                                                                              ACCEPTED
                                                                        12-14-00123-CV
                                                             TWELFTH COURT OF APPEALS
                                                                          TYLER, TEXAS
                                                                    1/16/2015 4:39:11 PM
                                                                           CATHY LUSK
                                                                                  CLERK




                                                      FILED IN
                 NO. 12-14-00123-CV            12th COURT OF APPEALS
                                                    TYLER, TEXAS
                                               1/16/2015 4:39:11 PM
                                                    CATHY S. LUSK
     IN THE TWELFTH COURT OF             APPEALS        Clerk
               TYLER, TEXAS


LIBERTY MUTUAL INSURANCE COMPANY, Appellant

                           v.

               RICKIE SIMS, Appellee


      Appeal from the 276th Judicial District Court
                 Shelby County, Texas
                Cause No. 13CV32,286


           APPELLANT’S REPLY BRIEF


                                David L. Plaut
                                State Bar No. 16066030
                                Jeffrey C. Glass
                                State Bar No. 08004000
                                HANNA & PLAUT, LLP
                                211 E. Seventh Street, Suite 600
                                Austin, Texas 78701
                                Telephone: (512) 472-7700
                                Facsimile: (512) 472-0205

                                ATTORNEYS FOR APPELLANT
                                LIBERTY MUTUAL INSURANCE
                                COMPANY
                                         TABLE OF CONTENTS
                                                                                                                   Page
TABLE OF CONTENTS....................................................................................... ii

TABLE OF AUTHORITIES ................................................................................ iv

SUMMARY OF ARGUMENT ............................................................................. 1

ARGUMENT AND AUTHORITIES .................................................................... 3

Issue One ............................................................................................................... 3
      As a matter of law, the Chesapeake Policy unambiguously
      provides $250,000 in UM/UIM coverage. The trial court therefore
      erred in submitting the issue of policy limits to the jury, admitting
      evidence about policy limits at trial, and entering judgment on the
      jury’s answer to Question 1...........................................................................3

Issue Two ............................................................................................................ 14
      The amount of policy limits was not relevant to any triable fact
      issue and determination of limits was material only to calculate the
      amount of the judgment after the verdict. Therefore, the trial court
      erred by, among other things, submitting the issue of policy limits
      to the jury, admitting evidence about policy limits, and in entering
      judgment on the jury’s answer to Question 1. .............................................14

Issue Three .......................................................................................................... 17
      Even if it was proper to submit the policy limits issue to the jury,
      the trial court erred by failing to submit the relevant amendatory
      endorsements and by refusing Liberty’s offers of proof that it
      corrected all discovery errors prior to trial. .................................................17

Issue Four ............................................................................................................ 18
      Allowing the jury to consider and determine UM/UIM limits
      improperly injected insurance in the trial violating Texas Rule of
      Evidence 411. .............................................................................................18

CONCLUSION ................................................................................................... 21


                                                            ii
CERTIFICATE OF SERVICE............................................................................. 22

CERTIFICATE OF COMPLIANCE ................................................................... 22




                                                 iii
                                 TABLE OF AUTHORITIES

Cases                                                                                               Page
Brainard v. Trinity Universal Insurance Co.,
   216 S.W.3d 809 (Tex. 2006)........................................................................6, 15

City of Amarillo v. Barnes,
   1998 WL 609765 (Tex. App.–Amarillo 1998, no pet.)................................... 13

Dahl v. Dahl,
  2009 WL 866199 (Tex. App.–Dallas 2009, no pet.).......................................... 4

Dallas Transit Co. v. Young,
  370 S.W.2d 6 (Tex. Civ. App.–Dallas 1963, writ ref’d n.r.e.) ........................5, 6

Employers Insurance of Wausau v. Halton,
  792 S.W.2d 462 (Tex. App.–Dallas 1990, writ denied)..................................... 5

Gaspar v. Lawnpro, Inc.,
  372 S.W.3d 754 (Tex. App.–Dallas 2012, no pet.).......................................... 11

Gore v. Cunningham,
  297 S.W.2d 287 (Tex. Civ. App.–Beaumont 1956, writ ref'd n.r.e.)...............4, 7

Hathaway v. General Mills, Inc.,
  711 S.W.2d 227 (Tex. 1986)........................................................................... 17

Henson v. Southern Farm Bureau Casualty Insurance Co.,
  17 S.W.3d 652 (Tex. 2000)............................................................................. 16

Hercules Exploration, Inc. v. Halliburton Co.,
  658 S.W.2d 716 (Tex. App.–Corpus Christi 1983, writ ref’d n.r.e.).................. 4

Houston First American Savings v. Musick,
  650 S.W.2d 764 (Tex. 1983)............................................................................. 4




                                                    iv
In re Progressive County Mutual Insurance Co.,
    2014 WL 2618298 (Tex. App.–Houston [1st Dist.] 2014, no. pet.) ................ 15

In re Reynolds,
    369 S.W.3d 638 (Tex. App.–Tyler 2012, no pet.) .......................... 14, 15, 19, 20

Industrial Disposal Supply Co., Inc. v. Perryman Brothers Trash Services, Inc.,
   664 S.W.2d 756 (Tex. App.–San Antonio 1983, writ ref’d n.r.e.) ..................... 4

Mid-Century Insurance Co. of Texas v. McLain,
  2010 WL 851407 (Tex. App.–Eastland, no pet.) ................................ 7, 8, 14, 16

Peralta v. Durham,
   133 S.W.3d 339 (Tex. App.–Dallas 2004, no pet.)............................................ 3

Restelle v. Williford,
   364 S.W.2d 444 (Tex. Civ. App.–Beaumont 1963, writ ref'd n.r.e.).................. 4

S & I Management, Inc. v. Choi,
   331 S.W.3d 849 (Tex. App.–Dallas 2011, no pet.).......................................... 11

Starks v. City of Houston,
   448 S.W.2d 698 (Tex. Civ. App.–Houston [1st Dist.] 1969, writ ref'd n.r.e.) .... 4

State Farm Mutual Auto Insurance Co. v. Norris,
   216 S.W.3d 819 (Tex. 2006)........................................................................... 16

State Farm Mutual Auto Insurance Co. v. Grayson,
   983 S.W.2d 769 (Tex. App.–San Antonio 1998, no pet.) ...........................14, 19

Stracener v. United Services Automobile Association,
   777 S.W.2d 378 (Tex. 1989)........................................................................... 19

Thornhill v. Ronnie’s I-45 Truck Stop, Inc.,
  944 S.W.2d 780 (Tex. App.–Beaumont 1997, writ dism'd by agr.) ............18, 19

Thota v. Young,
  366 S.W.3d 678 (Tex. 2012) ........................................................................................... 21



                                                            v
Rules

Texas Rule of Appellate Procedure 33.1(a)(1) ..................................................... 13

Texas Rule of Appellate Procedure 44.1 .............................................................. 21

Texas Rule of Civil Procedure 198.3 ..................................................................... 5

Texas Rule of Evidence 411 ............................................................... 18, 19, 20, 21

Publication

1 Steven Goode, Olin Guy Wellborn III, and M. Michael Sharlot,
   Texas Practice Series: Guide to the Texas Rules of Evidence § 411.1
   (3d ed. 2002)....................................................................................................18




                                                         vi
                          SUMMARY OF ARGUMENT

      This appeal begins and ends with the certified policy that unambiguously

provides $250,000 in UM/UIM coverage for the accident in which Sims was

involved. Because the unambiguous policy was provided to the trial court at

judgment when it first became relevant (as Sims concedes), the judgment of the

trial court must be reversed and rendered for Liberty.

      Sims argues in his brief both that policy limits were $1 million as a matter of

law and that the amount of policy limits was a fact question. He cannot have it

both ways. In any case, he is wrong on both counts. This Court cannot find the

limits were $1 million as a matter of law because the trial court admitted

incomplete misleading evidence of policy limits, submitted the issue to the jury,

and relied on the jury verdict in entering judgment. By persuading the trial court to

try policy limits to the jury, Sims waived reliance on Liberty’s corrected

admission. Thus, even if the trial court had found policy limits were $1 million as

a matter of law – which it did not do – the judgment must be reversed.

      Sims is also incorrect in arguing there was a fact question as to the amount

of policy limits that was properly submitted to the jury. The question of limits is a

question of law for the court to decide at the time of judgment and is never

submitted to the jury in the liability phase of a UM/UIM case. Permitting the jury

to consider the amount of policy limits is inherently prejudicial and requires, at the



Appellant’s Reply Brief                                                        Page 1
very least, a reversal and remand. In any event, the policy limits question was not

properly submitted as a question of fact because the court admitted only those

portions of the policy Sims designated and refused Liberty’s offer of the entire

policy. Again, even if Sims is correct on his second argument, the judgment must

be reversed.

      This case was improperly tried. Either the question of policy limits was a

question of law, in which case limits were irrelevant until judgment when the trial

court was required to construe the entire certified policy Liberty submitted; or the

question was one of fact, in which case the trial court was required to submit the

entire policy to the jury, with all relevant endorsements, not just the misleading

few pages Sims submitted for self-serving reasons. The proper way to try the case,

as outlined in Liberty’s opening brief, was to set aside the policy limits question

until judgment, disregarding all incomplete documents, and then, at judgment,

construe the unambiguous certified policy showing limits of $250,000. Because

the evidence establishes that $250,000 policy limit as a matter of law, the judgment

must be reversed and judgment rendered in that amount. In the alternative, the

case must be remanded for trial on the policy limits question alone.




Appellant’s Reply Brief                                                      Page 2
                           ARGUMENT AND AUTHORITIES

                                      Issue One

        As a matter of law, the Chesapeake Policy unambiguously provides
        $250,000 in UM/UIM coverage. The trial court therefore erred in
        submitting the issue of policy limits to the jury, admitting evidence
        about policy limits at trial, and entering judgment on the jury’s answer
        to Question 1.

        A.    Sims waived reliance on the admission relating to policy limits by
              trying the issue as a factual dispute.

        Sims’ argument that policy limits were $1 million as a matter of law relies

on discovery answers and an admission that Liberty corrected before trial.

Appellee’s Brief at 20-21. Sims, however, very clearly disregarded that admission

and tried the question of policy limits to the jury, introducing, over objection,

evidence on policy limits (3 R.R. 55-58; 5 (Part 2) R.R. PX-13); reading, over

objection, the superseded endorsement to the jury (3 R.R. 57-58); introducing, over

objection, evidence of Liberty’s discovery responses on policy limits (3 R.R. 59-

62); and requesting, over objection, Jury Question No. 1. 4 R.R. 143-145; 6 C.R.

1005.

        Texas law holds that by submitting the issue of policy limits to the jury,

Sims waived reliance on the admission to establish limits as a matter of law. “The

primary purpose of requests for admissions is to simplify trials by eliminating

matters about which there is no real controversy.” Peralta v. Durham, 133 S.W.3d

339, 341 (Tex. App.–Dallas 2004, no pet.). Requests for admissions exist “to

Appellant’s Reply Brief                                                            Page 3
eliminate in advance of the trial fact issues which would not be in dispute, and . . .

the rule does not contemplate or authorize admissions to questions involving points

of law.” Gore v. Cunningham, 297 S.W.2d 287, 291 (Tex. Civ. App.–Beaumont

1956, writ ref’d n.r.e.). A judicial admission takes the matter out of the domain of

proof; it is not evidence, but serves as a substitute for evidence. Hercules

Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 719 (Tex. App.–Corpus

Christi 1983, writ ref’d n.r.e.).

      Thus, a party relying on an admission of fact “must protect the record by

objecting to the introduction of controverting evidence and to the submission of

any issue bearing on the facts admitted.” Houston First Am. Sav. v. Musick, 650

S.W.2d 764, 769 (Tex. 1983) (emphasis added). See also Restelle v. Williford, 364

S.W.2d 444 (Tex. Civ. App.–Beaumont 1963, writ ref’d n.r.e.). Texas courts

consistently hold that a party waives reliance on an admission by introducing

evidence on the subject matter of the admission as if it were a disputed issue. Dahl

v. Dahl, 2009 WL 866199, at *2 (Tex. App.–Dallas 2009, no pet.); Indus. Disposal

Supply Co., Inc. v. Perryman Bros. Trash Serv., Inc., 664 S.W.2d 756, 764 (Tex.

App.–San Antonio 1983, writ ref’d n.r.e); Starks v. City of Houston, 448 S.W.2d

698, 700 (Tex. Civ. App.–Houston [1st Dist.] 1969, writ ref’d n.r.e.) (“[E]ven if

counsel’s statement had amounted to a judicial admission, it was waived when

evidence to the contrary was heard. Appellants not only did not object to such



Appellant’s Reply Brief                                                        Page 4
evidence, they also introduced some on the disputed issue, and this certainly

amounted to waiver.”); Dallas Transit Co. v. Young, 370 S.W.2d 6, 11 (Tex. Civ.

App.–Dallas 1963, writ ref’d n.r.e.) (treating the issue to which an admission was

made as a disputed issue by introducing evidence thereon waived reliance on the

admission).

       The primary purpose of admissions is to avoid trial of fact questions. Far

from objecting to the submission of any issue or evidence on policy limits, Sims’

counsel tried the issue, repeatedly and directly informing the jury that policy limits

were $1 million.1 Sims therefore waived reliance on the admission, even if it was

not withdrawn by written motion.2 By permitting Sims to try the issue as a fact


1
  The only conceivable explanation for why Sims, believing the admission was binding on
Liberty as a matter of law, would proceed to try the question to the jury is that it was a conscious
tactic to inflate the jury’s damages verdict. Liberty objected to admission of the policy limits for
that reason. 3 R.R. 8-9; 3 R.R. 10-11; 3 R.R. 56-57.
2
  There is no question that Liberty amended its interrogatory answers three months before trial,
disclosed that UM/UIM policy limits actually were $250,000, and produced the operative policy
endorsement showing limits of $250,000. 6 C.R. 901-926. The admission on which Sims relies
so heavily, Request for Admission No. 6, was withdrawn by amendment the day before trial
rather than by a motion to withdraw. 4 R.R. 135-136 (amended admission response was read
into the record as part of Liberty’s offer of proof). Under Rule 198.3 of the Texas Rules of Civil
Procedure, the trial court had the power to allow Liberty to “withdraw or amend” its admission
that policy limits were $1 million. Tex. R. Civ. P. 198.3. Having submitted the question of
limits to the jury, it must be presumed that the trial court allowed the amendment, which
superseded the prior admission, rendering it null and void. Sims cannot possibly claim he was
prejudiced by amendment of the mistaken admission when he was well aware, months before
trial, that Liberty contended the policy limits were $250,000 and when Liberty subsequently
contested his assertion of $1 million limits at every turn. See Employers Ins. of Wausau v.
Halton, 792 S.W.2d 462, 467 (Tex. App.–Dallas 1990, writ denied) (“Plaintiff cannot now claim
prejudice by its ‘reliance’ on the deemed admissions when he knew that defendant disputed
almost every issue in the lawsuit”).



Appellant’s Reply Brief                                                                     Page 5
question, the trial court also disregarded the admission and treated it as withdrawn.

Accordingly, Sims failed to establish policy limits were $1 million as a matter of

law.

       B.    The trial court erred by submitting the issue of policy limits to the
             jury.

       Although Sims incorrectly argues the admission was binding on Liberty, he

is correct about one thing: policy limits were established conclusively, but by

Liberty and in the amount of $250,000. As Liberty has shown, policy limits was a

question of law for the court under the unambiguous terms of the Policy and,

particularly, the Amended Policy Limits Schedule. Appellant’s Brief at 13-21.

Sims did not plead ambiguity and the policy limits are set out unambiguously in

the Amended Policy Limits Schedule, thus precluding Sims from introducing

evidence to contradict the policy’s $250,000 limit. Id. at 13-18. The trial court

was similarly precluded from submitting policy limits to the jury and from entering

judgment on the jury finding that policy limits were $1 million. Id. at 19-21.

       Further, in light of Texas law addressing UM/UIM claims, the question of

policy limits became ripe only after trial at the time the court entered judgment.

See Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 815 (Tex. 2006)

(holding that a UM/UIM insurer has no contractual duty to pay benefits until after

the liability of the other motorist and the amount of damages suffered by the

insured are determined). Sims admits the only reason the trial court needed to

Appellant’s Reply Brief                                                          Page 6
determine policy limits was “in order to craft a judgment.” Appellee’s Brief at 17.

This is correct, as Liberty has shown. Appellant’s Brief at 21-24. See also Mid-

Century Ins. Co. of Texas v. McLain, 2010 WL 851407, at *1, 3 (Tex. App.–

Eastland, no pet.) (noting with approval that “[a]fter the verdict, [the carrier] put on

evidence that its policy limit was $20,000” producing the UM/UIM policy at the

time of judgment).

      Because policy limits were established as a matter of law and were not ripe

or material until entry of judgment, Liberty’s corrected discovery error did not alter

the trial court’s obligation to construe the policy as a matter of law at the time of

judgment. Admissions, whether deemed or otherwise, are ineffective and not

permitted to resolve disputes on questions of law. E.g., Gore v. Cunningham, 297

S.W.2d 287, 291 (Tex. Civ. App.–Beaumont 1956, writ ref’d n.r.e.) (requests for

admissions exist “to eliminate in advance of the trial fact issues which would not

be in dispute, and . . . the rule does not contemplate or authorize admissions to

questions involving points of law”). This provides a second reason Liberty’s

purported admission was ineffective to overrule the unambiguous policy limits of

$250,000.

      Sims admits the policy limits were relevant only to the crafting of the

judgment but nevertheless argues the production of the fully certified policy after

verdict was “too late.” Appellee’s Brief at 25-26. The argument is illogical and



Appellant’s Reply Brief                                                          Page 7
erroneous. As Liberty has shown, the cases and the very nature of the UM/UIM

claim dictate that the only stage at which policy limits becomes relevant is at the

time of judgment. Appellant’s Brief at 21-24; McLain, 2010 WL 851407 at *3.

Thus, Liberty’s production of the policy at that time cannot possibly have been too

late; the issue of limits is properly addressed at entry of judgment. In light of

Sims’ concession that determining policy limits was necessary to craft a judgment,

his citation of Rule 270 of the Texas Rules of Civil Procedure is inapposite.3

       Deftly avoiding Liberty’s argument that any plain reading of the Policy

reflects unambiguous limits of $250,000, Sims contends that the issue before the

jury was not what the policy language meant, but what language the policy actually

contained. He argues that “the factual dispute that the jury decided was not what

the language of the contract meant, but rather whether the Policy was modified to

reduce the UIM policy limit from $1 million to $250,000” and that “Liberty

Mutual insisted that PX-13 was not the actual Policy because the Policy had been

modified by DX-12.” Appellee’s Brief at 30, 31. Jury Question No. 1, however,

asked the jury to decide what the contract language meant by asking, “What was

the policy limit of the underinsured motorist coverage in the Liberty Mutual Policy

at the time of the Collision?” 6 C.R. 1005. The question clearly asked the jury to



3
 Appellee’s Brief at 26. The policy of insurance is not “additional evidence” within the
meaning of Rule 270 that can be received into evidence in the liability phase of a UM/UIM case.


Appellant’s Reply Brief                                                                 Page 8
construe and interpret the language of the policy and determine the policy limits.

There is no other way the jury could decide the question asked.

      In any case, it is patently false to suggest the jury decided “whether the

Policy was modified to reduce the UIM policy limit from $1 million to $250,000”

when the jury never saw the Amended Policy Limits Schedule, DX-12, or any

other form that could have “modified” the entirely misleading and incomplete

policy provisions Sims submitted to the jury. The jury could not have decided that

question because the question and the evidence pertaining to it were never

presented to them. The trial court erred in submitting Jury Question No. 1 because

it asked the jury to do the trial court’s job of interpreting contract language and did

so unnecessarily when the contract provision in question, policy limits, was not

ripe or relevant to any question of fact in this UM/UIM case.

      For the same reason, the trial court’s admission of only those portions of the

policy that Sims offered, the jury’s finding that limits were $1 million, and the trial

court’s entry of judgment on that finding are contrary to Texas law because they

ignored the unambiguous terms of a binding contract.

      C.     The complete, certified Policy, containing the endorsement
             establishing policy limits of $250,000, was fully and properly
             before the trial court and is before this Court for consideration.

      Liberty properly submitted the certified Policy to the trial court at the time of

judgment showing the policy limits are $250,000 as a matter of law. 7 C.R. 1048



Appellant’s Reply Brief                                                         Page 9
through 8 C.R. 1388. Sims has made no attempt to dispute that the Amended

Policy Limits Schedule establishes the policy limits are $250,000. He now raises

certain “suspicions” about the applicable endorsements but those objections were

not raised with or ruled on by the trial court and, in any case, they do no more than

demonstrate Sims’ lack of familiarity with the issuance of complex commercial

insurance policies. See Appellee’s Brief at 3-5.4 In addition to being ill-founded,

these “suspicions” are irrelevant to construction of an unambiguous policy that had

to be construed as a matter of law at the time of judgment.

       Sims’ also objected to Liberty’s post-verdict submission of the certified

Policy on hearsay grounds. Appellee’s Brief at 26-27; 8 C.R. 1393. As Sims

impliedly admits, however, he did not get a direct ruling on this objection.                The

trial court neither ruled on the hearsay objection nor struck the Policy from the

record. Hearsay is an objection to the form of evidence and the trial court must

rule on the objection or it is waived. S & I Mgmt., Inc. v. Choi, 331 S.W.3d 849,

855 (Tex. App.–Dallas 2011, no pet.). Sims’ failure to get a ruling on his hearsay

objection waived that objection. Id.          Sims asserts – without authority – that the

trial court’s final judgment in his favor was an “implied” ruling on the hearsay

4
  For example, such policies are not stored in a paper file in some giant warehouse, as Sims’
question about endorsements being “stored together” implies. Upon request, a paper copy is
assembled from computer files showing the declarations and applicable forms and endorsements.
Thus, Sims’ “suspicions” about how Liberty would not know what the limits were, about
“missing” signatures, and discrepancies in dates, and “storage” of endorsements and policy
forms “close to one another in Liberty Mutual’s files” derive entirely from a pre-electronic data
mindset and not from any misleading conduct on Liberty’s part.


Appellant’s Reply Brief                                                                 Page 10
objection but that proposition has been rejected by Texas law. Gaspar v. Lawnpro,

Inc., 372 S.W.3d 754, 756-57 (Tex. App.–Dallas 2012, no pet.) (employers waived

hearsay objection to employees’ summary judgment affidavits even though

employers obtained favorable ruling on their no-evidence summary judgment

motion, where employers never sought a ruling on their hearsay objections, and

trial court never issued a ruling on those objections). The certified policy attached

to Liberty’s JNOV Motion is therefore properly before this Court for construction

as a matter of law.

      Sims’ argument that the jury was presented with and resolved a factual

dispute about what the policy included is also fallacious. He argues the dispute

addressed whether the policy was “modified” to reduce policy limits from $1

million to $250,000 and asserts the evidence at trial “established” that Plaintiff’s

Exhibit 13 (“PX-13”) was the contract. Appellee’s Brief at 30. The only way that

incomplete and misleading exhibit became the operative contract was through the

trial court’s erroneous reliance on the initial discovery error and subsequent refusal

to permit the jury to consider the relevant amendatory endorsements establishing

unambiguous policy limits of $250,000. The trial court simply disregarded long-

standing rules of contract construction, ignored the proper and established method

of trying UM/UIM cases, and violated the rule of optional completeness.

Appellant’s Brief at 25-33.



Appellant’s Reply Brief                                                       Page 11
      Taken cumulatively, the trial court’s erroneous rulings more or less created a

question of fact on an issue that should have been determined as a matter of law.

The trial court accepted Sims purported reliance on a mistaken discovery response

and on his self-serving selection of portions of the policy for the jury to review.

This does not create a fact issue where ambiguity is not plead, where the discovery

response is withdrawn and corrected, and where the issue (policy limits) is not

even relevant to any proper jury question.

      Further, any dispute over the policy contents was not ripe or relevant until

judgment, as Sims admits. Post-trial, the court was charged with resolving any

disputes about the policy’s meaning, interpretation and construction. There is no

basis in Texas law for permitting the jury to decide what is an inherently

prejudicial issue such as the amount of insurance coverage – a legal issue at that –

while deciding facts relating to liability and damages.

      Sims is incorrect that Liberty argues the Policy had been “modified” by

Defendant’s Exhibit 12 (“DX-12”). At the time Liberty answered Request for

Admission No. 6, erroneously admitting the applicable limits were $1 million, the

true and correct policy, set out as an exhibit to Liberty’s JNOV Motion

(7 C.R. 1048 through 8 C.R. 1388), contained the endorsement providing for

$250,000 in UM/UIM limits. Liberty’s trial counsel simply made a mistake in the

course of initial discovery about limits being $1 million. There is no question of



Appellant’s Reply Brief                                                     Page 12
modification of the policy relevant to this case and Liberty’s corrected discovery

responses made that clear months before trial. Sims simply latched onto the

original, erroneous admission because it served his interests, not because there has

ever been any doubt about the effect of the policy’s amendatory endorsements or

applicable limits. Sims’ authority on contract modification, offer and acceptance,

consideration, and “meeting of the minds” is simply irrelevant. See Appellee’s

Brief at 22-23. In any event, Sims never raised those issues before the trial court

and cannot rely on them in this appeal. See Tex. R. App. P. 33.1(a)(1); City of

Amarillo v. Barnes, 1998 WL 609765 at *1 (Tex. App.–Amarillo 1998, no pet.)

(“even the right to have a question of law reviewed by an appellate court may be

waived if it is not first presented to the trial court for consideration”).

      All of Sims’ argument about admissibility of evidence at trial and Liberty’s

discovery mistake is immaterial because the policy could not properly be offered to

the jury for interpretation. The trial court was charged with interpreting that policy

and ascertaining its meaning.        The fact that Sims refuses to admit that the

applicable policy was defined by the exhibit attached to the JNOV Motion is

irrelevant. That policy was unambiguous and definitive and was provided to the

trial court at the time it became relevant, i.e., at judgment.




Appellant’s Reply Brief                                                       Page 13
                                     Issue Two

      The amount of policy limits was not relevant to any triable fact issue
      and determination of limits was material only to calculate the amount
      of the judgment after the verdict. Therefore, the trial court erred by,
      among other things, submitting the issue of policy limits to the jury,
      admitting evidence about policy limits, and in entering judgment on
      the jury’s answer to Question 1.

      As Liberty has shown, the amount of coverage is irrelevant to any properly

submitted jury issue in a UM/UIM case. See Appellant’s Brief at 21-24. As Sims

concedes, the amount of coverage is relevant only to the amount of the judgment

and becomes material only at the time the court calculates the judgment. In re

Reynolds, 369 S.W.3d 638, 654 (Tex. App.–Tyler 2012, no pet.) (noting UM/UIM

claimant has the burden of establishing coverage, but emphasizing that

introduction of the policy in violation of Rule 411 and “injection of insurance” into

the liability phase of trial was inherently prejudicial); McLain, 2010 WL 851407 at

*3 (noting with approval that “[a]fter the verdict, [the carrier] put on evidence that

its policy limit was $20,000” producing the UM/UIM policy at the time of

judgment); State Farm Mut. Auto. Ins. Co. v. Grayson, 983 S.W.2d 769, 770 (Tex.

App.–San Antonio 1998, no pet.). If the existence of some amount of UM/UIM

coverage is undisputed, the only triable issues of fact are liability of the

underinsured driver and the amount of damages. E.g., In re Progressive County

Mut. Ins. Co., 2014 WL 2618298 at *4 (Tex. App.–Houston [1st Dist.] 2014, no.

pet.) (because UM/UIM coverage was not in dispute, claimant’s suit only involved

Appellant’s Reply Brief                                                       Page 14
“the issues in a typical car wreck: the comparative negligence of [claimant] and the

other driver and [claimant’s] damages”). The observation in Reynolds that a

plaintiff must show UM/UIM “coverage” goes only to the existence of coverage

under the relevant policy; it does not include the amount of coverage. Appellee’s

Brief at 33.

      The amount of available coverage is an irrelevant – and inflammatory –

issue for jury consideration because a UM/UIM insurer has no contractual duty to

pay benefits until the liability of the underinsured driver and the amount of

damages suffered by the insured are determined. Brainard v. Trinity Universal Ins.

Co., 216 S.W.3d 809, 815 (Tex. 2006) (holding insurer’s contractual duty to pay

UM/UIM insurance does not exist “until the insurer breaches the contract by

withholding benefits after the insured has obtained a judgment establishing the

liability and underinsured status of the other motorist”); In re Reynolds, 369

S.W.3d at 652. Thus, until liability and damages issues are determined, the amount

of UM/UIM coverage is simply not an issue because the underinsured driver might

not be negligent or the damages might not exceed the underinsured driver’s

coverage. Henson v. Southern Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 654

(Tex. 2000).

      The trial court, at Sims’ urging, repeatedly departed from the proper

procedure for trying a UM/UIM case.         Published decisions discussing these



Appellant’s Reply Brief                                                     Page 15
procedures uniformly require that the jury first determine liability and damages.

See, e.g., State Farm Mut. Auto Ins. Co. v. Norris, 216 S.W.3d 819, 821 (Tex.

2006) (discussing trial court’s application of policy limits, settlement credits and

PIP offsets to the jury verdict on the issues of liability and damages); Henson, 17

S.W.3d at 653 (discussing calculation of judgment after jury decided only liability

and damages); McLain, 2010 WL 851407 at *2-3 (after jury decided liability and

damages, trial court held a “hearing on entry of judgment” in which the UM/UIM

carrier proved amount of policy limits, personal injury payments it had made, and

amounts the injured driver received from the underinsured driver).

      Because the availability of UM/UIM coverage under the Policy was

undisputed, the only triable fact issues in this case were liability of the

underinsured driver (Knous) and the amount of Sims’ damages. The amount of

UM/UIM coverage available to Sims could not have been relevant until the jury

found Knous responsible for the accident and that Sims’ damages exceeded his

settlement with Knous ($100,000), which was stipulated. If the jury had found

Sims rather than Knous responsible or if Sims’ damages had not exceeded his

settlement with Knous, the Policy’s UM/UIM coverage would never have become

available. Once those issues were decided in Sims’ favor by the jury, and only

then, the Insurance Code and Policy required that the trial court apply the Policy as

written to determine available UM/UIM limits, and enter judgment for Sims’



Appellant’s Reply Brief                                                      Page 16
damages, after applying offsets, up to the applicable UM/UIM policy limits. Thus,

the amount of UM/UIM policy coverage was irrelevant to any issue the jury had to

decide, as Liberty repeatedly informed the trial court. Even if that amount was

disputed, it never became a jury issue because construction of the policy was for

the court alone.

      As Liberty’s brief shows (in the Statement of Facts and at 19-20), the trial

court erred repeatedly by refusing to construe the policy as a matter of law after

trial. Sims cites a case holding that the intentions of the parties to a contract to

modify that contract is a question of fact. See Appellee’s Brief at 34 (citing

Hathaway v. General Mills, Inc., 711 S.W.2d 227, 228 (Tex. 1986)). Obviously,

that principle is irrelevant here, where the parties to the Policy, Chesapeake and

Liberty, do not dispute that policy limits were $250,000 for UM/UIM coverage in

Texas.    Moreover, the policy limit was determinable, as a matter of law, at the

time of judgment and was not a proper issue for jury determination, as discussed

above and in Liberty’s opening brief.

                                   Issue Three

      Even if it was proper to submit the policy limits issue to the jury, the
      trial court erred by failing to submit the relevant amendatory
      endorsements and by refusing Liberty’s offers of proof that it
      corrected all discovery errors prior to trial.

      Moreover, even if it was proper to submit the policy limits issue to the jury,

the trial court erred by failing to submit the relevant amendatory endorsements and

Appellant’s Reply Brief                                                      Page 17
by refusing Liberty’s offers of proof that it corrected all discovery errors prior to

trial, as Liberty showed in its opening brief. Appellant’s Brief at 26-30.

                                     Issue Four

      Allowing the jury to consider and determine UM/UIM limits
      improperly injected insurance in the trial violating Texas Rule of
      Evidence 411.

      A.     The unfairly prejudicial nature of the evidence of UM/UIM limits
             vastly outweighed its probative value.

      Allowing the jury to consider and determine UM/UIM limits improperly

injected insurance in the trial violating Texas Rule of Evidence 411, as Liberty also

showed in its brief. Appellant’s Brief at 30-33. Evidence that a defendant was or

was not insured against liability is not admissible on the issue of negligence. Tex.

R. Evid. 411. “[This] rule is founded on the belief that the probative value of such

evidence is vastly outweighed by the danger of unfair prejudice.” 1 Steven Goode,

Olin Guy Wellborn III, and M. Michael Sharlot, Texas Practice Series: Guide to

the Texas Rules of Evidence § 411.1 (3d ed. 2002). See also Thornhill v. Ronnie’s

I-45 Truck Stop, Inc., 944 S.W.2d 780, 794 (Tex. App.–Beaumont 1997, writ

dism’d by agr.) (recognizing that one purpose of Rule 411 is to avoid informing the

jury that someone other than defendant may be liable to pay damages). For

example, “in the simultaneous trial of two claims, when evidence of liability

insurance will be admissible as to only one of the claims, detailed evidence of

insurance is prejudicial.” In re Reynolds, 369 S.W.3d at 653-54.

Appellant’s Reply Brief                                                      Page 18
      In addition to Knous’ negligence and Sims’ damages, the only thing Sims

had to prove in this trial was that Knous was underinsured. State Farm Mut. Auto

Ins. Co. v. Grayson, 983 S.W.2d 769, 770 (Tex. App.–San Antonio 1998, no pet.).

Knous was underinsured if the available proceeds of her liability coverage were

insufficient to compensate Sims for his actual damages. Stracener v. United Servs.

Auto. Ass’n, 777 S.W.2d 378, 380 (Tex. 1989) (“[A] negligent party is

underinsured whenever the available proceeds of his liability insurance are

insufficient to compensate for the injured party’s actual damages.”). Once Sims’

damages were determined by the jury, the court had all it needed to determine if

those damages exceeded the $100,000 settlement with Knous.

      The amount of available UM/UIM limits had no bearing on any issue the

jury properly considered. The amount of limits had nothing to do with whether

Knous, as opposed to Sims, caused the accident nor did the amount of limits have

anything to do with the amount of Sims’ damages. Moreover, the amount of limits

had nothing to do with whether Knous was underinsured. To the contrary, because

the existence of UM/UIM coverage was admitted by Liberty, the amount of

UM/UIM limits was highly prejudicial to Liberty. Any jury knowing there was $1

million in coverage for a seriously injured plaintiff would be encouraged to

increase its damages findings. Rule 411 was intended to prevent just such a result.

Allowing any evidence of available UM/UIM policy limits violated Liberty’s right



Appellant’s Reply Brief                                                    Page 19
to have Knous’ liability and Sims’ damages decided without the prejudicial and

inflammatory fact of liability insurance influencing the jury. In re Reynolds, 369

S.W.3d at 653-54.

      Most important, the improper prejudicial influence of the evidence of policy

limits vastly outweighed its actual probative value, which was zero. As shown

above, the amount of UM/UIM insurance was irrelevant to any fact issue properly

before the jury.      Further, unless and until Knous was found liable and

underinsured, the UM/UIM coverage could not possibly come into play, and it was

unnecessary to inform the jury of policy limits at trial. The prejudicial nature of

the evidence thus vastly outweighed its probative value and violated Rule 411.

      B.     The trial court erred repeatedly by permitting Sims to introduce
             evidence of the amount of UM/UIM policy coverage over
             Liberty’s objections.

      Because the amount of UM/UIM coverage was immaterial to any issue

properly before the jury, and because such evidence was highly inflammatory and

improperly prejudicial, the trial court therefore abused its discretion in connection

with the improper evidentiary ruling addressed above. See Appellant’s Brief at 19-

20. Each of those rulings violated Rule 411 and constituted an abuse of the trial

court’s discretion. Each of these errors was harmful and reversible in that each

error resulted in the erroneous jury finding on Question 1 that applicable policy




Appellant’s Reply Brief                                                      Page 20
limits were $1 million and in the erroneous judgment based on that finding. Tex.

R. App. P. 44.1; Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012).

                                 CONCLUSION

      The trial court largely abdicated its responsibility under settled Texas law to

interpret the Policy and determine available limits without assistance from the jury.

This resulted in erroneous evidentiary rulings, including the admission of irrelevant

but highly inflammatory evidence, the submission of erroneous jury issues, and the

entry of an erroneous judgment. The judgment should therefore be reversed and

rendered based on available UM/UIM limits of $250,000. In the alternative, the

judgment should be vacated and the case remanded for a new trial on the question

of policy limits alone.

                                       Respectfully submitted,

                                       HANNA & PLAUT, L.L.P.
                                       211 E. Seventh Street, Suite 600
                                       Austin, Texas 78701
                                       Telephone: (512) 472-7700
                                       Facsimile: (512) 472-0205
                                       dplaut@hannaplaut.com

                                       By: /s/ David L. Plaut
                                           David L. Plaut
                                           State Bar No. 16066030
                                           dplaut@hannaplaut.com
                                           Jeffrey C. Glass
                                           State Bar No. 08004000
                                           jglass@hannaplaut.com

                                       ATTORNEYS FOR APPELLANT

Appellant’s Reply Brief                                                      Page 21
                           CERTIFICATE OF SERVICE

       I hereby certify that on 16th day of January 2015, a true and correct copy of
this document was e-filed with the Twelfth Court of Appeals and served
electronically pursuant to TRCP 21(a). Any other counsel of record will be served
pursuant to TRCP 21(a) this same date.


