                                     NUMBER 13-05-368-CV

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


GREGORY STEWART JOHNSTON,                                                                    Appellant,

                                                      v.

CHARLES T. SMITH,                                                                            Appellee.


   On appeal from the 267th District Court of Refugio County, Texas.


                               MEMORANDUM OPINION

                    Before Justices Rodriguez, Vela, and Wittig1
                      Memorandum Opinion by Justice Wittig

        Appellant, Gregory Stewart Johnston, made a claim for injuries resulting from an

attack by a stallion owned by appellee, Charles T. Smith. The claim was based upon

statutory negligence because Smith failed to carry workers’ compensation. The jury



        1
        Retired Fourteenth Court of Appeals Justice Don W ittig assigned to this Court by Chief Justice of the
Suprem e Court of Texas pursuant to the governm ent code. T EX . G O V ’T C OD E AN N . § 74.003 (Vernon 2005).
answered all questions in Smith’s favor. Smith previously had won a summary judgment

under the Equine Activity Act, which was reversed and remanded by this Court in Johnston

v. Smith, 88 S.W.3d 729 (Tex. App.–Corpus Christi, 2002, no pet.). We affirm the

judgment of the trial court.

       In four issues, Johnston challenges the introduction of contributory negligence

evidence, charge error for failing to include his statutory theory, introduction of expert

testimony not based upon specific facts, and introduction of expert testimony about

retrograde extrapolation. We will address his issues in order.

                                              1. Background

       Johnston worked on Smith’s ranch in Refugio County in 1993, was fired, then

rehired in 1998. During Johnston’s absence from the ranch, the stallion, named Island

Born, purportedly became unusually aggressive, unbeknownst to Johnston. While working

with the horse, Island Born bit Johnston’s face and kicked him, causing severe injuries.

The parties stipulated to over $60,000 in reasonable medical costs.

       According to Smith, Johnston was an alcoholic who abused the stallion and caused

his own injuries.2 Smith also argued, and the trial court agreed, that the claims were to be

tried under the equine statute and not under workers’ compensation law. See TEX . CIV.

PRAC . & REM . CODE § 87.002 (Vernon 2005) (delineating liability under Equine Activity Act);

TEX . LABOR CODE § 406.033(a)(Vernon 2004) (delineating liability under workers

compensation law). The trial court evidently based his holding upon our decision in

Johnston, where, in dicta, we stated that Johnston was an independent contractor.



       2
           Neither party argues sole cause.

                                                   2
Johnston, 88 S.W.3d at 730. We went on to hold that Johnston worked in equine activity

and was covered by the act. Id. at 731. We reversed the summary judgment based upon

the equine statute because there was a fact issue concerning one of the exceptions to

immunity under the equine statute. Id. at 733.

       During the jury trial, the trial court refused a considerable amount of proof showing

Johnston to be an employee, including deposition testimony and exhibits from Smith’s

bookkeeper, accountant, and office manager. Johnston himself testified that he was an

employee.

                        2. Contributory Negligence/Courts Charge

       Johnston argues that the trial court erred in allowing evidence of contributory

negligence in his statutory workers’ compensation claim.            We will assume, without

deciding, that Johnston is correct, that in general, evidence of contributory negligence is

not admissible in a non-subscriber, workers’ compensation case. The labor code, section

406.033, the current version of the penalty statute, discourages employers from opting out

of workers' compensation insurance by prohibiting a nonsubscriber from asserting that its

employee was contributorily negligent, assumed the risk, or that a fellow employee's

negligence caused the employee's injuries. Kroger Co. v. Keng, 23 S.W.3d 347, 350 (Tex.

2000) (citing TEX . LABOR CODE § 406.033(a)). However, section 406.033 also identifies the

defenses that implicate the employee's conduct and on which a nonsubscribing employer

may rely: the employee intended to bring about the injury, or the injury occurred while the

employee was intoxicated. Id. (citing § 406.033(c)). Accordingly, we hold it was not error

for the trial court to allow evidence of Johnston’s intoxication.

       We are left with the question of contributory negligence. Among other arguments,

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Smith maintains that he is not required to carry workers’ compensation insurance because

he is exempt. In that case, evidence of contributory negligence would be admissible. At

the time of Johnston’s incident, appellee claims that Smith only employed two farm or

ranch workers. Section 406.162 states:

       SCOPE. (a) This subtitle applies to an action to recover damages for
personal injuries or death sustained by a farm or ranch employee who is:

       ***

       (3) an employee, other than a migrant or seasonal worker:

       ***
       (B) for 1991 and subsequent years, employed by a person:

       (i) with a gross annual payroll in an amount required for coverage of
       seasonal workers under Subdivision (2)(B); or

       (ii) who employs three or more farm or ranch employees other than migrant
       or seasonal workers.

