion as to whether a particular expert is adept at handling                video, audio, television, computers, books, tapes and a vast
this situation. Assessment of opposing counsel’s style is also             array of print media. Thinking “multi-media” for an expert
required—how aggressive is he likely to be and will he be                  presentation leads to the right path. Use of drafts is now
trying to trick the expert at the deposition? If so, it may be             acceptable, because discovery has concluded, and this opens
best to leave the calculator at home—even if the opposing                  the door to creativity. Working through ideas, sketches, and
counsel provides the expert with another calculator, the jury              depictions with the expert may result in a stronger presenta-
will understand that this is not his customary device and it               tion than either of you would conceive alone. Combine your
may not be as effective an attempt at cross-examination.                   client’s overall story and your big picture view of the case
                                                                           with the testifying expert’s specific expertise and skill. The
                                                       ADVOCATE      ✯    SPRING 2004


combination, along with hard work and creative thinking,                 Daubert and its Progeny
should result in a courtroom presentation with impact.                   Regarding testifying expert witnesses and the case law that
                                                                         has developed in this area, the last ten years have been referred
An expert should consider the use of charts and graphs, both             to as “the Daubert decade.” Daubert and Robinson came in with
hand-outs the jurors can hold and enlarged blow-ups for dis-             a loud clamor, but what has followed jurisprudentially has
play in the courtroom. Procure a whiteboard and markers, a               been more of a slow, steady refinement of Daubert’s ground-
PowerPoint projector, video of demonstrations or procedures,             breaking standards.
and clear, visible still photographs and an easel. Explore any
avenue for communicating effectively with the jury.                      Perhaps the single most significant post-Daubert decision
                                                                         has been Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999),
If you have chosen a professorial expert or another who is               which expands Daubert’s application to non-scientific experts.
skilled at teaching—it may be best to stand back and get out             Beginning with Kumho Tire, courts have assumed a gate-
of his way. Letting an expert teach and present his findings             keeper role in relation to the wide range of testifying experts
in an interesting way tends to raise the expert’s comfort level.         presented to them. A particular challenge is presented by
A good presentation dramatically enhances the credibility of             experts in fields where competing theories and methodologies
an expert. A poor presentation is an opportunity lost. If the            prevail. There may be one correct way to perform a kidney
well-prepared trial counsel uses a testifying expert to make             transplant, but methodology is less clear in how to value
a compelling presentation and the other side fails to do so,             minority shareholder interests, the proper standards to apply
this can play a decisive role in the outcome of the case.                by police officers in pursuing criminals who are fleeing at high
                                                                         speed or issues related to the patentability of new software.
2. Refrain from Neglecting the Substance                                 Nonetheless, trial courts have taken on the responsibility
Aside from the manner of presentation of the expert’s opin-              of screening all types of testifying experts. Statistics show,
ions, the goal remains to focus on the expert’s substantive tes-         not surprisingly, that the total number of expert challenges
timony to ensure that his opinions are adequately conveyed.              and exclusions have grown significantly during this past
Consider having a testifying expert sit in the courtroom for             Daubert decade.
certain portions of the trial before he testifies. It can be worth
the expense if used judiciously, and is generally permitted,             B. Recent Cases of Note Pertaining to Testifying Expert
because “The Rule” does not typically apply to experts and               Witnesses
will not usually be invoked to exclude your expert from the              1. Vargas v. Lee, 317 F.3d 498 (5th Cir. (La) 2003)
courtroom. See Elbar , Inc, v. Claussen, 774 S.W.2d 45, 52               Vargas underscores the trend toward extensive inquiry and
(Tex. App.-Dallas 1989, writ dism’d); Riton Oil v. E. W. Moran           thorough judicial monitoring of the reliability of an expert’s
Drilling Co., 509 S.W.2d 678, 685 (Tex. App.–Fort Worth 1974,            testimony. The Fifth Circuit summarized the current state of
writ ref’d n.r.e.). It can be very helpful for a testifying expert       the law on the admission of testifying experts as a judicial
to attend opening statements and to observe the opposing                 requirement “to make certain that an expert, whether basing
expert. It is more persuasive for the jury to hear an expert             testimony upon professional studies or personal experience,
comment on the opposing expert’s opinions from first-hand                employs in the courtroom the same level of intellectual rigor
knowledge.                                                               that characterizes the practice of an expert in the relevant
                                                                         field.” Id. at 500.
Along with the substantive preparation and courtroom obser-
vation, a measure of last minute tactical coaching usually               Vargas presented situation in which a traumatic injury has
proves helpful as well. Remind your expert not to be com-                asserted as the cause for the plaintiff’s fibromyalgia syndrome.
bative. A hostile approach will not enhance his credibility or           The Fifth Circuit in 1999 had “previously addressed the
jury appeal. Similarly, being overly protective with objections          question of whether expert testimony regarding the cau-
will undermine the expert’s credibility. It can be an uncom-             sation of fibromyalgia syndrome by traumatic injury was
fortable feeling, but the expert must largely stand on his own           sufficiently reliable to be admitted.” The court at that time
to present what he knows and hold to his ground.                         had decided that the theory was not reliable enough to
                                                                         meet the criteria of Daubert. The Court’s inquiry in Vargas
V. RECENT DEVELOPMENTS IN THE LAW REGARDING                              focused on the question of whether scientific understanding
TESTIFYING EXPERTS                                                       had progressed sufficiently since its previous controlling
A. Challenges and Exclusions Have Increased under                        decision to now allow expert testimony on the issue. The
                                                                ADVOCATE    ✯    SPRING 2004


court determined that such progress had not occurred.                           property valuation expert. The trial court had admitted the
                                                                                testimony of this appraisal expert, and was later found by
Vargas suggests that the courts may continue to delve ever                      the Supreme Court to have abused its discretion.
deeper into the actual theories and methods used and pro-
pounded by testifying experts, exercising “broad latitude”                      The Court in Exxon conducted a detailed inquiry into the
to exclude such theories and methods. Thorough discussion                       methods used for determining the condemnation value of land
of an expert’s methodology at the outset of his engagement,                     taken by eminent domain. Specifically, rejecting the valuation
coupled with adequate research into any judicial rulings on                     systems employed by the appraisal expert as improper and
that methodology, might help safeguard an expert and prevent                    thus inadmissible, the Court took one further step as well.
an ultimate—and undesirable—Vargas result.                                      The Court declared the testimony unreliable based on the
                                                                                incorrect choice of valuation method and then labeled the
2. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623 (Tex. 2002)                       testimony irrelevant based upon the misapplication of that
On a similar path, the Texas Supreme Court has begun                            incorrect standard. Id. at 630.
involving itself in a more active and substantive inquiry into
expert methodology. In Exxon v. Zwahr the court was faced                       The clear message is that courts are increasingly relying
not with a scientific expert but instead with a purported                       on Daubert and later cases to eliminate (or limit) expert

                                       Checklist For Retaining A Testifying Expert Witness
 1. Conduct due diligence:                                                     Has the expert ever been a party in any litigation?
    Review articlesauthored by expert........................                  Has the expert ever been sued by a client or
    Review previous cases involving similar topic(s)..                              former client? ................................................
    Review previous deposition and trial testimony ...                         Has the expert ever been subject to any criminal
 2. Perform internal assessment:                                                    proceedings?..................................................
    Run “conflicts” check............................................          Has the expert ever been accused of breach of
    Follow up on all replies re: knowledge of expert..                              fiduciary duty? ..............................................
 3. Conduct detailed resume check:                                             Has the expert ever been fired from any position?
    Note any discrepancies .........................................           Has the expert ever been charged with sexual
 4. Meet with potential expert:                                                     harassment?...................................................
    Discuss note-taking procedures ...........................              6. Discuss estimated fees and litigation budget
    Give broad overview of case .................................              Determine expert’s hourly rates (and staff rates) ..
    Assess appearance and demeanor.........................                    Agree upon range of estimated fees (total and each
    Elicit experience and knowledge ..........................                      phase)............................................................
    Discuss any resume discrepancies uncovered ......                          Do not confirm estimated range or budget in
    Resolve discrepancies, if possible .........................                    writing ..........................................................
 5. Ask tough questions before retaining the expert:                           Get assurances in the form of an oral
    Has the expert’s testimony been excluded/limited                           commitment .........................................................
         by a court?.....................................................   7. Draft retention letter or review expert’s draft:
    Has the expert ever failed to be qualified? ...........                    Scope of specific assignment is outlined ..............
    Have expert’s opinions been subject of any                                 No conclusions or opinions are stated..................
         written opinion?............................................          Hourly fee and pay-as-you-go specified ...............
    Has expert been opposed before to other                                    No budget estimate is given..................................
         side’s expert? .................................................      Specifies that payment is not contingent on
    Consider experts’ personal life—is there                                        outcome.........................................................
         anything negative?.........................................           Consider having lawyer or firm designated
    Does the expert have any substance abuse issues?                           as “client”..............................................................
    Is expert going through a contested divorce? .......                       Thoroughly read and review entire letter..............
                                                           ADVOCATE       ✯    SPRING 2004


testimony when it never would have been excluded in the                       and brokerages. Esther R. Donald is a litigation associate with
past. Consequently, handling an expert with care has become                   Clouse Dunn Hirsch LLP, and she provided extensive assistance
of far greater importance. Trial counsel must avoid perils that               in the preparation of this article. Her professional background
include: (i) retaining an expert who has inadequate or inap-                  includes experience working on complex business disputes, as well
propriate credentials, (ii) hiring an expert who has conflicts                as serving as a civil and family law mediator, and a corporate and
arising from past engagements and testimony, (iii) mishan-                    professional trainer. ✯
dling evidence or drafts of reports provided to or received
from experts and (iv) using experts who apply unreliable
methods, whether scientific or not, or misapply acceptable                         simplicity and brevity, the authors have made use of masculine
methods to the facts presented. A newly-observant judicial                    pronouns throughout this article with the understanding that many
eye is watching testifying experts as never before; creativity                of the finest trial lawyers and expert witnesses are women.
is still necessary to persuade a jury, and now caution is also
                                                                              2Citing Longenecker v. General Motors Corp., 594 F.2d 1283, 1286
mandated to withstand judicial scrutiny before the experts
                                                                              (9th Cir. 1979), in which “the plaintiff claimed that a faulty engine
are permitted to provide any opinions to the jury.
                                                                              mount on a Chevrolet Impala caused the accident that injured him.
                                                                              The defendant’s expert witness testified that the engine mounts did
Ladd A. Hirsch is a Partner with Clouse Dunn Hirsch LLP. Before               not cause the accident. Over defendant’s objection, the trial court
joining Clouse Dunn Hirsch LLP Mr. Hirsch was a partner with                  admitted a letter that the defendant’s expert had written stating that
the firm of Haynes & Boone, L.L.P., where he headed the Business              faulty engine mounts in another type of General Motors car with a
Litigation Practice Group of the firm’s Dallas Office. He is a trial          different engine were the cause of an accident. The Ninth Circuit
lawyer with extensive experience litigating a broad range of disputes         held that the trial court did not abuse its discretion in admitting
for both plaintiffs and defendants in industries that include manu-           the impeaching letter.”
facturing, retail sales, health care, food service, airlines, insurance
                                                         ADVOCATE      ✯    SPRING 2004


                                            B USINESS TORT U PDATE
                                                           BY DANIEL BISHOP

I. NEGLIGENT MISREPRESENTATION                                             the course of his business, or in a transaction in which the
A. Background                                                              defendant has a pecuniary interest; (2) the defendant sup-
Texas has adopted the tort of negligent misrepresentation                  plies “false information” for the guidance of others in their
as described by the Restatement (Second) of Torts Sec. 522.                business; (3) the defendant did not exercise reasonable care
See Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d                 or competence in obtaining or communicating the informa-
439, 442 (Tex. 1991). In Sloane, the court endorsed section                tion; and (4) the plaintiff suffers pecuniary loss by justifiably
522 to define the scope of a lender’s duty to avoid negligent              relying on the defendant’s misrepresentations. Federal Land
misrepresentation to prospective borrowers. Section 522 (1)                Bank Ass’n of Tyler v. Sloane, Id.
                                                                           B. Recent Developments
      One who, in the course of his business, profession                   1. Application to Attorneys
      or employment, or in any transaction in which he                     In McAmish, Martin, Brown, and Loeffler v. F. E. Appling Interests,
      has a pecuniary interest, supplies false informa-                    et al., 991 S.W.2d 787 (Tex. 1999), the Texas Supreme Court
      tion for the guidance of others in their business                    held that nonclients could sue attorneys for negligent mis-
      transactions, is subject to liability for pecuniary loss             representation without regard to the nonclient’s lack of
      caused to them by their justifiable reliance upon                    privity with the attorney. The court rejected arguments that
      the information, if he fails to exercise reasonable                  a negligent misrepresentation claim is equivalent to a legal
      care or competence in obtaining or communicating                     malpractice claim, stating that liability is not based on the
      the information.                                                     breach of duty that a professional owes his or her clients,
                                                                           but on an independent duty to the nonclient based on the
Courts applying Texas law have recognized a section 522                    professional’s manifest awareness of the nonclient’s reliance
cause of action against a variety of professionals and business.           on the misrepresentation and the professional’s intention
See, e.g., Steiner v. Southmark Corp., 734 F. Supp. 269, 279-80            that the nonclient so rely.
(N.D. Tex. 1990) (auditor); Smith v. Sneed, 938 S.W.2d 181,
185 (Tex. App. – Austin 1997, no writ) (physician); Hagans v.              The Court made it additionally clear that there were several
Woodruff, 830 S.W.2d 732, 736 (Tex. App. – Houston 1992,                   inherent limits on the cause of action as it applied to attor-
no writ) (real-estate broker); Lutheran Bhd. v. Kidder Peabody &           neys. First, negligent misrepresentation is available only when
Co., 829 S.W.2d 300, 309 (Tex. App. – Texarkana 1992, writ                 information is transferred by an attorney to a known party
granted w.r.m.), judgment set aside, 840 S.W.2d 384 (Tex.                  for a known purpose. A lawyer may avoid or minimize the
1992) (securities placement agent); Blue Bell v. Peat, Marwick,            risk of liability by setting forth (1) limitations as to whom
Mitchell & Co., 715 S.W.2d 408, 411-12 (Tex. App. – Dallas                 the representation is directed and who should rely on it, or
1986, writ ref’d n.r.e.) (accountant); Cook Consultants, Inc. v.           (2) disclaimers as to the scope and accuracy of the factual
Larson, 700 S.W.2d 231, 234 (Tex. App. – Dallas 1985, writ                 investigation or assumptions forming the basis of the repre-
ref’d n.r.e.) (surveyor); Great Am. Mortgage Investors v. Louisville       sentation or the representation itself.
Title Ins. Co., 597 S.W.2d 425, 429-30 (Tex. Civ. App. – Fort
Worth 1980, writ ref’d n.r.e.) (title insurer); Shatterproof Glass         Second, the Court stated that the “justifiable reliance” ele-
Corp. v. James, 466 S.W.2d 873, 880 (Tex. Civ. App. – Fort                 ment required a consideration of the nature of the relation-
Worth 1971, writ ref’d n.r.e.) (accountant). Nast v. State Farm            ship between the attorney, client, and nonclient. Generally,
Fire and Cas. Co., 82 S.W.3d 114 (Tex. App. - San Antonio                  a third party’s reliance on an attorney’s representation is not
2002, no pet. hist.) (insurance agents).                                   justified when the representation takes place in an adversarial
                                                                           context. Id. at 794. The characterization of the inter-party
Applying section 522, Texas courts have set out the following              relationship should be guided by “the extent to which the
four elements for a cause of action in negligent misrepre-                 interests of the client and the third party are consistent with
sentation: (1) a representation is made by the defendant in                each other.” Id.
                                                       ADVOCATE     ✯    SPRING 2004