Don Wheeler                                  Darrin M. Walker
LAW OFFICE OF DON WHEELER                    LAW OFFICE OF DARRIN WALKER
101 Tenaha Street                            6134 Riverchase Glen Dr.
P.O. Box 1687                                Kingwood TX 77345
Center, Texas 75935                          Telephone: (281) 358-2295
Telephone: (936) 598-2925                    Facsimile: (281) 358-5602
Facsimile: (936) 598-7024

                                      /s/ David L. Plaut
                                      David L. Plaut

                          CERTIFICATE OF COMPLIANCE

      I certify that this document was produced on a computer using Microsoft
Word 2010 and contains 5,828 words, as determined by the computer software’s
word-count function, excluding the sections of the document listed in Texas Rule
of Appellate Procedure 9.4(i)(1).


                                      /s/ David L. Plaut
                                      David L. Plaut
                                      Attorney for Liberty Mutual Insurance
                                      Company

Dated: January 16, 2015




Appellant’s Reply Brief                                                     Page 22
                    BRAINARD v. TRINITY UNIVERSAL INS. CO.                          Tex.   809
                                Cite as 216 S.W.3d 809 (Tex. 2006)

                                                       Whitehead v. State Farm Mut. Auto.
 Lilith BRAINARD, et al., Petitioners,                 Ins. Co., 952 S.W.2d 79, Novosad v.
                     v.                                Mid–Century Ins. Co., 881 S.W.2d 546.
                                                  Affirmed in part, reversed in part, and
 TRINITY UNIVERSAL INSURANCE
                                                  remanded.
      COMPANY, Respondent.
               No. 04–0537.
                                                  1. Insurance O2787
         Supreme Court of Texas.                       A motorist is underinsured if his or
          Argued April 14, 2005.                  her liability insurance is insufficient to pay
                                                  for the injured party’s actual damages.
          Decided Dec. 22, 2006.
                                                  V.A.T.S. Insurance Code, art. 5.06–1(5).
    Rehearing Denied April 13, 2007.
                                                  2. Insurance O2806
Background: Automobile accident vic-
tim’s surviving spouse and children                    Liability coverage limit and insured’s
brought wrongful death action and sought          recovery of personal injury protection
underinsured motorist (UIM) benefits. Li-         (PIP) benefits were an offset to actual
ability insurer then settled without admit-       damages and reduced underinsured motor-
ting liability. The 31st District Court, Gray     ist (UIM) carrier’s liability.
County, Steven R. Emmert, J., awarded             3. Insurance O2803
attorney fees to plaintiffs, but denied pre-           Underinsured motorist (UIM) insur-
judgment interest. Appeal and cross-ap-           ance covers prejudgment interest that un-
peal were taken. The Amarillo Court of            derinsured motorist would owe to the in-
Appeals, Don H. Reavis, J., 153 S.W.3d            sured; statute requires UIM coverage for
508, affirmed in part and reversed and            sums that insured is legally entitled to
rendered in part. Review was granted.             recover as damages from owners or opera-
Holdings: The Supreme Court, Jefferson,           tors of underinsured motor vehicles be-
C.J., held that:                                  cause of bodily injury or property damage,
(1) UIM insurance covers prejudgment in-          prejudgment interest represents additional
    terest that underinsured motorist             compensatory damages for the insured’s
    would owe to the insured;                     bodily injury and property damage al-
(2) credit for payment of personal injury         though it accrues because of lost use of
    protection (PIP) benefits reduced prin-       money, and contractual basis of suit for
    cipal on which prejudgment interest           UIM benefits does not render prejudg-
    subsequently began to accrue against          ment     interest    statute   inapplicable.
    UIM carrier, but credit for liability         V.A.T.S. Insurance Code, art. 5.06–1(5);
    insurer’s payment after interest began        V.T.C.A., Finance Code § 304.102.
    to accrue applied first to interest and       4. Interest O39(2.6)
    then to principal; and
                                                       Prejudgment interest is awarded to
(3) carrier’s failure to pay within thirty        fully compensate the injured party, not to
    days of claim did not entitle spouse and      punish the defendant.
    children to attorney fees, abrogating
    Norris v. State Farm, 217 S.W.3d 1,           5. Interest O39(2.6)
    State Farm Mut. Auto. Ins. Co. v.                  ‘‘Prejudgment interest’’ is compensa-
    Nickerson, 130 S.W.3d 487, Allstate           tion allowed by law as additional damages
    Ins. Co. v. Lincoln, 976 S.W.2d 873,          for lost use of the money due as damages
810   Tex.        216 SOUTH WESTERN REPORTER, 3d SERIES


during the lapse of time between the ac-       11. Insurance O3585
crual of the claim and the date of judg-            ‘‘Presentment’’ for purposes of statute
ment.                                          entitling insured to attorney fees if under-
     See publication Words and Phrases         insured motorist (UIM) carrier failed to
   for other judicial constructions and        pay just amount owed before end of thirti-
   definitions.
                                               eth day after claim was presented oc-
6. Interest O59(1)                             curred when judgment established tortfea-
                                               sor’s liability and underinsured status; no
     The declining principal formula of
                                               just amount was owed by carrier until the
crediting payments when received is the
                                               judgment; abrogating Norris v. State
proper way to apply credits in the calcula-
                                               Farm, 217 S.W.3d 1, State Farm Mut.
tion of prejudgment interest.
                                               Auto. Ins. Co. v. Nickerson, 130 S.W.3d
7. Interest O60                                487, Allstate Ins. Co. v. Lincoln, 976
                                               S.W.2d 873, Whitehead v. State Farm
     At each new interval between pay-
                                               Mut. Auto. Ins. Co., 952 S.W.2d 79, Novo-
ments entitling defendant to credit, pre-
                                               sad v. Mid–Century Ins. Co., 881 S.W.2d
judgment interest continues to accrue only
                                               546. V.A.T.S. Insurance Code, art. 5.06–
on the remaining principal because, under
                                               1(5); V.T.C.A., Civil Practice & Remedies
the general prejudgment interest provi-
                                               Code § 38.002.
sions, interest is computed as simple inter-
                                                    See publication Words and Phrases
est and does not compound. V.T.C.A., Fi-          for other judicial constructions and
nance Code § 304.104.                             definitions.

8. Interest O59(1)                             12. Insurance O2790
  Payment O42                                       The underinsured motorist (UIM) car-
     Automobile insurer’s credit for pay-      rier is under no contractual duty to pay
ment of personal injury protection (PIP)       benefits until the insured obtains a judg-
benefits reduced principal on which pre-       ment establishing the liability and underin-
judgment interest subsequently began to        sured status of the other motorist.
accrue against insurer as UIM carrier, but     V.A.T.S. Insurance Code, art. 5.06–1(5).
credit for liability insurer’s payment after   13. Insurance O3343, 3585
interest began to accrue applied first to           Neither requesting underinsured mo-
interest and then to principal.                torist (UIM) benefits nor filing suit against
                                               the insurer triggers a contractual duty to
9. Interest O39(2.35)
                                               pay, and where there is no contractual
    Prejudgment interest owed by under-        duty to pay, there is no just amount owed
insured motorist (UIM) carrier did not         for purposes of statute requiring the insur-
accrue after date that insured’s surviving     er to pay just amount owed within thirty
spouse and children rejected carrier’s set-    days of presentment to avoid fees award.
tlement offer more favorable than judg-        V.T.C.A., Civil Practice & Remedies Code
ment.      V.T.C.A.,     Finance     Code      § 38.002.
§ 304.105(a).
                                               14. Insurance O2790, 2793(1)
10. Costs O194.16                                   Neither a settlement nor an admission
    Attorney fees are recoverable from an      of liability from the tortfeasor establishes
opposing party only as authorized by stat-     underinsured motorist (UIM) coverage,
ute or by contract between the parties.        because a jury could find that the other
                    BRAINARD v. TRINITY UNIVERSAL INS. CO.                         Tex.   811
                                Cite as 216 S.W.3d 809 (Tex. 2006)

motorist was not at fault or award dam-           judgment interest consistent with this
ages that do not exceed the tortfeasor’s          opinion.
liability insurance. V.A.T.S. Insurance
Code, art. 5.06–1(5).                                                    I
15. Insurance O2790                                                  Background
     The underinsured motorist (UIM) car-
                                                     On July 1, 1999, Edward H. Brainard II
rier’s contractual obligation to pay benefits
                                                  was killed when his vehicle was involved in
does not arise until liability and damages
                                                  a head-on collision with a rig owned by
are determined. V.A.T.S. Insurance Code,
                                                  Premier Well Service, Inc. His widow, Lil-
art. 5.06–1(5).
                                                  ith Brainard, and their five children (col-
                                                  lectively, Brainard) brought a wrongful
                                                  death action against Premier and sought
                                                  UIM benefits from Trinity Universal In-
  Bryan W. Scott, Katy, for Petitioner.           surance Company under a policy issued to
  Gregory R. Ave, Walters, Balido &               the family business, Brainard Cattle Com-
Crain, L.L.P., Dallas, for Respondent.            pany. Trinity paid Brainard $5,000 under
                                                  the policy’s PIP provision but requested
  Chief Justice JEFFERSON delivered               further information supporting the UIM
the opinion of the Court.                         claim. Brainard alleges she submitted the
   This case presents the following is-           information and performed all conditions
sues: (1) whether uninsured/underin-              precedent to receiving the benefits, but
sured motorist (UIM) insurance covers             Trinity never paid. Eventually, Brainard
prejudgment interest that the underin-            joined Trinity as a defendant, alleging
sured motorist would owe the insured in           breach of contract, breach of the common
tort liability; (2) if so, how to apply set-      law duty of good faith, violations of the
tlement and personal injury protection            Deceptive Trade Practices–Consumer Pro-
(PIP) credits to the interest calculation;        tection Act, and violations of Insurance
and (3) the circumstances under which             Code articles 21.21 and 21.55.
an insured may recover attorney’s fees               On December 7, 2000, Brainard and Pre-
from the UIM insurer under Chapter 38             mier settled Brainard’s claims for
of the Civil Practice and Remedies Code.          $1,000,000, Premier’s policy limit, and Pre-
We hold that: (1) UIM insurance covers            mier was subsequently dismissed from the
this prejudgment interest; (2) under the          suit. When Brainard demanded that Trin-
‘‘declining principal’’ formula, each credit      ity also tender the $1,000,000 UIM policy
is applied according to the date on               limit, Trinity countered with an offer of
which it was received; and (3) the in-            $50,000. The trial court severed Brai-
sured may recover attorney’s fees under           nard’s extra-contractual claims, which re-
Chapter 38 only if the insurer does not           main pending, and the parties proceeded
tender UIM benefits within thirty days            to trial on the UIM contract. A jury
after the trial court signs a judgment            found that Premier’s negligence caused the
establishing the liability and underin-           accident and awarded Brainard $1,010,000
sured status of the other motorist. We            for pecuniary loss, funeral expenses, loss
reverse the court of appeals’ judgment            of companionship and society, and mental
in part, affirm in part, and remand this          anguish. The jury also awarded $100,000
case to the trial court to calculate pre-         for attorney’s fees.
812   Tex.         216 SOUTH WESTERN REPORTER, 3d SERIES


   The trial court applied a $1,005,000 cred-   set to actual damages. Mid–Century Ins.
it for Brainard’s settlement and PIP bene-      Co. of Tex. v. Kidd, 997 S.W.2d 265, 271
fits, and signed a judgment against Trinity     (Tex.1999); Stracener, 777 S.W.2d at 380.
for the remaining $5,000 in damages plus        Thus, Trinity does not dispute that the
$100,000 in attorney’s fees. On appeal,         $5,000 difference is covered under Brai-
Trinity challenged the attorney’s fees          nard’s UIM policy. The issue is whether,
award, and Brainard, by cross appeal, al-       in addition to this amount, UIM insurance
leged the trial court erred in refusing to      covers prejudgment interest that Premier
award prejudgment interest on the               would owe on the $1,010,000 in actual dam-
$1,010,000 in actual damages. The court         ages. We conclude that it does.
of appeals reversed that portion of the            [4, 5] Prejudgment interest is awarded
trial court’s judgment awarding attorney’s      to fully compensate the injured party, not
fees and affirmed the denial of prejudg-        to punish the defendant. Cavnar v. Quali-
ment interest. 153 S.W.3d 508, 513. Be-         ty Control Parking, Inc., 696 S.W.2d 549,
cause both points have engendered dis-          552 (Tex.1985), superseded in part by stat-
agreement among the courts of appeals,          ute, Act of June 3, 1987, 70th Leg., 1st C.
we granted Brainard’s petition for review.      S., ch. 3, § 1, 1987 Tex. Gen. Laws 51, 51–
48 Tex. Sup.Ct. J. 439 (Mar. 11, 2005).         52, as recognized in Johnson & Higgins of
                                                Tex., Inc. v. Kenneco Energy, Inc., 962
                     II
                                                S.W.2d 507 (Tex.1998) and C & H Nation-
   Recovery of Prejudgment Interest             wide, Inc. v. Thompson, 903 S.W.2d 315,
  [1–3] The Insurance Code requires in-         327 (Tex.1994). It is ‘‘ ‘compensation al-
surers to offer Texas motorists UIM cov-        lowed by law as additional damages for
erage and mandates that such coverage:          lost use of the money due as damages
  provide for payment to the insured of all     during the lapse of time between the ac-
  sums which he shall be legally entitled       crual of the claim and the date of judg-
  to recover as damages from owners or          ment.’ ’’ Johnson & Higgins, 962 S.W.2d
  operators of underinsured motor vehi-         at 528 (quoting Cavnar, 696 S.W.2d at
  cles because of bodily injury or property     552). By statute, ‘‘[a] judgment in a
  damage in an amount up to the limit           wrongful death, personal injury, or proper-
  specified in the policy, reduced by the       ty damage case earns prejudgment inter-
  amount recovered or recoverable from          est.’’ TEX. FIN.CODE § 304.102. Thus, if
  the insurer of the underinsured motor         Brainard obtained a judgment against Pre-
  vehicle.                                      mier for past damages resulting from the
TEX. INS.CODE art. 5.06–1(5). A motorist is     collision, Premier would be liable for pre-
underinsured if his or her liability insur-     judgment interest. Whether Brainard
ance is insufficient to pay for the injured     may recover this interest from Trinity is
party’s actual damages. Stracener v.            governed by their UIM insurance contract.
United Servs. Auto. Ass’n, 777 S.W.2d 378,         In language closely tracking article
380 (Tex.1989). Because the jury valued         5.06–1(5), Brainard’s policy states that
Brainard’s damages at $1,010,000, and           Trinity will pay ‘‘damages which [Brai-
Premier’s liability policy limit was            nard] is legally entitled to recover from’’
$1,000,000, Premier was underinsured.           Premier. We have consistently viewed
The trial court correctly applied the sum       prejudgment interest as falling within the
of Premier’s $1,000,000 liability limit and     common law meaning of damages, and
Brainard’s $5,000 PIP recovery as an off-       Trinity does not argue that the Legislature
                    BRAINARD v. TRINITY UNIVERSAL INS. CO.                          Tex.   813
                                 Cite as 216 S.W.3d 809 (Tex. 2006)

or the parties intended the term to convey            Trinity’s argument fails for several rea-
a narrower meaning. TEX. INS.CODE art.             sons. First, although several courts of
5.06–1(5); see, e.g., Horizon/CMS Health-          appeals have held that UIM insurance
care Corp. v. Auld, 34 S.W.3d 887, 898             does not cover punitive damages assessed
(Tex.2000) (citing Cavnar, 696 S.W.2d at           against the underinsured motorist, none
552–54). Two courts of appeals have held           reached this result by adopting Trinity’s
that prejudgment interest constitutes dam-         narrow interpretation of damages ‘‘because
ages that the insured is ‘‘legally entitled to     of bodily injury.’’ In fact, their reasoning
recover’’ from the underinsured motorist.          effectively supports UIM coverage for pre-
Norris v. State Farm Mut. Auto. Ins. Co.,          judgment interest. In Shaffer, the court
217 S.W.3d 1, 7 (Tex.App.-Waco 2004, pet.          concluded that the phrase ‘‘because of bod-
granted); Menix v. Allstate Indem. Co., 83         ily injury’’ was ambiguous because it could
S.W.3d 877, 880 (Tex.App.-Eastland 2002,           mean that the damages must (a) literally
pet. denied); Allstate Indem. Co. v. Col-          derive from a bodily injury or (b) arise as
lier, 983 S.W.2d 342, 343 (Tex.App.-Waco           a result of bodily injury. Shaffer, 888
1998, pet. dism’d by agr.).                        S.W.2d at 148–49. If this language were
                                                   ambiguous and had been drafted by the
   Trinity’s primary argument to the con-          insurance company, precedent would re-
trary, upon which the court of appeals             quire that it be interpreted to favor the
relied, emphasizes that the UIM policy,            insured. Nat’l Union Fire Ins. Co. v.
like article 5.06–1(5), requires Trinity to        Hudson Energy Co., 811 S.W.2d 552, 555
pay only those damages which the insured           (Tex.1991). Most UIM provisions, howev-
is legally entitled to recover ‘‘because of        er, recite nearly the exact text of article
bodily injury or property damage.’’ 153            5.06–1(5). For that reason, the Shaffer
S.W.3d at 512; see also TEX. INS.CODE art.         court inquired into the statute’s legislative
5.06–1(5). Trinity contends that this quali-       intent, which it found addressed in one of
fication negates coverage for prejudgment          this Court’s opinions. In Stracener, we
interest because the essence of prejudg-           concluded that the Legislature sought to
ment interest is compensation for lost use         protect ‘‘conscientious motorists from ‘fi-
of money, not damages from bodily injury.          nancial loss caused by negligent financially
Further, Trinity suggests that Brainard’s          irresponsible motorists.’ ’’ Stracener, 777
interpretation of the UIM endorsement              S.W.2d at 382 (quoting Act of Oct. 1, 1967,
would require the insurer to cover all dam-        60th Leg., R. S., ch. 202, § 3, 1967 Tex.
ages assessed against the underinsured             Gen. Laws 448, 449). Accordingly, the
motorist, yet the courts of appeals have           court of appeals observed that a primary
held that UIM insurance does not cover             purpose of UIM insurance is compensato-
punitive damages. See, e.g., Milligan v.           ry; it protects against financial loss.
State Farm Mut. Auto. Ins. Co., 940                Shaffer, 888 S.W.2d at 149. Other courts
S.W.2d 228, 232 (Tex.App.-Houston [14th            of appeals have added that neither deter-
Dist.] 1997, writ denied); State Farm Mut.         ring wrongful conduct nor punishing the
Auto. Ins. Co. v. Shaffer, 888 S.W.2d 146,         defendant is accomplished when the UIM
148 (Tex.App.-Houston [1st Dist.] 1994,            insurer pays punitive damages assessed
writ denied); Vanderlinden v. United               against the underinsured motorist. Milli-
Servs. Auto. Ass’n Prop. & Cas. Ins. Co.,          gan, 940 S.W.2d at 231; Vanderlinden, 885
885 S.W.2d 239, 242 (Tex.App.-Texarkana            S.W.2d at 240–42. Thus, they have held
1994, writ denied).                                that neither the language of article 5.06–
814    Tex.         216 SOUTH WESTERN REPORTER, 3d SERIES


1(5) nor public policy supports coverage of        between the parties. In sum, while it is
punitive damages.                                  true that prejudgment interest accrues
   We have already noted that prejudg-             over time because of lost use of money, it
ment interest serves to compensate the             is equally accurate to say that it consti-
injured party, not to punish the defendant.        tutes additional compensatory damages for
Johnson & Higgins, 962 S.W.2d at 528;              the insured’s bodily injury and property
Cavnar, 696 S.W.2d at 552. This distinc-           damage.
tion is apparent in the rule that ‘‘[p]re-            Trinity’s alternative argument against
judgment interest may not be assessed or           coverage for prejudgment interest is based
recovered on an award of exemplary dam-            on the contractual aspect of a UIM claim.
ages.’’   TEX. CIV. PRAC. & REM.CODE               Franco v. Allstate Ins. Co., 505 S.W.2d
§ 41.007. Article 5.06–1(5)’s compensatory         789, 791–92 (Tex.1974) (noting that, ‘‘al-
purpose is well served when the insured            though ultimate recovery in this type of
obtains, in addition to actual damages, any        action depends upon proof of damages due
prejudgment interest that the underin-             to the tort of an uninsured third party, the
sured motorist would owe the insured.              cause of action against the insurer arises
Trinity’s attempt to give the phrase ‘‘be-         by reason of the written contract’’). If the
cause of bodily injury’’ an artificially literal   claim is purely contractual, as Trinity con-
meaning—so as to establish a nexus re-             tends, then Finance Code section 304.102,
quirement that eliminates coverage for             which authorizes prejudgment interest in
prejudgment interest—has no basis in the           wrongful death, personal injury, and prop-
statute’s history or our precedent, under          erty damage cases, would have no applica-
which article 5.06–1 is liberally construed        tion in this case. TEX. FIN.CODE § 304.102.
to protect persons who are legally entitled        The court of appeals adopted this ap-
to recover damages from underinsured               proach, citing our decision in Henson v.
motorists. Stracener, 777 S.W.2d at 382.           Southern Farm Bureau Casualty Insur-
   Moreover, Trinity’s rigid reading proves        ance Company, 17 S.W.3d 652, 653 (Tex.
too much, for it would entail splitting hairs      2000), as additional support for the view
even among purely compensatory dam-                that ‘‘the relationship between the Brai-
ages, such as those for mental anguish and         nards and Trinity is that of contracting
loss of society. Article 5.06–1(5) states          parties.’’ 153 S.W.3d at 513.
that the insurer will pay the insured ‘‘all          The reference to Henson deserves fur-
sums which he shall be legally entitled to         ther discussion because our reasoning in
recover as damages from owners or opera-           that case clarifies the issues presented
tors of underinsured motor vehicles be-            here. Henson was a passenger in a truck
cause of bodily injury or property dam-            driven by Millican, which collided with a
age.’’ TEX. INS.CODE. art. 5.06–1(5). The          vehicle driven by Contreras. Henson, 17
qualification ‘‘because of bodily injury or        S.W.3d at 652. Henson sued Millican and
property damage’’ merely underscores that          Contreras for negligence and, before es-
UIM insurance is compensatory. In addi-            tablishing liability, settled with Contreras
tion, it clarifies what should be obvious—         for $20,000—her liability insurance limit.
that only injuries and damages caused by           Id. at 652–53. A jury attributed one hun-
the motor vehicle accident are covered—            dred percent of the negligence to Contrer-
because if the qualification is omitted, the       as and assessed Henson’s damages at
policy would not exclude damages arising           $133,842. Id. at 653. Within thirty days
from unrelated incidents and transactions          of the judgment, Henson and Millican’s
                    BRAINARD v. TRINITY UNIVERSAL INS. CO.                          Tex.   815
                                Cite as 216 S.W.3d 809 (Tex. 2006)

UIM insurers tendered $45,000—their               $1,010,000. TEX. FIN.CODE § 304.102. The
combined UIM policy limits. Id. Henson,           fact that Brainard’s suit against Trinity is
however, refused the payment and de-              based on contract in no way renders the
manded prejudgment interest on top of the         statute inapplicable. On the contrary, the
policy limits, alleging the interest began to     UIM policy effectively incorporates the
accrue against the insurers from the earli-       statute by requiring Trinity to pay dam-
er of 180 days after he gave notice of his        ages which Brainard is ‘‘legally entitled to
claim or the day he filed suit against them.      recover’’ from Premier. Section 304.102,
Id. at 653–54.                                    like the law of negligence, is necessary to
    The issue in Henson was whether pre-          determine the liability of the underinsured
judgment interest accrued on the insured’s        motorist. The UIM policy, however, con-
contractual claim for UIM benefits. The           trols Trinity’s obligations. Because Brai-
prejudgment interest which Henson could           nard obtained a judgment establishing the
recover from Contreras in tort liability was      negligence and underinsured status of Pre-
not at issue, as the damages assessed by          mier, the contract requires Trinity to pay
the jury already exceeded the UIM policy          benefits. Henson, 17 S.W.3d at 654.
limit. We examined the insurer’s obli-               Accordingly, we hold that UIM insur-
gation to pay damages which the insured is        ance covers prejudgment interest that the
‘‘legally entitled to recover’’ from the un-      underinsured motorist would owe the in-
derinsured motorist and concluded that            sured. The court of appeals erred in af-
there is no contractual duty to pay benefits      firming the trial court’s judgment denying
until the liability of the other motorist and     Brainard this recovery.
the amount of damages suffered by the
insured are determined. Id. at 653–64.                                III
Thus, we held that a UIM claim does not
earn prejudgment interest until the insur-           Calculation of Prejudgment Interest
er breaches the contract by withholding              The parties do not challenge the calcula-
benefits after the insured has obtained a         tion of actual damages; they agree that
judgment establishing the liability and un-       the trial court properly deducted Brai-
derinsured status of the other motorist.          nard’s $1,000,000 settlement and $5,000
Id. at 654. The jury could have found that        PIP recovery from the jury’s $1,010,000
Contreras was not negligent or that Hen-          verdict, resulting in Trinity’s liability for
son’s damages did not exceed Contreras’s          $5,000. Mid–Century Ins. Co., 997 S.W.2d
liability insurance limit, precluding any re-     at 271; Stracener, 777 S.W.2d at 380. In-
covery of UIM benefits. Id. Because the           stead, the issue concerns how to apply
insurers tendered the benefits promptly           these credits when calculating prejudg-
after the jury made its findings, no con-         ment interest. Based on the jury’s ver-
tractual duty was breached, and Henson            dict, Premier would have been liable for
was not entitled to receive the benefits          $1,010,000 in actual damages, plus pre-
earlier than he did. Id. The question we          judgment interest on this amount. Having
answer today—whether UIM insurance                concluded that UIM insurance covers this
covers the prejudgment interest an under-         interest, we turn now to its calculation.
insured motorist would owe the insured—             Brainard’s suit against Premier was for
was not before us in Henson.                      wrongful death. In a wrongful death case,
  Under section 304.102, Premier would            prejudgment interest accrues beginning on
be liable for prejudgment interest on             the 180th day after the defendant receives
816      Tex.         216 SOUTH WESTERN REPORTER, 3d SERIES


written notice of the claim or the day suit        prejudgment interest is compensation
is filed, whichever occurs first, and ending       ‘‘ ‘for lost use of the money due as dam-
on the day preceding the date judgment is          ages during the lapse of time between the
rendered. TEX. FIN.CODE § 304.104. In              accrual of the claim and the date of judg-
this case, the prejudgment interest period         ment.’ ’’ Id. at 907 (quoting Cavnar, 696
commenced on January 19, 2000, when                S.W.2d at 552). Therefore, compensation
Brainard filed suit against Premier. Be-           other than for lost use of money is not
cause the trial court signed its judgment          interest but a windfall for the claimant and
on January 15, 2003, the period ended on           a penalty to the defendant. Id. We con-
January 14. Id. Prejudgment interest is            cluded that, to satisfy the purpose of pre-
computed as simple interest with a rate            judgment interest, settlements must be
equal to the postjudgment interest rate            credited periodically, according to the date
applicable at the time judgment is ren-            they are received. Id. at 907–08. This
dered. Id. §§ 304.103, 304.104. The trial          approach, known as the ‘‘declining princi-
court’s judgment set the rate at ten per-          pal’’ formula, is the proper way to apply
cent.                                              credits in the calculation of prejudgment
  Brainard contends that prejudgment in-           interest. Id. at 909 (overruling in part C
terest is calculated on the entire $1,010,000      & H Nationwide, Inc. v. Thompson, 903
before applying credits. Accordingly, she          S.W.2d 315, 327 (Tex.1994)).
seeks $263,430 in prejudgment interest—
ten percent interest on $1,010,000 from               [7] In Battaglia, we concluded that
January 19, 2000, until August 29, 2002,           ‘‘[a] settlement payment should be credited
the date the parties moved to enter judg-          first to accrued prejudgment interest as of
ment.1 In Brainard’s view, the interest is         the date the settlement payment was
added to the jury’s verdict before deduct-         made, then to ‘principal,’ thereby reducing
ing settlement and PIP credits, so that the        or perhaps eliminating prejudgment inter-
credits do not affect the prejudgment in-          est from that point in time forward.’’ Id.
terest calculation. Trinity objects, arguing       at 908. Thus, as we explain below, each
that Brainard should not continue to earn          credit applies first to the accrued interest
interest on $1,010,000 in damages despite          and then to the principal, with each credit
having already received $1,005,000 in com-         establishing a new interval. At each new
pensation. We agree.                               interval, interest continues to accrue only
   [6] We recently touched on this issue           on the remaining principal because under
in Battaglia v. Alexander, 177 S.W.3d 893,         the general prejudgment interest provi-
908–09 (Tex.2005), in which we held that           sions, ‘‘interest is computed as simple in-
the trial court erred in calculating prejudg-      terest and does not compound.’’ TEX. FIN.
ment interest on total damages before de-          CODE § 304.104.
ducting payments that the plaintiff re-
ceived from settling defendants. Although            [8, 9] Under the ‘‘declining principal’’
Battaglia involved health care liability           formula, the trial court is to consider the
claims subject to section 16.02 of former          date on which the insured received each
Revised Civil Statutes article 4590i, we           payment. Trinity paid Brainard $5,000 in
established a framework that resolves the          PIP benefits shortly after the July 1, 1999
issue presented here. We reiterated that           collision. Because there is no dispute that

1.    As explained above, however, the relevant     rather than when the parties moved for entry
     date is that of the trial court’s judgment,    of judgment.
                        BRAINARD v. TRINITY UNIVERSAL INS. CO.                                Tex.   817
                                       Cite as 216 S.W.3d 809 (Tex. 2006)

this payment was made sometime in July,                    We remand this case to the trial court to
well before the prejudgment interest peri-               modify the judgment in accordance with
od commenced, we may assume it was July                  this opinion.
31. Brainard settled with Premier for
$1,000,000—its liability insurance limit—on                                       IV
December 7, 2000. On March 9, 2001,
Trinity offered to settle with Brainard for                                 Attorney’s Fees
$50,000. See TEX. FIN. CODE § 304.106.                      The final issue is whether Brainard may
Two weeks later, in a letter to Brainard’s               recover attorney’s fees on her contract
counsel, Trinity confirmed that the offer                claim. The court of appeals reversed that
would remain open. Because Brainard’s                    portion of the trial court’s judgment
$5,000 recovery did not exceed Trinity’s
                                                         awarding Brainard $100,000 in attorney’s
settlement offer, prejudgment interest did
                                                         fees. 153 S.W.3d at 510–11.
not accrue on the judgment after March 9,
2001. Id. § 304.105(a) (‘‘If judgment for a                 [10] Attorney’s fees are recoverable
claimant is equal to or less than the                    from an opposing party only as authorized
amount of a settlement offer of the defen-               by statute or by contract between the par-
dant, prejudgment interest does not accrue               ties. Travelers Indem. Co. v. Mayfield,
on the amount of the judgment during the                 923 S.W.2d 590, 593 (Tex.1996). Chapter
period that the offer may be accepted.’’).               38 of the Civil Practice & Remedies Code
Following are the relevant dates:                        permits an insured to recover attorney’s
A.   07/31/1999   Brainard receives $5,000 PIP payment
B.   01/19/2000   Prejudgment interest period begins     fees incurred in a successful breach of
                  when Brainard files suit               contract suit against the insurer unless the
C.   12/07/2000   Brainard receives $1,000,000
                  settlement                             insurer is liable for the fees under a differ-
D.   03/09/2001   Trinity offers Brainard $50,000
                                                         ent statutory scheme. TEX. CIV. PRAC. &
   Brainard is entitled to recover prejudg-              REM.CODE §§ 38.001(8), 38.006; Grapevine
ment interest on the damages caused by                   Excavation, Inc. v. Maryland Lloyds, 35
Premier’s negligence. The beginning prin-                S.W.3d 1, 5 (Tex.2000). Because no other
cipal is $1,010,000—the amount of dam-                   statutory scheme applies, Brainard seeks
ages determined by the jury. The $5,000                  to recover the fees under Chapter 38.
PIP credit reduced the principal before
prejudgment interest began to accrue.                       [11] Under section 38.002, Brainard
Thus, during the period from B to C,                     must show that: (1) she was represented
interest accrued on $1,005,000. At point                 by counsel; (2) she presented the claim to
C, the $1,000,000 credit is applied first to             Trinity; and (3) Trinity failed to pay the
accrued prejudgment interest and then to                 just amount owed within thirty days of
principal. During the period from C to D,                presentment. TEX. CIV. PRAC. & REM.CODE
interest accrued on the principal remaining              § 38.002. Brainard contends that her suit
after application of the $1,000,000 credit.              is like any other breach of contract suit,
At point D, Brainard could have accepted                 and therefore, presentment occurred on
Trinity’s settlement offer, and interest                 February 15, 2000, the day she made a
ceased to accrue on that date. Trinity is                claim for UIM benefits. Three courts of
liable for the remaining sum, up to Brai-                appeals support her position. See Norris
nard’s UIM policy limit, of the uncredited               v. State Farm, 217 S.W.3d at 3; State
principal plus the uncredited interest that              Farm Mut. Auto. Ins. Co. v. Nickerson,
accrued from point C to point D. TEX.                    130 S.W.3d 487, 490 (Tex.App.-Texarkana
INS.CODE art. 5.06–1(5).                                 2004, pet. granted); Allstate Ins. Co. v.
818   Tex.         216 SOUTH WESTERN REPORTER, 3d SERIES


Lincoln, 976 S.W.2d 873, 876 (Tex.App.-         this language means the UIM insurer is
Waco 1998, no pet.); Whitehead v. State         under no contractual duty to pay benefits
Farm Mut. Auto. Ins. Co., 952 S.W.2d 79,        until the insured obtains a judgment estab-
88–89 (Tex.App.-Texarkana 1997), rev’d on       lishing the liability and underinsured sta-
other grounds, 988 S.W.2d 744 (Tex.1998);       tus of the other motorist. Henson, 17
Novosad v. Mid–Century Ins. Co., 881            S.W.3d at 653–54. Neither requesting
S.W.2d 546, 552 (Tex.App.-San Antonio           UIM benefits nor filing suit against the
1994, no writ). Trinity, on the other hand,     insurer triggers a contractual duty to pay.
argues that a UIM policy is different be-       Id. Where there is no contractual duty to
cause the insurer’s duty to pay does not        pay, there is no just amount owed. Thus,
arise until the underinsured motorist’s lia-    under Chapter 38, a claim for UIM bene-
bility, and the insured’s damages, are le-      fits is not presented until the trial court
gally determined. Five courts of appeals,       signs a judgment establishing the negli-
including the court of appeals in this case,    gence and underinsured status of the other
agree. See DeLaGarza v. State Farm              motorist.
Mut. Auto. Ins. Co., 175 S.W.3d 29, 34
(Tex.App.-Dallas 2005, pet. denied); Me-           [14, 15] Of course, the insured is not
nix v. Allstate Indem. Co., 83 S.W.3d 877,      required to obtain a judgment against the
882 (Tex.App.-Eastland 2002, pet. denied);      tortfeasor. State Farm Mut. Auto. Ins.
Sprague v. State Farm Mut. Auto. Ins.           Co. v. Matlock, 462 S.W.2d 277, 278 (Tex.
Co., 880 S.W.2d 415, 416 (Tex.App.-Hous-        1970). The insured may settle with the
ton [14th Dist.] 1993, writ denied); Sikes v.   tortfeasor, as Brainard did in this case,
Zuloaga, 830 S.W.2d 752, 753 (Tex.App.-         and then litigate UIM coverage with the
Austin 1992, no writ).
                                                insurer. But neither a settlement nor an
   [12, 13] This issue turns on the lan-        admission of liability from the tortfeasor
guage in Chapter 38 requiring that ‘‘pay-       establishes UIM coverage, because a jury
ment for the just amount owed must not          could find that the other motorist was not
have been tendered before the expiration        at fault or award damages that do not
of the 30th day after the claim is present-     exceed the tortfeasor’s liability insurance.
ed.’’ TEX. CIV. PRAC. & REM. CODE               See Henson, 17 S.W.3d at 654. Brainard’s
§ 38.002(3). The purpose of presentment         contention that a UIM policy is to be
is to allow the opposing party a reasonable     treated like other contracts, for which
opportunity to pay a claim without incur-       damages are liquidated in a judicial pro-
ring an obligation for attorney’s fees.         ceeding and attorney’s fees incurred are
Jones v. Kelley, 614 S.W.2d 95, 100 (Tex.       recoverable, misinterprets the nature of
1981). Thus, an essential element to recov-     UIM insurance. The UIM contract is
ery of attorney’s fees under Chapter 38 in      unique because, according to its terms,
a suit based on contract is ‘‘the existence     benefits are conditioned upon the insured’s
of a duty or obligation which the opposing      legal entitlement to receive damages from
party has failed to meet.’’ Ellis v. Wal-       a third party. Unlike many first-party
drop, 656 S.W.2d 902, 905 (Tex.1983). The       insurance contracts, in which the policy
UIM insurer is obligated to pay damages         alone dictates coverage, UIM insurance
which the insured is ‘‘legally entitled to      utilizes tort law to determine coverage.
recover’’ from the underinsured motorist.       Consequently, the insurer’s contractual ob-
TEX. INS. CODE art. 5.06–1(5). As dis-          ligation to pay benefits does not arise until
cussed above, we have determined that           liability and damages are determined. Id.
City of Amarillo v. Barnes, Not Reported in S.W.2d (1998)


                                                                        apply. We agree. However, even the right to have a question
                                                                        of law reviewed by an appellate court may be waived if it
                  1998 WL 609765
                                                                        is not first presented to the trial court for consideration. See
    Only the Westlaw citation is currently available.
                                                                        Tex.R.App. P. 33.1(a)(1); Downer v. Aquamarine Operators,
 NOTICE: NOT DESIGNATED FOR PUBLICATION.                                Inc., 701 S.W.2d 238, 243 (Tex.1985), cert. denied, 476 U.S.
  UNDER TX R RAP RULE 47.7, UNPUBLISHED                                 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) (holding that
     OPINIONS HAVE NO PRECEDENTIAL                                      appellant waived its argument that the trial court erred in
    VALUE BUT MAY BE CITED WITH THE                                     awarding prejudgment interest in a Jones Act case tried to a
  NOTATION “(not designated for publication).”                          jury because it did not present its argument to the trial court);
                                                                        Hardeman v. Judge, 931 S.W.2d 716, 720 (Tex.App.-Fort
           Court of Appeals of Texas, Amarillo.                         Worth 1996, writ denied) (holding that it could not review
                                                                        appellant's assertion that the trial court erred by not following
             CITY OF AMARILLO, Appellant,
                                                                        the mandatory requirements of the relevant provisions of
                           v.                                           the Probate Code because appellant failed to raise such
               Billy J. BARNES, Appellee.                               error in the trial court); Reyna v. State Nat'l. Bank of Iowa
                                                                        Park, 911 S.W.2d 851, 858 (Tex.App.-Fort Worth 1995, writ
         No. 07-97-0217-CV.         |   Sept. 14, 1998.
                                                                        denied) (holding that it could not reform the portion of the
FROM THE 181ST DISTRICT COURT OF RANDALL                                judgment concerning wrongful foreclosure damages based
COUNTY; NO. 38,296-B; HONORABLE SAMUEL C.                               upon a formula never presented to the trial court); Centroplex
KISER, JUDGE                                                            Ford, Inc. v. Kirby, 736 S.W.2d 261, 264-65 (Tex.App.-
                                                                        Austin 1987, no writ) (holding that by failing to raise its
Before BOYD, C.J., and DODSON and QUINN, JJ.                            objections at trial, appellant waived its complaint that the trial
                                                                        court erred by awarding pre-judgment interest because the
                                                                        award was not supported by pleadings and because the rate
BOYD.
                                                                        was contrary to statute); Great N. Am. Stationers, Inc. v. Ball,
                                                                        770 S.W.2d 631, 632-33 (Tex.App.-Dallas 1989, writ dism'd)
             ON MOTION FOR REHEARING                                    (holding that appellant waived its choice of law argument by
                                                                        waiting until the case was on appeal to raise the issue for
 *1 The City filed a motion for rehearing seeking to have this          the first time). Although the City reasserts that it brought to
court withdraw its June 4, 1998 judgment and opinion. With              the trial court's attention that the award of attorney fees was
the comment we make below, we overrule its motion.                      subject to a statutory limitation, after reviewing the record,
                                                                        we do not find that it did so.
The City argues in its motion that the question of whether
attorney's fees should be limited by statute is a question of law       Accordingly, the City's motion for rehearing is overruled.
to be decided by the trial court, not by the jury, and therefore,
Rule 278 of the Texas Rules of Civil Procedure does not

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    1
Dahl v. Dahl, Not Reported in S.W.3d (2009)


                                                                    for divorce. The case was tried to the bench in March 2007.
                                                                    The trial judge signed the final decree of divorce a few months
                  2009 WL 866199
                                                                    later, and appellant timely filed her notice of appeal.
    Only the Westlaw citation is currently available.