TEX . LABOR CODE ANN . § 406.162 (Vernon 2004).

       Appellee does not address whether or not Johnston may have come under section

406.162 (3)(B)(i). Further, an employer is generally defined as a person who employs one

or more employees. TEX . LABOR CODE ANN . § 406.001; see Wingfoot Enters. v. Alvarado,

111 S.W.3d 134, 137 (Tex. 2003). Cf. TEX . LABOR CODE § 406.091 (Vernon 2004) (farm

or ranch employees are exempt employees except as provided by subchapter “H” of the

labor code). Furthermore, a page of Smith’s general ledger indicates payments to three

or more individuals, including Johnston, calling them “contract labor.” Therefore, we reject

this argument by appellee.

                                   3. Law of the Case

       Probably the most difficult issue facing the trial judge was the effect of our earlier

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decision in Johnston. See Johnston, 88 S.W.3d at 733. There, we addressed the appeal

of a summary judgment that applied the equine statute as a bar to the negligence claim of

Johnston. Id. Our opinion summarized the four issues and we treated them as one

general point of error. In the primary thrust of our opinion, we discussed that the equine

statute was not limited to “public facilities,” as Johnston argued, whether Johnston was a

participant in equine activity, the inherent risk of equine activity, and an exception to

immunity under the equine statute. Id. at 732-33. An exception to liability disallows

immunity if Smith “did not make a reasonable and prudent effort to determine the ability

of the participant to engage safely in the equine activity.” Id. at 733 (citing TEX . CIV. PRAC .

& REM . CODE § 87.004(2)). Ultimately, we held that a fact issue precluded summary

judgment on this theory because there was a question whether Smith made a reasonable

and prudent effort to determine the ability to engage safely in the activity.3 We did not

discuss whether or not Johnston was an employee, and whether or not the equine statute

trumped workers’ compensation law. Id. at 729-33. Cf. Dodge v. Durdin, 187 S.W.3d 523,

530 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (holding that equine statute lacks specific

language to limit an employee’s workers’ compensation rights against his employer).

       The law of the case doctrine provides that the decision of a court of last resort on

a question of law will govern a case throughout its subsequent stages. Hudson v.

Wakefield, 711 S.W.2d 628 (Tex. 1986); Harris County v. Walsweer, 930 S.W.2d 659,

663-64 (Tex. App.–Houston [1st Dist.] 1996, writ denied). However, a decision on an issue

before an intermediate appellate court does not absolutely bar re-consideration of the



       3
           The trial court subm itted this issue as a fact question to be determ ined by the jury.

                                                       5
same issue on a second appeal. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.

2003). The application of the doctrine lies within the discretion of the court, depending on

the particular circumstances surrounding that case. Id. For example, if an appellate

court's original decision is "clearly erroneous," the subsequent court is not required to

adhere to the original ruling. Id.

       The doctrine only applies to questions of law and does not apply to questions of

fact. Barrows v. Ezer, 624 S.W.2d 613, 617 (Tex. App.–Houston [14th Dist.] 1981, no writ);

Kropp v. Prather, 526 S.W.2d 283, 285 (Tex. Civ. App.–Tyler 1975, writ ref'd n.r.e.)

Missouri K. & T. Ry. Co. v. Redus, 55 Tex. Civ. App. 205, 208, 118 S.W. 208, 210 (Tex.

Civ. App.–Dallas 1909, writ ref'd). Further, the doctrine does not necessarily apply when

either the issues or the facts presented at successive appeals are not substantially the

same as those involved on the first trial. Barrows, 624 S.W.2d at 617; Kropp, 526 S.W.2d

at 285; Ralph Williams Gulfgate Chrysler Plymouth, Inc. v. State, 466 S.W.2d 639 (Tex.

Civ. App. –Houston [14th Dist.] 1971, writ ref'd n.r.e.). In a second trial or proceeding, one

or both of the parties may amend their pleadings, and the issues or facts are sufficiently

changed so that the law of the case no longer applies. See Rose v. Baker, 143 Tex. 202,

183 S.W.2d 438 (1944); Seydler v. Keuper, 133 S.W.2d 189, 190 (Tex. Civ. App.–Austin

1939, writ ref'd); Kropp, 526 S.W.2d at 286; see also City of Houston v. Jackson, 135

S.W.3d 891, 896 (Tex. App.–Houston [1st Dist.] 2004).