In a subsequent case by the Dallas Court of Appeals, Mitchell           charge to the jury did not make any distinction between its
v. Chapman, 10 S.W.3d 810 (Tex. App. – Dallas, 2000, pet.               “out of pocket” damages and the benefit of the bargain, so it
denied), the Dallas Court had a chance to construe the                  could not recover under negligent misrepresentation.
Supreme Court’s language regarding an “adversarial context.”
The plaintiff alleged that the opposing attorney in a case              The Court went on to reject H.I.S.D.’s award of punitive
negligently misrepresented the existence of a document. The             damages based on gross negligence in the inducement of
Dallas Court held that the unsuccessful litigant did not have           the contract, stating that “[g]iven the availability of a cause
a cause of action for negligent misrepresentation against the           of action for fraudulent inducement, we fail to perceive any
attorney on the other side of the case, citing McAmish and              rationale for acknowledging a claim for grossly negligent
Section 522 of the Restatement (Second) of Torts. See also              inducement.” Id.
Chapman Children’s Trust v. Porter and Hedges, 32 S.W.3d 429
(Tex. App. – Houston [14th], 2000, pet. denied)                         Finally, the Court did not reach an issue that has remained
                                                                        open for Texas courts – whether defendants can submit a
In 2003, the Fourteenth Court of Appeals in Houston fur-                comparative negligence question to the jury on negligent
ther applied the McAmish case to an attorney in the case                misrepresentation. See Federal Land Bank Assoc. of Tyler v.
of McMahan v. Greenwood, et al, 108 S.W.3d 467 (Tex.                    Sloane, 793 S.W.2d 692, 696 at n.4 (Tex. App. – Tyler 1990),
App.ÑHouston [14th Dist.] 2003, pet. filed). In McMahan,                aff’d in part and rev’d in part on other grounds, 825 S.W.2d
the issue was when the attorney’s relationship became adver-            439 (Tex. 1991) (“Contributory negligence is a defense to the
sarialÑbefore or after the representations were made. The               cause of action for negligent misrepresentation.”). The trial
attorney argued that after he became adversarial with the               court refused to submit the comparative negligence question
plaintiff, the plaintiff could no longer rely on previous state-        to the jury and the Court of Appeals affirmed on the basis
ments made at a time when arguably they were getting along              that error was not preserved. The Supreme Court refused
with and helping each other. The Fourteenth Court of Appeals            to reach the issue because the negligent misrepresentation
rejected this argument, holding that no authority was cited             cause of action was reversed on other grounds, as discussed
to support the argument that a non-client was not entitled to           above. The Court of Appeals in the D.S.A. case has an excel-
rely on the attorney’s previous statements once they became             lent discussion of the issues involved in the comparative
adversarial. Id. at 26. At a minimum, a fact issue was raised           negligence issue. 975 S.W.2d at 18.
in this situation. Id.
                                                                        In Allied Vista, Inc. v. Holt, 987 S.W.2d 138 (Tex. App. –
2. Independent Injury Requirement/No Punitive                           Houston [14th District] 1999, pet. denied) the 14th Houston
Damages                                                                 Court of Appeals also decided a case involving the measure
In D.S.A., Inc. v. Hillsboro Independent School District, 973           of damages in a negligent misrepresentation case. In Allied
S.W.2d 662 (Tex. 1998), the Texas Supreme Court considered              Vista, an employee sued his former employer and its presi-
the question of the appropriate measure of damages under                dent, claiming that the employer had promised him that they
negligent misrepresentation and whether punitive damages                would supply all necessary equipment to start a recycling
were available under a negligent misrepresentation theory.              plant and a salary as a consultant while the new plant was in
H.I.S.D. sued D.S.A., a contractor hired to build an elemen-            the start-up phase. The Court held that the damages that the
tary school, for recovery of costs involved in replacing a roof,        employee sought were “benefit of the bargain” damages and
repairing plumbing, and re-grading parking lots that were not           could not be recovered under negligent misrepresentation.
performed pursuant to the contract between the parties.                 In addition, the Court held that the promises were too vague
                                                                        to justify any reliance, stating that a negligent misrepresenta-
The Court held that a “benefit of the bargain” measure of               tion must include a representation of an existing fact, not a
damages was not available for a claim of negligent misrepre-            promise of future conduct.
sentation, since the cause of action implicates only the duty
of care in supplying commercial information: “honesty or                In 2003, the Eastland Court of Appeals wrote on the same
good faith is no defense, as it is to a claim for fraudulent mis-       issue. In Barnett v. Legacy Bank of Texas, 2003 WL 2235858
representation.” Id. at 664. The Court held that H.I.S.D. did           (Tex. App.ÑEastland, no pet. hist.), a bank brought an action
not meet its burden of proving an “independent injury” apart            against a guarantor to recover for breach of a limited guaranty
from the contract, distinguishing a negligent misrepresenta-            agreements in connection with a construction loan that the
tion claim from a fraudulent inducement claim. Id. H.I.S.D.’s           bank made to the project owner. The guarantor filed counter
                                                     ADVOCATE     ✯    SPRING 2004


claims for fraud, negligent misrepresentation, and other claims       misrepresentation). The plaintiff seems to be helped in these
against both the bank and a bank employee. The trial court            cases if its proof on breach of contract fails to materialize.
granted a summary judgment to the bank and employee. The
alleged misrepresentation claim that was the basis for fraud          3. Statute of Limitations – Discovery Rule
and negligent misrepresentation was that the bank would               The Texas Supreme Court in HECI Exploration Co., et al. v.
loan additional funds to cover the cost of change orders if           Neel, et al., 982 S.W.2d 881 (Tex. 1999) discussed the issue
another lender did not loan the needed funds. In regard to            of whether the discovery rule tolled the statute of limita-
the negligent misrepresentation claims, the court held that           tions in a negligent misrepresentation claim arising from
“the sort of false information contemplated in a negligent            an oil and gas lessee’s failure to notify royalty owners of a
misrepresentation case is a misstatement of existing fact, not        cause of action against an adjoining operator for depleting
a promise of future conduct.” Id. at 8. Since the alleged mis-        a common reservoir.
representation was a promise of future conduct, the guarantor
failed to raise a fact issue and the summary judgment was             The Court first noted that the statute of limitations for
affirmed. This case distinguishes negligent misrepresentation         negligent misrepresentation is two years, which was not a
from fraud, which can be based on promises of future perfor-          disputed issue between the parties in this particular case. Id.
mance. See Formosa Plastics Corporation v. Presidio Engineers         at 884. See also, Milestone Properties, Inc. v. Federated Metals
and Contractors, Inc., 960 S.W.2d 41 (Tex. 1998).                     Corp., 867 S.W.2d 113 (Tex. App. – Austin 1993, no writ).
                                                                      The Court then analyzed the discovery rule issue by focusing
In MCN Energy Enterprises, Inc. v. Omagro de Colombia L.D.C.,         on the type of injury suffered in this implied covenant case,
98 S.W.3d 766 (Tex. App. Fort Worth 2003, no pet. hist.),             following the reasoning of Computer Associates International v.
a manufacturing company brought an action against a pro-              Altai, 918 S.W.2d 453 (Tex. 1996).1 The Court held that the
spective investor for negligent misrepresentation, fraud,             type of injury in this case – failure to notify about certain
and other causes of action. The jury found in favor of the            facts – was not inherently undiscoverable because the royalty
plaintiff and the investor appealed. The negligent misrep-            owners should have known about other operators in the
resentation involved in the case was the defendant indi-              area and the existence of a common reservoir. The Court’s
cating, through words and conduct, that it was committed              reasoning made it clear that the type of injury suffered by the
to making an investment in the construction and operation             plaintiffs in future cases will govern whether the discovery
of a fertilizer plant. Under many negligent misrepresenta-            rule applies in other negligent misrepresentation cases.
tion cases, this would be considered a future promise and
unenforceable. However, the Fort Worth Court of Appeals               In more recent cases, lower courts have applied the rule set
upheld the negligent misrepresentation finding of the jury            out in HECI Exploration Co. In Sabine Towing and Transportation
against an argument of legally insufficient evidence, relying         Co., Inc. v. Holliday Insurance Agency, Inc., 54 S.W.3d 57 (Tex.
on the wording on the jury question in issue. The Court               App. – Texarkana 2000, pet. denied), the Texarkana Court
also upheld the damages found by the jury of $2.2 million,            of Appeals also followed the HECI rule to find that the dis-
even though the damages arguably equaled a “benefit of                covery rule did apply to negligent misrepresentation causes
the bargain” theory. Id. at 5. The evidence was the same on           of action, but did not apply to the particular case they were
breach of contract, fraud, and negligent misrepresentation.           reviewing. The Court of Appeals used the two prong test to
This case may be explained by the wording of the jury ques-           find that a denial of insurance coverage was not an “inher-
tions, but it certainly seems to go a different direction that        ently undiscoverable injury,” in a case in which the plaintiff
most of the negligent misrepresentation cases in 2003. See,           complained about not being added as an insured under a
e.g. Agillion, Inc. v. Oliver 114 S.W.3d 86 (Tex. App.ÑAustin                                                                      ,
                                                                      commercial insurance policy. See also Matthiesen v. Schafer 27
2003, no pet. hist.)(no negligent misrepresentation when              S.W.3d 25, 31 (Tex. App. – San Antonio 2000, pet. denied)
contract existed between parties); New York Life Insurance            (discovery rule may be applied to negligent misrepresenta-
Company v. Miller 114 S.W.3d 114 (Tex. App.ÑAustin                    tion); Prieto v. John Hancock Mutual Life Insurance Company, 132
2003, no pet. hist.)(no negligent misrepresentation when              F. Supp.2d 506 (N.D. Tex. 2001) (discovery rule applied to
representations were primarily from contract). Compare                negligent misrepresentation, but did not apply in insurance
Lyda v. Butler Manufacturing Company, 103 S.W.3d 632                  misrepresentation case because not “objectively verifiable”);
(Tex. App.ÑSan Antonio 2003, no pet. hist.)(no contract               Heller Healthcare Finance, Inc. v. Boyes, 2002 WL 1558340
was shown by supplier simply delivering materials after               (N.D. Tex.).
letter received by contractor, but fact issue on negligent
                                                     ADVOCATE     ✯    SPRING 2004


4. Justifiable Reliance                                               for commercial purposes. Plaintiff claimed that the broker
In Swank, et al v. Sverdlin, et al, 2003 WL 22053837 (Tex.            and others had represented that there were no restrictions
App.ÑHous. [1st Dist.] no pet. hist.), a corporation’s inves-         on the use of the property. Plaintiff obtained a favorable
tors and agents brought an action for an injunction against           verdict and judgment.
a former CEO of the corporation. The former CEO filed a
counterclaim individually and on behalf of the corporation            On appeal, defendants claimed that plaintiff could not have
in its derivative capacity for fraud, breach of fiduciary duty,       relied on any representations when plaintiff hired his own
negligent misrepresentation, and other causes of action. The          third parties to assure that no restrictions would interfere
jury awarded $1.5 billion to the CEO and the corporation.             with his development. The Corpus Christi Court of Appeals
The verdict was reduced by the trial judge who heard the              agreed, holding that as a matter of law the buyer’s decision
case to $235 million. A second trial judge who heard further          to undertake such an investigation indicated he was not
post judgment motions reduced the judgment to $180 mil-               relying on the seller’s representations about the property.
lion. Numerous issues were appealed on the various causes             The court additionally held that plaintiffs were foreclosed
of action. In regard to the negligent misrepresentation cause         from recovering under fraud for the same reason.
of action, the trial judge had disregarded the jury’s affirma-
tive finding and the plaintiffs appealed. In particular, the          In Waco, the Court of Appeals followed a different path in a
First Court analyzed whether plaintiff had proven justifiable         suit on a promissory note. In Burleson State Bank v. Plunkett,
reliance. The First Court focused on both the “nature of the          et al., 27 S.W.3d 605 (Tex. App. – Waco 2000, no pet. hist.),
relationship and the contract” to hold that the reliance was          the Court affirmed a finding of negligent misrepresentation by
not justified as a matter of law. Id. at 19. The Court cited          a jury, despite an argument by defense counsel that reliance
McCamish, et al v. F.E. Appling Interests, supra, holding that        was destroyed by a clause in the loan documents providing
representations made in a business or commercial transaction          that there were no other duties or agreements outside those
were not justified when the representation took place in an           outlined in the loan documents. The Court reasoned that
adversarial context. The contracts were also contrary to the          the “notice of final agreement” did not negate as a matter of
misrepresentations. This case may mark the first time that the        law reliance on the Bank’s misrepresentations regarding the
McCamish analysis, which has previously only been applied             loan transaction.
to attorneys, also is applied to other negligent misrepresenta-
tion. The Court further held that the representations were            5. Alter Ego
promises of future conduct, and, as such, could not form the          In an unusual case dealing with a Rule 13 sanctions motion,
basis for negligent misrepresentation.                                the Texarkana Court of Appeals held that a creditor cannot
                                                                      maintain a negligent misrepresentation claim against share-
The Fourteenth Court of Appeals in Houston also wrote on              holders of a corporation arising out of corporate debt without
justifiable reliance in 2003. In Beal Bank v. Schleider 2003 WL       proving alter ego. Texas-Ohio Gas, Inc. v. Mecom, et al., 28
22053855 (Tex. App.ÑHouston [14th Dist.], no pet. hist.),             S.W.3d 129 (Tex. App. – Texarkana 2000, no pet. hist.).
a maker of a promissory note asserted claims for negligent            The trial court in this case dismissed the shareholders from
misrepresentation and other causes of action against a bank.          the suit on the basis of Rule 13 sanctions, ruling that the
The jury found in favor of the plaintiff and judgment was             suit against the defendant shareholders was groundless as
entered against the bank. The bank appealed, claiming no              a matter of law. The Texarkana Court of Appeals agreed,
justifiable reliance as a matter of law. The Court also focused       but reversed because the trial court had held no hearing
on the contract, holding that a provision stating that “no            to determine that the case was filed in bad faith or for the
modification is binding unless it is in writing” foreclosed the       purposes of harassment. The interesting part of the case
plaintiff from proving reliance. Id. at 10.                           dealing with negligent misrepresentation states (possible
                                                                      dicta) that the allegation of negligent misrepresentation was
The Corpus Christi Court of Appeals and Waco Court of                 groundless because “by definition” there can be no fraud
Appeals both wrote on reliance in two decisions that came             involved to pierce the corporate veil under Art. 2.21 of the
out in August of 2000. In Bartlett v. Schmidt, 33 S.W.3d 35           Texas Business Corporation Act.
(Tex. App. – Corpus Christi 2000, no pet. hist.), the plaintiff
purchaser sued a real estate broker, the seller, and others           In Harco Energy, Inc., et al v. The Re-Entry People, Inc., 23
because the subject property was restricted for only resi-            S.W.3d 389 (Tex. App. – Amarillo 2000, no pet. hist.), the
dential use and the plaintiff intended to use the property            Amarillo Court of Appeals went a different direction, holding
                                                      ADVOCATE     ✯    SPRING 2004