          SEE TX R RAP RULE 47.2 FOR
    DESIGNATION AND SIGNING OF OPINIONS.                                            II. PROPERTY DIVISION
              MEMORANDUM OPINION                                    In her first point of error, appellant complains of the trial
               Court of Appeals of Texas,                           court's division of the house in which the parties lived during
                         Dallas.                                    their marriage (the “Coleridge property”). Under the heading
                                                                    “Division of Marital Estate,” the trial court awarded appellee
            Lori Ann Melton DAHL, Appellant
                                                                    60% of the net proceeds from the sale of the Coleridge
                           v.
                                                                    property and appellant 40% of those net proceeds. Appellant
              Kelly Louis DAHL, Appellee.
                                                                    argues that the trial court erred in dividing the house as part
                                                                    of the marital estate because the Coleridge property was her
         No. 05-07-01338-CV.         |    April 2, 2009.
                                                                    separate property rather than community property.
On Appeal from the 330th Judicial District Court, Dallas
County, Texas, Trial Court Cause No. 04-21372-Y, Marilea
                                                                    A. Applicable law
Lewis, J.
                                                                    In a decree of divorce, a trial court must “order a division
Attorneys and Law Firms                                             of the estate of the parties in a manner that the court
                                                                    deems just and right.” TEX. FAM.CODE ANN. § 7.001
W. Michael Read, Law Offices of W.M. Read, Dallas, TX,              (Vernon 2006). The court may divide only the parties'
for Appellant.                                                      community property. Jacobs v. Jacobs, 687 S.W.2d 731,
                                                                    733 (Tex.1985). Community property is property, other than
Jerry Michael Pittman, Arlington, TX, Thomas B. Cowart,
                                                                    separate property, acquired by either spouse during marriage.
Turley Law Firm, Dallas, TX, for Appellee.
                                                                    TEX. FAM.CODE ANN. § 3.002. Property possessed by
Before Justices        MOSELEY,          FITZGERALD,         and    either spouse during or on dissolution of marriage is presumed
MAZZANT.                                                            to be community property rather than separate property. Id.
                                                                    § 3.003(a). Separate property includes, among other things,
                                                                    property owned or claimed by a spouse before marriage. Id .
                                                                    § 3.001(1). The characterization of property as community or
               MEMORANDUM OPINION
                                                                    separate is determined by the inception of title, i.e., when a
Opinion by Justice FITZGERALD.                                      party first has a right of claim to the property by virtue of
                                                                    which title is finally vested. Id. § 3.404(a); Chavez v. Chavez,
 *1 This is an appeal from a divorce decree. In three points        269 S.W.3d 763, 767 (Tex.App.-Dallas 2008, no pet.). A
of error, appellant Lori Ann Melton Dahl argues that the trial      party who claims that property is separate property must
court erred when it (1) divided the parties' property, (2) denied   prove the necessary facts by clear and convincing evidence in
appellant's request to change her name back to her maiden           order to overcome the presumption of community property.
name, and (3) denied her motion for continuance. We sustain         TEX. FAM.CODE ANN. § 3.003(b).
her first two points of error, overrule her third point of error,
reverse the divorce decree in part, and remand the case for         We review property-characterization rulings for abuse of
further proceedings.                                                discretion. See Chavez, 269 S.W.3d at 766. In family law
                                                                    cases, the traditional sufficiency standard of review overlaps
                                                                    with the abuse of discretion standard, so legal and factual
                                                                    sufficiency are not independent grounds of error but are
                     I. BACKGROUND
                                                                    relevant factors in our assessment of whether the trial court
The parties were married in 1998. Appellant filed for divorce       abused its discretion. Id.
in 2004, and appellee filed an answer and a counterpetition



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Dahl v. Dahl, Not Reported in S.W.3d (2009)


                                                                   v. Eggemeyer, 554 S.W.2d 137, 140-42 (Tex.1977) (affirming
B. Application of the law to the facts                             reversal of mischaracterization of separate property as
 *2 Appellee was the only witness to testify at trial. He          community property without conducting harm analysis);
testified that he and appellant were married on September          In re Marriage of Case, 28 S.W.3d 154, 161 (Tex.App.-
22, 1998. He also testified that the Coleridge property was        Texarkana 2000, no pet.) (“When a court mischaracterizes
purchased in July 1997. He admitted that appellant made            separate property as community property, the error requires
the entire down payment for the Coleridge property at that         reversal because a spouse is divested of separate property.”);
time by borrowing $16,000 against her 401(k). He further           Hodges v. Hodges, No. 05-92-00239-CV, 1993 WL 25347,
acknowledged that he did not “pay a dime” for the house            at *7 (Tex.App.-Dallas Feb.4, 1993, no writ) (not designated
at the time of the purchase. No title documents regarding          for publication) (“Such divestiture of title [to separate
the purchase of the Coleridge property were introduced at          property] is beyond the discretion of the court and cannot
trial. In short, the only evidence presented at trial relevant     be harmless error.”); Barbara A. Kazen, Division of Property
to the inception of title was appellee's own testimony that        at the Time of Divorce, 49 BAYLOR L.REV. 417, 429
the Coleridge property was purchased before the parties were       (1997) (describing mischaracterization of separate property
married and that appellant supplied the down payment. This         as community property as “an error that will result in
undisputed evidence established that the Coleridge property        reversal”). Moreover, the Coleridge property appears to be
was separate property. See Chavez, 269 S.W.3d at 767.              the most substantial asset addressed in the proceedings,
                                                                   and “[w]hen the court mistakenly characterizes property
Appellee argues that the trial court's characterization is         that constitutes the main asset of the parties, the error is
supported by a judicial admission in appellant's petition for      of such a magnitude that it materially affects the just and
divorce. In her petition, appellant alleged, “Petitioner and       right division of the community estate.” Evans v. Evans, 14
Respondent possess and own community property which                S.W.3d 343, 347 (Tex.App.-Houston [14th Dist.] 2000, no
requires a division of the marital estate, including, but not      pet.); see also In re Marriage of Morris, 123 S.W.3d 864,
limited to, their residence on Coleridge Street, vehicle(s),       868 (Tex.App.-Texarkana 2003, no pet.) (stating that “any
savings, retirement savings, and personal property.” Appellee      mischaracterization of a major asset of the parties' estate” is
argues that this statement is a judicial admission as to the       reversible error).
proper characterization of the Coleridge property. We have
held, however, that a party waives a judicial admission by          *3 We conclude that the trial court abused its discretion
introducing evidence on the disputed issue. Dallas Transit         in characterizing the Coleridge property as community
Co. v. Young, 370 S.W.2d 6, 11 (Tex.Civ.App.-Dallas                property and that this error constitutes reversible error.
1963, writ ref'd n.r.e.); accord Indus. Disposal Supply Co.        This necessitates remand for a new division of the entire
v. Perryman Bros. Trash Serv., Inc., 664 S.W.2d 756,               community estate. Jacobs, 687 S.W.2d at 732; Bufkin v.
764 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.); see            Bufkin, 259 S.W.3d 343, 350-51 (Tex.App.-Dallas 2008, pet.
also Houston First Am. Sav. v. Musick, 650 S.W.2d 764,             denied).
769 (Tex.1983) (to rely on judicial admissions, a party
“must protect his record by objecting to the introduction
of evidence contrary to that admission of fact and by
objecting to the submission of any issue bearing on the                                III. OTHER ISSUES
fact admitted”). Appellee's own testimony at trial established
                                                                   In her second point of error, appellant complains that the trial
that the Coleridge property was separate property, so he
                                                                   court erred by denying her unopposed request to change her
waived appellant's judicial admission, if any. We conclude
                                                                   name back to her maiden name. At trial, appellee stated that he
that the trial court abused its discretion by characterizing the
                                                                   was unopposed to appellant's regaining her prior name. The
Coleridge property as community property instead of separate
                                                                   trial judge said on the record that she would restore appellant's
property.
                                                                   maiden name, but the decree of divorce is silent on the subject
                                                                   and denies all relief not expressly granted therein. The denial
Appellee argues in the alternative that appellant fails to
                                                                   of appellant's request to change her name appears to have been
demonstrate that the trial court's erroneous characterization
                                                                   a clerical error. We sustain appellant's second point of error,
of the Coleridge property was harmful error. But the
                                                                   reverse the judgment to the extent it denies appellant's request
erroneous characterization of a spouse's separate property as
community property is never harmless error. See Eggemeyer


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Dahl v. Dahl, Not Reported in S.W.3d (2009)


                                                                      that party complaining of denial of continuance must show
for a name change, and remand for further proceedings not
                                                                      “the materiality of the testimony to be offered by the absent
inconsistent with this opinion.
                                                                      witness”).
In her third point of error, appellant complains that the
trial court erred by denying her counsel's oral motion for
continuance on the day of the trial. As a result of the denial,                            IV. DISPOSITION
appellant was not present at the trial. Appellant does not
demonstrate that she was prejudiced by the denial of her              We reverse the portion of the final decree of divorce that
motion, so we overrule this point of error. See Ngo v. Ngo,           divides the marital estate and the denial of appellant's request
133 S.W.3d 688, 693 (Tex.App.-Corpus Christi 2003, no pet.)           to change her name. We remand for a new division of the
(“The appellant must show that the denial [of a continuance]          community estate and other appropriate proceedings. We
resulted in her prejudice and that she had a reasonable               affirm the final decree of divorce in all other respects.
excuse for her absence.”); Humphrey v. Ahlschlager, 778
S.W.2d 480, 483 (Tex.App.-Dallas 1989, no writ) (stating

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
                  STATE FARM MUT. AUTO. INS. CO. v. NORRIS                         Tex.   819
                               Cite as 216 S.W.3d 819 (Tex. 2006)

  Because the contract did not require           take-nothing judgment. Insured appealed.
Trinity to pay UIM benefits before Premi-        The Waco Court of Appeals, Vance, J., 217
er’s negligence and underinsured status          S.W.3d 1, 2004 WL 811722, reversed and
were determined, Brainard did not present        remanded. Review was granted.
a contract claim before the trial court ren-     Holdings: The Supreme Court, Jefferson,
dered its judgment, and the court of ap-         C.J., held that:
peals correctly concluded that Brainard is       (1) prejudgment interest could not be cal-
not entitled to recover attorney’s fees un-          culated without payment dates for lia-
der Chapter 38.                                      bility coverage proceeds and personal
                                                     injury protection (PIP) benefits;
                     V
                                                 (2) as a matter of first impression, insured
               Conclusion                            released claim for prejudgment inter-
                                                     est on difference between liability cov-
  We reverse the portion of the court of
                                                     erage limits and tort settlement;
appeals’ judgment that denied Brainard
prejudgment interest, affirm the portion         (3) UIM carrier’s credits reduced princi-
that denied attorney’s fees, and remand              pal, if payment was made before pre-
this case to the trial court to calculate            judgment interest began to accrue, and
prejudgment interest consistent with this            reduced interest, if payment was made
opinion. TEX.R.APP. P. 60.2(a), (d).                 after interest began to accrue; and
                                                 (4) insured was not entitled to attorney
  Justice O’NEILL and Justice                        fees after take-nothing judgment in fa-
JOHNSON did not participate in the                   vor of carrier, disapproving Allstate
decision.                                            Insurance Company v. Lincoln, 976
                                                     S.W.2d 873.
                                                 Reversed and remanded.
             ,
                                                 1. Interest O56
                                                      The declining principal formula is
                                                 used to calculate prejudgment interest on
 STATE FARM MUTUAL AUTOMO-                       underinsured motorist (UIM) benefits;
    BILE INSURANCE COMPA-                        thus, the trial court considers the date on
          NY, Petitioner,                        which the insured received each payment
                                                 and cannot calculate prejudgment interest
                     v.
                                                 until those dates are established.
   Jimmie R. NORRIS, Respondent.
                                                 2. Insurance O2793(1), 2803
               No. 04–0514.
                                                     Interest O26
        Supreme Court of Texas.                       When automobile accident victim set-
                                                 tled tort claim for less than liability cover-
          Argued April 14, 2005.
                                                 age limits and released tortfeasor, he also
          Decided Dec. 22, 2006.                 released any prejudgment interest in the
Background: Insured brought action to            difference between the policy limits and
recover underinsured motorist (UIM) ben-         the settlement amount; thus, the victim
efits. The 87th District Court, Limestone        could recover from his underinsured mo-
County, Sam B. Bournias, J., entered a           torist (UIM) carrier prejudgment interest
In re Progressive County Mut. Ins. Co., 439 S.W.3d 422 (2014)




                    439 S.W.3d 422                                                        Background
                Court of Appeals of Texas,
                  Houston (1st Dist.).                            Following an automobile collision with an uninsured
                                                                  motorist's vehicle, Guia sued her insurer, Progressive. 1
       In re PROGRESSIVE COUNTY MUTUAL                            While investigation into the claim was ongoing, Guia sued
           INSURANCE COMPANY, Relator.                            Progressive for breach of the uninsured motorist provisions in
                                                                  her policy, violations of Chapter 542 of the Texas Insurance
       No. 01–14–00199–CV.           |   June 12, 2014.
                                                                  Code, violations of the Deceptive Trade Practices–Consumer
Synopsis                                                          Protection Act, and breach of the duty of good faith and fair
Background: Insured brought action against uninsured              dealing. Guia served Progressive with a number of discovery
motorist (UM) carrier to recover for breach of contract, breach   requests, some of which would not be relevant to the breach-
of the duty of good faith and fair dealing, and statutory         of-contract claim. Progressive filed a motion to sever the
violations. The 215th District Court, Harris County, Elaine H.    breach of contract claim for uninsured motorist coverage from
Palmer, J., denied carrier's motion to sever and abate extra-     the extra-contractual claims. The trial court judge signed an
contractual claims. Carrier petitioned for writ of mandamus.      order abating the motion to sever, allowing discovery to move
                                                                  forward on all claims, and deferring the other issues covered
                                                                  by the motion until the pretrial hearing. Progressive filed a
                                                                  writ seeking to compel severance and abatement.
[Holding:] The Court of Appeals, Harvey Brown, J., held that
severance of extra-contractual claims from breach of contract
claim was required.
                                                                                      Standard of Review

Writ conditionally granted.                                        [1] [2] [3] [4] We may issue a writ of mandamus to
                                                                  correct a trial court's clear abuse of discretion or violation
                                                                  of duty imposed by law when no adequate remedy by
Attorneys and Law Firms                                           appeal exists. See Walker v. Packer, 827 S.W.2d 833, 839
                                                                  (Tex.1992) (orig. proceeding). A clear abuse of discretion
*424 Mark R. Lapidus, Megan L. Knudsen, Lapidus                   occurs when the trial court's decision is so arbitrary and
Knudsen, PC, Houston, TX, for Relator.                            unreasonable that it amounts to clear error. See id. (quoting
                                                                  Johnson v. Fourth Court of Appeals, 700 S.W.2d 916,
Timothy R. Hightower, Alexandra Muthcler, Houston, TX,
                                                                  917 (Tex.1985)). Because a trial court has no discretion
for Real Party in Interest.
                                                                  in determining what the law is, the trial court abuses its
Panel consists of Justices KEYES, BLAND and BROWN.                discretion if it clearly fails to analyze or apply the law
                                                                  correctly. See id. at 840. “In determining whether appeal
                                                                  is an adequate remedy, [we] consider whether the benefits
                                                                  outweigh the detriments of mandamus review.” In re BP
                         OPINION
                                                                  Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig.
HARVEY BROWN, Justice.                                            proceeding).

Relator, Progressive County Mutual Insurance Company               [5]    [6] The trial court has “broad” discretion in the
seeks a writ of mandamus compelling the trial court to            severance of causes of action. Morgan v. Compugraphic
(1) vacate its order denying Progressive's motion to sever        Corp., 675 S.W.2d 729, 734 (Tex.1984); Black v. Smith, 956
extra-contractual claims asserted against it and (2) enter an     S.W.2d 72, 75 (Tex.App.-Houston [14th Dist.] 1997, orig.
order abating those extra-contractual claims until the breach-    proceeding). However, that discretion is not unlimited. See
of-contract claim brought by Alma Guia, the real party in         U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 671 (Tex.App.-
interest, has been resolved. We conditionally grant the writ.     Houston [1st Dist.] 1993, orig. proceeding). The trial court
                                                                  has a duty to order severance when *425 “all of the facts and
                                                                  circumstances of the case unquestionably require a separate


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
In re Progressive County Mut. Ins. Co., 439 S.W.3d 422 (2014)


trial to prevent manifest injustice, and there is no fact or                  claim would become unlikely. One
circumstance supporting or tending to support a contrary                      example would be when the insurer
conclusion, and the legal rights of the parties will not be                   has made a settlement offer on the
prejudiced thereby.” Womack v. Berry, 156 Tex. 44, 291                        disputed contract claim. As we have
S.W.2d 677, 682–83 (Tex.1956) (orig. proceeding).                             noted, some courts have concluded
                                                                              that the insurer would be unfairly
                                                                              prejudiced by having to defend the
                                                                              contract claim at the same time and
              Severance of Contractual and
                                                                              before the same jury that would
               Extra–Contractual Claims
                                                                              consider evidence that the insurer had
 [7] Texas Rule of Civil Procedure 41 governs severance of                    offered to settle the entire dispute.
claims. See TEX.R. CIV. P. 41. The rule provides, in part,                    While we concur with these decisions,
that “[a]ctions which have been improperly joined may be                      we hasten to add that evidence of this
severed ... on such terms as are just. Any claim against a                    sort simply does not exist in this case.
party may be severed and proceeded with separately.” Id. The                  In the absence of a settlement offer
predominant reasons for a severance are to do justice, avoid                  on the entire contract claim, or other
prejudice, and promote convenience. F.F.P. Op. Partners,                      compelling circumstances, severance
L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex.2007). Claims are                    is not required.
properly severable if: (1) the controversy involves more than
                                                                  Id. (internal citations omitted); see also In re Miller, 202
one cause of action; (2) the severed claim is one that would be
                                                                  S.W.3d 922, 925–26 (Tex.App.-Tyler 2006, orig. proceeding
the proper subject of a lawsuit if independently asserted; and
                                                                  [mand. denied] ); In re Trinity Universal Ins. Co., 64 S.W.3d
(3) the severed claim is not so interwoven with the remaining
                                                                  463, 468 (Tex.App.-Amarillo 2001, orig. proceeding [mand.
action that it involves the same facts and issues. Guar. Fed.
                                                                  denied] ). Thus, in Liberty National, the Court opined a
Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658
                                                                  settlement offer by an insurer may create a situation where
(Tex.1990). Only the third element is in dispute here.
                                                                  severance of an insured's contract claim is required. 927
                                                                  S.W.2d at 630 (Tex.1996).
In Liberty National Fire Insurance Co. v. Akin, the Texas
Supreme Court considered whether severance was required
                                                                  There is no evidence in the record that Progressive made a
in a case involving breach of contract and extra-contractual
                                                                  settlement offer to *426 Guia. However, Liberty National
claims against an insurer under a homeowner's policy. 927
                                                                  does not limit severance to cases where such an offer has been
S.W.2d 627 (Tex.1996). In refusing to grant mandamus relief,
                                                                  made, instead holding that “other compelling circumstances”
the Court rejected “an inflexible rule that would deny the
                                                                  may also require severance. Id. In the case before us,
trial court all discretion and ... require severance in every
                                                                  Progressive argues that “other compelling circumstances”
case [involving bad-faith insurance claims], regardless of the
                                                                  should include the effort and cost associated with conducting
likelihood of prejudice.” Id. at 630. Ultimately, the Court
                                                                  discovery on extra-contractual claims that have not yet
concluded that the contractual and extra-contractual claims
                                                                  accrued because the insured's breach-of-contract claim has
in that case were interwoven, with most evidence admissible
                                                                  not yet been decided.
on both claims, and that any prejudicial effect could be
ameliorated by appropriate limiting instructions. See id. The
                                                                  Several courts of appeals have considered the issues of
Court went on to
                                                                  severance and abatement in the context of uninsured motorist
            Several Texas appellate courts have                   or underinsured motorist insurance coverage; these courts
            found severance may nevertheless                      have concluded that, when uninsured motorist claims are
            be necessary in some bad faith                        involved, severance of the extra-contractual claims was
            cases. A trial court will undoubtedly                 required. See In re Am. Nat'l Cnty. Mut. Ins. Co., 384 S.W.3d
            confront instances in which evidence                  429 (Tex.App.-Austin 2012, orig. proceeding) (concluding
            admissible only on the bad faith claim                trial court abused discretion by denying insurer's motion for
            would prejudice the insurer to such an                severance and abatement of extra-contractual claims where
            extent that a fair trial on the contract              settlement offer was made on underinsured motorist claim);
                                                                  In re Reynolds, 369 S.W.3d 638, 650–55 (Tex.App.-Tyler


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
In re Progressive County Mut. Ins. Co., 439 S.W.3d 422 (2014)


2012, orig. proceeding) (holding severance of underinsured     Progressive was contractually obligated to pay her uninsured
motorist claim was required to prevent prejudice); In re       motorist claim. To do this, Guia must first prove that she had
United Fire Lloyds, 327 S.W.3d 250, 257 (Tex.App.-San          uninsured motorist coverage, that the other driver negligently
Antonio 2010, orig. proceeding) (finding abuse of discretion   caused the accident and was uninsured, and the amount of her
in granting motion for bifurcation of trial rather than        damages. See In re Reynolds, 369 S.W.3d at 652. It appears
severance and abatement of extra-contractual claims); see      that the first issue is not in dispute. Therefore, Guia's breach-
also In re Old Am. Cnty. Mut. Fire Ins. Co., No. 13–           of-contract claim will essentially involve the issues in a
12–00700–CV, 2013 WL 398866 (Tex.App.-Corpus Christi           typical car wreck: the comparative negligence of Guia and the
January 30, 2013, orig. proceeding) (mem. op.) (holding        other driver and Guia's damages. The bad faith claim here is
that severance and abatement of extra-contractual claims       more complicated. In her most recent petition, she alleges that
is required in many instances when insured asserts claim       Progressive breached their duty of good faith and fair dealing,
to uninsured or underinsured motorist benefits); In re         violated the insurance code by failing to timely pay the
Farmers Tex. Cnty. Mut. Ins. Co., No. 07–11–00396–CV,          claim, and further alleges Progressive's conduct was knowing
2011 WL 4916303, (Tex.App.-Amarillo Oct. 17, 2011,             and intentional in violation of the Deceptive Trade Practices
orig. proceeding) (mem. op.) (denying mandamus because         Act. In discovery, Guia seeks production of all documents
complaint was not preserved, but agreeing that abatement of    related to lawsuits and claims against Progressive regarding
extra-contractual claims is required in most instances when    the denial of uninsured/underinsured motorist claims for over
an insured asserts claim to uninsured motorist benefits).      ten years. Examples of these requests include:

The San Antonio Court of Appeals explained its                   Request 3. Produce all documents of any type as to claims
determination that mandamus relief was proper to compel          asserted against Progressive during period from January
severance and abatement of an underinsured motorist claim        1, 2001, up to and including present day as a result of
from related bad faith claims as follows:                        nonpayment of uninsured/underinsured motorist claims in
                                                                 Texas regardless of whether a lawsuit was filed and/or
            [The insurer] is under no contractual                liability was denied.
            duty to pay [underinsured motorist]
            benefits until [the insured] establishes             Request 4. Produce all documents of any type as to
            the liability and underinsured status                all lawsuits filed against Progressive during period from
            of the other motorist. Therefore, [the               January 1, 2001, up to and including present day, as a result
            insurer] should not be required to                   of nonpayment of uninsured/underinsured motorist claims
            put forth the effort and expense of                  in Texas regardless of whether liability was denied.
            conducting discovery, preparing for
                                                                 ...
            a trial, and conducting voir dire
            on bad faith claims that could be                    Request 16. A copy of each and every policy, manual,
            rendered moot by the portion of                      protocol, instruction booklet or similar writing concerning
            the trial relating to [underinsured                  procedures for the investigation and handling of uninsured/
            motorist] benefits. To require such                  underinsured motorist claim which was in effect at the time
            would not do justice, avoid prejudice,               Plaintiff made her claims in this case, and for the seven
            and further convenience. Under                       years preceding Progressive's denial of Plaintiff's claim.
            these circumstances, we conclude
            the trial court abused its discretion              These requested documents are irrelevant to the breach-of-
            in bifurcating the case instead of                 contract claim, and the introduction of Progressive's claims
            severing and abating the [underinsured             handling history in unrelated accidents at the trial of Guia's
            motorist] claim from the bad faith                 breach-of-contract claim would be manifestly unjust. See
            claims.                                            Womack v. Berry, 291 S.W.2d at 682–83 (Tex.1956) (orig.
                                                               proceeding).
In re United Fire Lloyds, 327 S.W.3d at 256. 2
                                                               The trial court's abatement of any decision on severance until
 *427 [8] In this case, to prevail on her extra-contractual    the eve of trial requires the parties to engage in discovery
claims against Progressive, Guia must demonstrate that         on the extra-contractual claims and prepare for a trial on


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
In re Progressive County Mut. Ins. Co., 439 S.W.3d 422 (2014)


                                                                      have an adequate remedy by appeal. See In re Am. Nat'l Cnty.
these claims, even though extra-contractual liability could
                                                                      Mut. Ins. Co., 384 S.W.3d 429, 439; In re Reynolds, 369
only accrue if Progressive is found liable on the contract. See
                                                                      S.W.3d at 658; In re United Fire Lloyds, 327 S.W.3d at 256.
In re United Fire Lloyds, 327 S.W.3d at 256. Accordingly,
the trial court's decision to postpone severance, unless writ
is granted, will require Progressive to expend resources
answering discovery that is far broader than the car accident                                    Conclusion
claim that must be resolved.
                                                                      Based on our review of the record, we conclude that Guia's
Consistent with In re Reynolds and In re United Fire Lloyds,          extra-contractual claims against Progressive are severable,
we conclude that severance of insured's extra-contractual             the facts and circumstances of the case require a severance to
claims is required in this instance to avoid prejudice.               prevent manifest injustice, and the legal rights of the parties
                                                                      will not be prejudiced thereby. See Womack, 291 S.W.2d
                                                                      at 683. The trial court, therefore, abused its discretion in
                                                                      refusing to sever and abate the uninsured motorist claims
               Adequate Remedy by Appeal                              from the bad faith claims pending the determination of
                                                                      Progressive's liability for the uninsured motorist damages
 [9] A writ of mandamus will issue only if there is no
                                                                      under the policy. See In re Am. Nat'l Cnty. Mut. Ins. Co., 384
adequate remedy available by direct appeal. See *428
                                                                      S.W.3d 429; In re Reynolds, 369 S.W.3d at 650–55; In re
Walker, 827 S.W.2d at 839. The Corpus Christi Court of
                                                                      United Fire Lloyds, 327 S.W.3d at 257; see also In re Old Am.
Appeals in In re United Fire Lloyds concluded the insurer
                                                                      Cnty. Mut. Fire Ins. Co., 2013 WL 398866; In re Farmers
did not have an adequate remedy by appeal because, if a
                                                                      Tex. Cnty. Mut. Ins. Co., 2011 WL 4916303.
writ of mandamus were not granted, the insurer stood to lose
substantial rights by being required to prepare for claims that
                                                                      We conditionally grant Progressive's writ of mandamus and
might be rendered moot and never even accrue. In re Fire
                                                                      order the trial court to vacate the February 11, 2014 Order,
Lloyds, 327 S.W.3d at 256 (citing U.S. Fire Ins. Co., 847
                                                                      grant Progressive County Mutual Insurance Company's
S.W.2d at 675; In re Trinity Universal Ins. Co., 64 S.W.3d
                                                                      Motion to Sever, and abate the extra-contractual claims. We
at 468).
                                                                      are confident that the trial court will promptly comply, and
                                                                      our writ will issue only if it does not.
The Corpus Christi Court of Appeals agreed. See In re Old
Am. Cnty. Mut. Fire Ins. Co., 2013 WL 398866. Likewise,
other appellate courts have also found these claims do not


Footnotes
1      The underlying case is Alma Guia v. Jessica Nicole Estes, Relinda Estes, Progressive Insurance Company and Progressive County
       Mutual Insurance Company; No. 2012–57535, in the 215th District Court of Harris County, Texas, the Honorable Elaine H. Palmer
       presiding.
2      The court relied on the Texas Supreme Court's reasoning in Brainard v. Trinity Universal Insurance Co., 216 S.W.3d 809 (Tex.2006),
       but acknowledged that Brainard concerned timing of presentment of contract claim to determine whether party was entitled to
       attorney's fees under Chapter 38 of Texas Civil Practice and Remedies Code, rather than severance and abatement in the context
       of uninsured motorist claim. See In re United Fire Lloyds, 327 S.W.3d 250, 257 (Tex.App.-San Antonio 2010, orig. proceeding)
       (discussing Brainard, 216 S.W.3d at 818).


End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    4
754   Tex.         372 SOUTH WESTERN REPORTER, 3d SERIES


court had jurisdiction over appellants’                        CONCLUSION
claims in the tort suit, the trial court nev-
                                                  We resolve appellants’ two issues
ertheless abused its discretion by consoli-
                                                against them and affirm the trial court’s
dating the two cases at the conclusion of
                                                judgment.
trial because it deprived appellants of the
opportunity to present evidence or argu-
ment in support of their claims.
   [3, 4] As a threshold issue, we must
decide whether appellants have preserved
their complaint for appellate review. See                   ,
In re M.S., 115 S.W.3d 534, 547 (Tex.2003)
(noting ‘‘error preservation in the trial
court [ ] is a threshold to appellate re-
view’’). ‘‘To preserve a complaint for ap-
pellate review, a party generally must          Rafael GASPAR, Arturo Gaspar, Javier
present it to the trial court by timely          Rodriguez, Guillermo Gaspar, Antonio
request, motion, or objection, stating the       Gaspar, and Carmen Gaspar, Appel-
specific grounds, and obtain a ruling.’’         lants
Shaw v. Cnty. of Dallas, 251 S.W.3d 165,
174 (Tex.App.-Dallas 2008, pet. denied)                             v.
(citing TEX.R.APP. P. 33.1(a)). In addition,
                                                      LAWNPRO, INC. and Kirk
‘‘a party’s argument on appeal must com-
                                                        E. Henton, Appellees.
port with its argument in the trial court.’’
Knapp v. Wilson N. Jones Mem’l Hosp.,                     No. 05–11–00861–CV.
281 S.W.3d 163, 170 (Tex.App.-Dallas 2009,
no pet.).                                              Court of Appeals of Texas,
   At the conclusion of trial, when the trial                    Dallas.
court announced its decision to grant the
                                                              July 25, 2012.
motion to consolidate the tort lawsuit, Tate
stated, ‘‘But I’m the—I’m the plaintiff in      Background: Employees brought breach
that cause.’’ She also stated, ‘‘I’d like my    of contract action against employers seek-
objection noted for the record, Your Hon-       ing unpaid wages. The County Court at
or.’’ Appellants did not argue, either be-      Law, No. 1, Collin County, Corinne Mason,
fore or after the trial court granted the       J., granted employers’ no-evidence motion
motion to consolidate, that the consolida-      for summary judgment. Employees ap-
tion deprived them of the opportunity to        pealed.
present evidence or argument in support         Holdings: The Court of Appeals, Bridges,
of their claims. As a result, we conclude       J., held that:
that appellants’ second issue was not pre-      (1) employers waived hearsay objection to
served for appellate review. See, e.g., id.         employees’ affidavits, and
at 171 (‘‘We conclude [appellant] failed to
preserve the issue for appellate review         (2) genuine issue of material fact existed
because his issue on appeal does not com-           as to whether employees had a formal-
port with his objections made at trial.’’).         ized working relationship with employ-
We resolve appellants’ second issue                 ers.
against them.                                   Reversed and remanded.
                               GASPAR v. LAWNPRO, INC.                              Tex.   755
                            Cite as 372 S.W.3d 754 (Tex.App.—Dallas 2012)

1. Evidence O314(1)                                 7. Contracts O168
     Evidence that contains hearsay is de-               Terms of a contract are implied when
fective as to form; that is, it is competent,       they are necessarily involved in the con-
but inadmissible.                                   tractual relationship such that the parties
                                                    must have intended to include them, but
2. Trial O31                                        failed due to inadvertence or because they
     A defect in form must be raised in the         were too obvious to need expression.
trial court, the opposing party must be
                                                    8. Judgment O185.3(13)
given an opportunity to amend, and the
trial court must rule upon the objection or              Genuine issue of material fact raised
the objection is waived.                            by employees’ summary judgment affida-
                                                    vits as to whether employees had a work-
3. Judgment O189                                    ing relationship with employers formalized
     Although the rules of civil procedure          by checks, pay statements, and a work
do not prescribe a period of time in which          contract precluded summary judgment in
a trial court is required to rule on sum-           employees’ breach of contract action to
mary judgment objections, the better prac-          recover unpaid wages. Vernon’s Ann.Tex-
tice is for the court to rule on any objec-         as Rules Civ.Proc., Rule 166a(i).
tions at or before the time it signs an
order granting or denying summary judg-
ment.