       When this court remands a case and limits a subsequent trial to a particular issue,

the trial court is restricted to a determination of that particular issue. Wall v. East Texas

Teachers Credit Union, 549 S.W.2d 232, 232 (Tex. Civ. App.–Texarkana 1977, writ ref'd);



                                              6
see McConnell v. Wall, 67 Tex. 352, 353, 5 S.W. 681, 681 (1887). In interpreting the

mandate of an appellate court, the courts should look not only to the mandate itself, but

also to the opinion of the court. Wells v. Littlefield, 62 Tex. 28, 30 (1884); Seale v. Click,

556 S.W.2d 95, 96 (Tex. Civ. App.–Eastland 1977, writ ref'd n.r.e.). In this regard, courts

have observed that "the cases are rare and very exceptional in which this court is

warranted in limiting the issues of fact, in reversing and remanding a case where the trial

has been by jury; and to authorize such interpretation, it must clearly appear from the

decision that it was so intended." Cole v. Estell, 6 S.W. 175, 177 (Tex. 1887); see Price

v. Gulf Atlantic Life Ins., 621 S.W.2d 185, 187 (Tex. Civ. App.–Texarkana 1981, writ ref'd

n.r.e.).

           Not only are the cases rare where an appellate court is warranted in limiting the

issues of fact on remand, but we must also consider the limitations necessarily placed

upon the review of a summary judgment. See Hudson, 711 S.W.2d. at 630-31. In the

review of summary judgments, appellate courts are limited in their considerations of issues

and facts. Id. In a summary judgment, neither the movant nor the respondent is required

to assert every theory upon which he may recover or defend. When a case is remanded

for a trial on the merits, the parties may be different, the pleadings may be different, and

other causes of action may have been consolidated. Id. (citing Governing Bd. v. Pannill,

659 S.W.2d 670, 680-81 (Tex. App.–Beaumont 1983, writ ref'd n.r.e.)). Thus, the context

of a summary judgment proceeding is distinguishable from a full trial on the merits. Id.

           In the initial appeal, Smith’s motion for summary judgment arguing that the equine

statute applied was reversed and remanded. Johnston, 88 S.W.3d. at 733. Johnston’s



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appeal was restricted to this defensive theory. The summary judgment proof, including

whether or not Johnston was an employee injured in the course of his employment, was

not addressed or considered in our prior opinion. See id. Johnston had not even pled the

equine statute as a basis of recovery until before the trial on the merits when the trial judge

insisted that Johnston amend his pleadings to include this theory.

       We find nothing in our opinion or mandate that limited the issues to be considered

by the trial court on remand. We conclude this is not one of those rare cases which limited

the issues that trial court was to try on remand. Hudson, 711 S.W.2d. at 630-31.

Accordingly, the trial court erred by allowing evidence of contributory negligence other than

intoxication and by not submitting Johnston’s statutory workers’ compensation negligence

claim. See Dodge, 187 S.W.3d. at 530. We sustain Johnston’s first and second issues,

in part.

                                    4. Course and Scope

       Smith also argues that Johnston was not in the “course and scope” of his

employment at the time of his injury. The Texas Labor Code defines this term:

       ‘Course and scope of employment’ means an activity of any kind or character
       that has to do with and originates in the work, business, trade, or profession
       of the employer and that is performed by an employee while engaged in or
       about the furtherance of the affairs or business of the employer. The term
       includes an activity conducted on the premises of the employer or at other
       locations. . . .

TEX . LABOR CODE ANN . § 401.011 (Vernon 2004).

       The Texas Supreme Court has held that it is essential that an injury be sustained

in the course of employment so as to entitle the employee or his statutory beneficiaries to

recover workers' compensation benefits. Deatherage v. International Ins. Co., 615 S.W.2d


                                              8
181, 182 (Tex. 1981) (citing predecessor statute, article 8306, § 1). As a general rule, a

claimant must meet two requirements: (1) the injury must have occurred while the

employee was engaged in or about the furtherance of the employer's affairs or business;

and (2) the claimant must show that the injury was of a kind and character that had to do

with and originated in the employer's work, trade, business or profession. Id. (citing article

8309, § 1(4); Biggs v. United States Fire Ins. Co., 611 S.W.2d 624 (Tex. 1981); Tex. Emp.