that the evidence was not sufficient in a bench trial to sup-          because it did not contain a definition of negligence and
port a negligent misrepresentation claim against some of the           the jurors might not understand the legal meaning or have
corporate entities because there was no evidence of reliance           a different understanding of the legal meaning. The Court
on the part of the plaintiff. The evidence was sufficient to           held without elaboration that the question and instruction
sustain the judgment against the president of the corpora-             submitted were sufficient. Id. at 767.
tion, although the Court apparently only reached the issue
on breach of contract and fraud.                                       7. Release
                                                                       Trinity Industries, Inc. v. Ashland, Inc., et al, 53 S.W.3d 852
The issue of when a president or individual of a corporation           (Tex. App. – Austin 2001, pet. denied), involved a plaintiff
may be held individually liable for negligent misrepresenta-           who purchased a steel vessel manufacturing subsidiary from
tions made in the capacity of corporate representative was             the defendant, and later brought suit for environmental con-
specifically addressed by the Corpus Christi Court of Appeals          tamination and cleanup costs. The defendant seller asserted
in Kingston v. Helm, 82 S.W.3d 755 (Tex. App. - Corpus Christi         third-party claims against the subsidiary, now owned by the
2002). Kingston involved a purchaser who brought action                plaintiff, for negligent misrepresentation and fraud, seeking
against the developer and its president for alleged decep-             to put the responsibility effectively back on the plaintiff for
tive trade practices, fraud, and negligent misrepresentation           the misrepresentations made prior to the sale. At issue was a
stemming from the purchase of a town home. The Court                   release in the purchase agreement that provided that “Ashland
of Appeals held that: (1) the purchaser was not required to            (Seller) and their affiliates shall have released Beaird (subsid-
pierce the corporate veil in order to hold developer’s president       iary) from any and all claims, demands, debts and liabilities
individually liable, and (2) the purchaser was not required            of any nature whatsoever.”
to prove fraud by the shareholder liability provision of the
Texas Business Corporation Act in order to hold president              The question presented by the release was whether the release
personally liable.                                                     covered negligent misrepresentation and fraud claims, leaving
                                                                       plaintiff Trinity free to sue the defendant Ashland for breach of
6. Jury Charge                                                         contract for bringing the suit against its subsidiary Beaird. The
Carr, et al v. Weiss, 984 S.W.2d 753 (Tex. App. – Amarillo             Austin Court of Appeals reviewed the law regarding releases,
1999, pet. denied) involved a claimant who found an apart-             stating that releases were subject to the rules of construction
ment complex as an investment opportunity and sued the                 governing both contracts and indemnities. In particular, the
ultimate purchaser of the complex, alleging negligent misrep-          Court found that a releasing instrument must “specifically
resentation on the basis of an agreement that the two would            mention” the claim to be released to be effective, and that
own it together. The plaintiff submitted the following as the          the broad language of the clause (“all claims”) did not release
jury question on negligent misrepresentation:                          either negligent misrepresentation or fraud. The Court’s rea-
                                                                       soning included a reference to the “express negligence” test
     Did Jim Carr make a negligent misrepresentation                   involved in Dresser Industries, Inc. v. Page Petroleum, Inc., 853
     on which Larry Weiss justifiably relied?                          S.W.2d 505 (Tex. 1993). See also Baty v. Protech Insurance,
                                                                       63 S.W.3d 841, 855 (Tex. App. – Houston [14th Dist.] 2001,
     “Negligent misrepresentation” occurs when:                        pet. filed) (settlement agreement providing for release of “any
                                                                       claim” based upon non-compete agreement did not release
     a. a party makes a representation in the course                   tort claims because not mentioned).
     of his business or in a transaction in which he has
     a pecuniary interest,                                             8. Declaratory Judgment
                                                                       In Averitt v. PriceWaterhouseCoopers L.L.P., 89 S.W.3d 330 (Tex.
     b. the representation supplies false information                  App. -Fort Worth 2002, no pet. hist.), the Court addressed
     for the guidance of others in their business, and                 the issue of whether it was proper to use a declaratory judg-
                                                                       ment action to determine potential liability on a negligent
     c. the party making the representation did                        misrepresentation claim. Averitt was a long standing client
     not exercise reasonable care or competence in                     of PriceWaterhouseCoopers, L.L.P. (collectively, PWC) and
     obtaining or communicating the information.                       eventually hired them to create a trust for her oil and gas
                                                                       interests. The Trust was created with the principle pur-
The defense argued that the jury question was inadequate               pose of allowing the Averitt family to take advantage of the
                                                     ADVOCATE     ✯    SPRING 2004


generation-skipping transfer tax exemption under the Internal         investment bonds). The courts have focused on the entire
Revenue Code. Eventually, it was discovered that PWC had              relationship between the parties, and more specifically, on
never filed a gift tax return for the Trust, and Averitt filed        the defendant’s acts, to determine whether the finding of a
suit in Midland County for breach of contract, accounting                                                                       ,
                                                                      fiduciary relationship is warranted. See English v. Fisher 660
malpractice, breach of fiduciary duty, and fraud. In response,        S.W.2d 521 (Tex. 1983). Subjective belief and trust on the
PWC filed a declaratory judgment action in Tarrant County.            part of the plaintiff is not enough. The defendant must, by
Averitt moved to transfer venue to Midland County and filed           some undertaking, give the plaintiff a reasonable basis for
a plea in abatement asking the trial court to abate PWC’s             believing that the defendant would act in the plaintiff’s best
declaratory judgment action pending final adjudication of                                                           ,
                                                                      interests. Crim Truck & Tractor Co. v. Navistar Id. To impose a
Averitt’s suite in Midland County. In addition, Averitt moved         fiduciary relationship in a simple business transaction, Texas
for summary judgment on the grounds that PWC had failed               courts typically have required a finding of a fiduciary rela-
to state a cause of action for which declaratory relief could         tionship prior to and apart from the transaction in question.
be granted. The trial court denied Averitt’s motion to transfer       See Swanson v. Schlumberger Tech. Corp., 959 S.W.2d 171 (Tex.
venue, plea in abatement, and motion for summary judgment             1997); Insurance Co. of North America v. Morris, Id.
and granted summary judgment for PWC on its declaratory
judgment claim. The Fort Worth Court of Appeals held                  Other general factors that Texas courts have considered in
that the declaratory judgment action was improper because             deciding fiduciary relationships have included family ties,
Averitt’s claims sounded in tort rather then a breach of con-         Texas Bank and Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980)
tract. Id. at 5. The court further stated that a declaratory          (aunt-nephew); non-legal professional relationships. Sauvres
judgment action can only be used to decide a real controversy,        v. Christian, 253 S.W.2d 470 (Tex. Civ. App. – Fort Worth
not a potential one. Id.                                              1952, writ ref’d n.r.e.) (accountant); Pace v. McEwen, 574
                                                                      S.W.2d 792 (Tex. Civ. App. – El Paso 1978 writ ref’d n.r.e.)
II. BREACH OF FIDUCIARY DUTY                                          (stockbroker); co-tenants, Hammon v. Ritchie, 547 S.W.2d 698
A. Background                                                         (Tex. Civ. App. – Fort Worth 1977, writ ref’d n.r.e.). In these
Under Texas law, the first step in determining whether a              cases, the relationship alone does not create the fiduciary
breach of fiduciary duty has occurred is determining whether          relationship, but it may be a factor in establishing a factual
a fiduciary relationship exists between the parties. A fidu-          fiduciary relationship.
ciary relationship will be found in some relationships as a
matter of law. See e.g., Langford v. Shamburger 417 S.W.2d            The duties of a fiduciary, once the relationship has been
438 (Tex. Civ. App. – Fort Worth 1967, writ ref’d n.r.e.)             established, can vary depending on the instrument involved,
(trustee-beneficiary); Archer v. Griffith, 390 S.W.2d 735 (Tex.       special statutes, and the common law. However, in general,
1965) (attorney-client); Johnson v. Peckam, 120 S.W.2d 786            the following duties have been recognized by Texas Law:
(Tex. 1938) (partners) (See also Texas Revised Partnership
Act, Art. 6132b-1.01 et seq.); Anderson v. Griffith, 501 S.W.2d        1) duty of competence; TEXAS PROP. CODE Sec.
695 (Tex. Civ. App. – Fort Worth 1973, writ ref’d n.r.e.) (real          113.056 (trustee); International Bankers Life Ins. Co.
estate brokers and agents); International Bankers Life Ins. Co.          v. Holloway, 368 S.W.2d 567 (Tex. 1963) (corporate
v. Holloway, 368 S.W.2d 567 (Tex. 1963) (directors and offi-             directors) (See also Tex. Bus. & Corp. Act Art. 2.41
cers-corporation); Hyde Corporation v. Huffines, 314 S.W.2d              D and Art. 2.42 C; T.R.P.A. Tex. Rev. Civ. Stat. Art.
763 (Tex. 1958) (licensee-licensor).                                     6132b-4.04(c) - “business judgment rule”) (partners);
                                                                         Davis v. Sheerin, 754 S.W.2d 375 (Tex. App. – Houston
In other relationships, the plaintiff must prove the fiduciary           [1st Dist.] 1988, writ denied) (minority shareholders
relationship as a question of fact. See e.g., Crim Truck &               against majority).
Tractor Co. v. Navistar Int’l Transport Corp., 823 S.W.2d 591          2) duty to exercise reasonable discretion; Sassen v.
(Tex. 1992) (no fiduciary duty as a matter of law between                Tanglegrove Townhouse Condo Assoc., 877 S.W.2d 489
franchiser and franchisee – existence of relationship is a fact          (Tex. App. – Texarkana 1994, writ denied) (condo
question); Associated Indemnity Corp. v. CAT Contracting, 964            association designated as atty-in-fact); Corpus Christi
S.W.2d 276 (Tex. 1998) (no fiduciary relationship as a matter            Bank and Trust v. Roberts, 597 S.W.2d 752 (Tex.
of law between surety and principal on construction bond);               1980) (trustee exercise of discretion always subject
Insurance Co. of North America v. Morris, 981 S.W.2d 667 (Tex.           to review).
1998) (no fiduciary duty on surety-principal on securities
                                                     ADVOCATE     ✯    SPRING 2004


 3) duty of loyalty; Slay v. Burnett Trust, 187 S.W.2d                Courts interpreting Texas law in the past have looked at the
   377 (Tex. 1945) (fiduciary cannot gain any benefit                 scope of the agency and the extent of authority to make trades
   for himself at expense of his beneficiary); Texas Bank             in determining whether the stockbroker owed a fiduciary
   and Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980)                 duty to the customer. See Miley v. Oppenheimer & Co., Inc.,
   (“presumption of unfairness” that arises from any gift             637 F.2d 318 (5th Cir. 1986); Magnum Corp. v. Lehman Bros.,
   or advantage of opportunity); International Bankers                794 F.2d 198 (5th Cir. 1986). In general, a non-discretionary
   Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963)              account has been viewed as creating a very narrow common
   (corporate officers took secret commissions on sale                law fiduciary duty, imposing only the obligation to not make
   of corporate real estate).                                         unauthorized trades. Miley, supra. A broker who manages a
 4) duty of full disclosure; Montgomery v. Kennedy, 669               discretionary account, where he is not limited to the express
   S.W.2d 309 (Tex. 1984) (affirmative duty to make a                 orders of the client, will be held to a much broader fiduciary
   full and accurate confession of transactions, profits,             duty. Id. The Texas Supreme Court in Edward Jones did not
   and mistakes); Willis v. Maverick, 760 S.W.2d 642                  really analyze this case from the standpoint of a fiduciary
   (Tex. 1988) (breach of duty of disclosure is same as               duty, choosing instead to focus on whether any duty at all
   fraudulent concealment); Archer v. Griffith, 390 S.W.2d            was owed to the customer.
   735 (Tex. 1965) (beneficiary not required to prove
   elements of fraud); Johnson v. Peckam, 120 S.W.2d                  More recently, the Austin Court of Appeals has followed
   786 (Tex. 1938) (beneficiary not required to prove                 the Edwards case to hold that an investment firm had no
   he relied on fiduciary to disclose).                               fiduciary duty to inform a spouse of a change in beneficiary,
                                                                      even though she was also their client. In Anton v. Merrill
When a fiduciary profits or benefits in any way from a transac-       Lynch, et al, 36 S.W.3d 251 (Tex. App. – Austin 2001, pet.
tion with the beneficiary, a presumption of unfairness arises         denied), an investor’s surviving spouse sued Merrill Lynch
that shifts the burden of persuasion to the fiduciary to show:        and their investment advisor, claiming that Merrill violated a
1) that the transaction was made in good faith; 2) that the           fiduciary duty when they complied with the investor’s request
transaction was fair and equitable to the beneficiary; and 3)         to remove the spouse as death beneficiary of the investor’s
after full and complete disclosure of all material information        individual retirement account. The Austin Court of Appeals
to the principal. Stephens County Museum, Inc. v. Swenson, 517        first held that the investment firm had no duty to ascertain
S.W.2d 257 (Tex. 1974); Texas Bank and Trust Co. v. Moore, 595        the investor’s competence, citing Edwards. The second issue
S.W.2d at 509. If there is no evidence rebutting the presump-         the Court faced, whether the investment firm had a duty to
tion, no breach of fiduciary question is necessary. Id.               inform the spouse of the change in beneficiary, was an issue
                                                                      of first impression. The Austin Court of Appeals reviewed
B. Recent Developments                                                the policy issues at stake and reached the conclusion that
1. No Duty by Stockbroker to Determine Competence                     the imposition of such a duty would create “great burdens
In Edward Jones & Co., et al v. Fletcher 975 S.W.2d 539 (Tex.         on financial consultants.” Id. at 257. The Court further
1998), the Texas Supreme Court addressed the question of              reviewed the additional issue of whether Merrill had a duty
whether a stockbroker has a legal duty to ascertain the mental        to inform her that she would no longer receive all the IRA
competence of the investor prior to assisting in transferring         funds after her spouse’s death, which the plaintiff based on
securities. Plaintiff, the independent executrix of an estate,        an agency theory. The Court stated that this was a “closer
brought suit against Edward Jones & Co. based on the                  issue”. Nevertheless, the Court found that no duty existed
transfer of securities to the nephew of the decedent prior to         because the anticipated asset that disappeared was not part
the decedent’s death. The lawsuit was based on negligence,            of her Merrill Lynch account for which the agency was cre-
breach of fiduciary duty, duty of good faith and fair dealing,        ated. In summary, the Austin Court concluded that none of
and negligent misrepresentation, among other causes of                the fiduciary claims survived summary judgment.
action. The jury found in favor of plaintiff and the Court of
Appeals affirmed. The Texas Supreme Court held that the               2. Attorneys
stockbroker had no duty, fiduciary or otherwise, to determine         The Supreme Court in 2002 held that an associate owes a fidu-
the competence of the investor, reasoning that the law afforded       ciary duty to his law firm not to personally profit or realize any
protection already to incompetents through guardianships              financial gain from referring a matter to another law firm or
and by making their agreements voidable. Id. at 545.                  lawyer, absent the employer’s permission. See Johnson v. Brewer
                                                                      & Pitchard, P.C., 73 S.W.3d 193 (Tex. 2002). The court had
                                                       ADVOCATE      ✯    SPRING 2004