4. Appeal and Error O242(4)                           Winston Ndubueze Udeh, Law Office of
                                                    Winston Udeh & Assoc., Dallas, TX, for
     Employers waived hearsay objection
                                                    Appellant.
to employees’ summary judgment affida-
vits in employees’ action to recover alleg-           Jeremy F. Rosenthal, Rosenthal & Wa-
edly unpaid wages, even though employers            das, PLLC, for Appellee.
obtained favorable ruling on their no-evi-
dence summary judgment motion, where                  Before Justices BRIDGES,
employers never sought a ruling on their            FITZGERALD, and LANG.
hearsay objections, and trial court never
issued a ruling on those objections.                                    OPINION

5. Contracts O315                                      Opinion By Justice BRIDGES.
     A breach of contract occurs when a                Rafael Gaspar, Arturo Gaspar, Javier
party fails to perform an act it has explicit-      Rodriguez, Guillermo Gaspar, Antonio
ly or impliedly promised to perform.                Gaspar, and Carmen Gaspar appeal the
                                                    trial court’s no-evidence summary judg-
6. Contracts O326                                   ment in favor of Lawnpro, Inc., and Kirk
     The elements of a breach of contract           E. Henton. In two issues, appellants ar-
claim are (1) the existence of a valid con-         gue the affidavits they presented in re-
tract between plaintiff and defendant; (2)          sponse to appellees’ no-evidence motion for
the plaintiff’s performance or tender of            summary judgment were sufficient to de-
performance; (3) the defendant’s breach of          feat the motion, and the trial court erred
the contract; and (4) the plaintiff’s damage        in granting appellees’ no-evidence motion
as a result of the breach.                          for summary judgment. We reverse the
756   Tex.         372 SOUTH WESTERN REPORTER, 3d SERIES


trial court’s judgment and remand for fur-       dence motion for summary judgment virtu-
ther proceedings.                                ally identical to the first motion. Again,
   In June 2010, appellants filed suit alleg-    appellees did not mention the factual as-
ing they all worked for appellees during         sertions made by appellants and did not
June 2009 doing lawn maintenance and             raise any specific challenge to the evidence
construction work. The petition alleged          supporting appellants’ claims. In a sepa-
appellees issued checks for compensation         rate pleading entitled ‘‘Defendants’ Reply
for the work performed, but the bank re-         and Objections to Plaintiffs’ Summary
fused the checks for insufficient funds.         Judgment Evidence,’’ appellees argued the
Appellants complained, and appellees             affidavits filed by appellants were hearsay.
promised to make the checks good. How-           However, it does not appear appellees ob-
ever, for a period of two months appellees       tained a ruling on their objections. The
continued to pay appellants with worthless       trial court granted appellees motion, and
checks. Appellants asserted claims for           this appeal followed.
breach of contract, fraud, conversion, puni-        Appellants raise two issues, which they
tive damages, and attorney’s fees. Appel-        argue together, asserting their affidavits
lees filed an answer and a no-evidence           were sufficient to defeat appellees’ motion
motion for summary judgment asserting            for no-evidence summary judgment, and
‘‘There is no evidence of one or more of         the trial court therefore erred in granting
the following elements of’’ each of appel-       appellees’ motion. Appellees did not file a
lants’ claims. The motion did not refer to       brief in response. A no-evidence summary
the facts alleged in appellants’ petition or     judgment motion under rule 166a(i) is es-
specify in what way the evidence entirely        sentially a motion for a pretrial directed
failed to support appellants’ claims. In-        verdict; it requires the nonmoving party
stead, the motion merely broke appellants’       to present evidence raising a genuine issue
causes of action for breach of contract,         of material fact supporting each element
fraud, conversion, punitive damages, and         contested in the motion. TEX.R. CIV. P.
attorney’s fees into elements and asserted       166a(i); Timpte Indus., Inc. v. Gish, 286
no evidence existed ‘‘as to one of more of       S.W.3d 306, 310 (Tex.2009). When review-
the aforementioned elements.’’                   ing a no-evidence summary judgment, we
                                                 review the evidence presented by the mo-
   Appellants filed a response to appellees’
                                                 tion and response in the light most favor-
motion and attached an appendix contain-
                                                 able to the party against whom the sum-
ing affidavits from each appellant stating
                                                 mary judgment was rendered, crediting
each appellant was employed by appellees
                                                 evidence favorable to that party if reason-
for certain specified months, all of the
                                                 able jurors could, and disregarding con-
checks appellees gave them were denied
                                                 trary evidence unless reasonable jurors
for insufficient funds for a total of a speci-
                                                 could not. Timpte Indus., 286 S.W.3d at
fied dollar amount, and appellee ‘‘took the
                                                 310.
checks and promised to give me cash but
never did.’’ The appendix also contained           [1–4] We note appellees raised a hear-
statements from Lawnpro stamped ‘‘SUB–           say objection to appellant’s affidavits in
CONTRACT/SEASONAL LABOR’’ and                    the trial court. Evidence that contains
indicating hours worked, pay rate, current       hearsay is defective as to form; that is, it
payments, pay periods, pay dates, and            is competent, but inadmissible. S & I
year-to-date amounts paid to some appel-         Mgmt., Inc. v. Choi, 331 S.W.3d 849, 855
lants. Appellees filed an amended no-evi-        (Tex.App.-Dallas 2011, no pet.). A defect
                               GASPAR v. LAWNPRO, INC.                              Tex.   757
                            Cite as 372 S.W.3d 754 (Tex.App.—Dallas 2012)

in form must be raised in the trial court,          must have intended to include them, but
the opposing party must be given an op-             failed due to inadvertence or because they
portunity to amend, and the trial court             were too obvious to need expression.
must rule upon the objection or the objec-          Mann Frankfort Stein & Lipp Advisors,
tion is waived. Id. Although the rules of           Inc. v. Fielding, 289 S.W.3d 844, 850 (Tex.
civil procedure do not prescribe a period of        2009).    Appellant’s affidavits, together
time in which a trial court is required to          with copies of checks and pay statements
rule on summary judgment objections, the            from Lawnpro, raised a fact issue as to
‘‘better practice’’ is for the court to rule on     the elements of their claims against appel-
any objections at or before the time it             lees. See Timpte Indus., 286 S.W.3d at
signs an order granting or denying sum-             310. The affidavits and supporting docu-
mary judgment. Stewart v. Sanmina                   ments indicate the parties had a working
Tex., L.P., 156 S.W.3d 198, 207 (Tex.App.-          relationship formalized by checks and pay
Dallas 2005, no pet.).                              statements, and appellees breached that
   [5–8] Here, the trial court did not rule         agreement, damaging appellants. The ev-
on appellees’ objections to appellants’ affi-       idence indicates appellees made represen-
davits, and those objections are therefore          tations that they would pay appellants but
waived. Choi, 331 S.W.3d at 855. Appel-             instead issued additional worthless checks
lants raised a breach of contract claim             and failed to pay cash. We conclude ap-
against appellees. A breach of contract             pellants’ evidence was sufficient to defeat
occurs when a party fails to perform an             appellees’ no-evidence motion for sum-
act it has explicitly or impliedly promised         mary judgment, and the trial court there-
to perform. Esty v. Beal Bank S.S.B.,               fore erred in granting appellees’ motion.
298 S.W.3d 280, 299 (Tex.App.-Dallas                We sustain appellants’ issues.
2009, no pet.). The elements of a breach
                                                      We reverse the trial court’s judgment
of contract claim are (1) the existence of a
                                                    and remand for further proceedings.
valid contract between plaintiff and defen-
dant; (2) the plaintiff’s performance or
tender of performance; (3) the defendant’s
breach of the contract; and (4) the plain-
tiff’s damage as a result of the breach.                            ,
Id. Terms of a contract are implied when
they are necessarily involved in the con-
tractual relationship such that the parties
652    Tex.          17 SOUTH WESTERN REPORTER, 3d SERIES

                                                3. Insurance O2793(1), 2816
      Jerry L. HENSON, Petitioner,                   Insured’s settlement with tort-feasor
                                                without an admission of liability did not
                       v.
                                                alone establish a right to underinsured
SOUTHERN FARM BUREAU CASU-                      motorist (UIM) benefits; the jury could
  ALTY INSURANCE COMPANY and                    have found that the tort-feasor was not at
  Texas Farm Bureau Mutual Insur-               fault or that the damages resulting from
  ance Company, Respondents.                    her actions did not exceed her policy lim-
                                                its.
                  No. 99–0453.

         Supreme Court of Texas.                   Kenneth D. Cowling, Lubbock, for peti-
              Argued Feb. 9, 2000.              tioner.
                                                  James L. Wharton, G. Douglas Welch,
          Decided April 13, 2000.
                                                Lubbock, for respondents.

                                                  Justice ENOCH delivered the opinion
     Insured sought to recover underin-         for a unanimous Court.
sured motorist (UIM) benefits following
judgment against the tort-feasor. The             [1] The question is whether an insurer,
121st Judicial District Court, Terry Coun-      obligated to pay uninsured/underinsured
ty, Kelly G. Moore, J., denied request for      benefits, owes on top of those benefits
prejudgment interest. Insured appealed.         prejudgment interest to be computed ei-
The Court of Appeals, Charles L. Reyn-          ther from 180 days after a demand for
olds, Senior Justice (Retired), 989 S.W.2d      those benefits has been made, or from the
837, affirmed. Review was granted. The          day a suit is filed for those benefits. Be-
Supreme Court, Enoch, J., held that the         cause uninsured/underinsured insurers do
insured was not entitled to prejudgment         not breach their contractual obligation to
interest.                                       pay until tort liability is established, we
                                                conclude that prejudgment interest begins
      Affirmed.                                 running from the date liability of the unin-
                                                sured/underinsured motorist is established.
                                                Consequently, Texas Farm Bureau Mutual
1. Interest O39(2.35)                           Insurance Company and Southern Farm
     Prejudgment interest on claim for un-      Bureau Casualty Insurance Company do
derinsured motorist (UIM) benefits did not      not owe Jerry Henson prejudgment inter-
begin to run 180 days after a demand for        est on top of the uninsured/underinsured
those benefits or upon the filing of a suit;    benefits.
rather, it would begin when tort liability        On March 3, 1991, Henson was a passen-
was established by judgment and, there-         ger in a truck driven by Robert Millican.
fore, never accrued where the insurers          Henson was injured when the truck collid-
paid within 30 days after the tort judg-        ed with a truck driven by Consuelo Contr-
ment. Vernon’s Ann.Texas Civ.St. art.           eras. In March 1991, Henson submitted
5069–1.05 §§ 2, 6 (Repealed); V.T.C.A.,         his claim to his insurance carrier, Texas
Finance Code §§ 304.003, 304.006, 304.102.      Farm Bureau Mutual Insurance Company,
                                                and Millican’s insurance carrier, Southern
2. Interest O39(2.35)                           Farm Bureau Casualty Insurance Compa-
     Insurers owe prejudgment interest on       ny, for uninsured/underinsured motorists
top of the policy benefits only if they with-   benefits. In February 1993, Henson and
hold those benefits in breach of the insur-     his wife sued both Millican and Contreras
ance contracts.                                 for negligence. They also sued Texas
                     HENSON v. SOUTHERN FARM BUREAU CAS. INS.                                   Tex.   653
                                      Cite as 17 S.W.3d 652 (Tex. 2000)
Farm Bureau and Southern Farm Bureau                      Henson believes that our previous hold-
for the uninsured/underinsured motorists                ings on prejudgment interest and sections
benefits.                                               2 and 6 of article 5069–1.05 of the Texas
                                                        Revised Civil Statutes 1 entitle him to pre-
   Without establishing liability, but with
                                                        judgment interest of ten percent on the
the insurers’ permission, the Hensons set-
                                                        uninsured/underinsured motorist benefits
tled with Contreras for $20,000, the limits
                                                        computed from 180 days after he made
of her liability policy. Before proceeding
                                                        demand for the benefits.
to trial against Millican, the claim against
the insurers was severed, and the insurers                 But Henson conflates two prejudgment
agreed to be bound by the judgment ren-                 interest concepts. There is no doubt that
dered in the negligence action against Mil-             if Henson were recovering directly from
lican. The agreement also provided that                 Contreras, the judgment would include
the insurers had thirty days before the                 prejudgment interest. And the insurers
judgment would be binding against them.                 do not dispute that had the trial court
The jury attributed 100% of the negligence              awarded prejudgment interest against the
that caused the collision to Contreras, and             tort defendants, the insurers would be ob-
fixed Henson’s damages at $133,842.13.                  ligated to pay the entire judgment includ-
The court then entered a take-nothing                   ing that portion awarded for prejudgment
judgment as to Millican.                                interest, to the extent of policy limits.2
                                                        But here, Henson is seeking to recover
   Within thirty days of the judgment, the              prejudgment interest based not on the
insurers tendered $45,000, the combined                 tortfeaser’s obligations, but upon the in-
uninsured/underinsured motorist policy                  surance companies’ obligations. Unlike
limits, to Henson. But he refused the                   the relationship between Henson and
tender, demanding prejudgment interest                  Contreras, which is that of injured party
on top of the benefits. In the severed                  and tortfeasor, the relationship between
action, the insurers then filed an amended              Henson and the insurers is that of con-
answer, denying that Henson met all con-                tracting parties. Consequently, their re-
ditions precedent required by the contract              spective duties are established by the con-
prior to the judgment in the tort action,               tract.
and specifically denying that Henson was
                                                          Under the policies, the insurance compa-
entitled to prejudgment interest. With
                                                        nies are obligated to pay the uninsured/un-
their amended answer, the insurers paid
                                                        derinsured motorist’s shortfall to the ex-
the policy benefits into the court’s registry.
                                                        tent of the policy limits. The Texas Farm
  Henson moved for judgment and sum-                    policy limits were $25,000 per person and
mary judgment, and the insurers moved                   $50,000 per accident; the Southern Farm
for summary judgment. The trial court                   policy limits were $20,000 per person and
denied both of Henson’s motions and                     $40,000 per accident. Both policies stated:
granted the insurers’ motion, ordering                    We will pay damages which a covered
that Henson recover from Texas Farm its                   person is legally entitled to recover from
uninsured/underinsured policy limits of                   the owner or operator of an [unin-
$25,000, and from Southern Farm the                       sured/underinsured] motor vehicle be-
uninsured/underinsured policy limits of                   cause of bodily injury sustained by a
$20,000, plus interest accrued while in the               covered person, or property damage,
court’s registry, ‘‘in full satisfaction of this          caused by an accident. The owner’s or
judgment.’’                                               operator’s liability for these damages
1.    TEX.REV.CIV. STAT. art. 5069–1.05 §§ 2 and 6      2.     TEX.REV.CIV. STAT. art. 5069–1.05 §§ 2 and 6;
     have been subsequently recodified at TEX. FIN.          see Johnson & Higgins of Tex., Inc. v. Kenneco
     CODE §§ 304.003, .006, and 304.102.                     Energy, Inc., 962 S.W.2d 507, 529–30 (Tex.
                                                             1998).
654      Tex.         17 SOUTH WESTERN REPORTER, 3d SERIES

     must arise out of the ownership, mainte-    that Henson was entitled to recover from
     nance, or use of the uninsured motor        the uninsured/underinsured insurers.
     vehicle.                                       In fact, though, the jury found the entire
  [2] We have emphasized that prejudg-           losses to be inflicted by Contreras, and
ment interest is awarded not to punish the       fixed the amount of those losses at $133,-
defendant, but to fully compensate the in-       842.13. The policies provided that the in-
jured party.3 The insurers owe prejudg-          surers will pay damages that a covered
ment interest on top of the policy benefits      person is legally entitled to recover from
only if they withheld those benefits, in         an     uninsured/underinsured        motorist.
breach of the insurance contracts. In that       When the jury found Contreras at fault for
case, the injured insured would have lost        the accident and found Henson damaged
the use of funds that he would otherwise         by her negligence, Henson became legally
have had, and prejudgment interest would         entitled to recover from her. And because
compensate for the time the proceeds were        the damages exceeded Contreras’ liability
withheld.                                        policy limits, Henson became entitled to
   Here, Henson has failed to demonstrate        the uninsured/underinsured motorist poli-
that the insurers were obligated to pay the      cy benefits, up to the policy limits. By the
benefit at any time earlier than they did.       terms of the policies, no obligation to pay
In his brief, Henson appears to concede          the claim existed until the jury established
that the insurer’s obligation to pay did not     Contreras’ liability. And the insurers paid
arise until the first judgment was ren-          the claim promptly after the jury made its
dered, stating that the trial court’s entry      findings. Because no contractual duty was
of judgment ‘‘had the effect of entitling        breached, Henson had no right to receive
Mr. Henson to recover the respective sums        the benefits earlier than he in fact received
of $20,000 and $25,000 from Southern             them. Therefore no compensation is due
Farm Bureau and Texas Farm Bureau, by            for lost use of the funds. Thus Henson is
reason of the TTT stipulation.’’ 4 He fails      not entitled to prejudgment interest on top
to specify any point earlier than rendition      of the benefits he is otherwise entitled to
of the judgment that a breach of contract        receive from the insurers.
could have occurred. We infer from his             The judgment of the court of appeals is
insistence that the prejudgment interest         affirmed.
accrued either 180 days after he gave no-
tice of the claim, or the day he filed suit
against the companies, that he believes the
obligation to pay arose either at the time                       ,
he filed his claim, or at the time he filed
suit against the insurers. But neither of
these events, the claim itself or filing suit,        In re DAISY MANUFACTURING
triggers an obligation to pay.                            COMPANY, INC., Relator.
   [3] In this case, Henson settled with                           No. 99–0500.
Contreras for $20,000, the limits of her
liability insurance policy, and released her                Supreme Court of Texas.
from any further claims. Because the jury                         April 13, 2000.
could have found that Contreras was not at
fault, or that the damages resulting from
her actions did not exceed her policy lim-           In design-defect products liability suit
its, the settlement alone did not establish      against air rifle manufacturer, plaintiff
3.    Johnson & Higgins, 962 S.W.2d at 528.      4.   Petitioner’s brief on the merits at 4.
In re Progressive County Mut. Ins. Co., 439 S.W.3d 422 (2014)




                    439 S.W.3d 422                                                        Background
                Court of Appeals of Texas,
                  Houston (1st Dist.).                            Following an automobile collision with an uninsured
                                                                  motorist's vehicle, Guia sued her insurer, Progressive. 1
       In re PROGRESSIVE COUNTY MUTUAL                            While investigation into the claim was ongoing, Guia sued
           INSURANCE COMPANY, Relator.                            Progressive for breach of the uninsured motorist provisions in
                                                                  her policy, violations of Chapter 542 of the Texas Insurance
       No. 01–14–00199–CV.           |   June 12, 2014.
                                                                  Code, violations of the Deceptive Trade Practices–Consumer
Synopsis                                                          Protection Act, and breach of the duty of good faith and fair
Background: Insured brought action against uninsured              dealing. Guia served Progressive with a number of discovery
motorist (UM) carrier to recover for breach of contract, breach   requests, some of which would not be relevant to the breach-
of the duty of good faith and fair dealing, and statutory         of-contract claim. Progressive filed a motion to sever the
violations. The 215th District Court, Harris County, Elaine H.    breach of contract claim for uninsured motorist coverage from
Palmer, J., denied carrier's motion to sever and abate extra-     the extra-contractual claims. The trial court judge signed an
contractual claims. Carrier petitioned for writ of mandamus.      order abating the motion to sever, allowing discovery to move
                                                                  forward on all claims, and deferring the other issues covered
                                                                  by the motion until the pretrial hearing. Progressive filed a
                                                                  writ seeking to compel severance and abatement.
[Holding:] The Court of Appeals, Harvey Brown, J., held that
severance of extra-contractual claims from breach of contract
claim was required.
                                                                                      Standard of Review

Writ conditionally granted.                                        [1] [2] [3] [4] We may issue a writ of mandamus to
                                                                  correct a trial court's clear abuse of discretion or violation
                                                                  of duty imposed by law when no adequate remedy by
Attorneys and Law Firms                                           appeal exists. See Walker v. Packer, 827 S.W.2d 833, 839
                                                                  (Tex.1992) (orig. proceeding). A clear abuse of discretion
*424 Mark R. Lapidus, Megan L. Knudsen, Lapidus                   occurs when the trial court's decision is so arbitrary and
Knudsen, PC, Houston, TX, for Relator.                            unreasonable that it amounts to clear error. See id. (quoting
                                                                  Johnson v. Fourth Court of Appeals, 700 S.W.2d 916,
Timothy R. Hightower, Alexandra Muthcler, Houston, TX,
                                                                  917 (Tex.1985)). Because a trial court has no discretion
for Real Party in Interest.
                                                                  in determining what the law is, the trial court abuses its
Panel consists of Justices KEYES, BLAND and BROWN.                discretion if it clearly fails to analyze or apply the law
                                                                  correctly. See id. at 840. “In determining whether appeal
                                                                  is an adequate remedy, [we] consider whether the benefits
                                                                  outweigh the detriments of mandamus review.” In re BP
                         OPINION
                                                                  Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig.
HARVEY BROWN, Justice.                                            proceeding).

Relator, Progressive County Mutual Insurance Company               [5]    [6] The trial court has “broad” discretion in the
seeks a writ of mandamus compelling the trial court to            severance of causes of action. Morgan v. Compugraphic
(1) vacate its order denying Progressive's motion to sever        Corp., 675 S.W.2d 729, 734 (Tex.1984); Black v. Smith, 956
extra-contractual claims asserted against it and (2) enter an     S.W.2d 72, 75 (Tex.App.-Houston [14th Dist.] 1997, orig.
order abating those extra-contractual claims until the breach-    proceeding). However, that discretion is not unlimited. See
of-contract claim brought by Alma Guia, the real party in         U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 671 (Tex.App.-
interest, has been resolved. We conditionally grant the writ.     Houston [1st Dist.] 1993, orig. proceeding). The trial court
                                                                  has a duty to order severance when *425 “all of the facts and
                                                                  circumstances of the case unquestionably require a separate


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
In re Progressive County Mut. Ins. Co., 439 S.W.3d 422 (2014)


trial to prevent manifest injustice, and there is no fact or                  claim would become unlikely. One
circumstance supporting or tending to support a contrary                      example would be when the insurer
conclusion, and the legal rights of the parties will not be                   has made a settlement offer on the
prejudiced thereby.” Womack v. Berry, 156 Tex. 44, 291                        disputed contract claim. As we have
S.W.2d 677, 682–83 (Tex.1956) (orig. proceeding).                             noted, some courts have concluded
                                                                              that the insurer would be unfairly
                                                                              prejudiced by having to defend the
                                                                              contract claim at the same time and
              Severance of Contractual and
                                                                              before the same jury that would
               Extra–Contractual Claims
                                                                              consider evidence that the insurer had
 [7] Texas Rule of Civil Procedure 41 governs severance of                    offered to settle the entire dispute.
claims. See TEX.R. CIV. P. 41. The rule provides, in part,                    While we concur with these decisions,
that “[a]ctions which have been improperly joined may be                      we hasten to add that evidence of this
severed ... on such terms as are just. Any claim against a                    sort simply does not exist in this case.
party may be severed and proceeded with separately.” Id. The                  In the absence of a settlement offer
predominant reasons for a severance are to do justice, avoid                  on the entire contract claim, or other
prejudice, and promote convenience. F.F.P. Op. Partners,                      compelling circumstances, severance
L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex.2007). Claims are                    is not required.
properly severable if: (1) the controversy involves more than
                                                                  Id. (internal citations omitted); see also In re Miller, 202
one cause of action; (2) the severed claim is one that would be
                                                                  S.W.3d 922, 925–26 (Tex.App.-Tyler 2006, orig. proceeding
the proper subject of a lawsuit if independently asserted; and
                                                                  [mand. denied] ); In re Trinity Universal Ins. Co., 64 S.W.3d
(3) the severed claim is not so interwoven with the remaining
                                                                  463, 468 (Tex.App.-Amarillo 2001, orig. proceeding [mand.
action that it involves the same facts and issues. Guar. Fed.
                                                                  denied] ). Thus, in Liberty National, the Court opined a
Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658
                                                                  settlement offer by an insurer may create a situation where
(Tex.1990). Only the third element is in dispute here.
                                                                  severance of an insured's contract claim is required. 927
                                                                  S.W.2d at 630 (Tex.1996).
In Liberty National Fire Insurance Co. v. Akin, the Texas
Supreme Court considered whether severance was required
                                                                  There is no evidence in the record that Progressive made a
in a case involving breach of contract and extra-contractual
                                                                  settlement offer to *426 Guia. However, Liberty National
claims against an insurer under a homeowner's policy. 927
                                                                  does not limit severance to cases where such an offer has been
S.W.2d 627 (Tex.1996). In refusing to grant mandamus relief,
                                                                  made, instead holding that “other compelling circumstances”
the Court rejected “an inflexible rule that would deny the
                                                                  may also require severance. Id. In the case before us,
trial court all discretion and ... require severance in every
                                                                  Progressive argues that “other compelling circumstances”
case [involving bad-faith insurance claims], regardless of the
                                                                  should include the effort and cost associated with conducting
likelihood of prejudice.” Id. at 630. Ultimately, the Court
                                                                  discovery on extra-contractual claims that have not yet
concluded that the contractual and extra-contractual claims
                                                                  accrued because the insured's breach-of-contract claim has
in that case were interwoven, with most evidence admissible
                                                                  not yet been decided.
on both claims, and that any prejudicial effect could be
ameliorated by appropriate limiting instructions. See id. The
                                                                  Several courts of appeals have considered the issues of
Court went on to
                                                                  severance and abatement in the context of uninsured motorist
            Several Texas appellate courts have                   or underinsured motorist insurance coverage; these courts
            found severance may nevertheless                      have concluded that, when uninsured motorist claims are
            be necessary in some bad faith                        involved, severance of the extra-contractual claims was
            cases. A trial court will undoubtedly                 required. See In re Am. Nat'l Cnty. Mut. Ins. Co., 384 S.W.3d
            confront instances in which evidence                  429 (Tex.App.-Austin 2012, orig. proceeding) (concluding
            admissible only on the bad faith claim                trial court abused discretion by denying insurer's motion for
            would prejudice the insurer to such an                severance and abatement of extra-contractual claims where
            extent that a fair trial on the contract              settlement offer was made on underinsured motorist claim);
                                                                  In re Reynolds, 369 S.W.3d 638, 650–55 (Tex.App.-Tyler


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
In re Progressive County Mut. Ins. Co., 439 S.W.3d 422 (2014)


2012, orig. proceeding) (holding severance of underinsured     Progressive was contractually obligated to pay her uninsured
motorist claim was required to prevent prejudice); In re       motorist claim. To do this, Guia must first prove that she had
United Fire Lloyds, 327 S.W.3d 250, 257 (Tex.App.-San          uninsured motorist coverage, that the other driver negligently
Antonio 2010, orig. proceeding) (finding abuse of discretion   caused the accident and was uninsured, and the amount of her
in granting motion for bifurcation of trial rather than        damages. See In re Reynolds, 369 S.W.3d at 652. It appears
severance and abatement of extra-contractual claims); see      that the first issue is not in dispute. Therefore, Guia's breach-
also In re Old Am. Cnty. Mut. Fire Ins. Co., No. 13–           of-contract claim will essentially involve the issues in a
12–00700–CV, 2013 WL 398866 (Tex.App.-Corpus Christi           typical car wreck: the comparative negligence of Guia and the
January 30, 2013, orig. proceeding) (mem. op.) (holding        other driver and Guia's damages. The bad faith claim here is
that severance and abatement of extra-contractual claims       more complicated. In her most recent petition, she alleges that
is required in many instances when insured asserts claim       Progressive breached their duty of good faith and fair dealing,
to uninsured or underinsured motorist benefits); In re         violated the insurance code by failing to timely pay the
Farmers Tex. Cnty. Mut. Ins. Co., No. 07–11–00396–CV,          claim, and further alleges Progressive's conduct was knowing
2011 WL 4916303, (Tex.App.-Amarillo Oct. 17, 2011,             and intentional in violation of the Deceptive Trade Practices
orig. proceeding) (mem. op.) (denying mandamus because         Act. In discovery, Guia seeks production of all documents
complaint was not preserved, but agreeing that abatement of    related to lawsuits and claims against Progressive regarding
extra-contractual claims is required in most instances when    the denial of uninsured/underinsured motorist claims for over
an insured asserts claim to uninsured motorist benefits).      ten years. Examples of these requests include:

The San Antonio Court of Appeals explained its                   Request 3. Produce all documents of any type as to claims
determination that mandamus relief was proper to compel          asserted against Progressive during period from January
severance and abatement of an underinsured motorist claim        1, 2001, up to and including present day as a result of
from related bad faith claims as follows:                        nonpayment of uninsured/underinsured motorist claims in
                                                                 Texas regardless of whether a lawsuit was filed and/or
            [The insurer] is under no contractual                liability was denied.
            duty to pay [underinsured motorist]
            benefits until [the insured] establishes             Request 4. Produce all documents of any type as to
            the liability and underinsured status                all lawsuits filed against Progressive during period from
            of the other motorist. Therefore, [the               January 1, 2001, up to and including present day, as a result
            insurer] should not be required to                   of nonpayment of uninsured/underinsured motorist claims
            put forth the effort and expense of                  in Texas regardless of whether liability was denied.
            conducting discovery, preparing for
                                                                 ...
            a trial, and conducting voir dire
            on bad faith claims that could be                    Request 16. A copy of each and every policy, manual,
            rendered moot by the portion of                      protocol, instruction booklet or similar writing concerning
            the trial relating to [underinsured                  procedures for the investigation and handling of uninsured/
            motorist] benefits. To require such                  underinsured motorist claim which was in effect at the time
            would not do justice, avoid prejudice,               Plaintiff made her claims in this case, and for the seven
            and further convenience. Under                       years preceding Progressive's denial of Plaintiff's claim.
            these circumstances, we conclude
            the trial court abused its discretion              These requested documents are irrelevant to the breach-of-
            in bifurcating the case instead of                 contract claim, and the introduction of Progressive's claims
            severing and abating the [underinsured             handling history in unrelated accidents at the trial of Guia's
            motorist] claim from the bad faith                 breach-of-contract claim would be manifestly unjust. See
            claims.                                            Womack v. Berry, 291 S.W.2d at 682–83 (Tex.1956) (orig.
                                                               proceeding).
In re United Fire Lloyds, 327 S.W.3d at 256. 2
                                                               The trial court's abatement of any decision on severance until
 *427 [8] In this case, to prevail on her extra-contractual    the eve of trial requires the parties to engage in discovery
claims against Progressive, Guia must demonstrate that         on the extra-contractual claims and prepare for a trial on


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
In re Progressive County Mut. Ins. Co., 439 S.W.3d 422 (2014)


                                                                      have an adequate remedy by appeal. See In re Am. Nat'l Cnty.
these claims, even though extra-contractual liability could
                                                                      Mut. Ins. Co., 384 S.W.3d 429, 439; In re Reynolds, 369
only accrue if Progressive is found liable on the contract. See
                                                                      S.W.3d at 658; In re United Fire Lloyds, 327 S.W.3d at 256.
In re United Fire Lloyds, 327 S.W.3d at 256. Accordingly,
the trial court's decision to postpone severance, unless writ
is granted, will require Progressive to expend resources
answering discovery that is far broader than the car accident                                    Conclusion
claim that must be resolved.
                                                                      Based on our review of the record, we conclude that Guia's
Consistent with In re Reynolds and In re United Fire Lloyds,          extra-contractual claims against Progressive are severable,
we conclude that severance of insured's extra-contractual             the facts and circumstances of the case require a severance to
claims is required in this instance to avoid prejudice.               prevent manifest injustice, and the legal rights of the parties
                                                                      will not be prejudiced thereby. See Womack, 291 S.W.2d
                                                                      at 683. The trial court, therefore, abused its discretion in
                                                                      refusing to sever and abate the uninsured motorist claims
               Adequate Remedy by Appeal                              from the bad faith claims pending the determination of
                                                                      Progressive's liability for the uninsured motorist damages
 [9] A writ of mandamus will issue only if there is no
                                                                      under the policy. See In re Am. Nat'l Cnty. Mut. Ins. Co., 384
adequate remedy available by direct appeal. See *428
                                                                      S.W.3d 429; In re Reynolds, 369 S.W.3d at 650–55; In re
Walker, 827 S.W.2d at 839. The Corpus Christi Court of
                                                                      United Fire Lloyds, 327 S.W.3d at 257; see also In re Old Am.
Appeals in In re United Fire Lloyds concluded the insurer
                                                                      Cnty. Mut. Fire Ins. Co., 2013 WL 398866; In re Farmers
did not have an adequate remedy by appeal because, if a
                                                                      Tex. Cnty. Mut. Ins. Co., 2011 WL 4916303.
writ of mandamus were not granted, the insurer stood to lose
substantial rights by being required to prepare for claims that
                                                                      We conditionally grant Progressive's writ of mandamus and
might be rendered moot and never even accrue. In re Fire
                                                                      order the trial court to vacate the February 11, 2014 Order,
Lloyds, 327 S.W.3d at 256 (citing U.S. Fire Ins. Co., 847
                                                                      grant Progressive County Mutual Insurance Company's
S.W.2d at 675; In re Trinity Universal Ins. Co., 64 S.W.3d
                                                                      Motion to Sever, and abate the extra-contractual claims. We
at 468).
                                                                      are confident that the trial court will promptly comply, and
                                                                      our writ will issue only if it does not.
The Corpus Christi Court of Appeals agreed. See In re Old
Am. Cnty. Mut. Fire Ins. Co., 2013 WL 398866. Likewise,
other appellate courts have also found these claims do not


Footnotes
1      The underlying case is Alma Guia v. Jessica Nicole Estes, Relinda Estes, Progressive Insurance Company and Progressive County
       Mutual Insurance Company; No. 2012–57535, in the 215th District Court of Harris County, Texas, the Honorable Elaine H. Palmer
       presiding.
2      The court relied on the Texas Supreme Court's reasoning in Brainard v. Trinity Universal Insurance Co., 216 S.W.3d 809 (Tex.2006),
       but acknowledged that Brainard concerned timing of presentment of contract claim to determine whether party was entitled to
       attorney's fees under Chapter 38 of Texas Civil Practice and Remedies Code, rather than severance and abatement in the context
       of uninsured motorist claim. See In re United Fire Lloyds, 327 S.W.3d 250, 257 (Tex.App.-San Antonio 2010, orig. proceeding)
       (discussing Brainard, 216 S.W.3d at 818).


End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    4
638    Tex.         369 SOUTH WESTERN REPORTER, 3d SERIES


  in control of a corporation uses that            ticularly an insolvent one, has standing to
  control, or uses the corporate assets, to        pierce its own corporate veil under an alter
  further his or her own personal inter-           ego theory to reach the assets of its par-
  ests, the fiction of the separate corpo-         ent. See S.I. Acquisition, 817 F.2d at
  rate identity may properly be disregard-         1152. We further conclude that such claim
  ed.                                              passes into the bankruptcy estate on the
Id. at 641 (citations omitted).                    filing of the bankruptcy petition. See 11
                                                   U.S.C. § 541(a)(1). At that point, the
   The focus of Delaware and Pennsylva-
                                                   trustee or debtor-in-possession has exclu-
nia law is on the conduct of the corpora-
                                                   sive standing to assert the alter ego claim.
tion rather than on the relationship be-
                                                   See Tow, 312 S.W.3d at 757; Highland
tween the corporation and its creditors.
                                                   Capital Mgmt., 212 S.W.3d at 530. As
The law of those states emphasizes equita-
                                                   applied to this case, the debtor-in-posses-
ble concerns, directed at holding the con-
                                                   sion, Washington Group, was the only par-
trol entity accountable and addressing un-
                                                   ty with standing to assert an alter ego
just enrichment to that company. We are
                                                   claim against Raytheon. Boccard did not
convinced that the policies that persuaded
                                                   have standing to assert the alter ego claim.
the Fifth Circuit that alter ego claims
                                                   Thus, we hold that the trial court was
against a debtor’s parent corporation may
                                                   without subject-matter jurisdiction to ren-
be brought by the bankruptcy estate rep-           der judgment based on the equitable claim
resentative, rather than individual credi-         of alter ego.
tors, support the same conclusion in this
                                                     We sustain Raytheon’s first issue.10
case. See S.I. Acquisition, 817 F.2d at
1152–53; see also Baillie Lumber, 612                               Conclusion
S.E.2d at 300.
                                                     Because we hold that Boccard did not
   [27] Moreover, we recognize that the            have standing to pursue its alter ego claim
alter ego doctrine is an equitable remedy.         against Raytheon, we vacate the trial
See Peacock v. Thomas, 516 U.S. 349, 354,          court’s judgment and dismiss the case.
116 S.Ct. 862, 866, 133 L.Ed.2d 817 (1996).