Ins. Ass'n v. Page, 553 S.W.2d 98 (Tex. 1977); Shelton v. Standard Ins. Co., 389 S.W.2d

290 (Tex. 1965); Tex. Gen. Indem. Co. v. Bottom, 365 S.W.2d 350 (Tex. 1963)).

       Johnston’s own testimony shows that he was walking Smith’s stallion back from

breeding Johnston’s own mare. The activity did not have anything to do with furtherance

of his employer's business. An employee must establish that the injury was sustained

while engaged in or about the furtherance of the employer's affairs or business and that

the injury was of a kind and character that had to do with and originated in the employer's

work, trade, business, or profession. TEX . LABOR CODE ANN . § 401.011(12) (Vernon 2004)

(defining course and scope of employment); see also Deatherage, 615 S.W.2d at 181-82

(interpreting definition of course of employment under prior statute). Eye witness testimony

also indicated that Johnston was using Smith’s stallion to breed his own mare. The jury

found that Johnston did not have Smith’s’s permission to breed Johnston’s mare to Island

Born. Thus, Johnston was not performing his job for Smith. See TEX . LABOR CODE ANN .

§ 401.011(12) (Vernon 2004). The injury must occur while Johnston was engaged in or

about the furtherance of his employer’s affairs or business. Deatherage, 615 S.W. 2d at

182.



                                              9
       Nor does Johnston indicate any objection to jury question five, inquiring whether he

had permission to breed his own mare to Smith’s stallion. To preserve error in the jury

charge, a party must make the trial court aware of his complaint, timely and plainly, and

obtain a ruling. State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 241

(Tex. 1992). A party objecting to a charge must distinctly point out the matter to which he

objects and the grounds of his objection. TEX . R. CIV. P. 274; Castleberry v. Branscum, 721

S.W.2d 270, 276 (Tex. 1986); Lone Star Ford v. Hill, 879 S.W.2d 116, 121 (Tex.

App.–Houston [14th Dist.] 1994, no writ). The purpose of rule 274 is to afford trial courts

an opportunity to correct errors in the charge. Castleberry, 721 S.W.2d at 276. An

objecting party must clearly designate error and explain the grounds for complaint. Id. An

objection not meeting both requirements is properly overruled and does not preserve error

on appeal. Id. We hold that Johnston waived error, if any, associated with the submission

of issue five and is bound by the jury’s finding.

       Because the jury found that Johnston was acting without permission of his

employer, and thus not in or about the furtherance of the employer's affairs or business,

we hold that the error of the trial court which we found in issues one and two, did not cause

the rendition of an improper judgment, and is therefore harmless.           TEX . R. CIV. P.

44.1(a)(1).

                               5. Retrograde Extrapolation

       In his issues three and four, Johnston complains the trial court erred by allowing

Smith’s expert toxicologist’s testimony because the opinions were not based on specific

facts and her opinions were not reliable. Johnston complains expert, Sheryl Peyton, did



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not have an adequate factual basis upon which to make her ultimate opinions, applying

retrograde extrapolation, concluding that Johnston’s blood-alcohol level was between .09

and .15 at the time of the horse attack.

       Peyton, formerly a forensic toxicologist for the Texas Department of Public Safety,

converted Johnston’s serum test result of .64 into a whole blood alcohol test result of .057.

The hospital that treated Johnston performed the blood alcohol test at 1950 hours the day

of the incident. The trauma flow sheet indicated Johnston was injured between 1700 and

1730 hours. Based on the time of the accident and the time that Johnston’s blood was

drawn, Peyton opined that Johnston’s blood alcohol concentration was greater than .09 at

the time of the accident. She indicated the range of blood alcohol concentration was

between .09 and .15, given the variability of ethanol elimination and absorption rates. The

standard elimination rate is .018 to .02 per hour. However, in individual cases the

elimination rate may vary from .015, in a person who drinks very little, to .035 in a person

who drinks a lot. Peyton also relied on the medical records for Johnston’s size and weight.

She further had knowledge of testimony that showed that Johnston was drinking alcohol

around noon, although she didn’t know what, if anything, he had eaten for lunch. In

addition to the medical records including the laboratory analysis, she also relied upon

Johnston’s deposition testimony.

       Johnston stipulated that Peyton was an expert toxicologist and that she had the

background to make the mathematical calculations regarding retrograde extrapolation,

“assuming she’s provided with the adequate information needed to do that.”

       Expert testimony is admissible if (1) the expert is qualified, and (2) the testimony is

relevant and based on a reliable foundation. Cooper Tire & Rubber Co. v. Mendez, 204

                                             11
S.W.3d 797, 800-01 (Tex. 2006) (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499

(Tex. 2001); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.