very little trouble concluding that under common-law agency              fee forfeiture, then the trial court determines the extent of
principles, the associate-law firm relationship is a fiduciary           the forfeiture. Id. Because there were fact issues regarding the
one. Id. at 202. As such, an associate may not personally profit         breach of fiduciary duty, the jury, not the trial court, had to
from a referral without the permission of the law firm. Justice          determine these fact issues. Therefore, the trial court erred in
Owen was very careful to state, however, that an associate               granting directed verdict as to the fee forfeiture claims.
may refer a client or potential client to someone other than
his own firm without violating his fiduciary duty, provided              Subsequent appellate courts have made it clear that the for-
the associate does not receive any benefit, compensation, or             feiture of attorney fees for the breach of fiduciary duty are
other gain as a result of the referral. Id. at 203.                      reserved for “clear and serious” violations of duty. See e.g.,
                                                                         Malone v. Watkins, 2002 WL 1722337 (Tex. App. – Houston
In Aiken v. Hancock, 115 S.W.3d 26 (Tex. App. – San Antonio              [1st Dist.], no pet. hist.) (holding that attorney’s breach of fidu-
2003, pet. filed), a client sued his attorney for misrepresenting        ciary duty in allegedly disseminating confidential information
that the attorney was ready for trial and that the retained              was inadvertent, did not cause significant injury to the client,
expert was adequately prepared. The Court of Appeals rejected            and therefore did not warrant forfeiture of attorney fees).
the breach of fiduciary duty claim because there was no indi-
cation that the attorney obtained an improper benefit. The               3. No Fiduciary Duty Between Insurer and Insured
Court distinguished breach of fiduciary duty from an ordinary            An employer sued its worker’s compensation carrier, claiming
negligence case. (For a similar perspective, see Gonzales v.             that it had breached its fiduciary duty by inappropriately set-
America Title Company of Houston, 104 S.W.3d 588 (Tex. App.              tling and paying claims. The Houston Court of Appeals [1st
– Houston [1st Dist.] 2003, pet. filed). The Court held that             Dist.] held that there is no general fiduciary duty between
the title company may have acted unprofessionally but that               an insurer and its insured. Duddlesten v. Highland Insurance
is not the same as a breach of fiduciary duty).                          Co., 110 S.W.3d 85 (Tex. App. – Houston [1st Dist.] 2003, rev.
                                                                         denied). Citing its prior ruling in R.R. Street, the Court held
In Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999), the Texas                 that to impose an informal fiduciary relationship in a busi-
Supreme Court held that a client need not prove actual dam-              ness transaction, the requisite special relationship of trust and
ages to obtain forfeiture of an attorney’s fee once a breach             confidence must exist prior to, and apart from, the agreement
of fiduciary duty by the attorney is established. Once the               made the basis of the suit. Because the Appellant produced
jury finds that an attorney has breached his fiduciary duty              no evidence of such a relationship, the Court upheld the sum-
to the client, the trial court determines the amount of any              mary judgment on the breach of fiduciary duty claim.
fee forfeiture, since it is an equitable remedy. Id. at 234. It is
within the discretion of the trial court to determine whether            4. Power of Attorney Creates Fiduciary Duty as a Matter
the attorney receives full compensation or whether compen-               of Law
sation will be reduced or denied. Id. at 243. In Jackson Law             In Vogt v. Warmock, 107 S.W.3d 778 (Tex. App. – El Paso
Office, P.C. v. Chappell, et al, 37 S.W.3d 15, (Tex. App. – Tyler        2003, rev. denied), the executor of estate sued the woman
2000, pet. denied), the Tyler Court of Appeals followed Arce             who had been given the decedent’s power of attorney. She
in determining that a trial court had exercised his discretion           had never acted under the power of attorney and none of the
in reducing a fee by $5000.                                              gifts she received from her elderly lover were effectuated by
                                                                         the power of attorney. Nonetheless, the Court held that as a
More recently, the Houston Court of Appeals followed Arce                matter of law she owed a fiduciary duty on the basis of the
in deciding whether a directed verdict was proper relating to            power of attorney and that as a result, she had the burden to
claims for fee forfeiture based on a law firm’s alleged breaches         prove that the gifts she received were given fairly.
of fiduciary duty. See Deutsch v. Hoover, Bax & Slovacek, L.L.P.,
2002 WL 31662403 (Tex. App. - Houston [14th Dist.] no pet.               5. Aiding and Abetting a Breach of Fiduciary Duty/
hist.). In Deutsch, the court reiterated the holding in Arce             Contribution
which stated that clients need not prove actual damages to               In Hendricks, et al v. Grant Thornton, 973 S.W.2d 348 (Tex.
obtain fee forfeiture for their attorney’s breach of fiduciary           App. – Beaumont 1998, writ denied), the Beaumont Court
duty. Id. at 8. Rather, the jury must determine the factual              of Appeals wrote on several issues in a fraud and breach
issues before the trial court can determine whether the breach           of fiduciary duty case arising out of a failed government
of fiduciary duty, if any, found by the jury was a serious breach        securities trading program. The primary defendant was the
that merits fee forfeiture. Id. at 9. If the facts seem to warrant       accounting firm of Grant Thornton, which worked for an
                                                      ADVOCATE      ✯    SPRING 2004


investment firm known as Hillcrest Securities Corporation.              at 373. Since Ch. 32 only comes into play when a payment
The trades, on which plaintiffs lost thousands of dollars,              is made or a judgment rendered, the Court of Appeals found
were purportedly reviewed and verified for authenticity by              that the trial court was premature in granting summary judg-
Grant Thornton. Summary judgment was granted for Grant                  ment on this issue. Id. at 374.
Thornton on several causes of action, including fiduciary
duty, Texas securities claims, fraud, and aiding and abetting           6. Creation of Fiduciary Duty
breach of fiduciary duty. Summary judgment was also granted             Both of the Houston Courts of Appeal recently wrote on
for the plaintiffs on the defendants’ claims for contribution           the creation of a fiduciary duty in Swineheart v. Stubbeman,
against the plaintiffs. Both sides appealed.                            McRae, Sealy, Laughlin & Browder, Inc., 48 S.W.3d 865 (Tex.
                                                                        App. – Houston [14th Dist.] 2001, pet. denied) and R. R. Street
In regard to the aiding and abetting claim, the defendant               & Co. v. Pilgrim Enterprises, Inc., et al, 81 S.W.3d 276 (Tex.
claimed that since the trial court had ruled that the fidu-             App. – Houston [1st Dist.] 2001, rev. granted). In Swineheart,
ciary duty claim was disposed of on limitation grounds, the             a geologist brought a legal malpractice action against his
aiding and abetting claim was gone as well, since it was just           former attorneys, claiming that the firm had not properly
a “tag-along” claim. The Court of Appeals disagreed, stating            represented him in connection with a lawsuit against an oil
that the claims were “distinct” and that “[i]t is settled as the        company that had gone into bankruptcy. One of the issues
law of this State that where a third party knowingly partici-           involved in the appeal was whether the oil company had owed
pates in the breach of duty of a fiduciary, such third party            a fiduciary duty toward the plaintiff geologist. The Houston
becomes a joint tortfeasor with the fiduciary and is liable as          14th Court of Appeals considered two possible grounds for
such.” Id. at 372.                                                      the imposition of the fiduciary duty: 1) the geologist had a
                                                                        joint venture with the oil company, which would give rise to
The third party liability rule set out by the Court of Appeals          a fiduciary relationship as a matter of law; and 2) an informal
has been used both offensively and defensively in the past in           confidential relationship arose that created a question of fact.
Texas to either reach an additional defendant or to preclude            In holding that there was not duty created as a matter of
a third party from enforcing a contract right against the               law on the first ground, the Court pointed to testimony that
principal if the right was obtained as the result of a breach           indicated that the parties had not agreed to share losses in
of fiduciary duty. See City of Fort Worth v. Pippen, 439 S.W.2d         their business arrangement. In regard to the second ground,
660 (Tex. 1969) and Remenchik v. Whittington, 757 S.W.2d 836            the Court reviewed the testimony and record to find that a
(Tex. App. – Houston [14th Dist.] 1988, no writ). The third             prior confidential relationship (before the dispute in ques-
party can also be held liable for accepting benefits from the           tion) had not existed, nor did the record indicate anything
transaction knowing the benefits were the result of a breach            other than an arm’s length relationship, except for plaintiff’s
of fiduciary duty. Cf. Stephens County Museum, Inc. v. Swenson,         testimony that he had subjectively trusted the oil company.
517 S.W.2d 257 (Tex. 1975).                                             The Court found that subjective trust by one party to the
                                                                        agreement did not give rise to enough of a relationship to
A third party will not be held liable for knowingly partici-            justify the imposition of a fiduciary duty.
pating in a breach of fiduciary duty when the third party is
doing that which they have a legal right to do. See Baty v.             In R. R. Street, the Houston 1st Court of Appeals reviewed a
Protech Insurance, 63 S.W.3d 841, 855 (Tex. App.-Houston                case in which the owner of a dry cleaning plant (Pilgrim)
[14th Dist.] 2001, pet. filed).                                         brought both statutory and common law claims against the
                                                                        supplier of dry cleaning products, seeking to recover envi-
In regard to contribution, the Court of Appeals listed the              ronmental cleanup costs and other damages. The case was
various contribution schemes available in Texas and reached             tried to a jury and the trial court directed a verdict against the
the conclusion that the case fell within TEX. CIV. PRAC. &              plaintiff on their breach of fiduciary claims. On appeal, the
REM. CODE ANN. Sec. 32.001, the original contribution                   Houston 1st Court of Appeals reviewed the facts on the record
scheme. The court was aided by the fact that the case had been          that the plaintiff claimed created a special relationship:
filed before the effective date of the comparative responsibility
statute, Ch. 33 of the Civil Practice and Remedies Code.                 1. Street’s representative, Harold Corbin, had complete
However, the court noted that Ch. 33 would not apply in any                 access to Pilgrim’s facilities, but Street’s competitors
event because the comparative negligence statute applies only               did not.
to cases in which negligence is the only theory involved. Id.            2. Corbin testified that he advised Pilgrim regarding
                                                      ADVOCATE      ✯    SPRING 2004


    what purchases to make and that he knew that                        48. The fact that the two parties worked together in several
    Pilgrim followed his advice “98 percent of the                      business ventures and at one time were close friends did not
    time.”                                                              establish a fiduciary duty as a matter of law.
 3. Corbin stated that had he been told about the pos-
    sibility of PCE losses, he would have passed that                   In Willis v. Donnelly, 118 S.W.3d 10 (Tex. App. – Houston
    information to Pilgrim.                                             [14th Dist.] 2003, no pet. hist.), the Court cited Pabich for the
 4. Corbin stated that Street assigned him the job of                   proposition that the existence of a fiduciary duty between
    becoming Pilgrim’s “vice-president of the [dry]                     co-shareholders in a closely held corporation depends on
    cleaning room.”                                                     the circumstances. The Court focused on the defendant’s
 5. Guy Robertson, Sr., testified that there was a time                 oppressive conduct and dominating control of the business.
    when Pilgrim was expanding in Houston that he                       The Court cited several facts that showed the defendant used
    spoke to Corbin either every night, every other day,                his control to seek personal advantage. Based on these facts,
    or at least twice a week to get “a weather report” on               the trial court instructed the jury that the defendant owed a
    Pilgrim’s operations because Robertson could not                    fiduciary duty. On appeal, the defendant argued that it was
    visit all of Pilgrim’s facilities.                                  error to instruct the jury on the fiduciary duty. The Houston
 6. For 20 years, Corbin filled a “report card” evaluating              Court of Appeals agreed that the existence of the duty was a
    the performance of Pilgrim’s dry-cleaning plants and                fact question, but ruled that the defendant waived the error
    would give the evaluations to Robertson.                            by not objecting to the charge prior to submission to the jury.
 7. Corbin helped teach the dry-cleaning business to                    Thus, the holding in Pabich remains the standard, leaving
    Guy Robertson, Jr.                                                  Willis as distinguishable on procedural grounds.
 8. Corbin helped in selecting Pilgrim’s waste disposal
    company and acted as an intermediary between it                     The Amarillo Court of Appeals went a little further than Pabich
    and Pilgrim.                                                        in Robbins v. Payne, 55 S.W.3d 740 (Tex. App. – Amarillo
 9. Street’s advertisements solicited reliance on its dry-              2001, pet. denied), in holding that two founders of an internet
    cleaning technicians to insure that no PCE was                      business did not have a fiduciary duty toward each other,
    lost.                                                               when the relationship was not longstanding and did not go
 10. Street had scientific knowledge about Pilgrim’s                    “beyond that ordinarily existing between parties to a contract
    processes that Pilgrim did not have.                                of this type.” Id. at 749. The Amarillo Court also held that
 11. Street had been doing business with the Robertson                  it did not create a fact issue for one of the parties to “admit”
    family for over 50 years, i.e., before Pilgrim                      owing a fiduciary duty since from a “legal standpoint” the
    existed.                                                            party stated that he did not understand the term and only
                                                                        knew what it meant “to him.” Id.
In affirming the trial court, the Court focused on the fact that
no evidence was offered of a special relationship of trust and          Compare the Robbins case with Carr v. Weiss, 984 S.W.2d 753
confidence apart from the business relationship made the                                                                  ,
                                                                        (Tex. App. – Amarillo 1999, pet. denied). In Carr the Amarillo
basis of the lawsuit. Additionally, neither party was in a depen-       Court of Appeals reviewed the evidence on the existence of
dent position, since each was an accomplished businessman               a fiduciary duty in a case where the plaintiff sued based on
who knew how to deal with environmental issues.                         an oral contract to jointly acquire an apartment complex
                                                                        with the defendant. After the complex was purchased, the
In Pabich v. Kellar 71 S.W.3d 500 (Tex. App. – Fort Worth               defendant purchaser denied the agreement and the plaintiff
2002, pet. denied) a former employee and minority share-                brought suit based on breach of fiduciary duty, fraud, neg-
holder in a video reconditioning business sued the majority             ligent misrepresentation, and breach of oral contract. After
shareholder for breach of fiduciary duty, fraud, and tortious           reviewing the personal relationship between the parties, the
interference. The trial court held that as a matter of law a            Court of Appeals held that the evidence was sufficient to
fiduciary duty existed between the shareholders. On appeal,             present a jury question on the existence of a fiduciary duty.
the Fort Worth Court of Appeals held that the trial court               The evidence reviewed by the court included the social history
committed error by assuming the existence of a fiduciary                of the parties, the business relationship, and representations
duty, instead of submitting it to the jury, stating that “a co-         made by both parties during the time period in question. Id.
shareholder in a closely held corporation does not as a matter          at 766. The court stated that “the relationship between the
of law owe a fiduciary duty to his co-shareholder.” Id. at              parties, their activities, and their objectives was more than a
                                                     ADVOCATE     ✯    SPRING 2004


mere personal relationship but was, rather, of a confidential         the partnership at any time, even if the motive is “self-gain.”
nature. Id. at 765.                                                   Id. The Court states on the fiduciary duty issue that a partner
                                                                      owes a “strict duty” of good faith and candor, and that there
Under the same evidentiary standard as Carr the Waco Court            is a “general prohibition” against the fiduciary using the
of Appeals considered the following evidence as sufficient to         relationship to benefit his personal interest, except with full
support the jury’s finding of a fiduciary duty:                       disclosure to the principal. Id. at 175.