                                                                 ,
To the extent that each were damaged by
its respective parent’s domination and con-
trol over it to the point that it was ren-
dered insolvent and unable to meet its
legal obligations, the subsidiary should              In re James Michael REYNOLDS
have standing to assert an equitable claim                 and Pelhams Industrial
against its dominant parent. See In re                         Warehouse, Inc.
iPCS, Inc., 297 B.R. 283, 298 (Bankr.
                                                              No. 12–10–00176–CV.
N.D.Ga.2003) (interpreting Delaware law
and holding that estate representative had                Court of Appeals of Texas,
standing to assert alter ego claim of debtor                        Tyler.
corporation).                                                     May 16, 2012.
  [28] We conclude that, under Delaware            Background: Injured motorist brought
and Pennsylvania law, a corporation, par-          personal injury action against truck driver

10. Because this issue is dispositive, we do not    See TEX.R.APP. P. 47.1.
  address Raytheon’s remaining three issues.
                                    IN RE REYNOLDS                                  Tex.   639
                           Cite as 369 S.W.3d 638 (Tex.App.—Tyler 2012)

and truck diver’s employer, and asserted a        4. Mandamus O28
claim against his automobile insurer for               With respect to resolution of factual
underinsured motorist (UIM) benefits. The         issues or matters committed to the trial
273rd Judicial District Court, Shelby             court’s discretion, a relator seeking man-
County, Charles R. Mitchell, J., denied           damus relief must establish that the trial
truck driver’s and employer’s motion to           court could reasonably have reached only
sever and transfer venue, and truck driver        one decision.
and employer filed petition for writ of
mandamus.                                         5. Mandamus O172
Holdings: The Court of Appeals, Brian                 An appellate cannot in a mandamus
Hoyle, J., held that:                             proceeding disturb a trial court’s decision
(1) motorist’s claims against truck driver        unless it is shown to be arbitrary and
    and driver’s employer and motorist’s          unreasonable, even if the appellate court
    claim against UIM insurer were not            would have decided the issue differently.
    interwoven and thus were properly
                                                  6. Mandamus O28
    severable;
                                                       Because a trial court has no discretion
(2) severance was necessary to avoid prej-
                                                  in determining what the law is or applying
    udice to truck driver and driver’s em-
                                                  the law to the facts, a clear failure by the
    ployer; and
                                                  trial court to analyze or apply the law
(3) truck driver and driver’s employer did        correctly will constitute an abuse of discre-
    not have an adequate appellate reme-          tion and may result in appellate reversal
    dy, as required in order to obtain man-       by extraordinary writ or mandamus.
    damus relief.
                                                  7. Mandamus O4(1)
Petition conditionally granted.
                                                       When determining whether manda-
                                                  mus relief is appropriate, the adequacy of
1. Mandamus O1                                    an appellate remedy must be determined
                                                  by balancing the benefits of mandamus
      Mandamus is an extraordinary reme-          review against the detriments.
dy.
                                                  8. Mandamus O4(1)
2. Mandamus O4(1), 28
                                                       When the benefits of mandamus re-
    To obtain mandamus relief, a relator          view outweigh the detriments, appellate
must show that: (1) the trial court clearly       courts must consider whether the appel-
abused its discretion, and (2) the benefits       late remedy is adequate.
of mandamus outweigh the detriments to
the extent that an appellate remedy is            9. Mandamus O3(2.1)
inadequate.                                           Mandamus will not issue when the law
                                                  provides another, plain, adequate, and
3. Mandamus O28                                   complete remedy.
     A trial court clearly abuses its discre-
tion, as required for mandamus relief, if it      10. Appeal and Error O78(1)
reaches a decision so arbitrary and unrea-             An order denying severance is not a
sonable as to amount to a clear and preju-        final judgment and therefore is not appeal-
dicial error of law.                              able.
640    Tex.         369 SOUTH WESTERN REPORTER, 3d SERIES


11. Mandamus O32                               19. Action O13
      Mandamus is the appropriate avenue           Standing is a component of subject
by which a party may seek review of a          matter jurisdiction.
trial court’s order denying severance.         20. Action O6, 13
12. Mandamus O44                                   Standing focuses on who may bring
                                               the cause of action, and ripeness focuses
     Venue determinations generally are
                                               on when the cause of action may be
not reviewable by mandamus. V.T.C.A.,
                                               brought.
Civil   Practice  &    Remedies    Code
§ 15.064(b).                                   21. Appeal and Error O842(1)
                                                   Because ripeness is a component of
13. Mandamus O4(4), 44                         subject matter jurisdiction, an appellate
     Where a relator does not seek en-         court reviews a ripeness determination un-
forcement of a mandatory venue statute,        der the same standard by which it reviews
mandamus generally is not available ab-        subject matter jurisdiction generally.
sent an abuse of discretion by the trial       Vernon’s Ann.Texas Rules Civ.Proc., Rule
court and an inadequate appellate remedy.      87.
V.T.C.A., Civil Practice & Remedies Code
                                               22. Courts O32.3
§ 15.064(b).
                                                    A pleader must allege facts that affir-
14. Mandamus O44                               matively demonstrate the court’s jurisdic-
     Mandamus review of permissive venue       tion to hear the cause.
determinations is appropriate in extraordi-    23. Insurance O3571
nary circumstances. V.T.C.A., Civil Prac-           Venue O8.5(1)
tice & Remedies Code § 15.064(b).
                                                     Trial court did not abuse its discretion
15. Venue O76                                  by concluding that injured motorist prop-
                                               erly pled a cause of action against motor-
    Like any other interlocutory order, an
                                               ist’s underinsured motorist (UIM) benefits
order denying a motion to transfer venue
                                               insurer and that such claim could fix ven-
may be reconsidered at any time within
                                               ue, in motorist’s action against insurer
the period of the trial court’s plenary pow-
                                               which also asserted a personal injury claim
er. Vernon’s Ann.Texas Rules Civ.Proc.,
                                               against truck driver and driver’s employer;
Rule 87(5).
                                               assuming that proper pleading required
16. Venue O17                                  allegations supporting ripeness, motorist
                                               alleged that truck driver and driver’s em-
    The existence of a cause of action is
                                               ployer were UIMs at the time of the sub-
immune from challenge at a venue hearing.
                                               ject collision, that all conditions precedent
Vernon’s Ann.Texas Rules Civ.Proc., Rule
                                               to a recovery under the policy had been
87.
                                               complied with, that he made a demand for
17. Action O6                                  payment, and that insurer refused to pay.
                                               Vernon’s Ann.Texas Rules Civ.Proc., Rule
    Ripeness is a component of subject         87.
matter jurisdiction.
                                               24. Action O60
18. Action O6                                      Severance of claims rests within the
      Ripeness is a question of law.           sound discretion of the trial court. Ver-
                                    IN RE REYNOLDS                                  Tex.   641
                           Cite as 369 S.W.3d 638 (Tex.App.—Tyler 2012)

non’s Ann.Texas Rules Civ.Proc., Rules 41,        30. Action O60
174.                                                  When a trial court grants a severance,
                                                  the separated causes of action typically
25. Action O60
                                                  proceed to individual judgments that are
     Although a trial court has broad dis-        themselves separately final and appealable.
cretion in determining whether to grant           Vernon’s Ann.Texas Rules Civ.Proc., Rule
severance, that discretion is not unlimited;      41.
a trial court is required to exercise a sound
and legal discretion within limits created        31. Action O60
by the circumstances of the particular                 A claim is properly severable only if:
case. Vernon’s Ann.Texas Rules Civ.               (1) the controversy involves more than one
Proc., Rules 41, 174.                             cause of action; (2) the severed claim is
                                                  one that would be the proper subject of a
26. Action O60                                    lawsuit if independently asserted; and (3)
    That a claim may be severed does not          the severed claim is not so interwoven with
always mean that it must. Vernon’s                the remaining action that they involve the
Ann.Texas Rules Civ.Proc., Rules 41, 174.         same facts and issues. Vernon’s Ann.Tex-
                                                  as Rules Civ.Proc., Rule 41.
27. Action O60
     There is no room for the exercise of         32. Action O60
discretion on a motion to sever claims                 The controlling reasons for a sever-
when all of the facts and circumstances of        ance are to do justice, avoid prejudice, and
the case unquestionably require a separate        further convenience. Vernon’s Ann.Texas
trial to prevent manifest injustice, there is     Rules Civ.Proc., Rule 41.
no fact or circumstance supporting or             33. Action O60
tending to support a contrary conclusion,
                                                      Whether a trial court should grant a
and the legal rights of the parties will not
                                                  motion to sever is ultimately a question of
be prejudiced thereby; under these cir-
                                                  law. Vernon’s Ann.Texas Rules Civ.Proc.,
cumstances, the refusal to order a sever-
                                                  Rule 41.
ance constitutes a violation of a plain legal
duty, even though it is often termed a            34. Action O60
clear abuse of discretion.          Vernon’s          When considering whether to grant a
Ann.Texas Rules Civ.Proc., Rule 41.               motion for severance, a trial court must
                                                  generally accept the plaintiff’s pleadings as
28. Action O60
                                                  true and then determine whether sever-
    On a motion for severance, the desire         ance is appropriate; consequently, the only
to avoid some identified prejudice to the         remaining dispute concerns the legal con-
movant by denying severance must be               sequences stemming from accepted-as-
weighed against the prejudice that could          pleaded facts. Vernon’s Ann.Texas Rules
result from ordering severance. Vernon’s          Civ.Proc., Rule 41.
Ann.Texas Rules Civ.Proc., Rule 41.
                                                  35. Action O60
29. Action O60                                        The intimately connected test, applica-
    A severance divides a lawsuit into two        ble when the issue is venue, is not applica-
or more separate and independent causes.          ble when severance is the issue; instead, a
Vernon’s Ann.Texas Rules Civ.Proc., Rule          court must determine whether the claims
41.                                               are ‘‘interwoven,’’ meaning that they in-
642   Tex.          369 SOUTH WESTERN REPORTER, 3d SERIES


volve the same facts and issues. Vernon’s         41. Action O60
Ann.Texas Rules Civ.Proc., Rule 41.                    Injured motorist’s negligence and re-
     See publication Words and Phrases            spondeat superior claims against truck
   for other judicial constructions and           driver and truck driver’s employer, and his
   definitions.
                                                  claim against his underinsured motorist
36. Negligence O202                               (UIM) insurer, were not ‘‘interwoven,’’ and
     To prevail on a negligence claim, a          thus were properly severable; though the
plaintiff must establish that the defendant       claims against truck driver and employer
had a legal duty, he breached that duty,          and claim against insurer shared the issues
and plaintiff suffered damages that were          of whether driver was negligent, whether
proximately caused by the breach.                 the negligence damaged motorist and the
                                                  amount of motorist’s damages, motorist’s
37. Labor and Employment O3025, 3045              UIM claim had the additional issues of
     To prevail on a respondeat superior          whether motorist had UIM coverage and
claim, a plaintiff must show that the defen-      whether truck driver and employer had
dant was the tortfeasor’s employer and            insurance coverage in at least the amount
also that the tortfeasor’s act was commit-        of the damages recovered. V.T.C.A., In-
ted within the scope of his general authori-      surance Code § 1952.106; Vernon’s
ty, in furtherance of the defendant’s busi-       Ann.Texas Rules Civ.Proc., Rule 41.
ness, and for the accomplishment of the
                                                  42. Action O60
object for which the tortfeasor was hired.
                                                       Ordinarily, a party seeking severance
38. Insurance O2790                               has the burden to show how it will be
      A underinsured motorist (UIM) bene-         prejudiced if severance is not granted and
fits insurer has no contractual duty to pay       to present evidence to the trial court, in
benefits until the liability of the other mo-     camera if necessary, to support its posi-
torist and the amount of damages suffered         tion. Vernon’s Ann.Texas Rules Civ.Proc.,
by the insured are determined. V.T.C.A.,          Rule 41.
Insurance Code § 1952.106.                        43. Action O60
39. Insurance O2787                                   The injection of insurance into a trial
                                                  does not necessarily create prejudice, for
     A motorist is underinsured for pur-
                                                  purposes of severance. Vernon’s Ann.Tex-
poses of underinsured motorist (UIM) ben-
                                                  as Rules Civ.Proc., Rule 41.
efits if the available proceeds of his liabili-
ty insurance are insufficient to compensate       44. Trial O127
for the injured party’s actual damages.               The rule that evidence that a defen-
V.T.C.A., Insurance Code § 1952.106.              dant was or was not insured is not admissi-
                                                  ble on the issue of negligence is founded
40. Insurance O2787, 2790
                                                  on the belief that the probative value of
    To recover underinsured motorist
                                                  such evidence is vastly outweighed by the
(UIM) benefits, an injured motorist must
                                                  danger of unfair prejudice. Rules of
establish that he had UIM coverage, the
                                                  Evid., Rule 411.
other motorist’s negligence proximately
caused his damages and the amount of his          45. Action O60
damages, and the other motorist was un-                Failure of truck driver and truck driv-
derinsured. V.T.C.A., Insurance Code              er’s employer to present evidence of preju-
§ 1952.106.                                       dice, when they moved to sever injured
                                   IN RE REYNOLDS                                 Tex.   643
                          Cite as 369 S.W.3d 638 (Tex.App.—Tyler 2012)

motorist’s negligence and respondeat supe-       had not agreed to be bound by the results
rior claims against them from injured mo-        of a separate trial against truck driver and
torist’s underinsured motorist (UIM) claim       employer, joinder of motorist’s claims
against motorist’s UIM insurer, was not          against truck driver and employer with
fatal to truck driver’s and employer’s sev-      motorist’s claim against his UIM insurer
erance motion, as injured motorist would         did not negate the consent clause. Ver-
be required to present evidence regarding        non’s Ann.Texas Rules Civ.Proc., Rules 41,
truck driver’s and employer’s insurance to       174(b);    V.T.C.A.,     Insurance     Code
establish his UIM claim, truck driver and        § 1952.106.
employer had a substantial right to have         48. Insurance O2792, 3556
their liability decided without any mention           Unless an underinsured motorist
of insurance, and allowing evidence of in-       (UIM) insurer has consented in writing to
surance presented an irreconcilable con-         a suit against the tortfeasor, the usual
flict that was apparent without the intro-       result of a consent provision in a UIM
duction of evidence. Vernon’s Ann.Texas          policy is that the insurer is not bound by a
Rules Civ.Proc., Rule 41; Rules of Evid.,        judgment entered in an action prosecuted
Rule 411.                                        by its insured against a UIM; to avoid this
46. Action O60                                   result an insured seeking UIM benefits
                                                 may sue his UIM insurer directly without
   Trial O3(1)
                                                 suing the UIM, obtain written consent
     The rules authorize two distinct trial
                                                 from his UIM insurer and then sue the
procedures, severance and bifurcation, for
                                                 UIM alone, making the judgment binding
avoiding prejudice; a severance divides the
                                                 against the insurance company, or sue the
lawsuit into two or more separate and
                                                 UIM without the written consent of the
independent causes, resulting in a final,
                                                 UIM insurer and relitigate liability and
appealable judgment in each cause, while a       damages.      V.T.C.A., Insurance Code
bifurcated trial results in one trial with       § 1952.106.
separate parts before one jury. Vernon’s
Ann.Texas Rules Civ.Proc., Rules 41,             49. Venue O8.5(1, 8)
174(b).                                               Following severance of injured motor-
                                                 ist’s negligence and respondeat superior
47. Action O60                                   claims against truck driver and truck driv-
     Severance of injured motorist’s negli-      er’s employer from motorist’s underin-
gence and respondeat superior claims             sured motorist (UIM) benefits claim
against truck driver and truck driver’s em-      against his UIM insurer, correct venue for
ployer, and injured motorist’s underin-          motorist’s negligence and respondeat supe-
sured motorist (UIM) benefits claim              rior claims was the county in which truck
against his UIM insurer, was necessary to        driver resided and where employer had its
avoid prejudice to truck driver and em-          principal place of business, rather than
ployer, as a bifurcation order had not been      county in which motorist resided; venue of
requested or signed and it appeared that         claims against truck driver and employer
the claims would be tried simultaneously,        in injured motorist’s county was derivative
truck driver and employer had a substan-         only, and injured motorist did not allege
tial right to have their liability decided       that any basis existed for maintaining ven-
without any mention of insurance, and,           ue is his county following severance.
though injured motorist had a consent            V.T.C.A., Civil Practice & Remedies Code
clause in his UIM policy and UIM insurer         §§ 15.002(2, 3), 15.005.
644   Tex.         369 SOUTH WESTERN REPORTER, 3d SERIES


50. Mandamus O4(1)                               the defendant provides prima facie proof
     In evaluating benefits and detriments       that its requested venue is proper.
to determine the adequacy of an appellate        V.T.C.A., Civil Practice & Remedies Code
remedy when determining whether a party          § 15.002(2, 3).
is entitled to mandamus relief, appellate
courts consider whether mandamus will:
(1) preserve important substantive and
procedural rights from impairment or loss;        Rebecca E. Bell, Thomas W. Fee, for
(2) allow the appellate court to give needed     Relator.
and helpful direction to the law that would
                                                   Don Wheeler, Darrin Walker, for Real
otherwise prove elusive in appeals from
                                                 Party in Interest Richard Sharp.
final judgments; and (3) spare litigants
and the public the time and money utterly          Dick Davis, Real Party in Interest
wasted enduring eventual reversal of im-         Southern Farm Bureau Casualty.
properly conducted proceedings.
                                                  Panel consisted of WORTHEN, C.J.,
51. Mandamus O4(4), 32                           GRIFFITH, J., and HOYLE, J.
     Truck driver and truck driver’s em-
ployer did not have an adequate appellate                        OPINION
remedy, as required in order to obtain             BRIAN HOYLE, Justice.
mandamus relief when trial court denied
                                                   James Michael Reynolds, Pelhams In-
truck driver’s and employer’s motion for
                                                 dustrial Warehouse, Inc., and Texas Farm
severance, in action injured motorist
                                                 Bureau Casualty Insurance Company
brought asserting negligence and respon-
                                                 (Farm Bureau) are defendants in a person-
deat superior claims against truck driver
                                                 al injury action filed by the real party in
and employer, and claim for underinsured
                                                 interest, Richard Sharp. Reynolds and
motorist (UIM) benefits against motorist’s
                                                 Pelhams, Relators, request a writ of man-
UIM insurer; truck driver and employer
                                                 damus directing the trial court to (1) sever
had a substantial right to have their liabili-
                                                 Sharp’s claim against Texas Farm Bureau
ty decided without any mention of insur-
                                                 Casualty Insurance Company (Farm Bu-
ance that would be lost if mandamus was
                                                 reau) and, following severance, to (2) grant
not granted, severance and venue were
                                                 Relators’ motion to transfer venue, and (3)
intertwined and if mandamus was not
                                                 transfer Sharp’s claims against Relators to
granted driver’s and employer’s right to a
                                                 Tarrant County. The respondent is the
correct venue would be lost, and the denial
                                                 Honorable Charles R. Mitchell, Judge of
of severance when negligence and UIM
                                                 the 273rd Judicial District Court, Shelby
claims were joined in the same action was
                                                 County, Texas. We conditionally grant
a recurring one. Vernon’s Ann.Texas
                                                 the petition.
Rules Civ.Proc., Rule 41.

52. Venue O2, 46, 68, 74                                  PROCEDURAL BACKGROUND
     Under the statutory venue scheme, a           Richard Sharp filed a personal injury
plaintiff has the first choice to fix venue in   action in Shelby County to recover dam-
a proper county, but a trial court must          ages he sustained in an accident involving
transfer venue to the county specified in        his vehicle and an eighteen wheeler driven
the defendant’s motion to transfer if the        by James Michael Reynolds. Sharp alleg-
plaintiff fails to establish proper venue and    es that Reynolds caused the accident.
                                         IN RE REYNOLDS                                       Tex.   645
                                Cite as 369 S.W.3d 638 (Tex.App.—Tyler 2012)

Pelhams Industrial Warehouse, Inc. is                  was ‘‘neither ripe nor a part of the under-
Reynolds’s employer. Sharp seeks dam-                  lying liability matter.’’ They alleged fur-
ages from both Reynolds and Pelhams,                   ther that Sharp had not pleaded the ‘‘inex-
and alleges they were underinsured motor-              tricably intertwined’’ elements or factual
ists at the time of the accident.                      support necessary to support Farm Bu-
   Sharp also alleges that, at the time of             reau’s joinder. Accordingly, they asserted
the accident, he had an insurance policy               that ‘‘it is difficult to understand why
issued by Farm Bureau’s predecessor that               same is included in this lawsuit at all other
provided for underinsured motorist (UIM)               than for impermissible purposes such as
benefits. He asserts that all conditions               shadow parties to establish venue or to
precedent to recovery under the policy                 otherwise attempt to place the issue of
have been satisfied and seeks the policy               insurance coverage (and the amount of
limits for UIM benefits.                               such coverage) before the fact finder.’’
   Relators each filed a general denial sub-           Relators also filed a joint motion for re-
ject to a motion to transfer venue in which            consideration of their motions to transfer
each asserted that Sharp had not pleaded               venue. The motion for reconsideration in-
any facts showing that venue is proper in              cluded a supplemental motion to sever. It
Shelby County. To the contrary, they                   also incorporated by reference Relators’
urged, Sharp alleged that Reynolds is a                original motions to transfer venue, all sup-
resident of Tarrant County, Pelhams is a               porting briefing, and their motion to sever,
company doing business and having its                  ‘‘as it relates to [Sharp’s] potential claim
principal office in Tarrant County, and the            that may not exist as to [Farm Bureau].’’
accident occurred in Johnson County.
                                                         Sharp responded that venue is proper in
They asserted that these allegations
                                                       Shelby County, citing the mandatory ven-
showed venue was not proper in Shelby
                                                       ue statute for suits pertaining to unin-
County, but was proper in Tarrant County.
                                                       sured/underinsured motorist coverage.3
Accordingly, Relators requested that the
                                                       He also reurged his previous arguments in
case be transferred to Tarrant County
                                                       opposition to the venue motions and dis-
pursuant to the general venue statute.1
                                                       puted Relators’ ripeness and severance ar-
Sharp filed a response opposing the mo-
                                                       guments.
tions, and Relators filed a reply to his
response. After a hearing, the trial court               In a telephonic hearing, the trial court
denied the motions to transfer venue with-             denied Relators’ motion for severance, but
out specifying a reason.2                              did not sign a written order. Thereafter,
  Relators then filed a joint motion to                Sharp filed a motion requesting the trial
sever, subject to their motions to transfer            court to (1) vacate its prior order denying
venue, alleging that Farm Bureau had                   Relators’ motions to transfer venue; (2)
been improperly joined in the suit and                 grant Sharp leave to file supplemental evi-
that Sharp’s claim against Farm Bureau                 dence; (3) reconsider Relators’ motions to

1.     See TEX. CIV. PRAC. & REM.CODE ANN.             2.     The record includes an order setting a hear-
     § 15.002(a)(2), (3) (West 2002) (general venue         ing on Relators’ motions to transfer venue.
     statute, when applicable, prescribes four pos-         We assume that this hearing was held.
     sible venue choices, including county of de-
     fendant’s residence when cause of action ac-      3.     See TEX. INS.CODE ANN. § 1952.110 (West
     crued if defendant is natural person, and              2009).
     county of defendant’s principal office in this
     state if defendant is not natural person).
646   Tex.         369 SOUTH WESTERN REPORTER, 3d SERIES


transfer venue and motion to sever; and         appellate reversal by extraordinary writ.
(4) deny the motions. In a second tele-         Id.
phonic hearing, the trial court granted
                                                   [7] In providing guidance for deter-
Sharp’s motion in its entirety without spec-
                                                mining whether an appellate remedy is
ifying a reason. Relators then filed this
                                                adequate, the Texas Supreme Court has
original proceeding challenging the trial
                                                noted that the operative word, ‘‘adequate,’’
court’s order denying reconsideration of
                                                has no comprehensive definition. In re
their motions for severance and transfer of
                                                Prudential Ins. of Am., 148 S.W.3d 124,
venue. They also filed a motion for emer-
                                                136 (Tex.2004) (orig. proceeding). In-
gency relief. We granted the motion, and
                                                stead, it is simply a proxy for the careful
stayed the proceedings in the trial court
                                                balance of jurisprudential considerations
until further order of this court.
                                                that determine when appellate courts will
                                                use original mandamus proceedings to re-
        AVAILABILITY   OF   MANDAMUS            view the actions of lower courts. Id.
   [1, 2] Mandamus is an extraordinary          These considerations include both public
remedy. In re Sw. Bell Tel. Co., L.P., 235      and private interests, and the determina-
S.W.3d 619, 623 (Tex.2007) (orig. proceed-      tion is practical and prudential rather than
ing). To obtain mandamus relief, the rela-      abstract or formulaic. Id. Thus, the ade-
tor must show that (1) the trial court          quacy of an appellate remedy must be de-
clearly abused its discretion, and (2) the      termined by balancing the benefits of man-
benefits of mandamus outweigh the detri-        damus review against the detriments. In
ments to the extent that an appellate rem-      re Team Rocket, L.P., 256 S.W.3d 257, 262
edy is inadequate. In re Poly–America,          (Tex.2008) (orig. proceeding).
262 S.W.3d 337, 347 (Tex.2008) (orig. pro-         [8, 9] When the benefits of mandamus
ceeding).                                       review outweigh the detriments, appellate
                                                courts must consider whether the appel-
   [3–6] A trial court clearly abuses its
                                                late remedy is adequate. Id. ‘‘Mandamus
discretion if it reaches a decision so arbi-
                                                will not issue when the law provides anoth-
trary and unreasonable as to amount to a
                                                er, plain, adequate, and complete remedy.’’
clear and prejudicial error of law. Walker
                                                In re Tex. Dep’t of Family and Protective
v. Packer, 827 S.W.2d 833, 839 (Tex.1992)
                                                Servs., 210 S.W.3d 609, 613 (Tex.2006).
(orig. proceeding). With respect to resolu-
tion of factual issues or matters committed     Severance and Venue
to the trial court’s discretion, the relator
                                                  [10, 11] An order denying severance is
must establish that the trial court could
                                                not a final judgment and therefore is not
reasonably have reached only one decision.
                                                appealable. See Beckham Group, P.C. v.
Id. at 839–40. We cannot disturb the trial
                                                Snyder, 315 S.W.3d 244, 245 (Tex.App.-
court’s decision unless it is shown to be
                                                Dallas 2010, no pet.). Consequently, man-
arbitrary and unreasonable, even if we
                                                damus is the appropriate avenue by which
would have decided the issue differently.
                                                a party may seek review of a trial court’s
Id. at 840. However, a trial court has no
                                                order denying severance. In re Liu, 290
discretion in determining what the law is
                                                S.W.3d 515, 518 (Tex.App.-Texarkana
or applying the law to the facts. Id. Thus,
                                                2009, orig. proceeding).
a clear failure by the trial court to analyze
or apply the law correctly will constitute        [12–14] A party may appeal a venue
an abuse of discretion and may result in        ruling following the trial on the merits.
                                    IN RE REYNOLDS                                  Tex.   647
                           Cite as 369 S.W.3d 638 (Tex.App.—Tyler 2012)

See TEX. CIV. PRAC. & REM.CODE ANN.               we first consider whether the trial court
§ 15.064(b) (Vernon 2002). If venue was           had the authority to reconsider its venue
improper, ‘‘it shall in no event be harmless      ruling.
error and shall be reversible error.’’ Id.          Except under circumstances not present
Consequently, venue determinations gen-           in this case, ‘‘[i]f venue has been sustained
erally are not reviewable by mandamus.            as against a motion to transfer TTT, then
In re Masonite Corp., 997 S.W.2d 194, 197         no further motions to transfer shall be
(Tex.1999) (orig. proceeding). Where, as          consideredTTTT’’ See TEX.R. CIV. P. 87(5).
here, the relator does not seek enforce-          In reliance on this rule, some courts have
ment of a mandatory venue statute, man-           held that a trial court cannot reconsider
damus generally is not available absent an        the denial of a motion to transfer venue,
abuse of discretion by the trial court and        even if, as here, only one such motion has
an inadequate appellate remedy. See id.           been filed. See, e.g., In re Med. Carbon
But mandamus review of permissive venue           Res. Inst., L.L.C., No. 14–07–00935–CV,
determinations is appropriate in ‘‘extraor-       2008 WL 220366, at *1–2 (Tex.App.-Hous-
dinary circumstances.’’       Team Rocket,        ton [14th Dist.] Jan. 29, 2008, orig. pro-
L.P., 256 S.W.3d at 262.                          ceeding) (mem. op.); Van Es, 230 S.W.3d
                                                  at 775; Dorchester Master Ltd. P’ship v.
 AUTHORITY   TO   RECONSIDER VENUE RULING         Anthony, 734 S.W.2d 151, 152 (Tex.App.-
   Sharp and Relators disagree on wheth-          Houston [1st Dist.] 1987, orig. proceeding).
er the trial court correctly denied recon-        Some courts have also held that an order
sideration of Relators’ motions to transfer       reconsidering the prior denial of a motion
venue. But neither Sharp nor Relators             to transfer venue is void. See, e.g., Med.
question the trial court’s authority to re-       Carbon Res. Inst., 2008 WL 220366, at *1–
consider its venue ruling. Nevertheless,          2; Dorchester, 734 S.W.2d at 152.
there are cases holding that a trial court          [15] The San Antonio court of appeals
has no such authority. And if the trial           has held, however, that Rule 87(5) does not
court has no authority to reconsider its          preclude reconsideration of the ‘‘first and
venue ruling, mandamus is not available to        only motion to transfer scheduled for hear-
compel it to do so. See, e.g., Van Es v.          ingTTTT’’ Orion Enters., Inc. v. Pope, 927
Frazier, 230 S.W.3d 770, 775 (Tex.App.-           S.W.2d 654, 659 (Tex.App.-San Antonio
Waco 2007, pet. denied) (denying manda-           1996, orig. proceeding [motion to file man-
mus directing reconsideration of prior            damus overruled] ) (citing HCA Health
venue ruling where reconsideration would          Servs. of Tex., Inc. v. Salinas, 838 S.W.2d
have been improper).                              246, 248 (Tex.1992)). The court reasoned
   In this case, Relators requested a sever-      that an order denying a motion to transfer
ance in connection with their motion for          venue is interlocutory, both as to the trial
reconsideration of the trial court’s venue        court and the parties. Id. Therefore, like
ruling. In other words, they requested            any other interlocutory order, an order
severance and transfer of venue; they did         denying a motion to transfer venue may be
not request a separate trial on Sharp’s           reconsidered at any time within the period
claim against Farm Bureau if the trial            of the trial court’s plenary power. Id. We
court declined to reconsider its venue rul-       agree with the reasoning in Orion and
ing. Therefore, if the trial court had no         conclude that the trial court in this case
authority to reconsider its venue ruling, we      had authority to reconsider its prior denial
need not address severance. Accordingly,          of Relators’ motions to transfer venue.
648      Tex.        369 SOUTH WESTERN REPORTER, 3d SERIES


See id. We now proceed to the merits of           2004). Moreover, ‘‘no party shall ever be
Relators’ petition.                               required for venue purposes to support by
                                                  prima facie proof the existence of a cause
                    RIPENESS                      of action or part thereof, and at the hear-
  Relators first argue that the trial court       ing the pleadings of the parties shall be
abused its discretion when it concluded           taken as conclusive on the issues of exis-
that Texas Insurance Code Section                 tence of a cause of action.’’ TEX.R. CIV. P.
1952.110, a mandatory venue statute, fixes        87(3)(a). Consequently, the existence of a
venue in Shelby County. Section 1952.110          cause of action is immune from challenge
provides that, in an action against an in-        at a venue hearing. Killeen v. Lighthouse
surer ‘‘in relation to [uninsured/underin-        Elec. Contractors, L.P., 248 S.W.3d 343,
sured motorist] coverage TTT, including an        349 (Tex.App.-San Antonio 2007, pet. de-
action to enforce that coverage,’’ venue is       nied); see also Underwood, supra at 606–
mandatory in (1) the county in which the          07 (‘‘[A] plaintiff who can adequately plead
policyholder or beneficiary instituting the       a claim against a resident defendant is not
action resided at the time of the accident,       required to show that he has any evidence
or (2) the county in which the accident           whatsoever to support the claim—at least
occurred. TEX. INS.CODE ANN. § 1952.110           not in connection with the venue determi-
(West 2009).                                      nation at the trial court level.’’). But ab-
  Sharp contends that Section 1952.110            sent proper pleading, the Rule 87 pre-
applies here. Therefore, his argument             sumption does not arise. See TEX.R. CIV.
continues, venue is mandatory in Shelby           P. 87(2)(b).
County because he resided there at the
time of the accident. Relators disagree,
                                                  Proper Pleading Under Rule 87
asserting that Sharp’s claim against Farm
Bureau is not ripe for adjudication and              [17–20] Ripeness is a component of
therefore cannot fix venue.                       subject matter jurisdiction. Waco Indep.
Venue Challenges                                  Sch. Dist. v. Gibson, 22 S.W.3d 849, 851
   [16] The rules of procedure prescribe          (Tex.2000). Therefore, ripeness is a ques-
the scope of the trial court’s consideration      tion of law. Mayhew v. Town of Sunny-
in venue challenges. See TEX.R. CIV. P. 87.       vale, 964 S.W.2d 922, 928 (Tex.1998). We
One significant limitation is that the trial      have been unable to locate any Texas case
court may not inquire into the merits of a        addressing whether the proper pleading
cause of action. See TEX.R. CIV. P. 87(2)(b)      required by Rule 87 must include allega-
(providing that ‘‘[i]t shall not be necessary     tions establishing ripeness. One court has
for a claimant to prove the merits of a           held that proper pleading must include
cause of action, but the existence of a           facts that demonstrate standing.4 See In
cause of action, when pleaded properly,           re Valetutto, 976 S.W.2d 893, 895 (Tex.
shall be taken as established as alleged by       App.-Austin 1998, orig. proceeding). An-
the pleadings’’); see generally William Un-       other court, quoting Rule 87(2)(b), ques-
derwood, Reconsidering Derivative–Venue           tioned whether its review of the trial
in Cases Involving Multiple Parties and           court’s venue determination should encom-
Claims,’’ 56 BAYLOR L.REV. 579 (Spring            pass a standing challenge. See Sw. Bell

4.    Standing is also a component of subject      cause of action, and ripeness focuses on when
     matter jurisdiction. Gibson, 22 S.W.3d at     the cause of action may be brought. Id.
     851. Standing focuses on who may bring the
                                         IN RE REYNOLDS                                      Tex.    649
                                Cite as 369 S.W.3d 638 (Tex.App.—Tyler 2012)

Tel. Co. v. Superior Payphones, Ltd., No.              S.W.2d 439, 442 (Tex.1998); Tex. Ass’n of
13–05–00661–CV, 2006 WL 417423, at *5–6                Bus., 852 S.W.2d at 446.
(Tex.App.-Corpus Christi Feb. 23, 2006,
                                                          [23] Sharp alleges in his petition that
pet. dism’d) (mem. op.). Ultimately, that
court concluded that it need not define the            at the time of the collision, he had UIM
extent of its review because the result was            coverage under a policy of insurance is-
the same, regardless of whether its review             sued to him by Farm Bureau’s predeces-
included the standing challenge. Id., at               sor. He alleges further that the collision
*6. Because the result here is also the                was caused by Reynolds’s negligence while
same, regardless of the scope of our re-               acting in the course and scope of his em-
view, we take a similar approach. There-               ployment with Pelhams. Sharp also avers
fore, we assume, without deciding, that                that Reynolds and Pelhams were UIMs at
proper pleading under Rule 87 requires                 the time of the collision, and therefore
allegations supporting ripeness.                       Farm Bureau is liable to him for the policy
                                                       limits under the UIM provision in the poli-
   [21, 22] In the instant case, the trial
                                                       cy. Sharp pleads generally that all condi-
court implicitly determined that Sharp
                                                       tions precedent to recovery under the poli-
properly pleaded a cause of action as re-
                                                       cy have been complied with, that demand
quired by Rule 87. Based upon our as-
                                                       has been made for payment, and Farm
sumption that proper pleading under Rule
                                                       Bureau has refused to pay. These allega-
87 requires allegations supporting ripe-
                                                       tions, when taken as true, provide suffi-
ness, we will consider whether the trial
                                                       cient facts to establish the requisite injury
court correctly concluded that Sharp’s pe-
                                                       for ripeness. See Alvarado, 281 S.W.3d at
tition included those allegations. Because
                                                       42.5 Accordingly, the trial court did not
ripeness is a component of subject matter
                                                       abuse its discretion in concluding that
jurisdiction, we review a ripeness determi-
                                                       Sharp had properly pleaded a cause of
nation under the same standard by which
                                                       action against Farm Bureau under Rule 87
we review subject matter jurisdiction gen-
                                                       and that this claim could fix venue.
erally. Alvarado v. Okla. Sur. Co., 281
S.W.3d 38, 42 (Tex.App.-El Paso 2005, no
                                                              SEVERANCE—ABUSE      OF   DISCRETION
pet.). Under that standard, the pleader
must allege facts that affirmatively demon-               Relators next argue that the trial court
strate the court’s jurisdiction to hear the            abused its discretion in denying reconsid-
cause. Id. We then take those facts as                 eration of their motions for severance of
true, and focus on whether the pleader has             Sharp’s claim against Farm Bureau and
alleged that an injury has occurred or is              for transfer of venue. They argue that
about to occur. Patterson v. Planned Par-              joinder of Sharp’s claims against them
enthood of Hous. & Se. Tex., Inc., 971                 with his claim against Farm Bureau is