1995)). "If the expert's scientific evidence is not reliable, it is not evidence." Merrell Dow

Pharm., Inc. v. Havner, 953 S.W.2d 706, 713 (Tex. 1997). We review the trial court's

determination whether these requirements are met by the abuse of discretion standard.

Wilkins, 47 S.W.3d at 499. "The test for abuse of discretion is whether the trial court acted

without reference to any guiding rules or principles." Robinson, 923 S.W.2d at 558.

Admission of expert testimony that does not meet the reliability requirement is an abuse

of discretion. Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 810 (Tex. 2002).

       Johnston stipulated, and we hold, that the expert was qualified. Johnston does not

challenge the methodology of retrograde extrapolation per se; rather, his challenge, as

stated, is that Peyton simply did not have enough facts upon which to base her

conclusions. He cites Mata v. State, 46 S.W.3d 902, 916-17 (Tex. Crim. App. 2001). Mata

discusses some factors in evaluating the reliability of retrograde extrapolation:

       The court evaluating the reliability of a retrograde extrapolation should also
       consider (a) the length of time between the offense and the test(s)
       administered; (b) the number of tests given and the length of time between
       each test; and (c) whether, and if so, to what extent, any individual
       characteristics of the defendant were known to the expert in providing his
       extrapolation. These characteristics and behaviors might include, but are not
       limited to, the person's weight and gender, the person's typical drinking
       pattern and tolerance for alcohol, how much the person had to drink on the
       day or night in question, what the person drank, the duration of the drinking
       spree, the time of the last drink, and how much and what the person had to
       eat either before, during, or after the drinking.

       ***

       In this case, the inconsistencies in McDougall's testimony prevented him
       from explaining the science to the court with any clarity. Regarding the other


                                             12
       factors, there was only one test of Mata's BAC, and it occurred over two
       hours after the alleged offense. This is a significant length of time and
       seriously affects the reliability of any extrapolation. Add to that the fact that
       McDougall did not know one single personal characteristic of Mata - he did
       not know whether Mata had eaten anything that night and if so, how much;
       how much Mata had had to drink; what Mata had been drinking; when Mata's
       last drink was; the length of Mata's drinking spree; or even Mata's weight.

Id.

       In contrast to McDougall’s testimony, Peyton knew and testified to Johnston’s weight

and gender, that he was drinking at noon on the day in question, and thus the approximate

time of his last drink, as well as the duration of the drinking. The actual test was not a

breath test but a hospital administered blood alcohol test specifically documented as to

time and place. Although Peyton did not know what Johnston had eaten for lunch, she

knew some of his personal characteristics, including his drinking habits. Furthermore,

Johnston does not point to any inconsistences in the Peyton’s testimony. We also note the

following language from Mata that is applicable here:

       We believe that the science of retrograde extrapolation can be reliable in a
       given case. The expert's ability to apply the science and explain it with clarity
       to the court is a paramount consideration. In addition, the expert must
       demonstrate some understanding of the difficulties associated with a
       retrograde extrapolation. He must demonstrate an awareness of the
       subtleties of the science and the risks inherent in any extrapolation. Finally,
       he must be able to clearly and consistently apply the science.

Id.

       A review of the record indicates Peyton demonstrated ample familiarity with the

foundational data, the science, and its application. Her awareness of the subtleties of the

science gave rise to her opinion giving a range of intoxication, rather than testifying to

some absolute degree of intoxication. In contrast to the Mata expert, Peyton’s testimony

was consistent and demonstrated careful analysis. We also note that Mata is otherwise

                                              13
distinguishable because of its criminal law standard of “clear and convincing evidence,”

which does not apply in the civil context. See id.

       We agree with Johnston that if an expert relies upon unreliable foundational data,

any opinion drawn from that data is likewise unreliable. Wilkins, 47 S.W.3d 486, 499 (citing

Havner, 953 S.W.2d at 714.) However, in this instance, ample data supported the expert’s

opinion of Johnston’s intoxication at the time of his unfortunate incident. Accordingly, we

hold the trial court did not abuse its discretion in this case by overruling the objections of

Johnston, and allowing both the expert opinion and supporting documents. See Robinson,

923 S.W.2d at 558. Johnston’s third and fourth issues are overruled.

                                       6. Conclusion

       The judgment of the trial court is affirmed.




                                                  DON WITTIG,
                                                  Justice




Memorandum opinion delivered and filed
this the 29th day of May, 2008.




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