 1. The two parties had worked together on other projects             The Court’s language tracks the language of cases prior to
    for three years.                                                  1994, when the Texas Revised Partnership Act was passed.
 2. The defendant was always in charge of those proj-                 Prior to 1994, the law in Texas was clear that each partner
    ects and he controlled the financing and books. The               owed a fiduciary duty to each of the other partners and this
    plaintiff always trusted him to keep accurate financial           relationship was characterized as “highly” fiduciary in nature.
    records.                                                          See Johnson v. Peckham, 120 S.W.2d 786 (Tex. 1938). The
 3. The defendant told the plaintiff they would “make                 adoption of the Texas Revised Partnership Act was intended
    millions” together.                                               to bring partnership law in line with modern business
 4. The parties ate lunch together every day for four                 practices, including a rejection of the traditional “fiduciary”
    years.                                                            label, but cases still carry over the stricter language. See e.g.,
                                                                      Brosseau v. Ranzau, 81 S.W.3d 381, 395 (Tex. App. - Beaumont
This evidence was considered more than a scintilla of evi-            2002, pet. filed)(partners owe one another a fiduciary duty,
dence and the Court of Appeals overturned the trial court’s           included in which is a strict duty of good faith, while a man-
take nothing judgment. Cathy v. Meyer 115 S.W.3d 644 (Tex.            aging partner owes his partners the highest fiduciary duty
App. – Waco 2003, no pet. hist.).                                     recognized in law).

Likewise, in El Paso Production v. Valence, 112 S.W.3d 616            8. Competition Not a Breach of Fiduciary Duty
(Tex. App. – Houston [1st Dist.] 2003, no pet.), the Court            A key employee of a trucking company started a competing
held it was error to grant a motion for directed verdict on           trucking company. Before leaving his job, he incorporated
the breach of fiduciary duty claim where there was some               the new company, bought insurance, obtained hauling per-
evidence that the operator of the oil well was acting as an           mits and talked with drivers about leaving the old company
agent for the owner.                                                  to join his new company. The trucking company sued the
                                                                      key employee for breach of fiduciary duty. Abetter Trucking
7. Partnership Dissolution                                            Company v. Arizpe, 113 S.W.3d 503 (Tex. App. – Houston
In Welder v. Green, 985 S.W.2d 170 (Tex. App. – Corpus                [1st Dist.] 2003, no pet. hist.). In an opinion that appears
Christi 1998, pet. denied), a former partner filed an action          contradictory, the Houston Court of Appeals acknowledges
against another former partner on theories of breach of fidu-         that an agent has a fiduciary duty not to compete with the
ciary duty, fraud, and breach of duty of good faith and fair          principal and that an employee has a duty to deal openly
dealing. The evidence on breach of fiduciary duty was that            with an employer and to fully disclose information affecting
the defendant partner had paid increased amounts to himself           the company’s business. After citing this established law, the
as “trust management” fees, instead of accounting fees to the         Houston Court then concludes “there is nothing legally wrong
firm. When the plaintiff partner discovered his actions, he           in engaging in such competition or in preparing to compete
objected and the defendant partner repaid the money into              before the employment terminates.” Id. at 510. The Court
the partnership. The parties could not agree on dissolution           was influenced by the fact that the employee was an at-will
terms and the lawsuit resulted. Plaintiff partner received a          employee not subject to a noncompete clause.
jury verdict and judgment, which was partially taken away
by the trial court. Both sides appealed.                              9. Failure to Develop by a Mineral Estate Owner Not a
The Corpus Christi Court of Appeals affirmed in part, and             The owner of the surface and mineral estate was sued for a
reversed in part, holding that the evidence supported breach          failure to develop by the non-participating royalty owner. The
of fiduciary duty, but no damages, because the only evidence          Texas Supreme Court ruled that a fiduciary duty existed but
of damages occurred as a result of the dissolution. Id. at 177.       the owner of the surface and mineral estate had no duty to
In the absence of a written agreement, partners can dissolve          develop. The fiduciary duty only required the owner to acquire
                                                      ADVOCATE     ✯    SPRING 2004


every benefit for the non-participating royalty owner that he          justified by the evidence presented to the trial court.
acquired for himself. Since there was no special benefits on
privileges obtained, there was no breach of fiduciary duty.            III. FRAUD
In Re Bass, 113 S.W.3d 735 (Tex. 2002.). See also Hlavinka v.          A. Background
Hancock, 116 S.W.3d 412 (Tex. App. – Corpus Christi 2003,              To prevail on a common-law fraud claim in Texas, a plaintiff
pet. filed).                                                           must establish: (1) the defendant made a material representa-
                                                                       tion; (2) the representation was false; (3) the defendant either
10. Statute of Limitations                                             knew the representation was false when made or made it
In re Estate of Fawcett, 55 S.W.3d 214 (Tex. App. – Eastland           recklessly without any knowledge of its truth and as a positive
2001, no pet. hist.), involved a suit by a former shareholder          assertion; (4) the defendant made the representation with the
against the remaining shareholder and the corporation for              intention that it be acted upon; (5) the representation was
breach of fiduciary duty, based on failure to disclose the             in fact relied upon; and (6) damage to the plaintiff resulted.
fact that the corporation had an opportunity to construct              See DeSantis v. Wackenhut Corp., 793 S.W.2d 670 (Tex. 1990),
and operate a natural gas pipeline. A summary judgment                 cert. denied, 498 U.S. 1048, 111 S. Ct. 755, 112 L.Ed.2d 775
was granted on limitations grounds by the trial court. On              (Tex. 1991); Trenholm v. Ratcliff, 646 S.W.2d 927 (Tex. 1983).
appeal, the Eastland Court of Appeals examined whether                 A fraud cause of action is generally based on a representation
the discovery rule applied in breach of fiduciary cases and            of fact, but it can be based on a representation of opinion
whether the accrual of the cause of action should be deferred          when (1) the opinion is based on past or present facts, or (2)
until the plaintiff knew or should have known of the injury.           the speaker knows of the opinion’s falsity. See Trenholm, 646
The Court reviewed the Texas Supreme Court rulings over                S.W.2d at 930. A representation is material if a substantial
the last four years on the discovery rule (Computer Associates         likelihood exists that a reasonable plaintiff would consider
v. Altai; Murphy v. Campbell) and stated that both fraudulent          the representation important in entering into the transaction
concealment and “inherently undiscoverable” injuries have              in question. See Weatherly v. Deloitte & Touche, 905 S.W.2d
been referred to as discovery rule cases. The Court of Appeals         642 (Tex. App. – Houston [14th Dist.], writ dism’d w.o.j.).
reasoned that injuries occurring in a fiduciary relationship
would seem to be in the first type of case (fraudulent con-            A fraud claim can be based on a promise made with no inten-
cealment), but have instead been categorized as “inherently            tion of performing, irrespective of whether the promise is later
undiscoverable.” The Eastland Court pointed out that the               subsumed within a contract. Formosa Plastics Corporation v.
result is the same: the issue is when the plaintiff knew or            Presidio Engineers and Contractors, Inc., 960 S.W.2d 41 (Tex.
should have known, with the exercise of reasonable diligence,          1998). Crim Truck and Tractor Co. v. Navistar Int’l Transp. Corp.,
of the injury. In this case, the Court of Appeals ruled that the       823 S.W.2d 591 (Tex. 1992). However, the mere failure to
trial court erred in granting the summary judgment.                    perform a contract is not evidence of fraud. See Formosa, 960
                                                                       S.W.2d at 48.
11. Punitive Damages
In Brosseau v. Ranzau, 81 S.W.3d 381, 395 (Tex. App. -                 In regard to reliance, plaintiff must show that he actually
Beaumont 2002, pet. filed) the Beaumont Court of Appeals               and justifiably relied on defendant’s misrepresentations. See
reviewed a case in which the plaintiff sued his partner over           Haralson v. E. F. Hutton Group, Inc., 919 F.2d 1014 (5th Cir.
a house they owned together in Mexico. After a bench trial,            1990) (under Texas law, fraud requires showing of actual
the trial court entered a judgment for approximately $107,000          and justifiable reliance). In reviewing the record on appeal,
in actual damages and $200,000 in punitive damages. On                 the court of appeals considers whether – given the particular
appeal, the Beaumont Court of Appeals reviewed whether                 plaintiff’s individual characteristics, abilities, and appreciation
the breach of fiduciary duty would support the award of                of facts and circumstances – it is “extremely unlikely” that
punitive damages. The Court noted that the “intent” issue              there was actual reliance on the plaintiff’s part. See Haralson,
concerning exemplary damages is whether the one with a                 919 S.W.2d at 1026.
fiduciary duty intended to gain an additional unwarranted
benefit for himself. See Cheek v. Humphreys, 800 S.W.2d                Texas recognizes two measures of direct damages for common
596 (Tex. App. – Houston [14th Dist.] 1990, writ denied).              law fraud: the out-of-pocket measure and the benefit-of-the-
The Court reviewed the award in light of the established               bargain measure. Arthur Anderson & Co. v. Perry Equipment,
Kraus factors (Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908               945 S.W.2d 812 (Tex. 1997); W. O. Bankston Nissan, Inc. v.
(Tex. 1981) and found that the amount awarded was                      Walters, 754 S.W.2d 127 (Tex. 1988); Leyendecker & Assocs.,
                                                     ADVOCATE     ✯    SPRING 2004


Inc. v. Wechter 683 S.W.2d 369 (Tex. 1984). The out-of-pocket         judgment on a fraudulent inducement claim. The Court of
measure computes the difference between the value paid and            Appeals, citing Formosa, held that the legal duty not to pro-
the value received, while the benefit-of-the-bargain measure          cure the contract by fraud was independent from the duties
computes the difference between the value as represented              under the contract. Therefore, the parol evidence rule did not
and the value received. Arthur Anderson, 945 S.W.2d at 817.           bar the evidence and it could be used to defeat the summary
The benefit-of-the-bargain measure does not include lost              judgment. Further, the Court held that the “merger”clause
profits on a “bargain that was never made.” Formosa Plastics          in the contract could not defeat the “reliance” element as a
Corporation, 960 S.W.2d at 50. However, when properly                 matter of law, since it did not expressly state an intent to
pleaded and proved, consequential damages that are fore-              waive the fraud cause of action. See also Shell Oil Products
seeable and directly traceable to the fraud and result from           v. Main Street Ventures, 90 S.W.3d 375 (Tex. App. – Dallas
it may be recoverable. Arthur Anderson, 945 S.W.2d at 817.            2002, no pet. hist).
Consequential damages could include foreseeable profits from
other business opportunities lost as a result of the fraudulent       In this past year, the First Court of Appeals in Houston also
misrepresentation. Formosa Plastics Corporation, 960 S.W.2d           wrote an opinion which went the other way in construing
49 at fn.1.                                                           a “merger clause.” In Ikon Office Solutions, Inc. v. Eifert, 2003
                                                                      WL 21782347 (Tex. App.ÑHouston [1st Dist.] no pet. hist.),
B. Recent Cases                                                       a seller of a company (Eifert) brought a fraud action against
1. Fraudulent Inducement                                              the buyer (Ikon) based on misrepresentations about the job
In R. E. Haase and PRH Investments v. Glazner 62 S.W.3d 795           responsibilities that the seller would have following the sale.
(Tex. 2001), the Texas Supreme Court considered a fraudulent          The contract of sale included a “merger” clause that stated it
inducement case brought by a potential franchisee against             contained the entire agreement of the parties and that “no
the franchisor. The specific issue considered by the Supreme          commitments have been made relative to bonuses, guarantees
Court was whether a party can maintain a claim based on               or any other special provisions, except as specifically identi-
either fraud or fraudulent inducement when the claim is pre-          fied herein.” Id. at 11. The court noted that the job description
mised on a contract that is unenforceable under the Statute of        was the subject of intense negotiation and the parties were
Frauds. The trial court granted summary judgment against the          sophisticated and represented by counsel. Further, the merger
plaintiff and the Court of Appeals reversed, holding that the         clauses were not boiler plate and were negotiated. Applying
fraud and fraudulent inducement claims alleged a breach of            Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171 (Tex.
duty independent of the contract claims. The Court of Appeals         1997), the First Court held that the release was broad enough
relied heavily on the Supreme Court’s opinion in Formosa              to cover the specific matter in dispute and negated reliance
Plastics Corporation v. Presidio Engineers and Contractors, 960       as a matter of law. This case suggests a trend toward giving
S.W.2d 41 (Tex. 1998). The Texas Supreme Court reversed               “merger clauses” more weight, which we are also seeing in
the Court of Appeals, holding that the franchisee could not           negligent misrepresentation.
maintain an action for fraudulent inducement if the contract
was barred by the Statute of Frauds. The Supreme Court                2. Ratification
conceded that language in the Formosa opinion suggested               In Fortune Production Co., et al v. Conoco, Inc., 52 S.W.3d 671
that there was a distinction between fraud and fraudulent             (Tex. 2000) the Texas Supreme Court considered the issue
inducement, but stated that reliance was still an element of          of how and when a party can ratify a fraudulent transaction.
fraudulent inducement, and without a binding agreement                In Fortune Production Co., several natural gas producers sued
there could be no reliance. The Court went on further to hold         Conoco, claiming that they were defrauded into accepting a
that the plaintiff could recover on an “out-of-pocket theory.”        lower price for their gas due to misrepresentations made by
In other words, plaintiff could not assert a fraudulent induce-       Conoco. The jury found fraud, but also found that each of the
ment claim without a contract, but could assert a fraud claim         plaintiffs had ratified the contracts with Conoco after they
based on out-of-pocket damages.                                       became aware of the fraud. The trial court did not award any
                                                                      damages for fraud in the judgment, but rendered judgment
In 2002, in DRC Parts & Accessories, L.L.C. v. VM Motori,             on an unjust enrichment finding and both sides appealed.
112 S.W.3d 854 (Tex. App. – Houston [14th Dist] 2002, pet.            The Court of Appeals affirmed the trial court’s judgment in
filed), the 14th Court of Appeals in Houston wrote on the             all respects.
issue of whether extrinsic evidence that conflicted with the
express terms of the contract could be used to avoid summary          The Texas Supreme Court affirmed the Court of Appeals
                                                       ADVOCATE      ✯    SPRING 2004