5.      In Alvarado, the plaintiff sued his employ-       insurer] has failed and refused to pay benefits
     er’s UIM insurer and a UIM who ran a red             due under the policy provisions in question.’’
     light and hit his vehicle. Alvarado, 281             Id. The UIM insurer filed a motion to dismiss
     S.W.3d at 39. He alleged that his employer           arguing that the plaintiff’s suit was premature
     carried an insurance policy with the named           and no cause of action had accrued against
     UIM insurer and that the policy included cov-        the insurer. Id. In its analysis, the El Paso
     erage for damages caused by a UIM. Id. at 40.        court observed that the plaintiff (Alvarado)
     He alleged further that the other driver in-         might not ultimately prevail on the merits, but
     volved in the collision was a UIM, and that          held that he had pleaded sufficient facts to
     ‘‘[d]espite Plaintiff’s compliance with the          confer subject matter jurisdiction on the trial
     terms and provisions of the policy, [the UIM         court. Id. at 42.
650   Tex.        369 SOUTH WESTERN REPORTER, 3d SERIES


improper and therefore severance is re-        ance constitutes a violation of a plain legal
quired. Sharp disagrees.                       duty, even though it is often termed a
The Trial Court’s Discretion                   clear abuse of discretion. Gen. Agents
   [24–26] Severance of claims under the       Ins., 254 S.W.3d at 674. In applying this
Texas Rules of Civil Procedure rests with-     standard, the desire to avoid some identi-
in the sound discretion of the trial court.    fied prejudice to the relator by denying
Liberty Nat’l Fire Ins. Co. v. Akin, 927       severance must be weighed against the
S.W.2d 627, 629 (Tex.1996) (orig. proceed-     prejudice that could result from ordering
ing); see TEX.R. CIV. P. 41. Although the      severance. See Womack, 291 S.W.2d at
trial court has broad discretion in deter-     683.
mining whether to grant severance, that
discretion is not unlimited. In re Gen.        Requirements for Severance
Agents Ins. Co. of Am., 254 S.W.3d 670,           [29, 30] A severance divides a lawsuit
673 (Tex.App.-Houston [14th Dist.] 2008,       into two or more separate and independent
orig. proceeding [mand. denied] ). In-         causes. Hall v. City of Austin, 450 S.W.2d
stead, the trial court is required to exer-    836, 837–38 (Tex.1970). When a trial court
cise ‘‘a sound and legal discretion within     grants a severance, the separated causes
limits created by the circumstances of the     of action typically proceed to individual
particular case.’’ See Womack v. Berry,        judgments that are themselves separately
156 Tex. 44, 291 S.W.2d 677, 683 (1956)        final and appealable. Id. at 838. Although
(orig. proceeding) (addressing denial of       severance runs counter to the general poli-
separate trials under Texas Rule of Civil      cy condemning a multiplicity of suits, it is
Procedure 174). ‘‘That a claim may be          indicated in some situations. 3 Roy W.
severed does not always mean that it           McDonald & Elaine A. Grafton Carlson,
must.’’ In re Wilkerson, No. 14–08–            Texas Civil Practice § 17.26 (2d ed. 2000).
00376–CV, 2008 WL 2777418, at *1 (Tex.
App.-Houston [14th Dist.] June 6, 2008,           [31, 32] A claim is properly severable
orig. proceeding [mand. denied] ) (mem.        only if (1) the controversy involves more
op.).                                          than one cause of action; (2) the severed
                                               claim is one that would be the proper
  [27, 28] But there is no room for the
                                               subject of a lawsuit if independently as-
exercise of discretion ‘‘[w]hen all of the
                                               serted; and (3) the severed claim is not so
facts and circumstances of the case un-
                                               interwoven with the remaining action that
questionably require a separate trial to
                                               they involve the same facts and issues.
prevent manifest injustice, there is no fact
                                               Guar. Fed. Sav. Bank v. Horseshoe Oper-
or circumstance supporting or tending to
                                               ating Co., 793 S.W.2d 652, 658 (Tex.1990)
support a contrary conclusion, and the le-
                                               (op. on reh’g). The controlling reasons for
gal rights of the parties will not be preju-
                                               a severance are to do justice, avoid preju-
diced therebyTTTT’’ See Womack, 291
                                               dice, and further convenience. Id.
S.W.2d at 683; see also, e.g., In re Hoch-
heim Prairie Farm Mut. Ins. Ass’n, 296           [33, 34] Whether a trial court should
S.W.3d 907, 912 (Tex.App.-Corpus Christi       grant a motion to sever is ultimately a
2009, orig. proceeding) (applying Womack       question of law. In re Liu, 290 S.W.3d at
standard to severance under Texas Rule of      520 (citing Guar. Fed. Sav. Bank, 793
Civil Procedure 41); Gen. Agents Ins., 254     S.W.2d at 658–59). When considering
S.W.3d at 674 (same). Under these cir-         whether to grant the motion, the trial
cumstances, the refusal to order a sever-      court must generally accept the plaintiff’s
                                     IN RE REYNOLDS                                 Tex.   651
                            Cite as 369 S.W.3d 638 (Tex.App.—Tyler 2012)

pleadings as true and then determine               one of them resided. See id. at 479.
whether severance is appropriate. Id.              However, the claims against the resident
Consequently, the only remaining dispute           defendant and the nonresident defendant
concerns the legal consequences stemming           were required to be ‘‘properly joinable.’’
from ‘‘accepted-as-pleaded facts.’’ Id.            See, e.g., Glens Falls Indem. Co. v. Ster-
                                                   ling, 213 S.W.2d 858, 861 (Tex.Civ.App.-
This Court’s Prior Opinion                         Dallas 1948, no writ [mand. overruled] ).
  The disagreement in this case concerns           One means of satisfying this requirement
the third requirement for severance:               was to allege a cause of action against the
whether the severed actions are ‘‘so inter-        resident defendant and a cause of action
woven TTT that they involve the same facts         against the nonresident defendant that
and issues.’’ Sharp contends the trial             were so ‘‘intimately connected’’ that they
court correctly concluded that the claims          could be joined under the rule intended to
are sufficiently interwoven to preclude sev-       avoid a multiplicity of suits. See Stock-
erance. As authority, he cites State Farm          yards Nat’l Bank v. Maples, 127 Tex. 633,
Mutual Automobile Insurance Co. v.                 95 S.W.2d 1300, 1302 (1936). However,
White, 461 S.W.2d 476, 479 (Tex.Civ.App.-          the ‘‘intimately connected’’ test is not ap-
Tyler 1970, no writ).                              plicable when severance is the issue. See,
   In White, an injured driver sued to re-         e.g., Guar. Fed. Sav. Bank, 793 S.W.2d at
cover damages he and his minor daughter            658. Instead, we must determine whether
sustained as a result of the alleged negli-        the claims are ‘‘interwoven,’’ meaning that
gence of an uninsured motorist. Id. at             they ‘‘involve the same facts and issues.’’
478. He also sued his insurer in the same          See id. Severance was not the issue in
action, requesting payment of uninsured            White, and therefore this court did not
motorist benefits. Id. The suit was filed in       examine whether the claims in that case
the county where the accident occurred,            involved the same facts and issues. See
and the insurer filed a plea of privilege          White, 461 S.W.2d at 479. Consequently,
alleging it was entitled to be sued in the         our holding in White is not dispositive
county of its residence. Id. As pertinent          here.
here, this court held that venue was proper
against the insurer because (1) the liability      Sharp’s Pleadings
of the tortfeasor and the uninsured motor-
                                                      According to the allegations in Sharp’s
ist arose out of the same transaction and
                                                   third amended petition, which we take as
(2) the two causes of action were ‘‘so inti-
                                                   true, Reynolds ran a red light and turned
mately connected that [they] should be
                                                   in front of Sharp’s vehicle. Sharp’s vehicle
joined to avoid a multiplicity of suits.’’ Id.
                                                   struck Reynolds’s vehicle, an eighteen
at 479 (applying former Article 1995, sub-
                                                   wheeler, and Sharp suffered personal inju-
division 4, predecessor to TEX. CIV. PRAC. &
                                                   ries as a result. Reynolds was acting in
REM.CODE ANN. § 15.005 (West 2002)).
                                                   the course and scope of his employment at
Sharp claims this holding mandates a con-
                                                   the time of the accident. Sharp sued
clusion that the claims in the instant case
                                                   Reynolds for damages asserting the theo-
are sufficiently interwoven to preclude sev-
                                                   ries of negligence and negligence per se.
erance. We disagree.
                                                   Sharp also sued Pelhams, Reynolds’s em-
  [35] Under former Article 1995, sub-             ployer, under the doctrine of respondeat
section 4, all defendants could be sued            superior. Sharp alleges that Reynolds and
together in any county in which at least           Pelhams were underinsured at the time of
652      Tex.          369 SOUTH WESTERN REPORTER, 3d SERIES


the accident and seeks UIM benefits from             amount of his damages, and Reynolds and
Farm Bureau.                                         Pelhams were underinsured. See Mid–
                                                     Century Ins. Co. of Tex. v. McLain, No.
   [36, 37] To prevail on his negligence
                                                     11–08–00097–CV, 2010 WL 851407, at *11
claim against Reynolds, Sharp must estab-
                                                     (Tex.App.-Eastland Mar. 11, 2010, no pet.)
lish that Reynolds had a legal duty, he
                                                     (mem. op.); State Farm Mut. Auto. Ins.
breached that duty, and Sharp suffered
                                                     Co. v. Grayson, 983 S.W.2d 769, 770 (Tex.
damages that were proximately caused by
                                                     App.-San Antonio 1998, no pet.).
the breach. See Lee Lewis Constr., Inc. v.
Harrison, 70 S.W.3d 778, 782 (Tex.2001).6               [41] Sharp’s negligence and UIM
To prevail on his claim against Pelhams,             claims have in common the facts and issues
Sharp must show that Pelhams was Reyn-               relating to whether Reynolds was negli-
olds’s employer and also that Reynolds’s             gent; if so, whether his negligence proxi-
act was committed within the scope of his            mately caused Sharp’s damages and the
general authority, in furtherance of Pel-            amount of his damages; and whether Pel-
hams’s business, and for the accomplish-             hams is also liable. The remaining ele-
ment of the object for which Reynolds was            ments of Sharp’s UIM claim—whether
hired. Robertson Tank Lines, Inc. v. Van             Sharp had UIM coverage and whether
Cleave, 468 S.W.2d 354, 357 (Tex.1971).              Reynolds and Pelhams had insurance cov-
                                                     erage in at least the amount of the dam-
   [38–40] UIM coverage provides pay-                ages recovered—are unrelated to the facts
ment to the insured of all amounts that the          and issues pertaining to his negligence
insured is legally entitled to recover as            claims. Thus, the two causes of action
damages from owners or operators of un-              have some overlapping facts and issues,
derinsured motor vehicles because of bodi-           but do not involve ‘‘the same facts and
ly injury or property damage. TEX. INS.              issues.’’ Therefore, they are not ‘‘inter-
CODE ANN. § 1952.106 (West 2009). This               woven.’’ Accordingly, we conclude that the
amount is reduced by the amount recov-               claims are properly severable. But as we
ered or recoverable from the insurer of              acknowledged earlier, a claim need not be
the underinsured motor vehicle. Id. A                severed simply because it can be. Wilker-
UIM insurer has no contractual duty to               son, 2008 WL 2777418, at *1. To complete
pay benefits until the liability of the other        our analysis, we must consider whether
motorist and the amount of damages suf-              severance is necessary to do justice, avoid
fered by the insured are determined.                 prejudice, or further convenience. See
Brainard, 216 S.W.3d at 815. A motorist              Guar. Fed. Sav. Bank, 793 S.W.2d at 658.
is underinsured if the available proceeds of
his liability insurance are insufficient to          Injection of Insurance
compensate for the injured party’s actual               [42] Relators argued in the trial court,
damages. Stracener v. United Servs.                  and continue to assert here, that if Sharp’s
Auto. Ass’n, 777 S.W.2d 378, 380 (Tex.               claim against Farm Bureau is not severed,
1989). Therefore, to recover UIM bene-               they will be prejudiced because insurance
fits, Sharp must establish that he had               will be injected into the case. Ordinarily,
UIM coverage, Reynolds’s negligence                  a party seeking severance has the burden
proximately caused his damages and the               to show how it will be prejudiced if sever-

6.     Negligence per se is merely one method of      Uzoka, 290 S.W.3d 437, 445 (Tex.App.-Hous-
     proving a breach of duty, a requisite element    ton [14th Dist.] 2009, pet. denied).
     of any negligence cause of action. Thomas v.
                                       IN RE REYNOLDS                                  Tex.   653
                              Cite as 369 S.W.3d 638 (Tex.App.—Tyler 2012)

ance is not granted and to present evi-              Christi 1998, orig. proceeding) (conditional-
dence to the trial court, in camera if neces-        ly granting mandamus requiring severance
sary, to support its position. See In re             of personal injury claim joined with bad
Trinity Universal Ins. Co., No. 12–03–               faith claim against defendant’s liability in-
00314–CV, 2003 WL 22839280, at *2 (Tex.              surer); Black v. Smith, 956 S.W.2d 72, 75
App.-Tyler Nov. 26, 2003, orig. proceeding)          (Tex.App.-Houston [14th Dist.] 1997, orig.
(mem. op.); Allstate Ins. Co. v. Hunter,             proceeding) (conditionally granting manda-
865 S.W.2d 189, 194 (Tex.App.-Corpus                 mus requiring severance of personal injury
Christi 1993, no writ). Sharp points out             claim joined with claim against defendant’s
that Relators presented only argument,               insurer for wrongful disclosure of medical
and no evidence, to show prejudice.                  information); F.A. Richard & Assocs. v.
    [43, 44] The injection of insurance into         Millard, 856 S.W.2d 765, 767 (Tex.App.-
a trial does not necessarily create preju-           Houston [1st Dist.] 1993, orig. proceeding)
dice. See, e.g., Babcock v. Nw. Mem’l                (conditionally granting mandamus requir-
Hosp., 767 S.W.2d 705, 708 (Tex.1989) (tri-          ing severance of negligence claim against
al court abused discretion by refusing to            UIM from bad faith claim against insur-
allow proposed voir dire questions about             ance adjuster).
‘‘liability insurance crisis’’ and ‘‘lawsuit cri-       [45] Here, evidence of insurance is not
sis’’); Lewis v. United Parcel Svc., Inc.,           admissible in the trial of Sharp’s negli-
175 S.W.3d 811, 816 (Tex.App.-Houston                gence claims against Relators. See TEX.R.
[1st Dist.] 2004, pet. denied) (reference to         EVID. 411. But evidence of Relators’ insur-
insurance not automatically reversible er-           ance and Sharp’s UIM coverage is re-
ror). But evidence that a defendant was              quired to establish Sharp’s UIM claims.
or was not insured against liability is not          See Mid–Century, 2010 WL 851407, at *11;
admissible on the issue of negligence.               State Farm Mut., 983 S.W.2d at 770. To
TEX.R. EVID. 411. ‘‘[This] rule is founded           allow evidence of insurance would violate
on the belief that the probative value of            Relators’ substantial right to have their
such evidence is vastly outweighed by the            liability decided without any mention of
danger of unfair prejudice.’’ 1 Steven               insurance, and to exclude evidence of in-
Goode, Olin Guy Wellborn III, and M.                 surance would prejudice Sharp’s presenta-
Michael Sharlot, Texas Practice Series:              tion of his UIM claim. See Foremost, 966
Guide to the Texas Rules of Evidence                 S.W.2d at 772; Black, 956 S.W.2d at 75;
§ 411.1 (3d ed.2002); see also Thornhill v.          Millard, 856 S.W.2d at 767. This presents
Ronnie’s I–45 Truck Stop, Inc., 944                  an irreconcilable conflict that is apparent
S.W.2d 780, 794 (Tex.App.-Beaumont 1997,             without the introduction of evidence. See
writ dism’d by agr.) (recognizing that one           In re Allstate Tex. Lloyd’s, No. 14–05–
purpose of Rule 411 is to avoid informing            00762–CV, 2005 WL 2277134, at *4 (Tex.
jury that someone other than defendant               App.-Houston [14th Dist.] Sept. 2, 2005,
may be liable to pay damages).                       orig. proceeding) (mem. op.) (per curiam)
   Additionally, Texas courts have recog-            (pointing out, in response to argument that
nized that in the simultaneous trial of two          relator had not shown it would be preju-
claims, when evidence of liability insurance         diced by denial of severance, that irrecon-
will be admissible as to only one of the             cilable conflict was apparent in cases in-
claims, detailed evidence of insurance is            volving contractual and extracontractual
prejudicial. See, e.g., In re Foremost Ins.          claims). Therefore, we conclude that, in
Co., 966 S.W.2d 770, 772 (Tex.App.-Corpus            this situation, Relators’ argument pertain-
654       Tex.          369 SOUTH WESTERN REPORTER, 3d SERIES


ing to injection of insurance was sufficient             their motion for reconsideration. Nothing
to inform the trial court that prejudice                 in the record indicates that a bifurcation
would result from the simultaneous trial of              order has been requested or signed. See
Sharp’s claims. Thus, Relators were not                  In re Koehn, 86 S.W.3d 363, 367 (Tex.
required to present evidence of prejudice.               App.-Texarkana 2002, orig. proceeding)
Consequently, Relators’ failure to present               (holding that granting of separate trial
evidence of prejudice is not fatal to their              minimized danger of prejudice from evi-
severance motion.                                        dence of liability insurance). Thus, it ap-
                                                         pears from the record that the claims will
Avoidance of Prejudice                                   be tried simultaneously, and we decline to
  Sharp acknowledges, at least implicitly,               speculate about what issues will be con-
that Relators will suffer prejudice if insur-            tested at trial. Therefore, we cannot de-
ance is injected into the trial of this case.            termine from the record before us that
He argues, however, that the procedure                   prejudice can be avoided at trial without
the trial court will follow at trial precludes           severance.
the possibility of prejudice.7 He argues
further that there are no issues requiring               Prejudice to Sharp
the injection of insurance into the case                    Sharp next points out that Farm Bureau
before the jury.                                         has not consented to be bound by the
   [46] The rules authorize two distinct                 results of a separate trial of his claims
trial procedures-severance and bifurcation-              against Relators. He urges that because
for avoiding prejudice. See TEX.R. CIV. P.               of the consent provision of the policy, he
41, 174(b). A severance divides the law-                 will have to try his case twice if his claim
suit into two or more separate and inde-                 against Farm Bureau is severed, and
pendent causes, resulting in a final, appeal-            Farm Bureau will have ‘‘two bites at the
able judgment in each cause. Hall, 450                   apple’’ if Sharp’s case results in the first
S.W.2d at 837–38. A bifurcated trial re-                 judgment.8 As a result, Sharp contends,
sults in one trial with separate parts be-               he will be prejudiced by severance, and
fore one jury. In re United Fire Lloyds,                 therefore the trial court correctly exer-
327 S.W.3d 250, 254 (Tex.App.-San Antonio                cised its discretion by denying reconsider-
2010, orig. proceeding). An order for bi-                ation of the motion to sever.
furcation, or separate trials, leaves the
                                                           [48] Unless the UIM insurer has con-
lawsuit intact but enables the court to hear
                                                         sented in writing to the suit, the usual
and determine one or more issues without
                                                         result of a consent provision is that the
trying all issues at the same time. Id.
                                                         insurer is not bound by a judgment en-
  [47] Here, the trial court denied Rela-                tered in an action prosecuted by its in-
tors’ motion for severance and also denied               sured against a UIM. See, e.g., State Farm

7.     Specifically, Sharp points to his counsel’s            Counsel did not elaborate further, and did not
     argument in the trial court that                         represent to the trial court that the issue of
       [w]e have actually tried in this Court—in              prejudice had been addressed on appeal.
       both this court and Judge Griffin’s court,
       cases similar to this to a jury without inject-   8.     The record does not include a copy of the
       ing insurance. Without in any way preju-               insurance policy State Farm issued to Sharp.
       dicing the third party with the fact that              Therefore, we are unable to quote the provi-
       there was a third party with U–I–M in the              sion.
       case. So, we have done that successfully.
                                    IN RE REYNOLDS                                  Tex.   655
                           Cite as 369 S.W.3d 638 (Tex.App.—Tyler 2012)

Mut. Auto. Ins. Co. v. Azima, 896 S.W.2d          cumstances. See Allstate Ins. Co. v. Hunt,
177, 178 (Tex.1995) (per curiam); Koehn,          450 S.W.2d 668, 671 (Tex.Civ.App.-Hous-
86 S.W.3d at 368. To avoid this result, an        ton [14th Dist.] 1970), aff’d, 469 S.W.2d 151
insured seeking the benefits of his UIM           (1971) (providing extensive discussion of
coverage may sue his UIM insurer directly         the ‘‘[s]erious ethical problems that [can]
without suing the UIM; obtain written             arise when an insurance company seeks to
consent from his UIM insurer and then             participate in the defense of an uninsured
sue the UIM alone, making the judgment            motorist’’).
binding against the insurance company; or            We cannot conclude that joinder of the
sue the UIM without the written consent           UIM and the UIM insurer in the same
of the UIM insurer and relitigate liability       action negates the consent clause. There-
and damages. See, e.g., Azima, 896                fore, even absent severance, Sharp will be
S.W.2d at 178; Koehn, 86 S.W.3d at 368.           required to relitigate his claim against
   Sharp acknowledges that in Koehn, the          Farm Bureau if he obtains a judgment
court concluded that the same rules apply         against Relators and Farm Bureau does
when the UIM and the UIM insurer are              not consent to be bound by the judgment.
joined in the same suit. See Koehn, 86            See Koehn, 86 S.W.3d at 368. According-
S.W.3d at 368. He argues, however, that           ly, Sharp has not shown that he will be
Koehn was wrongly decided. Specifically,          prejudiced by severance.
he urges that ‘‘[t]here is no logical reason      Conclusion
that a carrier that is sued directly, and            Sharp’s UIM claim against Farm Bu-
therefore participates at trial, will not be      reau is severable, and severance is neces-
bound by the judgment simply because the          sary to avoid prejudice to Relators. Addi-
uninsured motorist is also a party at trial.      tionally, a simultaneous trial would violate
Nor is there any authority (other than            Relators’ substantial right to have their
Koehn ) that suggests such a result.’’ We         liability decided without mention of insur-
are not persuaded.                                ance. See Foremost, 966 S.W.2d at 772;
  The rule Sharp advocates would permit           Black, 956 S.W.2d at 75; Millard, 856
an insured in a UIM case to unilaterally          S.W.2d at 767. This would result in mani-
negate the consent clause in his policy           fest injustice to Relators. See Foremost,
merely by joining the UIM insurer and the         966 S.W.2d at 772; Black, 956 S.W.2d at
UIM in the same action. But the purpose           75; Millard, 856 S.W.2d at 767. And if
of requiring the UIM insurer’s consent to         Sharp obtains a judgment against Rela-
suit against the UIM is to protect the            tors, he will have to relitigate his UIM
insurer from liability arising from a default     claim, even if it is not severed, unless
judgment against the UIM or an insub-             Farm Bureau consents to be bound by the
stantial defense by the UIM. Azima, 896           judgment. Therefore, he will not be prej-
S.W.2d at 178; Koehn, 86 S.W.3d at 368.           udiced by severance.
Sharp does not address the purpose of the            We also conclude that ‘‘all of the facts
provision and therefore does not explain          and circumstances of the case unquestion-
how the UIM’s joinder will afford the same        ably require a [severance] to prevent man-
protection. Although Sharp does not sug-          ifest injustice, there is no fact or circum-
gest that the UIM insurer undertake the           stance supporting or tending to support a
defense of the UIM, we note that a UIM            contrary conclusion, and the legal rights of
insurer’s defense of a UIM can create a           the parties will not be prejudiced there-
conflict of interest under a variety of cir-      byTTTT’’ See Womack, 291 S.W.2d at 683;
656   Tex.        369 SOUTH WESTERN REPORTER, 3d SERIES


Hochheim, 296 S.W.3d at 912; Gen.                 We have held that the trial court abused
Agents Ins., 254 S.W.3d at 674. Accord-        its discretion in denying reconsideration of
ingly, we hold that the trial court abused     Relators’ motion for severance. Severance
its discretion in denying reconsideration of   would have divided the underlying action
Relators’ motion for severance.                into two separate lawsuits. See Hall, 450
                                               S.W.2d at 837–38. Therefore, because
       VENUE–ABUSE    OF   DISCRETION          Section 15.005 is a derivative venue stat-
                                               ute, it would not determine venue of
   Relators further contend that if we con-
                                               Sharp’s claims against Relators after sev-
clude the trial court abused its discretion
                                               erance. Cf. Oryx Energy Co. v. Union
in denying their motion to reconsider sev-
                                               Nat’l Bank of Tex., 895 S.W.2d 409, 416
erance, we must also conclude that the
                                               (Tex.App.-San Antonio 1995, writ denied)
court abused its discretion in denying their
                                               (in addressing claim that trial court erred
motion to reconsider venue. They argue
                                               in denying motions to sever and transfer
that if Sharp’s claim against Farm Bureau
                                               venue, appellate court first reviewed denial
is severed, there exists no basis for main-
                                               of severance; after concluding denial was
taining venue of the remaining claims in
                                               not abuse of discretion, then reviewed ven-
Shelby County.
                                               ue in light of ruling on severance).
Venue After Severance
                                                  Relators contend that because severance
   Sharp sued Farm Bureau in Shelby            is required, the general venue statute ap-
County, the county of his residence at the     plies and venue is proper in Tarrant Coun-
time of the accident. See TEX. INS.CODE        ty. In pertinent part, the general venue
ANN. § 1952.110(1). Relying on Texas Civ-      statute provides that, subject to certain
il Practice and Remedies Code Section          exceptions, a lawsuit may be brought in
15.005, he joined his negligence claims        the county of the defendant’s residence at
against Relators in the same action. Farm      the time the cause of action accrued if the
Bureau did not object to venue in Shelby       defendant is a natural person, and the
County. Therefore, venue of Sharp’s            county of the defendant’s principal office in
claim against Farm Bureau is fixed in          this state if the defendant is not a natural
Shelby County. See TEX.R. CIV. P. 86(1).       person. See TEX. CIV. PRAC. & REM.CODE
                                               ANN. § 15.002(2), (3). Sharp has alleged,
   Section 15.005 provides that where there
                                               and Relators agree, that Reynolds is a
are multiple defendants, and the plaintiff
                                               resident of Tarrant County, Pelhams is a
first establishes proper venue against at
                                               company doing business and having its
least one defendant, venue is then proper
                                               principal office in Tarrant County, and the
as to all defendants in all claims arising
                                               accident occurred in Johnson County.
out of the same transaction, occurrence, or
                                               Thus, under either subsection, Tarrant
series of transactions or occurrences. See
                                               County is the correct venue.
TEX. CIV. PRAC. REM.CODE ANN. § 15.005.
Thus, as to Relators, venue is derivative         [49] Sharp has not alleged that any
only. See Underwood, supra at 582 (‘‘De-       basis exists for maintaining venue in Shel-
rivative-venue simply means venue over a       by County after severance. Consequently,
particular claim or party that is derived      we agree with Relators that because the
from venue over some other claim or party      trial court should have granted their mo-
in the same lawsuit-venue that would not       tion to reconsider its severance ruling, it
exist independent of the other claim or        also should have granted their motion to
party.’’).                                     reconsider its venue ruling and transferred
                                    IN RE REYNOLDS                                  Tex.   657
                           Cite as 369 S.W.3d 638 (Tex.App.—Tyler 2012)

Sharp’s claims against them to Tarrant            for them to meet this burden on appeal, we
County. See Jones v. Ray, 886 S.W.2d              recognize that Relators cannot be assured
817, 823 (Tex.App.-Houston [1st Dist.]            of doing so. But even if Relators were to
1994, orig. proceeding) (where severance          obtain a reversal, their substantial right
order was abuse of discretion, order trans-       will have been lost, in part, because only
ferring venue in reliance on severance or-        by a second trial will the right be available
der must also fail). Its failure to do so         to them.
constituted an abuse of discretion. See id.
                                                     [52] Moreover, severance and venue
                                                  are intertwined in this case. Therefore, if
     ADEQUACY   OF   APPELLATE REMEDY
                                                  Relators are unable to obtain a reversal of
   [50] In evaluating benefits and detri-         the incorrect denial of severance, they will
ments to determine the adequacy of an             be unable to obtain reversal of the incor-
appellate remedy, we consider whether             rect venue ruling as well. See Oryx, 895
mandamus will (1) preserve important sub-         S.W.2d at 416 (denial of severance was not
stantive and procedural rights from im-           abuse of discretion, and therefore denial of
pairment or loss; (2) allow us to give            motion to transfer venue was not error).
needed and helpful direction to the law           Our venue statutes create a balance. See
that would otherwise prove elusive in ap-         Team Rocket, 256 S.W.3d at 262. Under
peals from final judgments; and (3) spare         the statutory venue scheme, a plaintiff has
litigants and the public the time and mon-        the first choice to fix venue in a proper
ey utterly wasted enduring eventual rever-        county. Masonite, 997 S.W.2d at 197.
sal of improperly conducted proceedings.          But the trial court must transfer venue to
Team Rocket, 256 S.W.3d at 262; Pruden-           the county specified in the defendant’s mo-
tial, 148 S.W.3d at 136.                          tion to transfer if the plaintiff fails to
                                                  establish proper venue and the defendant
Preservation of Rights                            provides prima facie proof that its request-
   [51] Relators have a substantial right         ed venue is proper. Id. That balance will
to have their liability decided without any       be disrupted, and Relators’ procedural
mention of insurance. See, e.g., Foremost,        right to a correct venue will be lost, if
966 S.W.2d at 772. We have held that              Relators are unable to obtain a reversal of
severance is necessary to preserve that           the trial court’s incorrect venue ruling.
right. If Relators obtain judgment on a           See Team Rocket, 256 S.W.3d at 262 (pro-
favorable jury verdict, they cannot appeal.       cedural rights impaired when plaintiff non-
If Sharp obtains a judgment against Rela-         suited and refiled elsewhere to circumvent
tors on an unfavorable jury verdict, Rela-        ruling on defendant’s motion to transfer
tors could not obtain reversal for the incor-     venue because balance of venue statutes
rect denial of severance unless the court of      disrupted).
appeals concludes that the trial court’s er-
ror ‘‘probably caused the rendition of an         Direction for the Trial Court
improper judgmentTTTT’’ TEX.R.APP. P.                Severance is ultimately a question of
44.1(a)(1). Relators contend that, in that        law. Liu, 290 S.W.3d at 520. Sharp ar-
instance, ‘‘there will be no way to untangle      gues that this court’s holding in White
how or whether prejudice and confusion            required the trial court to deny severance
infected the jury’s deliberations.’’ See          in this case. And his comments to the
Hochheim, 296 S.W.3d at 911. Although             trial court suggest that the fact situation
we cannot say that ‘‘there will be no way’’       presented here—the denial of severance
658      Tex.          369 SOUTH WESTERN REPORTER, 3d SERIES


when negligence and UIM claims are                   opment of the law, and add unproductively
joined in the same action—is a recurring             to the expense and delay of civil litigation.
one. Therefore, our interpretation of                Prudential, 148 S.W.3d at 136. But in this
White and the case law pertaining to sev-            case, the trial court’s denial of Relators’
erance can provide helpful guidance to the           motions for reconsideration has failed to
trial court and prevent the recurrence of            preserve two important rights—the right
the situation presented here.                        of Relators to have their liability deter-
Waste of Resources                                   mined without mention of insurance and
  Finally, we note that if the trial court’s         their right to defend against Sharp’s
order denying reconsideration of Relators’           claims in a proper venue.
motion for severance were reversed on                   If mandamus is unavailable, Relators
appeal, a second trial would be required.            cannot exercise those rights except by a
This second trial would be a waste of                successful appeal and retrial. But they
judicial and public resources in the instant         have no assurance that they can prevail if
case as well as any other cases in which             an appeal is necessary. And even if they
this situation arises. We recognize that             were to successfully appeal, Relators’
the resulting waste would be minimal in              rights will have been impaired because two
comparison to circumstances that have                trials will have been necessary to preserve
been addressed in other mandamus pro-                them. Moreover, mandamus will allow us
ceedings. See, e.g., id. (trial court’s ruling       to provide direction to the trial court in
permitted plaintiff ‘‘to abuse the legal sys-        this case, and prevent the recurrence of
tem by refiling his case in county after             this procedural conundrum in the future.
county, which would inevitably result in             And despite the relatively small waste of
considerable expense to taxpayers and de-            resources in comparison to those ad-
fendants, requiring defendants to proceed            dressed in other cases, the denial of Rela-
to trial in the wrong county’’); Masonite,           tors’ rights is significant and, in our view,
997 S.W.2d at 199 (order transferring ven-           likely cannot be remedied satisfactorily ex-
ue ‘‘wrongfully burdened fourteen other              cept by mandamus.
courts in fourteen other counties, hundreds
of potential jurors in those counties, and             Based upon these considerations, we
thousands of taxpayer dollars in those               conclude that the benefits of mandamus
counties’’). Thus, this factor, unlike the           outweigh the detriments. Accordingly, we
two we have previously considered, weighs            hold that Relators have no adequate reme-
against mandamus.                                    dy by appeal.9
Summary and Holding
                                                                     DISPOSITION
   We acknowledge that mandamus review
of incidental, interlocutory rulings by the            For the reasons set forth above, we have
trial courts can unduly interfere with trial         concluded that Relators have satisfied both
court proceedings, distract appellate                prerequisites to mandamus. Accordingly,
courts’ attention to issues that are unim-           we conditionally grant Relators’ petition
portant both to the ultimate disposition of          for writ of mandamus and direct the trial
the case at hand and to the uniform devel-           court to (1) vacate its order denying Rela-

9.     Relators also assert that Section 15.005 is    occurrence, or series of transactions and oc-
     not applicable in this case because Sharp’s      currences. That issue is not dispositive, how-
     claims against them and against Farm Bureau      ever, and therefore we do not address it. See
     did not arise out of the same transaction,       TEX.R.APP. P. 47.1.
                              MORTON v. HUNG NGUYEN                                   Tex.   659
                     Cite as 369 S.W.3d 659 (Tex.App.—Houston [14th Dist.] 2012)

tors’ motion for reconsideration of their           Holdings: The Court of Appeals, Sharon
motions for severance and transfer of ven-          McCally, J., held that:
ue and (2) issue an order granting the              (1) vendor’s ignorance of statutory re-
motion for reconsideration, severing                    quirements for contents of annual
Sharp’s claim against Farm Bureau, and                  statement regarding status of contract
transferring his claims against Relators to             for deed did not preclude finding of
Tarrant County. We trust that the trial                 good faith attempt to provide purchas-
court will promptly comply with this opin-              ers with annual statements;
ion and order. The writ will issue only if
                                                    (2) Flores standard to determine whether
the trial court fails to do so within ten
                                                        vendor made good faith effort to pro-
days of the date of the opinion and order.
                                                        vide purchasers with annual statement
The trial court shall furnish this court,
                                                        on contract did not provide vendor
within the time for compliance with this
                                                        with defense to purchasers’ statutory
court’s opinion and order, a certified copy
                                                        right to rescind contract;
of its order evidencing compliance. This
court’s stay is lifted.                             (3) as matter of first impression, statute
                                                        governing purchasers’ right to cancel
                                                        and rescind contract for deed did not

             ,                                          require purchasers to provide vendor
                                                        with notice of rescission or tender val-
                                                        ue of three-year possession of property
                                                        back to vendor;
                                                    (4) common law defenses of quasi-estoppel
     Kevin T. MORTON, Appellant,                        and laches were not available remedies
                                                        on purchasers’ claims under Property
                     v.                                 Code;
      HUNG NGUYEN and Carol                         (5) provision of Property Code authorizing
        S. Nguyen, Appellees.                           purchasers to recover value of any im-
          No. 14–11–00126–CV.                           provements made to property upon
                                                        cancellation or rescission of contract
       Court of Appeals of Texas,                       for deed did not require purchasers to
         Houston (14th Dist.).                          prove that costs for repairs and im-
              May 17, 2012.                             provements were reasonable;

Background: Vendor on contract for deed             (6) trial court’s findings of fact did not
sued purchasers for breach of contract af-              permit award of statutory damages of
ter purchasers informed vendor of their                 $300 under Finance Code; and
intent to cancel/rescind contract. Purchas-         (7) purchasers failed to support claim un-
ers counter-claim for damages under Prop-               der DTPA for vendor’s false, mislead-
erty Code, Finance Code, and Deceptive                  ing or deceptive acts or practices.
Trade Practices–Consumer Protection Act             Affirmed as modified in part; reversed and
(DTPA), attorney fees and costs, and in-            remanded in part.
terest. The 55th District Court, Harris
County, Dion Ramos, J., entered judgment
in purchasers’ favor on most, but not all of        1. Vendor and Purchaser O54
their claims. Vendor appealed and pur-                  A contract for deed, unlike a mort-
chasers cross-appealed.                             gage, allows the seller to retain title to the
Mid-Century Ins. Co. Of Texas v. McLain, Not Reported in S.W.3d (2010)


                                                                  any, of Mid-Century to pay under the uninsured/underinsured
                                                                  motorist (UIM) provision of McLain's insurance policy.
                  2010 WL 851407
    Only the Westlaw citation is currently available.
                                                                  A jury found that Morey's negligence was the cause of
          SEE TX R RAP RULE 47.2 FOR                              the accident and awarded McLain $116,726: $5,000 for
    DESIGNATION AND SIGNING OF OPINIONS.                          physical pain and mental anguish sustained in the past; $0
                                                                  for pain and mental anguish in the future; $80,000 for loss
                Court of Appeals of Texas,                        of earning capacity sustained in the past; $10,000 for loss of
                        Eastland.                                 earning capacity in the future; $500 for physical impairment
                                                                  sustained in the past; $0 for physical impairment that would
              MID-CENTURY INSURANCE
                                                                  be sustained in the future; $11,226 for medical care in the
               CO. OF TEXAS, Appellant                            past; and $10,000 for future medical care. The trial court
                          v.                                      also awarded prejudgment interest. Morey had settled with
               Synthia McLAIN, Appellee.                          McLain and did not participate in the trial.

       No. 11-08-00097-CV.         |   March 11, 2010.            After the verdict, Mid-Century put on evidence that its policy
                                                                  limit was $20,000, that it had made personal injury payments
On Appeal from the 42nd District Court, Taylor County,
                                                                  (PIP) of $2,500, that it had made a settlement offer of $1,500,
Texas, Trial Court Cause No. 45,958-A.
                                                                  and that McLain had received a settlement of $21,500 from
Attorneys and Law Firms                                           Morey. At a hearing on entry of judgment, Mid-Century again
                                                                  urged that these amounts be taken into consideration, citing
Steven A. Springer, Lance E. Caughfield, for Mid-Century          Brainard v. Trinity Universal Insurance Co., 216 S.W.3d
Insurance Co. of Texas.                                           809 (Tex.2006); Henson, 17 S.W.3d 652; and State Farm
                                                                  Mutual Automobile Insurance Co. v. Norris, 216 S.W.3d 819
Burt L. Burnett, for Synthia McLain.
                                                                  (Tex.2006). Mid-Century argued that its liability under the
Panel consists of: WRIGHT, C.J. McCALL, J., and                   UIM provision should not exceed $20,000, pointing out that
STRANGE, J.                                                       the extra-contractual claims had been severed and were to be
                                                                  tried later. Despite the fact that it was her burden of proof,
                                                                  McLain contended that Mid-Century had not introduced
                                                                  McLain's policy during the jury trial and that it had failed
               MEMORANDUM OPINION
                                                                  to establish the amount of the settlement from Morey. And
TERRY McCALL, Justice.                                            despite well-settled law, McLain convinced the trial court to
                                                                  enter judgment against Mid-Century for the entire $116,726
 *1 Synthia McLain, the insured, sued Mid-Century                 plus prejudgment interest. The trial court also denied Mid-
Insurance Co. of Texas and its agent, Larry Chapman, after        Century's motion for a judgment n.o.v. and for a new trial.
her car wreck with Becky Morey. McLain had uninsured/
underinsured coverage under a policy written by Mid-Century       Mid-Century presents four issues on appeal: that the trial
and sold to her by Chapman. McLain's lawsuit was for              court erred in entering judgment for the entire $116,726
contractual claims under the policy and for extra-contractual     in this first phase of a UIM case; that the evidence was
and bad faith claims. The trial court granted Mid-Century's       legally and factually insufficient to support the award of lost
motion to sever and ordered that McLain's extra-contractual       earning capacity; that the evidence was legally and factually
and bad faith claims against Mid-Century and Chapman be           insufficient to support the award of future medical expenses;
severed from the underlying car accident claims. The extra-       and that it was incurable jury argument for counsel for
contractual and bad faith claims were assigned Docket No.         McLain to argue in closing that Mid-Century and its lawyer
45,958-B. McLain's claim in this case, made pursuant to           were trying to “deceive” the jury because they believed the
her insurance policy, was contractual in nature. Henson v.        jury was “ignorant” and that the jury should serve as the
S. Farm Bureau Cas. Ins. Co., 17 S.W.3d 652 (Tex.2000);           conscience of the community. This argument was made after
Franco v. Allstate Ins. Co., 505 S.W.2d 789 (Tex.1974).           counsel for McLain had repeatedly injected the idea of bad
Thus, this case was to establish the contractual obligation, if   faith on the part of Mid-Century during the entire trial from



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Mid-Century Ins. Co. Of Texas v. McLain, Not Reported in S.W.3d (2010)


the time of voir dire to closing. The first, second, and fourth    Henson, 17 S.W.3d at 654. 2 A motorist is underinsured if
issues are sustained, and the case is remanded for a new trial.    his or her liability insurance is insufficient to pay for the
                                                                   injured party's actual damages. Stracener v. United Servs.
                                                                   Auto. Ass'n, 777 S.W.2d 378, 380 (Tex.1989). Recovery from
                       UIM Coverage                                UIM coverage may be had only for damages sustained in
                                                                   an amount in excess of the total amount of the tortfeasor's
 *2 The Texas Insurance Code requires insurers to offer            liability coverage. Section 1952.106; Olivas v. State Farm
Texas motorists UIM coverage and mandates that such                Mut. Auto. Ins. Co., 850 S.W.2d 564, 565 (Tex.App.-El Paso
coverage:                                                          1993, writ denied). It was McLain's burden to establish these
                                                                   elements to prove that Morey was at fault and underinsured
             [P]rovide for payment to the insured of               and that McLain's damages exceeded the amount recovered
             all amounts that the insured is legally               or recoverable from Morey.
             entitled to recover as damages from
             owners or operators of underinsured                   McLain argues that Mid-Century was required to plead, as
             motor vehicles because of bodily                      affirmative defenses, policy limits and any offset such as
             injury or property damage, not to                     Morey's coverage limits and Mid-Century's PIP payments.
             exceed the limit specified in the                     For her position, McLain cites Southwestern Fire & Casualty
             insurance policy, and reduced by the                  Co. v. Larue, 367 S.W.2d 162 (Tex.1963). However, Larue
             amount recovered or recoverable from                  involved an action on a promissory note against the maker of
             the insurer of the underinsured motor                 the note. McLain's citation of Brown v. American Transfer &
             vehicle.                                              Storage Co., 601 S.W.2d 931 (Tex.1980), and TEX.R. CIV.
                                                                   P. 94 on affirmative defenses is also not in point. McLain
TEX. INS.CODE ANN. § 1952.106 (Vernon 2009). 1                     has confused a contractual condition precedent with an
                                                                   affirmative defense. The court of appeals in Henson held that
McLain's counsel erroneously argued to the trial court, and        the specific language in insurance contracts-“legally entitled
now to this court, that it was Mid-Century's burden to             to recover”-creates a condition precedent to a contractual
introduce McLain's policy and the amount of any settlement         obligation by insurance companies to perform under a UIM
from Morey into evidence. The long established Texas law           provision. Henson v. Tex. Farm Bureau Mut. Ins. Co., 989
is that a plaintiff seeking recovery against an insurance          S.W.2d 837, 839 (Tex.App.Amarillo 1999), aff'd, 17 S.W.3d
company for injuries resulting from the negligence of an           at 654. It was McLain's burden to satisfy the condition
uninsured motorist must plead and prove that, at the time of       precedent by establishing that she was “legally entitled to
the accident, the plaintiff was protected by uninsured motorist    recover” damages from Morey and that Morey was an
coverage. Members Mut. Ins. Co. v. Olguin, 462 S.W.2d 348,         underinsured driver.
350 (Tex.Civ.App.-El Paso 1970, no writ); Members Mut. Ins.
Co. v. Clancy, 455 S.W.2d 447 (Tex.Civ.App.-San Antonio             *3 After the jury verdict, Mid-Century correctly established
1970, no writ); Pan Am. Fire & Cas. Co. v. Loyd, 411 S.W.2d        that it had paid PIP benefits and made a settlement offer
557, 560 (Tex.Civ.App.-Amarillo 1967, no writ). In the retrial     to McLain. As pointed out in Brainard, those amounts are
of this case, McLain should introduce a copy of her policy         to be taken into consideration in determining the amount
and establish her UIM coverage if she continues to contend         of prejudgment interest (that would have been owed by
that the policy introduced by Mid-Century was not her policy       the underinsured motorist) under the “declining principal”
at the time.                                                       formula. Brainard, 216 S.W.3d at 816. In Brainard, the
                                                                   supreme court held that UIM insurance covers prejudgment
Before an insured is entitled to recover under a UIM policy        interest that the underinsured motorist would have owed to
provision, the insured must establish the tortfeasor's liability   the insured and that prejudgment interest constitutes part of
and the damages resulting from the tortfeasors negligence.         the damages caused by the underinsured motorist. On the
The UIM insurer is under no contractual duty to pay benefits       other hand, the supreme court in Henson held that, because
until the insured obtains a judgment establishing the liability    UIM insurers do not breach their contractual obligation to pay
and underinsured status of the other motorist. Brainard v.         until tort liability is established, prejudgment interest against
Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex.2006);             the UIM insurer does not begin running until the liability of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Mid-Century Ins. Co. Of Texas v. McLain, Not Reported in S.W.3d (2010)


the uninsured/underinsured motorist is established. See also       capacity. Id. at 35-36. When a plaintiff is employed at the
Menix v. Allstate Indem. Co., 83 S.W.3d 877 (Tex.App.-             time of his or her injury, the extent of his or her loss can best
Eastland 2002, pet. denied).                                       be shown by comparing his or her actual earnings before and
                                                                   after the injury. See Strauss v. Cont'l Airlines, Inc., 67 S.W.3d
McLain attempts to distinguish Brainard, Henson, and               428, 436 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
Nationwide Mutual Fire Insurance Co. v. Voight, 971 So.2d
239 (Fla.Dist.Ct.App.2008), the cases cited by Mid-Century,         *4 McLain had the burden to introduce evidence from
by arguing that in this case Mid-Century undertook the             which a jury could reasonably measure in monetary terms her
defense of Morey and thereby undertook a duty to plead and         earning capacity prior to the injury. Strauss, 67 S.W.3d at 435.
prove the amount of money paid by Morey or her insurer             Although the amount of damages resulting from impairment
and a duty to plead and prove McLain's UIM coverage. We            of a plaintiff's earning capacity is largely within the discretion
disagree. Mid-Century simply put McLain to her burden of           of the jury, the jury should not be left to mere conjecture when
proof that she had to establish a contractual obligation of Mid-   facts appear to be available upon which the jury could base an
Century to pay an amount under the UIM provision.                  intelligent answer. Id. The damages need to be proved with
                                                                   that degree of certainty of which the case is susceptible. Id.
The trial court erred in entering judgment against Mid-            at 436.
Century for $116,726. Despite McLains failure to introduce
the policy, Mid-Century did introduce a copy of the policy         Mid-Century correctly states that McLain was required to
with its provision for $20,000 in UIM benefits. At the             prove (1) her earning capacity before the accident in April
outset of trial, counsel for McLain told the court that the        2003 and (2) her earning capacity after the accident and
underinsured motorist had paid McLain $20,100, that Mid-           before trial in November 2007, as well as her earning capacity
Century had paid her $2,500 in PIP benefits, and that the UIM      in the future. Mid-Century concedes that there was some
limit in her policy was $20,000. The judgment against Mid-         evidence through McLain's testimony as to the first element,
Century should not have exceeded $20,000. Mid-Century's            but contends that evidence of the second element was lacking.
first issue is sustained. We turn next to McLain's burden of
proof on her damages from Morey's negligence. McLain had           McLain testified that, before the accident, she worked forty
the burden to establish that her damages exceeded $22,600          hours a week at $10 an hour as an office aide for Hibbs &
($20,100 settlement from Morey and $2,500 PIP benefits             Todd, a civil engineering company. Her duties included filing
from Mid-Century).                                                 and making copies of manuals that went with blueprints to the
                                                                   job site. In addition, she said that she worked “approximately
                                                                   eighteen hours a week at the Buffalo Gap Store.” There, she
                                                                   made $6 an hour. McLain stated that her back pain became
                  Loss of Earning Capacity
                                                                   unbearable because both jobs kept her on her feet most of
In its second issue, Mid-Century argues that the evidence was      the time. According to McLain, “very shortly after the wreck
legally and factually insufficient to support the jury award of    [she] ended up leaving the Buffalo Gap store .” She believed
$80,000 for past lost earning capacity and $10,000 for future      that she left Hibbs & Todd during the first part of 2004,
lost earning capacity.                                             but she “would have to check to make sure.” Her testimony
                                                                   was evidence of her earning capacity before the accident,
Loss of earning capacity is the plaintiffs diminished capacity     but it was not the degree of certainty of which this case
to earn a living. See Plainview Motels, Inc. v. Reynolds,          was susceptible. McLain could have easily provided her form
127 S.W.3d 21, 35 (Tex.App.-Tyler 2003, pet. denied); Koko         W-2s from her employers, statements from her employers,
Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex.App.-Amarillo           and her tax returns.
2002, pet. denied). Loss of earnings is the loss of actual
income due to an inability to perform a certain job that the       If one assumes that McLain worked forty hours a week every
person held before the injury. Reynolds, 127 S.W.3d at 35.         week for Hibbs & Todd and eighteen hours a week every
Loss of earning capacity is the proper measure of damages,         week for the Buffalo Gap store, she would have earned $508
not loss of earnings, because even an unemployed person            per week or $26,416 per year. McLain acknowledged that she
can recover for lost earning capacity. Id. However, evidence       did not work forty hours a week every week for Hibbs &
of loss of earnings is admissible to establish loss of earning



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
Mid-Century Ins. Co. Of Texas v. McLain, Not Reported in S.W.3d (2010)


Todd because sometimes she was sick, had to take care of her      after she is a college graduate, she will have an opportunity
children, or took time for a vacation.                            for greater earnings.

Within a few weeks of leaving Hibbs & Todd, McLain                There was a lack of medical evidence as to McLain's loss of
took a job as a substitute teacher at the Jim Ned school.         earning capacity. McLain testified that Dr. Daniel L. Munton
As a substitute teacher, she earned $50 per day. There            did not take her off work because she requested that he
is no evidence on how often she worked as a substitute            not do so. She further testified that, after the procedure by
teacher; but, apparently, she had the capacity to earn $250 per   Dr. Munton, she felt like “her old self” for a period. In his
week if substitute teacher jobs were available. Subsequently,     deposition, Dr. Munton stated, “No, I didnt recommend light
although the record does not reflect when, she became a           duty. I just recommended avoiding aggravating activity.” Dr.
teacher's aide at $7 an hour, working from “8:30 in the           Munton specializes in physical medicine and rehabilitation;
morning to 3:30 in the afternoon.” She was a teacher's aide       he treats people who want to avoid surgery.
from April 2004 until May 2007, working forty hours a week.
McLain said that she also tutored students for $7 an hour for     From the record, it appears that McLain suffered a loss of
about five hours a week for three months during the summers       earning capacity for some period. She should be commended
of 2005 and 2006. She also worked at Albertson's for either       for her decision to obtain a college degree; however, loss of
$6.50 or $6.75 an hour for “between 14 and 21” hours a week.      earnings due to her decision to pursue a college degree was
At the time of trial, McLain was a full-time student at Abilene   not a loss of earning capacity. There is insufficient evidence in
Christian University with one year left to obtain a degree in     the record to support the awards of $90,000 for loss of earning
special education. From her testimony, it appears that she        capacity. Mid-Century's second issue is sustained.
continued to work as a bus driver and at Albertson's to help
her husband support their family.

                                                                                    Future Medical Expenses
 *5 We are unable to determine from the record how the
jury arrived at $80,000 for past loss of earning capacity or      Dr. Munton testified that McLain underwent a procedure,
$10,000 for future loss of earning capacity. Apparently, she      known as a medial branch block, where he tried to determine
wanted to stay with Hibbs & Todd, a job that she described as     where her pain was coming from. That procedure uses needles
a good one with benefits. However, she could not because of       up to eight inches long to inject a numbing medicine called
her back pain. But even if we assume that she earned $508 per     Marcaine. After a few days, when her pain returned to the
week before the accident, it is not clear how much she earned     pre-injection level, Dr. Munton then determined that McLain
or had the capacity to earn after the wreck. Also, the $508       needed to undergo a procedure termed “radiofrequency
per week was based on her working fifty-eight hours a week.       lesioning,” which he described as being similar to cauterizing
After McLain left Hibbs & Todd, a number of her jobs appear       the nerves that appeared to be causing the pain. That
to have been at $7 per hour or $280 for a forty-hour week. She    procedure also utilized lengthy needles and was described by
testified that she left Hibbs & Todd sometime during the first    McLain as being quite painful. McLain had that procedure
part of 2004. The difference between $508 and $280 per week       performed on October 2, 2003.
is $228 less earnings per week. Assuming she left Hibbs &
Todd in January 2004, there were approximately 204 weeks           *6 McLain returned to Dr. Munton on November 24, 2003,
between that date and the date of trial in November 2007.         and on December 22, 2003, and said that she felt pain in a
Multiplying $228 times 204 weeks yields $46,512, a number         different location. Dr. Munton gave her the option of therapy,
far short of the $80,000 jury verdict. There is, of course,       chiropractic treatment, or medication, which she chose. At the
insufficient evidence to even support a verdict in the $40,000    time of his deposition in 2006, Dr. Munton had not seen her
range because there was no evidence as to how many hours          since 2003 because he had moved to another city. Before the
she actually worked before the wreck and how many hours           trial, he had returned to Abilene. During his deposition, he
she worked after the wreck, much less any other evidence of       testified that some patients will have their pain return but that
loss of earning capacity.                                         sixty to seventy percent of patients after a year are pain free
                                                                  or continue to have reduced symptoms.
The record does not reflect how the jury arrived at $10,000 in
future loss of earning capacity. McLain acknowledged that,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Mid-Century Ins. Co. Of Texas v. McLain, Not Reported in S.W.3d (2010)


To sustain an award of future medical expenses, the plaintiff
must present evidence to establish that, in all reasonable
probability, future medical care will be required and the
                                                                                   Improper Jury Argument
reasonable cost of that care. See Rosenboom Mach. & Tool,
Inc. v. Machala, 995 S.W.2d 817, 828 (Tex.App.-Houston            *7 In its fourth issue, Mid-Century argues that counsel
[1st Dist.] 1999, pet. denied). The reasonable value of future   for McLain engaged in improper jury argument. To obtain
medical expenses may be established by evidence of the           reversal of a judgment on the basis of improper jury argument,
reasonable value of past medical expenses of a similar           Mid-Century must prove (1) an error (2) that was not invited
nature. See City of Rosenberg v. Renken, 616 S.W.2d 292,         or provoked; (3) was preserved at trial by a proper objection,
293 (Tex.Civ.App.Houston [14th Dist.] 1981, no writ). The        motion to instruct, or motion for mistrial; and (4) was
preferred method of establishing future medical expenses is      not curable by an instruction, a prompt withdrawal of the
through expert testimony, but such testimony is not required.    statement, or a reprimand by the trial court. Standard Fire Ins.
Nat'l Freight, Inc. v. Snyder, 191 S.W.3d 416, 426-27            Co. v. Reese, 584 S.W.2d 835, 839 (Tex.1979). Our review of
(Tex.App.-Eastland 2006, no pet.).                               an improper jury argument claim must cover the entire case,
                                                                 beginning with voir dire and ending with closing argument.
Dr. Munton did not address whether in all probability McLain     Id. at 840. The complainant must show that the probability
will need future medical care, the type of care that would be    that the improper argument caused harm is greater than the
required, and the reasonable cost of that care in the future.    probability that the verdict was grounded on the evidence. Id.
As to future treatment, Dr. Munton stated that McLain might      at 840.
develop conditions that require surgery but that “[i]t would
be unlikely in her case.” He repeated again that he could not    At the pretrial conference, counsel for Mid-Century requested
recommend any kind of surgical procedure, and his opinion        that the trial court explain (or allow him to explain) at the
was there was no need for spine surgery. McLain testified that   outset to the jury the nature of the case and the posture of the
she anticipated having to have the cauterization process again   case. He stated that a brief statement would give the jury the
in the future because the nerves grow back and have to be        context of the case and explain why Morey, the underinsured
cauterized.                                                      driver, was not present and McLain's insurance company was
                                                                 the defendant. The trial court denied this request. However,
According to the medical records, Dr. Munton did see McLain      the court did allow Mid-Century to state during voir dire that
again in January 2007. Dr. Munton wanted to determine the        this case was not about how the claim was handled but was
source of her pain by again performing a medial branch block     about the liability of Morey and the damages that resulted
and having an MRI done, but McLain thought these were            from the accident McLain had with Morey.
unnecessary. They agreed that she would again have another
radio frequency medial branch neurotomy that utilized the        One of the first statements by McLain's attorney to the jury
3 inch radio frequency spinal needle. Subsequent to the          on voir dire was, “We find ourselves in an odd situation
procedure, Dr. Munton noted in February that McLain              in that Mrs. McLain's own insurance company is fighting
appeared to be “doing remarkably well.” But on June 7,           against her.” The court sustained Mid-Century's objection,
2007, McLain again visited Dr. Munton and told him that her      but moments later, McLain's counsel continued, “[E]ven
pain level had increased to level five. Dr. Munton described     though it's against her own insurance company, she has to
her condition as chronic, implying that she might have to        prove and can only recover money.” Then, the following
undergo the procedure again in the future. This confirmed        occurred:
McLain's testimony that she thought her nerves would grow
back and that she would need further treatments in the             [T]his lawsuit has been here for three-and-a-half years. The
future. In 2007, McLain's medical expenses for the treatment       wreck has been-it happened four-and-a-half years ago, and
were approximately $1,200. After reviewing the records of          within the last week they say for the first time it's her fault.
the costs for the injections, office visits with Dr. Munton,       Who thinks that's right? If you do, raise your hand and let's
another possible medial branch block, and physical therapy,        talk about that. Do you think that an insurance company
we cannot say that the jury's finding of $10,000 for future        owes better to their insured than that?
medical expenses was not supported by sufficient evidence.
Mid-Century's third issue is overruled.                            ....



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Mid-Century Ins. Co. Of Texas v. McLain, Not Reported in S.W.3d (2010)


                                                                   opinion of who caused the wreck?” Mid-Century's objection
  VENIREPERSON: Yes.                                               was sustained.

  MR. BURNETT: If they think that her injuries were caused
                                                                   In questioning McLain, her counsel continued in the same
  by something else don't you think within four-and-a-half
                                                                   vein:
  years they ought to bring a doctor, any doctor-
                                                                     When was the first time that you heard this company, your
Counsel for Mid-Century again objected, and the trial court
                                                                     insurance company, say that this wreck was your fault?
sustained the objection. Counsel for McLain continued during
voir dire to allude to the insurance company as being in bad         ....
faith even though this case was solely about the negligence of
Morey and damages caused by her negligence. McLain's bad             You have been telling this company that you were hurt, that
faith claims had been severed into a separate case and were          it wasn't your fault, for four-and-a-half years, right?
not involved in this case.
                                                                   Although it was McLain's burden to establish her lost earning
Questions by the venire panel indicate the effect counsel for      capacity, her counsel did not produce any of her earning
McLain had on the panel. One venireman asked counsel for           records. Instead, he attempted to persuade the jury that it was
Mid-Century, “But what about when the lady-y'all decided           Mid-Century's burden to negate her testimony as to where and
not to pay her, didn't you?” Counsel for Mid-Century               when she worked:
answered, “No,” but counsel for McLain immediately said,
“I object to that. That's not true.” When the venireperson           Q. Is today the first time you have now heard they [Mid-
continued with, “My question is, someone somewhere had               Century] are quarreling with you over your lost earning
already had to resolve the evidence to not pay her; the              capacity?
insurance company,” the court intervened and said, “Well,
                                                                     A. Correct.
that's what the lawsuit is about.” The court's statement was
not helpful. The venireperson may have interpreted the court's       Q. If we had known about that we could have brought
statement to mean that the lawsuit was over whether the              somebody in here with those records, right?
insurance company had in bad faith failed to pay an amount
that it owed, not that it was a lawsuit to determine whether the   The court sustained Mid-Century's objection, but counsel's
insurance company had any obligation at all under the UIM          next questions were:
provision.
                                                                     Q. Your earning records are available and have been
                                                                     available to them for four-and-a-half years, haven't they?
 *8 In opening statement, counsel for McLain continued the
same tactic that he pursued during voir dire:                        A. Yes.
             [T]here aren't any other doctors to                     Q. They could have gone down to Hibbs & Todd, they
             indicate otherwise, and yet here we are                 could have called anybody they wanted to and they would
             on her uninsured underinsured claim                     have give them that information, right?
             with this company and they haven't
             paid a penny.                                         The court again sustained Mid-Century's objection, but
                                                                   counsel continued:
Counsel for Mid-Century again objected, stating that Mid-
Century had no obligation to pay at this point and that                        Q. Has anyone asked you, with this
counsel's statements were prejudicial and had no relevance to                  Defendant, to produce any records up
this case. The court sustained the objection, telling counsel,                 until this moment?
“Do not do that again.” The court instructed the jury to
disregard counsel's statement, but overruled Mid-Century's         The court again sustained Mid-Century's objection that
motion for a mistrial.                                             counsel was misleading the jury with respect to the burden
                                                                   of proof and with respect to the law that the jury would be
McLain's counsel asked the investigating officer, “Did any         guided by in making its decisions.
of these artful questions by this lawyer here change your


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            6
Mid-Century Ins. Co. Of Texas v. McLain, Not Reported in S.W.3d (2010)


It is apparent from the record that counsel for McLain created       not only have to prove shes a liar, they have to prove the
the impression that Mid-Century owed duties that it did not          police officer was a liar. They have to prove Doctor Munton
owe and that the insurance company had acted in bad faith.           was a liar.
Although the court sustained Mid-Century's many objections,
the court's actions had little effect. In closing argument,          ....
counsel for McLain argued:
                                                                     I want you to be able to say you righted a wrong, and that as
  You know now that this insurance company, that these               the standard bearer and setter of this community, this will
  people, paid for this coverage.                                    not be tolerated. I look forward to your verdict.

  ....                                                             Counsel for McLain was well aware that McLain's extra-
                                                                   contractual claims had been severed from this case. He
  No witness, no evidence, all they have is a lawyer that came     points out that the court sustained Mid-Century's objections
  down here armed with a strong desire to deceive you....          throughout the trial. It is obvious from the record, however,
  Does he think-does this company think that out here in           that the court's rulings had no effect on counsel.
  Abilene we're all so, I guess, ignorant that we can't read a
  doctor's order ... ?                                             In Living Centers of Texas Inc. v. Penalver, 256 S.W.3d
                                                                   678, 680-81 (Tex.2008), the supreme court stated that the
   *9 [Y]ou don't have to get past tab one in the case in
                                                                   complaining party “must show that the argument by its
  the medical records of the very first exhibit to see how
                                                                   nature, degree, and extent constituted such error that an
  untruthful and disingenuous these people's own insurance
                                                                   instruction from the court or retraction of the argument could
  company is.
                                                                   not remove its effects.” Error as to improper jury argument
  ....                                                             must ordinarily be preserved by a timely objection that
                                                                   is overruled. Tex. Employers' Ins. Ass'n v. Haywood, 153
  Now, how is it that they can stand up here and say those         Tex. 242, 266 S.W.2d 856, 858 (Tex.1954). Here, however,
  things and expect you to be misled? ... [T]hey have to           unlike the situation in Penalver, Mid-Century did object, and
  deceive you into believing.                                      its objections were sustained; counsel for McLain simply
                                                                   ignored them.
  ....
                                                                   Unsupported, extreme, and personal attacks on opposing
  We know it's been 1,672 days since this happened. We
                                                                   parties can compromise the basic premise that a trial court
  know it's been 1,672 days where this company could have
                                                                   provides impartial, equal justice. See Standard Fire Ins. Co.
  stepped up to the plate and honored its responsibility, and
                                                                   v. Reese, 584 S.W.2d 835, 840 (Tex.1979). As the supreme
  they have failed entirely to do that.
                                                                   court noted in Penalver, the serious effects of arguments
                                                                   not based on evidence or invited by opposing counsel are
Counsel for Mid-Century objected, and the objections were
                                                                   recognized in our Texas Rules of Civil Procedure. Rule
sustained, as they had been throughout the case. Counsel for
                                                                   269 provides that, during final arguments, “[m]ere personal
McLain continued to imply that the insurance was acting in
                                                                   criticism by counsel upon each other shall be avoided, and
bad faith in his rebuttal argument:
                                                                   when indulged in shall be promptly corrected as a contempt
                                                                   of court.” TEX.R. CIV. P. 269(e).
Do you really think when this insurance company is talking
to people-
                                                                    *10 In this case, counsel's final arguments were made after
  ....                                                             he had consistently emphasized to the jury during the entire
                                                                   trial that McLain's own insurance company had acted in bad
  To this insurance company that means their insured did not       faith. That effect was not cured by the court's instruction
  complain of back pain.                                           during counsel's argument.

  ....
                                                                   Counsel for McLain first argues that Mid-Century invited and
  And when you boil this case down they've got to prove she's      provoked the argument in question because “Mid-Century
  a liar, and they can't do it and it's driving them crazy. They   waited over 3 years until days before trial to contest liability


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
Mid-Century Ins. Co. Of Texas v. McLain, Not Reported in S.W.3d (2010)


or assert that McLain's damages resulted from a preexisting                       without the consent of the insurance
condition and then challenged the truthfulness of McLain on                       company, but the judgment in that
both liability and damages.” Mid-Century had filed a general                      suit will not be “conclusive,” (i.e.
denial at the outset. It did file an amended petition just prior                  liability and damages will have to
to trial. At a hearing on the amended petition, Mid-Century                       be relitigated) in the suit against the
represented to the trial court that its amended petition was                      insurance company. Allstate Ins. Co. v.
only based on testimony already reflected in the record. The                      Hunt, supra.
trial court ruled that it was timely filed. Implicit in its ruling
was a premise that McLain should not have been surprised by           *11 This is still the law. Soliz v. Cofer, No. 03-01-00246-
the amended petition. After reviewing the record, we find that       CV, 2002 WL 821909 (Tex.App.-Austin May 2, 2002, pet.
there was no abuse of discretion in the trial court's ruling.        denied); Gov't Employees Ins. Co. v. Lichte, 792 S.W.2d 546,
                                                                     548 (Tex.App.-El Paso 1990, writ denied).
Counsel for McLain also argues that Mid-Century
disregarded the fiduciary duties it owed to its insured by           Here, the other motorist, Morey, was not involved because
stepping into the shoes of the underinsured motorist, Morey.         she had already settled with McLain. This suit was directly
For this argument, counsel relies on Allstate Insurance Co.          against Mid-Century. Mid-Century was not defending
v. Hunt, 450 S.W.2d 668, 671 (Tex.Civ.App.-Houston [14th             Morey; it was putting McLain to her proof on the issues of
Dist.] 1970), aff'd, 469 S.W.2d 151 (Tex.1971). In Hunt,             liability and damages. This case was only a suit on a contract
the supreme court held that the trial court did not abuse            and similar to automobile, fire, life, theft, accident, wind, and
its discretion in ruling that Allstate could not participate in      workers' compensation insurance cases brought by an insured
defending the underinsured motorist. The court emphasized            against its own insurer over contractual coverage. Counsel's
that Allstate had agreed to be bound by the insured's suit           arguments to the jury were improper and incurable by the time
against the other motorist and had been granted a severance          they were made. Mid-Century's fourth issue is sustained.
of the suit against it. The supreme court reasoned that Allstate
had a primary duty to its insured and that the insurance
company would have conflicting duties if the “uninsured                                        Conclusion
motorist should later decide to bring a cross-action against the
insured motorist, the company would find itself under a duty         To establish her entitlement to underinsured motorist
to defend both antagonists.” 469 S.W.2d at 153.                      benefits, McLain was required to establish the following:
                                                                     (1) that she had UIM coverage; (2) that Morey's negligence
In this case, the facts are quite different from those in Hunt.      caused her damages and the amount of her damages; and (3)
There is no basis in the record for an argument that Mid-            that Morey was, in fact, underinsured. State Farm Mut. Auto.
Century owed a fiduciary duty to McLain in this case. Shortly        Ins. Co. v. Grayson, 983 S.W.2d 769, 770 (Tex.App.-San
after Hunt was decided, the court in Criterion Insurance Co.         Antonio 1998, no pet'n).
v. Brown, 469 S.W.2d 484, 485 (Tex.Civ.App.-Austin 1971,
writ ref'd n.r.e.), pointed out the choices someone in Mclain's      McLain did not introduce her insurance policy and failed to
position has:                                                        carry her burden of proof to establish that she had uninsured/
                                                                     underinsured coverage from Mid-Century. It is basic law that
             [The insured] may sue the insurance                     when one sues on a contract, that person must first establish
             company directly without suing                          that he or she had a contract. McLain also had the burden
             the uninsured motorist. State Farm                      to provide evidence of her settlement with Morey and the
             Mutual Automobile Ins. Co. v.                           limits of Morey's insurance to establish that Morey was an
             Matlock, 462 S.W.2d 277 (Tex.1970).                     underinsured motorist. She failed to provide that evidence.
             When the insured obtains the written                    However, Mid-Century did not contest the coverage and
             consent of the insurance company,                       provided evidence to the trial court that her policy provided
             he may sue the uninsured motorist                       for $20,000 in coverage.
             alone, and that judgment binds the
             insurance company. Allstate Ins. Co.                    McLain failed to provide sufficient proof to justify the jury's
             v. Hunt, supra. The insured may                         award of $80,000 in loss of past earnings capacity and
             proceed against the uninsured motorist


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                8
Mid-Century Ins. Co. Of Texas v. McLain, Not Reported in S.W.3d (2010)



$10,000 in loss of future earnings capacity. Final argument
by counsel for McLain apparently influenced the jury to give
an award far in excess of the evidence.                                                        This Courts Ruling

It is well settled that, in this case, Mid-Century's liability for       The judgment of the trial court is reversed, and the cause is
breach of contract is limited to the amount stated in McLain's           remanded for a new trial.
contract. From the record provided by Mid-Century, it
appears that amount was $20,000. On retrial, the judgment
should not exceed $20,000.


Footnotes
1       Article 5.06-1(5) of the Insurance Code, which was a former version of Section 1952.106, was in effect when McLain filed this
        suit. See former TEX. INS.CODE art. 5.06-1(5) (1981). However, because the legislature made no substantive changes to Article
        5.06-1(5) in enacting Section 1952.106, we refer to the current statute in the body of the opinion.
2       If the insured proceeds against the uninsured motorist without the consent of the insurance company, the judgment in that case will
        not be conclusive; the liability of the uninsured motorist and damages will have to be relitigated in the suit against the insurance
        company providing the uninsured/underinsured coverage. Criterion Ins. Co. v. Brown, 469 S.W.2d 484, 485 (Tex.Civ.App.-Austin,
        writ ref'd n.r.e.).