in part and reversed in part, holding that (1) only some of              can contract away this fraudulent inducement exception if
the producer’s claims for fraud damages were foreclosed,                 the agreement “clearly expresses the parties’ intent to waive
and (2) the evidence was legally insufficient to support the             fraudulent inducement claims or … disclaims reliance on rep-
total amount of fraud damages found by the jury. Id. The                 resentations about specific matters in dispute.” Schlumberger
Supreme Court distinguished some of the producer’s claims                Technology Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997). The
from others, finding that there may be circumstances under               Waco Court of Appeals held that the agreements in this case
which a party who was induced to enter a contract by fraud               did not satisfy the requirements set forth in Schlumberger to
could ratify the contract after they learned of the fraud. Id. at        preclude a fraudulent inducement claim.
5. In this case, the plaintiffs who simply continued to sell gas
under their existing contracts after they learned of the fraud           In Procter v. RMC Capital Corp., 47 S.W.3d 828 (Tex. App.
did not waive their right to sue for damages, although they did          – Beaumont 2001, no pet. hist.) a purchaser of income pro-
waive the right to recision. Id. at 6. However, the plaintiffs who       ducing rental property brought a fraud action against the
continued to perform after the existing contracts expired did            vendor, basing the fraudulent inducement claim on a com-
waive the right to seek damages for the post-contract period.            mercial real estate contract which contained an “as-is” clause.
Id. The Court distinguished new or executory contracts from              The Beaumont Court of Appeals reviewed the Prudential case
existing contracts, stating that parties who entered into new                                                  ,
                                                                         and the record and followed Fletcher holding that once the
contracts or decided to perform under executory contracts                seller has produced proof of an “as-is” clause, the buyer must
after learning of the fraud had ratified the fraud and could             produce some proof that he would not have agreed to the
no longer sue for damages.                                               clause because of false representations made by the seller.
                                                                         Specifically, the buyer’s summary judgment must raise a fact
In regard to damages, the Supreme Court focused on the                   issue on each element of a common law fraud claim based on
evidence that had been presented at the trial court which                the specific representations of the condition of the subject of
dealt with the price that Conoco had been willing to pay                 the contract. In this case, the Court of Appeals held that the
other producers. The producers had put in evidence that                  buyer had not raised a fact issue through his affidavit, and
they could have negotiated the same pricing terms as the                 affirmed the summary judgment of the court below.
other producers had they known of the fraud. However, the
Court stated that the record reflected that Conoco had only              4. Failure to Read a Contract
agreed to pay the higher price for a small fraction of the gas,          In Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165 (Tex. App.
so that there was no evidence that Conoco would have paid                – Texarkana 2000, pet. denied), the Texarkana Court of
that higher amount for the entire amount of plaintiff’s gas.             Appeals reviewed a summary judgment in which plaintiff
Citing Formosa Plastics, the Court held that the evidence did            claimed that he had been fraudulently induced into signing
not support the “bargain” that would have been struck by                 a car lease, alleging that he was told it was an agreement to
plaintiffs had they known of the fraud, even though evidence             sell the car, rather than lease it. The trial court granted a
was produced of a similar “bargain.”                                     summary judgment for the defendant car dealership on the
                                                                         grounds that the contract clearly stated it was a car lease and
3. “As-Is” Clauses                                                       plaintiff was under an obligation to read and understand the
In Fletcher v. Edwards, 26 S.W.3d 66 (Tex. App. – Waco 2000,             agreement he had signed. The Texarkana Court reversed,
pet. denied), the Waco Court of Appeals addressed the ques-              holding that “the failure to read a contract will be excused
tion of whether an “as-is” clause in a real estate transaction           where the execution of the contract has been fraudulently
barred the plaintiffs from a fraud cause of action. Relying on           induced.” Id. at 170. The affidavit of the plaintiff stating the
Prudential Ins. Co. of America v. Jefferson Assocs., 896 S.W.2d          misrepresentations and his reliance was sufficient to raise a
156 (Tex. 1995), the defendants argued that a real estate                fact issue precluding summary judgment.
agreement that contained a clause to accept the property “in
its present condition” barred the plaintiffs’ causes of action in        5. Jury Charge – Post Contract Fraud
fraud, DTPA, and negligent misrepresentation. Prudential Ins.            The Corpus Christi Court of Appeals considered a jury
Co. held that an “as-is” agreement negates the causation essen-          charge issue involving fraud in Kajima International, Inc.
tial to recovery for a DTPA violation, fraud, and negligence             v. Formosa Plastics Corporation, USA, 15 S.W.3d 289 (Tex.
cause of action. Id. at 161-162. However, such an agreement              App. – Corpus Christi 2000, pet. denied). In Kajima, a
will not bind a buyer who is induced to enter the agreement              contractor sued a project owner for fraud and negligent
because of a fraudulent representation. Id. at 162. The parties          misrepresentation arising from work performed for the owner.
                                                        ADVOCATE      ✯    SPRING 2004


In addition to proof of misrepresentations at the time of execu-               One who makes a fraudulent representation is
tion of the contract, plaintiff put on evidence of misrepresen-                subject to liability to the persons or class of per-
tations made regarding overtime work outside the contract                      sons whom he intends or has reason to expect to
after execution. At the time of trial, the trial court limited                 act or to refrain from action in reliance upon the
the fraud question to consideration of fraud in the induce-                    misrepresentation, for pecuniary loss suffered by
ment and denied plaintiff’s request for a broader jury ques-                   them through their justifiable reliance in the type
tion that would have allowed the jury to consider evidence                     of transaction in which he intends or has reason
that the defendant engaged in a “string along” fraud scheme                    to expect their conduct to be influenced.
after the execution of the contract. The Corpus Christi Court
reversed, holding that both pleading and proof were made                  The Court summarized Section 531 by stating that a “maker
of representations after the contract concerning defendant’s              of a misrepresentation is liable if he has information that
“fraudulent inducement of conduct that was not contractually              would lead a reasonable man to conclude that an especial
required and that occurred subsequent to the execution of                 likelihood exists that it will reach certain persons and will
the original contracts.” Id. at 291.                                      influence their conduct. Id. at 805. In this case, the evidence
                                                                          raised a fact issue whether Ernst and Young had “reason to
The Corpus Christi Court analyzed an issue that has been                  expect” its representations would be relied on by investors
open in Texas courts since Formosa Plastics v. Presidio, 960              to the company it was auditing.
S.W.2d 41 (Tex. 1998) – is fraud available as a cause of
action for post contract representations? The Corpus Christi              The Texas Supreme Court reversed the Court of Appeals,
Court reaches the conclusion that under this fact situation               holding that the Court of Appeals was correct on the law,
fraud is available, whether it is characterized as “fraudulent            but had misapplied the standards to the fact of this case.
inducement to make an oral amendment to an existing                       The Supreme Court agreed with the plaintiffs that Texas
contract, fraudulent inducement to enter into a new oral con-             fraud jurisprudence was consistent with Section 531 of the
tract, fraudulent misrepresentation, fraudulent inducement                Restatement, and held that the “reason to expect” standard
to continue performance, or fraud in the performance.” Id.                was appropriate for Texas fraud claims. However, the Supreme
at 293. See also Valsangiacomo v. Americana Juice Import, Inc.,           Court also held that the plaintiffs had not met their burden
35 S.W.3d 201 (Tex. App. – Corpus Christi 2000, no pet.                   under the expert’s affidavits, because they only cited to “com-
hist.)(personal jurisdiction case in which fraud was the alleged          monly accepted practices in the investment community,” and
contact); National Center for Policy Analysis v. Fiscal Associates,       did not specifically show that Ernst and Young had reason
Inc., 2002 WL 433038 (N.D.Tex)(misrepresentations after                   to expect that the plaintiffs would rely on their audit report.
execution of contract caused Plaintiff to continue working                General industry practice may show foreseeability, but did
on contract).                                                             not raise a fact issue on whether the maker of the representa-
                                                                          tion had a reason to expect that it would reach people in the
6. Accountant Liability – “Reason to Expect” Intent                       industry and influence their conduct. Id. at 581.
In Ernst and Young & Co. v. Pacific Mutual Life Ins. Co., 51
S.W.2d 573 (Tex. 2001), the Texas Supreme Court reviewed                  7. Statute of Limitations – Discovery Rule
a summary judgment on behalf of the defendant accounting                  - Charge
company on a common law fraud claim. The defendant had                    In LaGloria Oil and Gas Company v. Carboline Company, 84
submitted affidavits of accounting experts that stated that it            S.W.3d 228 (Tex. App. – Tyler 2001, no pet. hist.), the Tyler
had followed generally accepted auditing standards (GAAS)                 Court of Appeals considered several issues regarding the
and that there was no evidence that it had made representa-               statute of limitations and the discovery rule in fraud cases.
tions intending for the plaintiffs or other investors to rely             The plaintiff (LaGloria) was an oil refiner who had sued a
on them. The trial court granted the summary judgment.                    fireproofing manufacturer for fraud and other claims after
On appeal, the Dallas Court reversed, holding that (1) affi-              it discovered severe corrosion underneath its fireproofing
davits of plaintiff’s experts raised a fact issue on the GAAS             material. After a summary judgment was denied on fraud,
standards, and (2) it was only necessary for plaintiff to prove           the trial court granted a separate trial solely on the issue of
that defendant intended that a particular class of persons                limitations, before proceeding to trial on the issue of liability.
rely on its representations and that plaintiff was a member               The sole issue presented to the jury was as follows:
of that class. Id. at 804. The Court cited Section 531 of the
Restatement (Second) of Torts in reaching its decision:                        Do you find from a preponderance of the evidence
                                                      ADVOCATE      ✯    SPRING 2004


     LaGloria discovered, or in the exercise of reason-                 Tyler Court of Appeals reviewed a case in which a natural
     able diligence should have discovered, before                      gas processing plant (Intrastate) brought a fraud and tortious
     April 13, 1991, the existence of corrosion that                    interference claim against a well operator in connection with
     was occurring under Pyrocrete 102 fireproofing                     a settlement agreement in a decision to disconnect a pipeline.
     at LaGloria’s refiner in Tyler, Texas.                             A jury found against the defendant on both theories and
                                                                        defendant appealed on several grounds. First, the defendant
Plaintiff objected because it left out a “necessary element”            claimed that the case was tried on a false promise theory, but
– that the injury suffered by LaGloria was likely caused by the         plaintiff was now trying to broaden the case to encompass
wrongful act of another. The Tyler Court of Appeals reviewed            other theories. The Court overruled this point by noting that
two recent Supreme Court decisions, KPMG Peat Marwick v.                the plaintiff’s pleadings contained references to both false
Harrison County Housing Finance Corp., 988 S.W.2d 746 (Tex.             representations and failure to disclose material facts. Second,
1999) and Childs v. Haussecker 974 S.W.2d 31 (Tex. 1998), to            the defendant argued that no concealment cause of action was
hold that a correctly worded discovery rule question must               possible because there was no special relationship between
include language inquiring when, if at all, the plaintiff should        the parties. Citing the Formosa case, the Court found that
have discovered the “nature of the injury.” (Childs held that the       a duty to disclose exists, regardless of a special or fiduciary
nature of the injury requires “knowledge of the wrongful act            relationship, if partial disclosure would be misleading. In this
and the resulting injury.” Id. at 40.) Therefore, the jury ques-        case, since the defendant had not disclosed that it intended
tion for the discovery rule must include language inquiring             to demand additional terms later in regard to the settlement
as to whether the plaintiff knew or should have known the               agreement, it had not disclosed the entire truth. Further, the
injury was likely caused by the wrongful conduct of another.            defendant had not disclosed that it did not intend to follow
See also Superior Laminate & Supply, Inc. v. Formica Corporation,       the settlement agreement in accordance with the law. This
93 S.W.3d 445 (Tex. App. – Houston [14th Dist] 2002, pet.               evidence, along with the evidence of false promises, was
denied); and Slusser v. Union Bank Insurance Co., 72 S.W.3d             enough to sustain the verdict.
713 (Tex. App. –Eastland 2002, no pet. hist.).
                                                                        In Myers v. Walker 61 S.W.3d 722 (Tex. App. – Eastland 2001,
The defendant also argued that the discovery rule could not             no pet. hist.), the Eastland Court handled a similar issue. The
be applied because the injury was not “inherently undis-                plaintiff (Walker) in Myers had taken two thirds of his retire-
coverable.” The Court stated that the “traditional” discovery           ment savings out of his IRA at the request of the defendant
rule did not apply in fraud cases, since they are not “true             (Myers) and had invested it in the defendant’s business, which
discovery rule” cases, but noted that the language employed             involved purchasing medical receivables. Rather than pur-
was similar once the discovery rule was determined to be                chase the medical receivables, the defendant chose to divert
applicable. However, the Court made it clear that no require-           the money into various entities, which he owned. Plaintiff
ment was necessary in fraud cases for the wrongful act to be            sued, and the parties entered into a settlement agreement
“inherently undiscoverable” before the discovery rule could             that required the defendant to pay money and transfer stock.
be applied.                                                             The defendant subsequently failed to follow the settlement
                                                                        agreement, and this lawsuit resulted. The trial court entered
Finally, the Court decided that the four year statute of limita-        judgment on a fraud claim in connection with the settlement
tions would govern, since that was the statute of limitations           agreement and defendant appealed. On appeal, the Eastland
in force at the time suit was brought. The defendant argued             Court of Appeals held that sufficient evidence was presented
that the two year statute should apply, looking to the time             to support the judgment, citing evidence that the defendant
period when the cause of action accrued. The Court of Appeals           was an attorney who attempted to change the terms of the
found no authority for this proposition, and looked to TEX.             agreement after mediation.
CIV. PRAC. & R EM. CODE Section 16.001(a)(4) for the general
rule on the statute of limitations.                                     Patel v. Ambassador Drycleaning Co., Inc, 86 S.W.3d 304 (Tex.
                                                                        App.ÑEastland 2002, no pet. hist.), involved a similar issue
8. Settlement Agreements                                                by the Eastland Court of Appeals. After settling a contract
Both the Tyler and Eastland Courts of Appeal have written               dispute with the suppliers of a drying cleaning machine, the
several opinions on fraud in connection with settlement agree-          dry cleaner brought a breach of contract action and fraud
ments. In Samedan Oil Corporation v. Intrastate Gas Gathering,          action for non-performance of the settlement agreement. The
Inc., 78 S.W.3d 425 (Tex. App. – Tyler 2001, no pet. hist.), the        trial court held that the defendant had substantially performed
                                                     ADVOCATE     ✯    SPRING 2004


the settlement agreement and it also found that the defendant         examined the law regarding actionable misrepresentations
did not fraudulently induce the settlement agreement. The             and duty to disclose and found that the owner of the mall
Court of Appeals reversed on the breach of contract claim,            could not be held liable for either type of fraud. The owner
but affirmed the decision on the fraud claim, holding that            of the mall, according to the plaintiff’s evidence, made
the evidence before the trial court was sufficient to justify         representations about the following: he “should not worry”
the finding.                                                          about a long term lease; that he would “take care” of him; the
                                                                      space “should” rent for a certain amount. According to the
9. Duty to Disclose and Actionable Misrepresentations                 Supreme Court, these representations did not amount to any
In Bradford v. Vento, 48 S.W.3d 749 (Tex. 2001), the Texas            evidence because they were only statements that the parties
Supreme Court addressed the issue of concealment fraud.               would have to “work out” a lease later. In regard to the duty
The plaintiff in Bradford was a prospective buyer of a store in       to disclose, the Supreme Court disagreed with the Court of
a shopping mall who went into business with the defendant             Appeals that this was a partial disclosure that conveyed a
and ended up in a dispute over ownership and profits. After           false impression. The Court stated that there was no evidence
a lawsuit was filed on the grounds of fraud, tortious interfer-       that the mall owner either knew that plaintiff was ignorant
ence and other causes of action, the jury found against the           of the lease terms or that the plaintiff did not have an equal
defendant and others, including the owner of the mall, for            opportunity to discover them. By its holding and its language,
$1,274,000 in actual and $6,500,000 in punitive damages.              the Supreme Court created doubt on whether a cause of action
The fraud portion of the charge contained this language:              exists in Texas for a “partial disclosure”:

 QUESTION NO. 1                                                            Several courts of appeals have held that a general
                                                                           duty to disclose information may arise in an arm’s
 Did any of the defendants commit fraud against Roell                      length business transaction when a party makes
   Vento? Answer Yes or No for each defendant:                             a partial disclosure that, although true, conveys
                                                                           a false impression. See e.g., Hoggett v. Brown, 971
 Fraud occurs when –                                                       S.W.2d 472, 487 (Tex. App. – Houston [14th Dist.]
     a. a party makes a material misrepresentation,                        1997, no writ); Ralston Purina, 850 S.W.2d at 636.
     b. the misrepresentation is made with knowledge of                    The Restatement (Second) of Torts section 551 also
        its falsity or made recklessly without any knowl-                  recognizes a general duty to disclose facts in a
        edge of the truth and as a positive assertion,                     commercial setting. Restatement (Second) of Torts
     c. the misrepresentation is made with the intention                   section 551 (1977). In such cases, a party does
        that it should be acted on by the other party,                     not make an affirmative misrepresentation, but
        and                                                                what is said is misleading because other facts are
     d. the other party acts in reliance on the misrepre-                  not disclosed. We have never adopted section 551.
        sentation and thereby suffers injury.                              SmithKline Beecham, 903 S.W.2d at 352. But even
                                                                           if we were to adopt such a general duty, there is
   Fraud may also occur when –                                             no evidence to support the jury’s liability finding
     a. a party conceals or fails to disclose a material                   under the submitted jury charge.
        fact within the knowledge of that party,
     b. the party knows that the other party is ignorant              See also Samedan Oil Corp. v. Intrastate Gas Gathering, Inc.,
        of the fact and does not have an equal opportu-               78 S.W.3d 425 (Tex. App. – Tyler 2001, judgment vacated);
        nity to discover the trust,                                   Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200 (Tex.
     c. the party intends to induce the other party to take           App. – Houston [14th Dist.] 2001, pet. denied). In Samedan,
        some action by concealing or failing to disclose              as discussed earlier, the Court of Appeals held that a partial
        the fact, and                                                 disclosure could be fraud in the absence of a special rela-
     d. the other party suffers injury as a result of acting          tionship. In Greenwood, the Houston Court of Appeals held
        without knowledge of the undisclosed fact.                    the same in regard to partial disclosure as a defense. The
                                                                      Greenwood case has an excellent discussion regarding the use
The Court of Appeals affirmed the judgment on the fraud               of fraud as a defense to breach of contract.
grounds and other grounds and the defendant appealed to
the Texas Supreme Court. On appeal, the Supreme Court                 In 2002, several courts of appeals wrote on the issue of
                                                      ADVOCATE     ✯    SPRING 2004


partial disclosure in fraud cases or fraud by omission. In             In Pellegrini v. Cliffwood-Blue Moon Joint Venture, Inc., 115
Fleming v. Texas Coastal Bank of Pasadena, 67 S.W.3d 459 (Tex.         S.W.3d 577 (Tex. App.--Beaumont 2003, no pet. hist.) the
App.– Houston [14th Dist.] 2002, no pet. hist.), the 14th Court        Beaumont Court of Appeals closely followed Bradford v. Vento
of Appeals again stated their view that a partial disclosure           in a case that involved a geophysicist contractor who was
could be fraud in the absence of a special relationship. In            seeking to recover on an overriding royalty on an oil well
Fleming, the plaintiff was swindled out of his retirement              under terms of a contract. The issue in regard to fraud was
money by a con man, who asked the plaintiff to come to his             whether the defendant had the obligation to disclose prior
bank and purchase a CD that would be used for collateral in            well development that the plaintiff believed was hid from
the con man’s business. In the process of purchasing the CD,           him during the negotiations. The Beaumont Court stated that
the plaintiff asked about the con man’s credit and was told            the negotiations involved an arms-length transaction with
that the con man was a “good customer”, “generally carried             experts on both sides of the contract, that the parties had an
six figures” in his account, and “had a good business.” After          interest in identifying the prospects prior to execution of the
the money was gone, it came out that the con man was a                 contract, and the plaintiff could have made an investigation
new customer, his account had frequent returned items, and             to protect his own interests. Given these facts, no duty arose
a grand jury had subpoenaed records from his accounts at               on the part of the defendant.
the bank. The Court held that this was not enough to justify
reliance or a false impression, but stated the general duty            10. Proportionate Responsibility
to disclose enough information in a arm’s length business              In JHC Ventures, L.P., et al v. Fast Trucking, Inc., 94 S.W.3d 762
transaction to avoid a false impression.                               (Tex. App.-San Antonio 2002, no pet. hist), the San Antonio
                                                                       Court of Appeals addressed one of the most difficult issues
In Marshall v. Kusch, 84 S.W.3d 781 (Tex. AppÑDallas 2002,             in business litigation todayÑwhether parties are entitled to
no pet. hist.) (sale of ranch, in which history of anthrax not         a comparative submission of fraud or other “business torts”
disclosed), and Bankruptcy Estate of Harrison v. Bell, et al,          under Chapter 33 of the Texas Civil Practice and Remedies
99 S.W.3d 163 (Tex. App. – Corpus Christi 2002, no pet.                Code. In JHC Ventures, the plaintiff (Fast Trucking) brought
hist.)(dispute between attorneys over referral fee), the Dallas        a suit for breach of warranty, fraud, and DTPA violations
and Corpus Christi Courts of Appeal looked at two different            against JHC Ventures, Greg Hoss, Hoss Equipment, and others
fraud by omission cases. In the Marshall case, the Dallas              as a result of alleged defects in dump trailers purchased by
Court concluded that no duty arose to disclose information             Fast Trucking. The jury found that JHC Ventures and Hoss
in an arms length transaction, due to no relationship between          Equipment committed fraud, breached warranties, and
the parties. In Harrison, the court seemed to assume a duty            violated the DTPA. The jury also found that Fast Trucking
because the defendants were employees of the plaintiff,                failed to use ordinary care in using the trailers. The judge
although this was not discussed. In both cases the courts              submitted a comparative question that found that the parties
stated the general rule that silence cannot be a false represen-       caused the damages in the following percentages: plaintiff
tation in the absence of a duty to disclose information.               Fast Trucking --40%; JHC Ventures--10%;Hoss Equipment-
                                                                       -20%; and Greg Hoss--30%. Judgment was entered that JHC
In 2003, this issue has continued to come up in the courts             Ventures and Hoss Equipment were jointly and severally liable
of appeals. In Nelson v. Najm, 2003 WL 22413416 (Tex.                  for all actual damages, without reducing the damages. On
App.ÑHouston [1st Dist.] no pet. hist.), a purchaser of a gas          appeal, the defendants argued that Chapter 33 applied to the
station brought a fraud action against the seller for failing          breach of warranty, fraud, and DTPA claims to reduce or bar
to disclose the existence of an underground waste oil tank.            the damages. In regard to the breach of warranty claims, the
After a bench trial in which the court awarded damages to              San Antonio Court of Appeals held that Chapter 33 did not
the plaintiff, the defendant appealed on the grounds there             apply, since this cause of action could not be considered a
was no duty to disclose the waste tank and no affirmative              “tort.” Fraud, on the other hand, was clearly a tort so that
representations were made to the plaintiff. The Houston                Chapter 33 did apply to that portion of the verdict. Id. at p. 7.
Court of Appeals held that the Texas Administrative Code               Finally, the Court referred to the specific portions of Chapter
provided a statutory duty to disclose, despite the fact                33 to find that DTPA violations were included in its cov-
that the statutory duty was not pleaded. Id. at 5. The                 erage. SEE TEX. CIV. PRAC. & R EM. CODE ANN. Sec.33.002(h).
Houston Court further concluded that the $100,000                      Given the fact that one of the parties (Greg Hoss) should not
awarded by the trial judge was effectively a rescission mea-           have been included in the submission since the fraud claim
sure of damages, which was also not pled by plaintiffs.                against him was barred, the Court of Appeals remanded for
                                                     ADVOCATE     ✯    SPRING 2004


new submission. Defendants also raised the issue of whether           contract parties, a tort cause of action may exist, allowing
Duncan v. Cessna Aircraft, 665 S.W.2d 414 (Tex. 1984) applied         the damaged party to seek “tort” damages including punitive
to reduce damages, but the Court held that this issue had             damages. This broader avenue of recovery makes the claim
not been properly preserved.                                          for tortious an attractive theory.

11. Vicarious Responsibility                                          Texas recognizes a cause of action for tortious interference
In Millan v. Dean Witter Reynolds, Inc., 90 S.W.3d 760 (Tex.          with a contract if the following elements can be proved: (1)
App.-San Antonio 2002, pet. filed), the San Antonio Court             the existence of a contract; (2) a willful and intentional act of
of Appeals reviewed a case in which a mother sued her son             interference, (3) proximate causation; and (4) actual damage
and the brokerage firm in which he worked, alleging con-              or loss to the plaintiff. Powell Industries v. Allen, 985 S.W.2d
version, fraud, breach of fiduciary duty, and other claims.           455 (Tex. 1998); ACS Investors, Inc. v. McLaughlin, 943 S.W.2d
The trial judge directed a verdict on the fraud claim on the          426 (Tex. 1997).
issue of vicarious liability, finding that the acts in question
went beyond the normal brokerage duties, including stealing           Although a Plaintiff may prove all four elements, a defendant
checks from his mother’s bathroom drawer, writing checks              may prevail by pleading and proving a privilege or a legal
on his mother’s account, forging his mother’s signature,              justification for the interference. Such justification may be
and sending bogus statements to his mother. The Court of              based on the exercise of either (1) one’s own legal rights or (2)
Appeals affirmed, finding that the acts were not within his           a good-faith claim to a colorable legal right, even though that
general scope of authority. Justice Stone wrote a dissenting          claim ultimately proves to be mistaken. Prudential Insurance
opinion, finding that the acts were not “utterly unrelated” to        Company of America v. Financial Review Services, Inc., 29 S.W.3d
his duties. Id. at 8.                                                 74 (Tex. 2000).

12. Damages                                                           B. Recent Developments
The First Court of Appeals in Houston has written this past           1. Interference with Prospective Contracts
year on double recovery and damages in fraud cases. In F.S.           Although the Texas Supreme Court has repeatedly affirmed
New Products, Inc. v. Strong Industries, 2003 WL 22440424 (Tex.       that a claim for tortious interference requires proof of the
App.ÑHous. [1st Dist.] 2003, no pet. hist.) the manufacturer          “existence of a contract,” the courts of appeal have, in the past,
of dump truck trailing axles sued one of its dealers for fraud        expanded this cause of action to include tortious interference
in the inducement on a non-competition agreement and other            with prospective contracts. See Milam v. National Insurance
causes of action. Damages on both breach of contract and              Crime Bureau, 989 S.W.2d 126 (Tex. App. – San Antonio
fraud were awarded by the jury for the loss of the manufac-           1999, no pet. hist.); Bradford v. Vento, 997 S.W.2d 713 (Tex.
turer’s profits on one of its lines of products. The plaintiff        App. – Corpus Christi 1999, no pet. hist.).
manufacturer elected to accept breach of contract damages
($65,000) and attorneys’ fees on one of the defendants and            Creating some speculation about the long term future of
fraud ($675,000) and exemplary damages on the other defen-            this cause of action, the Texas Supreme Court noted in
dant who produced the product that was in competition. The            Prudential:
plaintiff’s argument was that the defendants had committed
different acts, the amount of the jury verdict was different             We have never enumerated the elements of a cause of
on each finding and that the total amount was less than they             action for tortious interference with prospective con-
had asked for from the jury. However, evidence had only been             tracts, although we have concluded that justification
presented on lost sales, profits, and costs associated with the          is an affirmative defense to tortious interference with
lost sales of the competing product line. Therefore, plaintiff           prospective business relations as well as to tortious
had only “one loss” that was presented in evidence.                      interference with an existing contract. (Citing Calvillo
                                                                         v. Gonzalez, 922 S.W.2d 928, 929 (Tex. 1996).
A. Background                                                         Prudential, 29 S.W.3d at 78. The Court declined to address
Parties to a contract may sue each other for breaching the            the point because neither the parties nor the courts had
contract and obtain the contractual benefits and possibly             addressed the issue.
attorneys fees. If, however, the contract is breached or
impaired because of the conduct of someone other than the             In Wal-Mart v. Sturges, 52 S.W.3d 711 (Tex. 2001), the Texas
                                                      ADVOCATE      ✯    SPRING 2004


Supreme Court again addressed tortious interference with                   Co., 54 S.W.3d 401, 414-15 (Tex. App. – Waco 2001,
prospective relations with the express intent of bringing                  pet. denied).
“some measure of clarity to this body of law.” Id. at 713.
However, the Supreme Court still did not identify the specific          The Court of Appeals then found that, using the new standard,
elements of the cause of action. In Wal-Mart, the Supreme               three of the four insurance companies had not “intentionally”
Court reviewed a case in which the plaintiffs sued for                  prevented the formation of the relationships and, therefore,
tortious interference with prospective relations, claiming that         summary judgment was proper. In regard to the fourth, the
Wal-Mart interfered with their contract to purchase some real           court reversed on procedural grounds, finding that its sum-
estate next to one of the Wal-Mart stores. The Supreme Court            mary judgment had not raised the issues properly.
looked at the historical development of the interference tort
in Texas and other jurisdictions and reached the conclusion             The case of Suprise v. Dekock, 84 S.W. 3d 378, 379 (Tex. App.
that plaintiff must prove that it was harmed by conduct that            – Corpus Christi 2002, no pet. hist.), illustrates a practical
was either independently tortious or unlawful. The Supreme              litigation tip regarding pleadings in a cause of action for
Court stated that conduct that is merely “sharp” or “unfair”            tortious interference with prospective contract. This case
cannot be the basis for the action, specifically disapproving           involved a group of hunters who owned a hunting property
a line of cases in Texas such as Light v. Transport Ins. Co., 469       and brought suit against neighboring land owners for alleged
S.W.2d 433 (Tex. Civ. App. – Tyler 1971, writ ref’d n.r.e.). In         tortious interference with use and enjoyment of land. Id.
regard to justification as a defense, the Court held that the           The trial court granted the neighboring owners summary
concept was “subsumed” in plaintiff’s proof, and was only a             judgment, and the hunters appealed. Id. The issue on appeal
defense to the extent that it is a defense to the “tortiousness         was whether the hunters had failed to state a claim for tor-
of the defendant’s conduct.” “Justification and privilege are           tious interference when they did not specifically mention
not useful concepts” in assessing interference with prospec-            the terms “prospective contract” or “business relationship”
tive relations. Id. at 727.                                             in their pleadings. Id. at 380. The hunters did specifically
                                                                        mention in their pleadings that the neighboring owners had
In Baty v. Protech Insurance Agency, 63 S.W.3d 841 (Tex. App.           interfered with their efforts to the sell the property by posting
– Houston [14th Dist.] 2001, pet. denied), the Houston 14th             signs and calling prospective buyers. Id. at 381. Accordingly,
Court of Appeals had a chance to apply the Supreme Court’s              the court said, the hunters did sufficiently state a claim for
opinion in Wal-Mart. In Baty, the plaintiffs brought suit for           tortious interference with prospective contract because the
tortious interference against the two of their former officers          wording of the petition made apparent the gist of the com-
who had formed a competing business, along with four                    plaint. Id. at 382.
insurance companies who were former clients. The trial court
granted summary judgment for the insurance companies. On                A case decided by the Corpus Christi Court of Appeals in
appeal, the Houston Court of Appeals considered Wal-Mart                2002 addressed the issue of what constituted an “independent
and how it fit within the context of the defendants’ summary            tort” such that it would form the basis of a claim for tortious
judgments. The Court set out what it considered the elements            interference with prospective business relationship. See Allied
of the cause of action to be in light of Wal-Mart:                      Capital Corporation v. Cravens, 67 S.W. 3d 486 (Tex. App.
                                                                        – Corpus Christi 2002, no pet. hist). In Allied, the Cravens
     In light of Sturges and Bradford, the elements of a                owned two properties secured by a deed of trust and were
     claim for tortious interference with a prospective                 late in their note payments, resulting in foreclosure proceed-
     business relationship appear to be: (1) a reasonable               ings. Id. at 488. Allied advertised the foreclosure sale, and
     probability that the plaintiff would have entered into             the Cravens obtained a temporary restraining order. Id. In
     a business relationship; (2) an independently tortious             support of their motion, the Cravens presented testimony that
     or unlawful act by the defendant that prevented the                a prospective purchaser was deterred by the advertising. On
     relationship from occurring; (3) the defendant did                 appeal, Allied argued that the trial court erred in granting the
     such act with a conscious desire to prevent the rela-              TRO because movants failed to show a likelihood of success
     tionship from occurring or the defendant knew the                  on the merits. Id. Specifically, Allied contends that the Cravens
     interference was certain or substantially certain to               would not win at trial because their actions in advertising the
     occur as a result of the conduct; and (4) the plaintiff            foreclosure are not an independent tortious act or a violation
     suffered actual harm or damages as a result of the                 of law which would allow recovery for tortious interference.
     defendant’s interference. Ash v. Hack Branch Distrib.              Id. at 489. The Court of Appeals agreed, holding that because
                                                      ADVOCATE      ✯    SPRING 2004


the Cravens did not assert any independent cause of action              conduct, this was further evidence that the CEO had not
such as fraud, but rather, asserted that the conduct was unfair         acted contrary to its interests.
because it provided detailed foreclosure information only to
a few people before the sale was posted.                                In Swank, the First Court of Appeals in Houston faced similar
                                                                        issues and reached a similar conclusion. The plaintiff had sued
2. Interference by Corporate Agent                                      for tortious interference on an employment agreement and was
Generally, a party cannot interfere with its own contract.              claiming that several directors/investors in the corporation
Holloway v. Skinner 898 S.W.2d 793 (Tex. 1995). However,                had interfered with his employment contract. The jury agreed,
when the defendant serves the dual roles of corporate agent             and on appeal one of the issues was whether the evidence
and the third party who allegedly induces the corporation’s             had shown they acted “solely” in their own interests. The
breach, the “interference” issue can become complicated. In             First Court reversed the jury finding, holding that “mixed”
that event, a plaintiff must generally prove that the corporate         motives were not sufficient, and even stating that corporation
agent’s alleged interference was in furtherance of the agent’s          complaints were not “conclusive” evidence that the agents
personal interests, not the corporation’s. Id.                          were acting solely in their own interests. Id. at 17.

This issue came up in two opinions in 2003, Ed Rachel                   3. Justification as Defense
Foundation v. D’Unger 117 S.W.3d 348 (Tex. App.ÑCorpus                  Justification is an affirmative defense to tortious interference
Christi 2003, no pet. hist.), and Swank v. Sverdlin, 2003 WL            with contract, based either on: (1) one’s own legal rights; or
22053837 (Tex. App.ÑHous. [1st Dist.] no pet. hist.). In Ed             (2) a good faith claim to a colorable legal right, even though
Rachel Foundation, a former officer of a non-profit corporation         that claim ultimately proves to be mistaken. Tex. Beef Cattle
brought claims against the foundation for wrongful termi-               Co. v. Green, 921 S.W.2d 203 (Tex. 1996). In Vingcard v.
nation, breach of contract, and brought claims against the              Merrimac Hospitality Systems, 59 S.W.3d 847 (Tex. App.
CEO of the foundation for tortious interference. After a jury           – Fort Worth 2001, no pet. hist.), the Fort Worth Court of
verdict for plaintiff, the foundation and CEO appealed. The             Appeals considered the use of justification as a defense in a
issue on appeal in regard to tortious interference was two-             case in which a computer workstation manufacturer brought
fold: 1)whether an at-will employment agreement could be                a tortious interference action against a buyer and another
the subject of tortious interference, and 2) whether the CEO            manufacturer. After a verdict in plaintiff’s favor, defendant
had acted “solely” in furtherance of his interests, as opposed          appealed on several grounds, including the failure of the jury
to the corporation’s interest. The Court first held that an at-         to find justification. The Court of Appeals pointed out that
will employment agreement could be the subject of tortious              the issue of whether a defendant has a legal right or color-
interference, consistent with prior precedent. See Sterner v.           able legal right is a question of law, which did not need to
Marathon Oil, 767 S.W.2d 686 (Tex. 1990). In considering                be submitted to the jury. The only issue that goes to the jury
the second issue, the Corpus Christi Court focused on the               is whether there is evidence of good faith, which is after the
foundation’s view of the CEO’s conduct:                                 court has concluded that no legal right exists. In this case,
                                                                        the Court of Appeals found that the evidence supported the
    A principal is a better judge of its own best interests             jury’s failure to find good faith.
    than a jury or court. If a principal does not complain
    about its agents’ actions, the agent cannot be held to              In Samedan, discussed infra, 78 S.W.3d 425 (Tex. App. – Tyler
    have acted contrary to the principal’s interests.                   2001, no. pet. hist), the Tyler Court of Appeals also considered
                                                                        whether justification could be submitted by way of instruc-
Id. at 16.                                                              tion, rather than as a separate question. The instruction in
                                                                        Samedan read as follows:
Evidence was presented that the CEO benefited by use of a
ranch and an increased salary, but the Court held that the                   Interference is intentional without justification if
plaintiff had to prove more than “the fact that Altheide (the                committed with the desire to interfere with a
defendant) had benefited personally from firing D’Unger                      contract or with the belief that interference is
(the plaintiff).” Id. at 16. The plaintiff basically had to prove            substantially certain to result provided that such
that the defendant acted willfully or intentionally to serve                 interference is not in the exercise of one’s own equal
his personal interest at the expense of the foundation. Further,             or superior right or interest in the subject matter  .
since the foundation had not complained about the CEO’s                      (Emphasis added).
                                                      ADVOCATE      ✯    SPRING 2004


The court held that the submission was appropriate, even                reversed on the ground the contract was not illegal under
though the Texas Pattern Jury Charge provides for a separate            Mexican law.
question. The Court of Appeals primarily based its holding
on the lack of any authority mandating a separate question              5. Intentional Interference
and the fact that Samedan had not informed the trial court              The defendant must take action to induce the breach of con-
why a separate question was necessary.                                  tract in order to be liable for tortious interference. A defendant
                                                                        must do more than enter into a contract with a party, knowing
A more recent case addressing justification as a defense is             that the party had contractual obligations to another. The
Richter v. Wagner Oil Company, 90 S.W.3d 890 (Tex. App.                 defendant must have interfered or persuaded the party to
- San Antonio 2002, no pet. hist.). Richter involved an                 breach for tort liability to arise. Davis v. HydPro 839 S.W.2d
entrepreneur and his partner who brought several claims                 137 (Tex. App. – Eastland 1992, writ denied).
against oil company, including tortious interference with
contract, based on the company’s purchase of reserves.                  In an Austin Court of Appeals Case, the court affirmed a
The purchase took place after the entrepreneur disclosed                trial court’s decision to enter a JNOV and render a take-
that his partner was likely the successful bidder of the                nothing judgment despite the jury’s award of $15,000,000.
reserves. Chief Justice Hardberger reiterated the holding               John Paul Mitchell Systems v. Randall’s Food Markets, 17 S.W.3d
in Tex. Beef Cattle Co., stating that the motivation behind             721 (Tex. App. – Austin 2000, pet. denied). The jury found
the interference is irrelevant. Tex. Beef Cattle Co. v. Green,          that Randall’s Food Markets was selling Paul Mitchell hair
921 S.W.2d 203 (Tex. 1996). Improper motives cannot                     products and in so doing was tortiously interfering with Paul
transform lawful actions into actionable torts. Id. at                  Mitchell’s exclusive distribution contracts. The distributor,
211. The court further explained, based on the Supreme                  Jade Drug Company, sold the products to Randall’s and the
Court’s holding in Sturges, that “when two parties are                  president of Jade testified that he knew that Paul Mitchell
competing for interests to which neither is entitled, then              had contracts with various salons to sell its products exclu-
neither can be said to be more justified or privileged in his           sively through the salons. He testified that Jade was not an
pursuit. Wal-Mart v. Sturges, 52 S.W. 3d 711 (Tex. 2001).               authorized dealer of Paul Mitchell products and that for
In this case, both Richter and Wagner were competing for                his company to obtain the product, “somebody broke their
the right to purchase oil reserves, and neither was declared            agreement”. 17 S.W.3d at 730. Despite this testimony, the
the successful bidder. Therefore, Wagner’s purchase of the              Court held that:
oil reserves was a bona fide exercise of its own rights.
                                                                           Here, although there is evidence that Jade purchased
4. Effect of Foreign Law on Contract in Question                           products when it knew of Paul Mitchell’s closed
In Long Distance International v. Telefonos de Mexico, 18 S.W.3d           distribution system, there is no evidence that Jade
706 (Tex. App. – San Antonio 2000, rev’d on other grounds)                 “induced” anyone to breach its exclusive distribu-
49 S.W.3d 347 (Tex. 2001), the Court determined that the                   tion agreement with Paul Mitchell…. If one of Paul
contract in question was illegal under Mexican law, and,                   Mitchell’s dealers or salons breached its obligations of
therefore, tortious interference was not available as a cause              its own volition, and Jade merely participated in the
of action. Since the Plaintiff was suing to obtain damages for             transaction, this does not constitute the “knowing
the interference with its contract to illegally provide phone              inducement” required under Texas law to impose
service in Mexico, the Court concluded that                                liability for tortious interference with Paul Mitchell’s
                                                                           distribution network.
     [a] contract made with a view of violating the laws
     of another country, though not otherwise obnoxious                 17 S.W.3d at 731. Contrast this case with Graham v. Mary
     to the laws either of the forum or of the place where              Kay, Inc., 25 S.W.3d 749 (Tex. App. – Houston [14th] 2000,
     the contract was made, is illegal and will not be                  pet denied) to find a successful approach to the “exclusive
     enforced.                                                          dealership” type case. In Graham, the evidence showed that
                                                                        Mary Kay had an exclusive distribution agreement with its
18 S.W.3d at 713. This is consistent with the general rule              sales people who agreed to sell the products exclusively
that a contract that is void cannot be the basis for a claim for        at home visits to customers. The defendant Graham was
tortious interference. Juliette Fowler Homes v. Welch Associates,       obtaining Mary Kay products from these sales people and
793 S.W.2d 660 (Tex. 1990). On appeal, the Supreme Court                selling the products at a flea market. Mary Kay sued to
                                                    ADVOCATE     ✯    SPRING 2004


obtain an injunction to stop these flea market sales. Graham         6. An Inference of Intentional Interference Is Not
contended that there was insufficient evidence of improper           Enough
interference. The Court found:                                       Proving willful interference is an onerous burden. A recent
                                                                     decision recognized that:
   The evidence shows that Graham actively sought
   current Mary Kay salespersons who were willing to                       Because a defendant accused of tortious interference
   breach this clause in their agreement and sell their                    rarely admits his guilt, a plaintiff must prove his cause
   products to Graham. Graham knew of this restriction                     of action with circumstantial evidence.
   because she had been a beauty consultant, signed an
   agreement and was terminated for selling cosmetics                Dagley v. Haag Engineering, 18 S.W.3d 787 (Tex. App. – Houston
   at a retail location. The summary judgment evidence               [14th Dist.] 2000, no pet. hist.). Despite this acknowledgement,
   showed that Graham cajoled these beauty consultants               the Court ruled that the Plaintiff’s evidence was insufficient
   into continuing to sell to her, even after they knew              to raise a fact issue. In Dagley, the plaintiff-homeowner sued
   that dealing with Graham was in breach of their agree-            the engineering firm that State Farm used to evaluate his
   ments. Thus, we find there was ample evidence of                  hail damage. The homeowner contended that the engineers
   willful and intentional interference by Graham, that              minimized the report of damage, thus preventing him from
   these acts were essential to Graham’s conduct of her              collecting insurance benefits under the contract. The engi-
   business….                                                        neers did not dispute that State Farm improperly denied the
                                                                     insured’s claims, or that the engineers had a long standing
25 S.W.3d at 753. The contrast between these two cases shows         and financially significant relationship with State Farm.
that it is not enough that a Defendant knew that a contract          The engineers also did not dispute that they knew that their
was being breached; the defendant must be the one interfering        actions would affect State Farm’s conduct. Despite this, the
with the contract and causing the breach.                            Court held that this was not enough to prove intentional
In this past year, the Austin Court of Appeals wrote again
on tortious interference in New York Life Insurance Company          Daniel Bishop is a partner in the Austin firm of Watson, Bishop,
v. Miller 114. S.W.3d 114 (Tex. App.ÑAustin 2003, no pet.            London and Galow, which specializes in business torts and per-
hist.). In New York Life, a life insurance agent brought suit        sonal-injury litigation. Bishop is past president of the Austin
for tortious interference against another insurance agent            Young Lawyers Association and currently serves as Treasurer of
for interfering with his contract with New York Life. After          the Litigation Section, State Bar of Texas. ✯
finding that New York Life had not breached its contract with
the plaintiff, the Austin Court found that the evidence was
                                                                     1In Altai, a trade secret case, the Court articulated two principles
insufficient to support a tortious interference finding. Since
the contract was not breached, the defendant could not have          that generally apply in discovery rule cases: (1) the nature of the
“interfered” with it. Id. at 125.                                    injury must be inherently undiscoverable, and (2) the injury itself
                                                                     must be objectively verifiable.

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