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      9
                                  PERALTA v. DURHAM                                   Tex.   339
                           Cite as 133 S.W.3d 339 (Tex.App.—Dallas 2004)

to be modified so as to be made final);            Immediately before trial tortfeasor stipu-
McNally v. Guevara, 52 S.W.3d 195, 196             lated to liability. The 191st Judicial Dis-
(Tex.2001) (remanding appeal from inter-           trict Court, Dallas County, Catharina
locutory summary-judgment order to court           Haynes, J., entered judgment for damages
of appeals so court could determine wheth-         on jury’s verdict for motorist, and later
er to abate the appeal to permit the trial         awarded motorist expenses for tortfeasor’s
court to render a final judgment or to             denial of certain requests for admissions
dismiss the appeal for want of jurisdic-           related to liability. Tortfeasor appealed.
tion); Lehmann, 39 S.W.3d at 206 (stating
                                                   Holdings: The Court of Appeals, Morris,
that appellate court can abate the appeal
                                                   J., held that:
to permit the trial court to clarify the
intention of its order).                           (1) motorist was entitled to award of ex-
                                                       penses for tortfeasor’s denial of mat-
             III.   ABATEMENT                          ters later proven, and
   We grant Coastal’s request that this ap-        (2) tortfeasor’s stipulation of liability was
peal be abated for a reasonable period to              judicial admission that satisfied ‘‘proof’’
allow the trial court to clarify whether it            requirement of sanction rule.
intended its August 23, 2002 judgment to           Affirmed.
be an interlocutory judgment and to allow
the trial court a reasonable time to strike
or sever Coastal’s counterclaim, if the trial      1. Appeal and Error O984(1)
court wishes to do so. The clerk of the
                                                        The court’s decision to award ex-
trial court is ordered to prepare and file
                                                   penses, under rule allowing expenses for a
with this court a supplemental clerk’s rec-
                                                   party’s denial of requests for admissions
ord containing any additional orders
signed by the trial court in response to this      that are later proven, is reviewed under an
abatement order. If the trial court does           abuse of discretion standard. Vernon’s
not take action in this regard within thirty       Ann.Texas Rules Civ.Proc., Rules 198.1,
days of the date of this order, then this          215.4(b).
court shall dismiss this appeal for lack of
                                                   2. Pretrial Procedure O485
jurisdiction.
                                                        Motorist was entitled to award of ex-

             ,
                                                   penses after tortfeasor stipulated to liabili-
                                                   ty on eve of trial, under rule authorizing
                                                   sanctions for denial of matters thereafter
                                                   proved, for tortfeasor’s failure to admit
     Lauren PERALTA, Appellant,                    fault in causing car accident in response to
                                                   requests for admissions, even though tort-
                     v.
                                                   feasor claimed right to rely on her general
      Charles DURHAM, Appellee.                    denial and force motorist to prove his case;
          No. 05–03–00934–CV.                      whether tortfeasor failed to maintain prop-
                                                   er lookout, maintain safe distance, and ap-
        Court of Appeals of Texas,
                                                   ply her brakes properly at time of accident
                  Dallas.
                                                   were matters within her knowledge, and
              April 28, 2004.                      tortfeasor made no objection to requests at
Background: Motorist sued alleged tort-            time they were made. Vernon’s Ann.Tex-
feasor for injuries incurred in car accident.      as Rules Civ.Proc., Rules 198.1, 215.4(b).
340   Tex.         133 SOUTH WESTERN REPORTER, 3d SERIES


3. Pretrial Procedure O472                                       OPINION
    The primary purpose of requests for            Opinion by Justice MORRIS.
admission is to simplify trials by eliminat-
                                                    This is an appeal of an award of ex-
ing matters about which there is no real
                                                 penses granted pursuant to rule 215.4(b) of
controversy. Vernon’s Ann.Texas Rules
                                                 the Texas Rules of Civil Procedure. Lau-
Civ.Proc., Rule 198.1.
                                                 ren Peralta contends the trial court abused
4. Evidence O265(9)                              its discretion in granting the award against
                                                 her based on her denial of certain requests
   Pretrial Procedure O485
                                                 for admission because the requests were
     Tortfeasor’s stipulation to liability for   improper and Charles Durham never
car accident on eve of trial was judicial        proved the truth of the matters she de-
admission that satisfied ‘‘proof’’ require-      nied. For the reasons set forth below, we
ment of rule authorizing sanctions for par-      affirm the trial court’s judgment.
ty’s failure to admit matters in discovery
that are proved thereafter; tortfeasor re-                            I.
sponded to motorist’s requests for admis-
                                                    This case arose out of a traffic accident
sions by denying she failed to maintain
                                                 between Lauren Peralta and Charles Dur-
proper lookout, failed to keep a safe dis-
                                                 ham. Durham filed suit against Peralta
tance, and failed to apply her brakes prop-
                                                 claiming she negligently struck his car
erly at time of accident.           Vernon’s
                                                 with her car causing him injuries. In re-
Ann.Texas Rules Civ.Proc., Rules 198.1,
                                                 sponse to the suit, Peralta filed a general
215.4(b).
                                                 denial. Durham sent requests for admis-
5. Evidence O265(7)                              sion under rule 198 of the Texas Rules of
                                                 Civil Procedure asking Peralta to admit,
      Although a judicial admission relieves
                                                 among other things, that she failed to keep
the opposing party of his obligation to
                                                 a proper lookout, failed to maintain a safe
present evidence on the issue, the fact
                                                 distance, and failed to make a proper ap-
admitted is proved for the purposes of
                                                 plication of her brakes. Durham also
trial.
                                                 asked Peralta to admit that she caused the
6. Evidence O265(7)                              accident. Peralta did not object to these
                                                 requests and denied each of the matters.
    A judicial admission must be taken as
true by the court and the jury and the              Immediately before trial, Peralta stipu-
declarant cannot introduce evidence to           lated to liability and the case was tried on
contradict it.                                   the issue of damages alone. The charge of
                                                 the court instructed the jury that Peralta
                                                 was ‘‘negligent on the occasion in question
                                                 and her negligence was a proximate cause
                                                 of the occurrence in question.’’ The jury
  Steven P. Amis, Amis & Bell, Arlington,        awarded Durham $3,365 in damages.
for Appellant.
                                                   On the same day judgment was granted,
  Ray Brooks, Attorney At Law, Garland,          Durham filed a motion to recover expenses
for Appellee.                                    of proof under rule 215.4(b). At the hear-
                                                 ing on the motion, Durham argued Peralta
  Before Justices MORRIS,                        admitted in her deposition that she was
FITZGERALD, and FRANCIS.                         turned around in her seat and was not
                                   PERALTA v. DURHAM                                  Tex.   341
                            Cite as 133 S.W.3d 339 (Tex.App.—Dallas 2004)

looking where she was going when her car            for admission relating to Peralta’s negli-
struck Durham’s. Furthermore, Peralta               gence improperly asked Peralta to admit
ultimately conceded liability just before           she had no defense against Durham’s
trial. According to Durham, Peralta had             claims. Peralta contends that punishing
no good faith basis for denying the re-             her for failing to admit fault in response to
quests for admission relating to liability          the requests for admission denies her the
and he was entitled to recover from her             right to rely on her general denial and
the reasonable expenses he incurred in              make Durham prove his case. We dis-
preparing to prove liability at trial. Peral-       agree.
ta responded she had a right to make                   [3] First, we note that Peralta did not
Durham prove his case and because he                object to the requests at issue or obtain a
was never forced to prove liability at trial,       ruling on the propriety of the requests
he is not entitled to expenses under rule           under rule 193. Accordingly, the alleged
215.4(b). The trial court granted Dur-              objectionable nature of the questions could
ham’s motion and awarded him $1,000 in              not have been grounds for denying relief
expenses. This appeal ensued.                       under rule 215.4(b). See TEX.R. CIV. P.
                                                    215.4(b). In addition, Peralta mischarac-
                     II.
                                                    terizes the relationship between a general
   [1] Under rule 215.4(b) of the Texas             denial and responses to requests for ad-
Rules of Civil Procedure, ‘‘[i]f a party fails      mission. Although a defendant has a right
to admit the genuineness of any document            to force a plaintiff to prove his case, a
or the truth of any matter as requested             defendant also has an obligation to answer
under rule 198 and if the party requesting          requests for admission in good faith to the
the admissions thereafter proves the genu-          extent of the information within her pos-
ineness of the document or the truth of the         session or easily attainable. See TEX.R. CIV.
matter he may apply to the court for an             P. 198.2(b). The primary purpose of re-
order requiring the other party to pay him          quests for admission is to simplify trials by
the reasonable expenses incurred in mak-            eliminating matters about which there is
ing that proof, including reasonable attor-         no real controversy. See Stelly v. Papa-
neys fees.’’ TEX.R. CIV. P. 215.4(b). The           nia, 927 S.W.2d 620, 622 (Tex.1996). In
court must grant the order unless it finds          this case, it was within Peralta’s knowl-
that (1) the request for admission was held         edge when she responded to the requests
objectionable pursuant to rule 193, (2) the         for admission whether she failed to main-
admission sought was of no substantial              tain a proper lookout, maintain a safe dis-
importance, (3) the party failing to make           tance, and apply her brakes properly at
the admission had a reasonable ground to            the time of the accident. By failing to
believe he might prevail on the matter, or          admit to these matters until immediately
(4) there was other good reason for the             before trial, she forced Durham to unnec-
failure to admit. Id. The court’s decision          essarily incur expenses in preparing to
to decision to award expenses is reviewed           prove her negligence at trial. We cannot
under an abuse of discretion standard.              conclude the trial court abused its discre-
See Bodnow Corp. v. City of Hondo, 721              tion in awarding Durham his expenses on
S.W.2d 839, 840 (Tex.1986).                         this basis.
  [2] Peralta first argues the trial court            Peralta next argues that Durham is not
abused its discretion in awarding Durham            entitled to his expenses under rule 215.4(b)
his expenses of proof because the requests          because he never proved her wrongful con-
342      Tex.          133 SOUTH WESTERN REPORTER, 3d SERIES


duct or negligence at trial. It is Peralta’s         on the eve of trial, after discovery has
position that her judicial admission of lia-         been done and expenses incurred by the
bility relieved Durham of his obligation to          opposing party, the purpose of rule
prove the matter so the conditions giving            215.4(b) would be thwarted.
rise to an award of expenses under rule
                                                       Peralta does not dispute she had no
215.4(b) never occurred. We conclude
                                                     good reason to deny her wrongful conduct
Peralta’s reading of rule 215.4(b) is too
                                                     or reasonable ground to believe she would
limited and would defeat the purpose of
                                                     prevail on the issue of her liability.1 We
the rule.
                                                     conclude the trial court did not abuse its
   [4–6] Peralta focuses on the language             discretion in awarding Durham his ex-
of the rule stating that expenses may be             penses of proof under rule 215.4(b). We
awarded if the requesting party proves the           affirm the trial court’s judgment.
truth of a matter previously denied in re-
sponse to a request for admission. See
TEX.R. CIV. P. 215.4(b). Although a judicial
admission relieves the opposing party of                          ,
his obligation to present evidence on the
issue, the fact admitted is proved for the
purposes of trial. See Gevinson v. Man-
hattan Const. Co., 449 S.W.2d 458, 466
(Tex.1969). A judicial admission must be              GRANT THORNTON LLP, Appellant,
taken as true by the court and the jury                                   v.
and the declarant cannot introduce evi-
                                                     SUNTRUST BANK, Atlanta, as Trustee
dence to contradict it. See Sherman v.
                                                       for Suntrust Retirement Sunbelt Eq-
Merit Office Portfolio, Ltd., 106 S.W.3d
                                                       uity Fund, and STI Classic Funds, for
135, 140 (Tex.App.-Dallas 2003, pet. de-
                                                       STI Classic Small Cap Growth Stock
nied). Because Peralta’s conduct was
                                                       Fund, Appellees.
proved for purposes of the trial against
her, we conclude rule 215.4(b) is applicable                   No. 05–03–00302–CV.
to her conduct.
                                                            Court of Appeals of Texas,
   As stated above, requests for admission                            Dallas.
are intended to simplify litigation and re-
duce costs by eliminating the need to dis-                         April 29, 2004.
cover and present evidence about matters             Background: Bank, as trustee for retire-
over which there is no legitimate dispute.           ment fund, and mutual fund brought action
Id. Rule 215.4(b) furthers this goal by              against public accounting firm for material
permitting the trial court to sanction par-          misstatements and omissions of material
ties who, in response to proper requests,            facts in registration statement for initial
fail to admit material facts without good            public offering. The 191st Judicial District
reason or reasonable ground to believe               Court, Dallas County, Catharina Haynes,
they might prevail on the matter. See                J., certified action as a class action, and
TEX.R. CIV. P. 215.4(b). If a party could            accounting firm appealed. The Court of
avoid the sanction by admitting the matter           Appeals reversed and remanded for fur-

1.     Indeed, Peralta cannot dispute these issues    cannot review the trial court’s findings. See
     as she failed to file a complete record with     Christiansen v. Prezelski, 782 S.W.2d 842, 843
     this court and, absent a complete record, we     (Tex.1990).
                   S & I MANAGEMENT, INC. v. SUNGJU CHOI                            Tex.   849
                          Cite as 331 S.W.3d 849 (Tex.App.—Dallas 2011)

                                                  2. Judgment O185(5)
         S & I MANAGEMENT,                             A matter is conclusively established
            INC., Appellant,                      on motion for summary judgment if ordi-
                     v.                           nary minds cannot differ as to the conclu-
                                                  sion to be drawn from the evidence.
  SUNGJU CHOI a/k/a Sung Ju Choi
   a/k/a Sam Choi and The Michael                 3. Judgment O185(2)
        Group, L.L.C., Appellees.                      After the movants have established a
                                                  right to summary judgment, the burden
          No. 05–09–00948–CV.
                                                  shifts to the nonmovants to present evi-
       Court of Appeals of Texas,                 dence creating a fact issue.
                 Dallas.
                                                  4. Appeal and Error O854(1)
              Jan. 25, 2011.                           When a successful summary judgment
  Rehearing Overruled March 2, 2011.              movant presents both traditional and no-
                                                  evidence grounds, the Court of Appeals
Background: Purchaser of gas station
                                                  must affirm it if it can be sustained under
sued real estate agent and real estate bro-
                                                  either standard.
kerage for whom agent worked for fraud,
violations of the Deceptive Trade Prac-           5. Labor and Employment O3027, 3045
tices–Consumer Protection Act (DTPA),                Principal and Agent O159(1)
negligent misrepresentation, breach of fi-              Under the doctrine of respondeat su-
duciary duty, and conspiracy. The 162nd           perior, an employer is vicariously liable for
District Court, Dallas County, Lorraine           the negligence of an agent or employee
Raggio, J., granted defendants summary            acting within the scope of his agency or
judgment. Purchaser appealed.                     employment even though the principal or
Holdings: The Court of Appeals, Myers,            employer has not personally committed a
J., held that:                                    wrong; the justification for imposing this
(1) independent contractor agreement was          liability is that the principal or employer
    properly admitted in traditional motion       has the right to control the means and
    for summary judgment, and                     methods of the agent or employee’s work.
(2) purchaser’s affidavit was some evi-           6. Labor and Employment O3125
    dence that agent’s alleged conduct was
                                                       An employer is not vicariously liable
    a substantial factor in bringing about
                                                  for the torts of an independent contractor
    purchaser’s injury.
                                                  it hires because an independent contractor
Affirmed in part, reversed in part, and           has sole control over the means and meth-
remanded.                                         ods of the work.
                                                  7. Labor and Employment O29
1. Judgment O185(6)                                    A contract between the parties that
     Defendants who move for summary              establishes an independent contractor rela-
judgment must show the plaintiffs have no         tionship is determinative of the parties’
cause of action and may meet this burden          relationship in the absence of extrinsic evi-
by either (1) disproving at least one essen-      dence indicating that the contract was a
tial element of each theory of recovery or        ‘‘sham or cloak’’ designed to conceal the
(2) conclusively proving all elements of an       true legal relationship of the parties or
affirmative defense.                              that despite the contract terms, the true
850   Tex.        331 SOUTH WESTERN REPORTER, 3d SERIES


agreement vested the right of control in       11. Judgment O185.1(8)
the principal.                                     Trial court’s ruling on real estate
                                               agent’s objections to purchaser’s summary
8. Judgment O185(4), 185.3(7)
                                               judgment affidavit was ineffective in negli-
     Independent contractor agreement at-      gence action, where trial court did not
tached to affidavit of real estate broker-     enter a written ruling on the objections.
age’s vice president did not have to satisfy
statute of frauds to be considered on bro-     12. Judgment O185.1(8), 189
kerage’s motion for summary judgment in            For a ruling on an objection to sum-
action against brokerage based on vicari-      mary judgment evidence to be effective,
ous liability for alleged negligence of real   the ruling must be reduced to writing,
estate agent; brokerage was not seeking to     signed by the trial court, and entered of
enforce agreement against agent or any-        record.
one else, but attached the agreement to
show terms of the agreement indicating         13. Appeal and Error O242(4)
that it did not have sole control over man-          Objections to summary judgment affi-
ner and means used by agent to sell real       davit, based on assertions that affidavit
estate, as required for finding it vicarious   contained hearsay and self-serving state-
liable under doctrine of respondeat superi-    ments of an interested witness that were
or.                                            not clear, positive, direct, credible, or free
                                               from contradiction, were objections to de-
9. Brokers O7                                  fects of form which could not be raised on
  Labor and Employment O3143                   appeal, where objector failed to obtain
     Statement in independent contractor       written rulings on his objections from the
agreement, that contractor understood          trial court.
that the real estate brokerage was legally
                                               14. Appeal and Error O242(4)
accountable for the activities of the con-
tractor, did not give brokerage sole control       Judgment O185.1(8)
over the manner and means used by con-             Defects in the form of summary judg-
tractor to sell real estate, as required to    ment affidavit must be objected to, the
find brokerage vicariously liable for con-     opposing party must have the opportunity
tractor’s alleged negligence under doctrine    to amend, and the trial court must rule on
of respondeat superior.                        the objection; otherwise, the objection is
                                               waived and the objected-to material is in
10. Judgment O185(5)                           evidence.
     More than a ‘‘scintilla of evidence’’
required to defeat summary judgment mo-        15. Judgment O185.1(8), 189
tion exists when the evidence rises to a           Objections that summary judgment
level that would enable reasonable, fair-      documentary evidence contains hearsay, or
minded persons to differ in their conclu-      that statements of an interested witness
sions; less than a scintilla of evidence ex-   are not clear, positive, direct, credible, and
ists when the evidence is so weak as to do     free from contradiction, are defects of
no more than create a mere surmise or          form.
suspicion of a fact.
                                               16. Appeal and Error O223
     See publication Words and Phrases
   for other judicial constructions and           Objections that statements in a sum-
   definitions.                                mary judgment affidavit are conclusory as-
                        S & I MANAGEMENT, INC. v. SUNGJU CHOI                           Tex.   851
                               Cite as 331 S.W.3d 849 (Tex.App.—Dallas 2011)

sert defects of substance, which may be                company was moving into the vacant gas
raised for the first time on appeal.                   station, and that as a result of purchasing
                                                       the business and with the company having
17. Judgment O185.1(4)
                                                       come, the business lost revenue and with it
     Conclusory statement in summary                   value.
judgment affidavit is one that does not
provide the underlying facts to support the
conclusion, and the statement may be ei-
ther legal or factual in nature.
                                                         William Chu, Jamie J. Lee, The Law
18. Antitrust and Trade Regulation
                                                       Offices of William Chu, Dallas, TX, for
        O138
                                                       Appellant.
     Fraud O25
                                                          Elaine T. Lenahan, Larry Johnson, Dal-
     For     negligent    misrepresentation,
                                                       las, TX, Michael W. Eady, Thompson, Coe,
fraud, and breach of fiduciary duty, the
                                                       Cousins, & Irons, LLP, Austin, TX, for
plaintiff must prove proximate causation,
                                                       Appellees.
but for violations of the Deceptive Trade
Practices–Consumer        Protection     Act            Before Justices MARTIN RICHTER,
(DTPA), the plaintiff must prove produc-               LANG, and MYERS.
ing causation; the components of proxi-
mate cause are cause in fact and foresee-
                                                                           OPINION
ability, but the test for both cause in fact
and producing cause is whether the defen-                 Opinion By Justice MYERS.
dant’s conduct was a substantial factor in                S & I Management, Inc. appeals the
bringing about the injury that would not               summary judgment rendered in favor of
otherwise have occurred. V.T.C.A., Bus.                Sungju Choi a/k/a Sung Ju Choi a/k/a Sam
& C. § 17.50(a).                                       Choi and The Michael Group, L.L.C. Ap-
19. Judgment O185.3(7)                                 pellant brings four issues asserting the
     Purchaser’s affidavit was some evi-               trial court erred in granting appellees’ mo-
dence that real estate agent’s alleged mis-            tions for summary judgment. We affirm
representations concerning business pur-               the trial court’s judgment as to The Mi-
chase site were a substantial factor in                chael Group, we reverse the judgment as
bringing about purchaser’s loss of business            to Choi, and we remand the cause for
revenue that otherwise would not have                  further proceedings.
occurred, precluding no-evidence summary
judgment in action for negligent misrepre-                             BACKGROUND
sentation; purchaser stated that his agent               In 2005, Steven Lee was looking to pur-
represented to him that the vacant gas                 chase a new business for his company,
station would remain vacant, that all                  appellant. He met with Choi, a real estate
agents knew a gas company was moving                   agent or broker,1 who advertised that he
into that space, that he relied on agent’s             worked for The Michael Group real estate
representations, that he would not have                brokerage. Choi directed appellant to a
bought ‘‘the business’’ if he had known the            gas station and store owned by New Chu-

1.     Lee stated in his affidavit that Choi was a       mary judgment indicating Choi was an
     ‘‘broker,’’ but The Michael Group attached a        ‘‘agent.’’
     document to its traditional motion for sum-
852      Tex.         331 SOUTH WESTERN REPORTER, 3d SERIES


dhri Enterprises, Inc., and appellant               Michael Group is vicariously liable under
agreed to buy the businesses. Before ap-            the doctrine of respondeat superior for
pellant purchased the property, Choi and            Choi’s tortious conduct. Appellant sought
Lee were surveying the businesses’ neigh-           actual and exemplary damages as well as
borhood when Lee asked Choi about a                 attorney’s fees. Choi and The Michael
nearby property with a defunct gas sta-             Group filed no-evidence motions for sum-
tion. Choi told Lee that no one would               mary judgment, and The Michael Group
move into that space because the gas sta-           also filed a traditional motion for summary
tion there was decrepit and old. Choi said          judgment. The trial court granted appel-
he would ask Chudhri Iqbal, the owner of            lees’ motions for summary judgment.
New Chudhri Enterprises, about the prop-
erty with the defunct gas station. Later,                     TRADITIONAL SUMMARY
Choi told Lee that no one would move into                           JUDGMENT
that property because the gas tanks were
                                                       In the first issue, appellant contends the
old and leaking. After appellant pur-
                                                    trial court erred in granting The Michael
chased the businesses from New Chudhri
                                                    Group’s traditional motion for summary
Enterprises, Quiktrip opened a gas station
                                                    judgment, which asserted The Michael
on the lot with the old gas station.2 Lee
                                                    Group was not liable as a matter of law
stated in his affidavit that after he bought
                                                    under the doctrine of respondeat superior
the businesses, other brokers told him
                                                    for Choi’s torts.
‘‘that all the brokers knew about the com-
ing of Quiktrip about the time I purchased             [1–4] The standard for reviewing a tra-
the businesses.’’ He stated he ‘‘never              ditional summary judgment is well estab-
would have purchased the business had               lished. Nixon v. Mr. Prop. Mgmt. Co.,
[he] known that Quiktrip was coming into            690 S.W.2d 546, 548 (Tex.1985); Private
that space.’’ ‘‘As a result of purchasing           Mini Storage Realty, L.P. v. Larry F.
the business and with Quiktrip having               Smith, Inc., 304 S.W.3d 854, 858 (Tex.
come, the business has lost revenue and             App.-Dallas 2010, no pet.). Defendants
with it value.’’ Lee stated he ‘‘had to sell        who move for summary judgment must
one of [the businesses] to keep the other           show the plaintiffs have no cause of action.
afloat.’’                                           Citizens First Nat’l Bank of Tyler v. Cinco
  Appellant sued Choi and The Michael               Explor. Co., 540 S.W.2d 292, 294 (Tex.
Group for fraud, violations of the Texas            1976). Defendants may meet this burden
Deceptive Trade Practices–Consumer Pro-             by either (1) disproving at least one essen-
tection Act (DTPA), negligent misrepre-             tial element of each theory of recovery,
sentation, breach of fiduciary duty, and            Anderson v. Snider, 808 S.W.2d 54, 55
conspiracy with Iqbal and New Chudhri               (Tex.1991), or (2) conclusively proving all
Enterprises.3 Appellant’s causes of action          elements of an affirmative defense. Swil-
against The Michael Group assert that The           ley v. Hughes, 488 S.W.2d 64, 67 (Tex.

2.     Appellees assert in their motions for sum-   3.     Appellant also sued Iqbal and New Chudhri
     mary judgment and in their brief on appeal          Enterprises for a variety of causes of action
     that Quiktrip moved into the vacant gas sta-        related to the sale of the businesses. After the
     tion two years after appellant purchased the        trial court granted appellees’ motions for
     businesses. No evidence in the record sup-          summary judgment, the court severed appel-
     ports this statement.                               lant’s causes of action against appellees, ren-
                                                         dering a final judgment on appellant’s causes
                                                         of action against appellees.
                    S & I MANAGEMENT, INC. v. SUNGJU CHOI                            Tex.   853
                           Cite as 331 S.W.3d 849 (Tex.App.—Dallas 2011)

1972). A matter is conclusively estab-               [8] The Michael Group attached a form
lished if ordinary minds cannot differ as to       contract to its motion for summary judg-
the conclusion to be drawn from the evi-           ment with an affidavit of its vice-president,
dence. Triton Oil & Gas Corp. v. Marine            Kern Coleman, who testified the document
Contractors & Supply, Inc., 644 S.W.2d             was ‘‘a true and correct copy of the Inde-
443, 446 (Tex.1982). After the movants             pendent Contractor Agreement entered
have established a right to summary judg-          into between [The Michael Group] and
ment, the burden shifts to the nonmovants          Sungju Choi.’’ The Independent Contrac-
to present evidence creating a fact issue.         tor Agreement provided:
Denson v. Dallas County Credit Union,                 The Michael Group, LLC, and
262 S.W.3d 846, 849 (Tex.App.-Dallas 2008,                           (‘‘Contractor’’) TTT hereby
no pet.). When a successful summary judg-             agree as follows:
ment movant presents both traditional and             Contractor agrees to work for Broker as
no-evidence grounds, we must affirm it if it          an INDEPENDENT CONTRACTOR,
can be sustained under either standard.               and not as [an] employee; however,
Flood v. Katz, 294 S.W.3d 756, 762 (Tex.              Contractor understands that Broker is
App.-Dallas 2009, pet. denied)                        legally accountable for the activities of
                                                      the Contractor. All costs and obli-
   [5–7] Under the doctrine of respondeat             gations incurred by Contractor in con-
superior, an employer is vicariously liable           ducting his/her independent business
for the negligence of an agent or employee            shall be paid solely by Contractor, who
acting within the scope of his agency or              will hold Broker harmless from any and
employment even though the principal or               all such costs and obligations. Contrac-
employer has not personally committed a               tor will act independently as to the man-
wrong. Baptist Mem’l Hosp. Sys. v.                    agement of his/her time and efforts, and
Sampson, 969 S.W.2d 945, 947 (Tex.1998).              will be responsible for all of his/her ex-
The justification for imposing this liability         penses, such as industry association,
is that the principal or employer has the             dues, licensing renewals, pagers, cellular
right to control the means and methods of             telephones, etc. as they are incurred.
the agent or employee’s work. Id. An                  TTT
employer is not vicariously liable for the            Contractor understands and agrees that
torts of an independent contractor it hires           because Contractor is an Independent
because an independent contractor has                 Contractor and not an employee of Bro-
sole control over the means and methods               ker, Broker will not withhold any Fed-
of the work. Id. A contract between the               eral or State Income Tax, Social Securi-
parties that establishes an independent               ty (FICA) or Unemployment (FUTA)
contractor relationship is determinative of           taxes from Contractor’s commission
the parties’ relationship in the absence of           paid. Contractor is personally responsi-
extrinsic evidence indicating that the con-           ble for paying any and all Federal and
tract was a ‘‘sham or cloak’’ designed to             State Income, Social Security and other
conceal the true legal relationship of the            taxes, and for maintaining all expense
parties or that despite the contract terms,           records as required by law, and repre-
the true agreement vested the right of                sents to Broker that all such amount
control in the principal. Bell v. VPSI,               will be withheld and paid. Contractor
Inc., 205 S.W.3d 706, 713 (Tex.App.-Fort              shall indemnify and hold Broker harm-
Worth 2006, no pet.).                                 less from any liability or costs thereof.
854   Tex.         331 SOUTH WESTERN REPORTER, 3d SERIES


  Contractor further understands and ac-        doctrine of respondeat superior for Choi’s
  knowledges that Broker provides no            torts depends on whether it had sole con-
  Workman’s Compensation coverage.              trol over the means and methods of Choi’s
  Contractor hereby specifically waives         work. Nothing in the contract, and no
  such coverage and represents to Broker        evidence presented by appellant, purports
  that he/she understands that if Contrac-      to give it that authority. The statement
  tor desires such coverage, Contractor         that ‘‘Contractor understands that Broker
  must personally obtain such coverage.         is legally accountable for the activities of
(Emphasis omitted.) Nothing in the con-         Contractor’’ did not give The Michael
tract gave The Michael Group the right to       Group sole control over the manner and
control the means and methods of Choi’s         means used by Choi to sell real estate.
work.                                              The Independent Contractor Agree-
   Appellant argues that the Agreement          ment, with Coleman’s affidavit, established
was insufficient to establish Choi’s inde-      Choi’s independent-contractor relationship
pendent-contractor status as a matter of        with The Michael Group. Appellant does
law because it does not identify the con-       not assert on appeal that it presented any
tractor and it is not signed by the alleged     evidence controverting this relationship.
contractor. Under the statute of frauds,        See Bell, 205 S.W.3d at 713–14. Accord-
certain contracts are not enforceable un-       ingly, we conclude the trial court did not
less they are in writing and signed by the      err in granting The Michael Group’s tradi-
person against whom enforcement of the          tional motion for summary judgment. We
contract is sought. See TEX. BUS. & COM.        overrule appellant’s first issue. Having
CODE ANN. § 26.01(a)(2) (West 2009).            determined the trial court did not err in
However, The Michael Group was not              granting The Michael Group’s traditional
seeking to enforce the Agreement against        motion for summary judgment, we do not
Choi or anyone else; it attached the            address appellant’s third issue asserting
Agreement to show the terms of the              the trial court erred in granting The Mi-
agreement between it and Choi. Appellant        chael Group’s no-evidence motion for sum-
cites no authority showing the Agreement        mary judgment. Likewise, we do not ad-
was inadmissible or that it had to be           dress appellant’s fourth issue addressing
signed for its terms to be admissible in        appellant’s conspiracy cause of action as it
evidence in a dispute with a third party        relates to The Michael Group.
such as appellant. Coleman testified in his
affidavit that the terms in the Agreement             NO–EVIDENCE SUMMARY
constituted the terms between it and Choi,                  JUDGMENT
and appellant does not explain why Cole-
                                                   [10] In the second issue, appellant as-
man’s testimony, together with the Agree-
                                                serts the trial court erred in granting
ment, did not establish the terms of the
                                                Choi’s no-evidence motion for summary
contract between Choi and The Michael
                                                judgment. We review a no-evidence sum-
Group.
                                                mary judgment under the same legal suffi-
   [9] Appellant also points to the state-      ciency standard used to review a directed
ment in the Agreement that ‘‘Contractor         verdict. See TEX.R. CIV. P. 166a(i); Flood,
understands that Broker is legally ac-          294 S.W.3d at 762. Thus, we must deter-
countable for the activities of Contractor.’’   mine whether the nonmovant produced
However, whether The Michael Group is           more than a scintilla of probative evidence
vicariously liable to third parties under the   to raise a fact issue on the material ques-
                    S & I MANAGEMENT, INC. v. SUNGJU CHOI                            Tex.   855
                           Cite as 331 S.W.3d 849 (Tex.App.—Dallas 2011)

tions presented. See id. When analyzing            na Mktg., 760 S.W.2d 719, 723 (Tex.App.-
a no-evidence summary judgment, we con-            Dallas 1988, no writ); see also Stewart v.
sider all the evidence in the light most           Sanmina Tex. L.P., 156 S.W.3d 198, 206–
favorable to the nonmovant, indulging ev-          07 (Tex.App.-Dallas 2005, no pet.). In this
ery reasonable inference and resolving any         case, the trial court did not enter a written
doubts against the movant. Sudan v. Su-            ruling on Choi’s objections to Lee’s affida-
dan, 199 S.W.3d 291, 292 (Tex.2006) (quot-         vit. We conclude the record does not
ing City of Keller v. Wilson, 168 S.W.3d           show the trial court ruled on Choi’s objec-
802, 823 (Tex.2005)). A no-evidence sum-           tions.
mary judgment is improperly granted if                [13–15] On appeal, Choi argues that
the respondent brings forth more than a            much of Lee’s affidavit should not be con-
scintilla of probative evidence to raise a         sidered as evidence because it contains
genuine issue of material fact. King               hearsay; it is self-serving statements of an
Ranch, Inc. v. Chapman, 118 S.W.3d 742,            interested witness that are not clear, posi-
751 (Tex.2003). ‘‘More than a scintilla of         tive, direct, credible, free from contra-
evidence exists when the evidence rises to         diction, and readily controvertible; and it
a level that would enable reasonable, fair-        is conclusory. Defects in the form of an
minded persons to differ in their conclu-          affidavit must be objected to, the opposing
sions.’’    Id. (quoting Merrell Dow               party must have the opportunity to amend,
Pharms., Inc. v. Havner, 953 S.W.2d 706,           and the trial court must rule on the objec-
711 (Tex.1997)). ‘‘Less than a scintilla of        tion; otherwise, the objection is waived
evidence exists when the evidence is ‘so           and the objected-to material is in evidence.
weak as to do no more than create a mere           See Hogan v. J. Higgins Trucking, Inc.,
surmise or suspicion’ of a fact.’’ Id. (quot-      197 S.W.3d 879, 883 (Tex.App.-Dallas 2006,
ing Kindred v. Con/Chem, Inc., 650 S.W.2d          no pet.); Stewart, 156 S.W.3d at 207. Ob-
61, 63 (Tex.1983)).                                jections that a document contains hearsay
                                                   are defects of form. Stewart, 156 S.W.3d
     Summary Judgment Evidence                     at 207. Likewise, objections that state-
  Appellant attached the affidavit of its          ments of an interested witness are not
president, Lee, to its response to appel-          clear, positive, direct, credible, and free
lees’ motions for summary judgment.                from contradiction are defects of form.
Choi made numerous objections to this              Choctaw Props., L.L.C. v. Aledo I.S.D., 127
affidavit, and he submitted a draft order          S.W.3d 235, 241 (Tex.App.-Waco 2003, no
for the court’s rulings on the objections.         pet.). By failing to obtain written rulings
The trial court did not make a written             on these objections, Choi cannot raise
ruling on the objections. However, in a            these defects on appeal. See DMC Valley
subsequent hearing, Choi requested the             Ranch, L.L.C. v. HPSC, Inc., 315 S.W.3d
court to rule on his objections to Lee’s           898, 905 (Tex.App.-Dallas 2010, no pet.);
affidavit. The court stated, ‘‘Because your        Stewart, 156 S.W.3d at 207.
motions were granted, you can assume
                                                      [16, 17] Objections that statements in
that the objections have been granted.’’
                                                   an affidavit are conclusory assert defects
   [11, 12] For a ruling on an objection to        of substance, which may be raised for the
summary judgment evidence to be effec-             first time on appeal. Brown v. Brown, 145
tive, the ruling must be reduced to writing,       S.W.3d 745, 751 (Tex.App.-Dallas 2004,
signed by the trial court, and entered of          pet. denied). ‘‘A conclusory statement is
record. Utils. Pipeline Co. v. Am. Petrofi-        one that does not provide the underlying
856      Tex.          331 SOUTH WESTERN REPORTER, 3d SERIES


facts to support the conclusion.’’ Id. at              [19] Lee testified in his affidavit that
751 (quoting Choctaw Props., 127 S.W.3d              his broker, Choi, represented to him that
at 242). A conclusory statement may be               the vacant gas station would remain va-
either legal or factual in nature. Choctaw           cant, that all brokers knew Quiktrip was
Props., 127 S.W.3d at 242.                           moving into that space, that he relied on
                                                     Choi’s representations, that appellant
                    Causation                        would not have bought ‘‘the business’’ if he
                                                     had known Quiktrip was moving into the
   [18] Choi’s no-evidence motion for
                                                     vacant gas station, and that ‘‘as a result of
summary judgment asserted appellant had
                                                     purchasing the business and with Quiktrip
no evidence to support the causation ele-
                                                     having come, the business has lost revenue
ment of its causes of action, that is, that
                                                     and with it value.’’ This evidence shows
Choi’s conduct was a proximate cause or
                                                     Choi’s representations about the vacant
producing cause of appellant’s damages.4
                                                     gas station were a substantial factor in
For negligent misrepresentation, fraud,
                                                     appellant’s purchasing the businesses and
and breach of fiduciary duty, the plaintiff
                                                     that he would not have purchased the busi-
must prove proximate causation. Finger
                                                     nesses if Choi had told him Quiktrip would
v. Ray, 326 S.W.3d 285, 291 (Tex.App.-
                                                     be moving into the vacant gas station. As
Houston [1st Dist.] 2010, no pet.) (breach
                                                     Lee’s affidavit demonstrates, if appellant
of fiduciary duty); Employees Retirement
                                                     had not purchased the gas station then it
Sys. of Tex. v. Putnam, LLC, 294 S.W.3d
                                                     would not have suffered the alleged loss of
309, 315 (Tex.App.-Austin 2009, no pet.)
                                                     revenue and value from Quiktrip’s pres-
(fraud; negligent misrepresentation). For
                                                     ence. We conclude Lee’s testimony consti-
violations of the DTPA, the plaintiff must
                                                     tutes some evidence of the causation ele-
prove producing causation. TEX. BUS. &
                                                     ment of appellant’s causes of action.
COM.CODE ANN. § 17.50(a) (West Supp.
2010); Prudential Ins. Co. of Am. v. Jef-              We conclude the trial court erred in
ferson Assocs., Ltd., 896 S.W.2d 156, 161            granting Choi’s no-evidence motion for
(Tex.1995). The components of proximate              summary judgment, and we sustain appel-
cause are cause in fact and foreseeability.          lant’s second issue.
W. Invs., Inc. v. Urena, 162 S.W.3d 547,
551 (Tex.2005). The test for both cause in                           Conspiracy
fact and producing cause is whether the                 In the fourth issue, appellant contends
defendant’s conduct was a substantial fac-           the trial court erred in granting the no-
tor in bringing about the injury that would          evidence motion for summary judgment
not otherwise have occurred. Ford Motor              asserting appellant had no evidence to sup-
Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex.              port its conspiracy allegations. Appellant
2007) (producing cause); W. Invs., Inc.,             alleged that Choi and Iqbal agreed to com-
162 S.W.3d at 551 (cause in fact). Choi              mit the acts constituting the torts appel-
asserted appellant had no evidence that his          lant alleged. Choi asserted in his motion
conduct was a substantial factor in bring-           for summary judgment that if appellant
ing about appellant’s injury that otherwise          had no evidence to support its tort claims,
would not have occurred.                             then it had no evidence to support the

4.     Choi did not move for summary judgment         do not consider whether Lee’s affidavit con-
     on the ground that appellant had no evidence     tained any evidence of any element other than
     of any of the other elements of the causes of    causation.
     action other than causation. Accordingly, we
                                   MERRITT v. DAVIS                                  Tex.   857
                          Cite as 331 S.W.3d 857 (Tex.App.—Dallas 2011)

conspiracy claim. Because we have con-                                OPINION
cluded appellant presented some evidence
on the only element of appellant’s causes            Opinion By Chief Justice WRIGHT.
of action that Choi challenged, we conclude          Before the Court is appellant Larry
the trial court erred in granting Choi’s          Smith’s motion to dismiss the appeal. Ap-
motion for summary judgment on appel-             pellant filed an interlocutory appeal from
lant’s conspiracy cause of action. We sus-        the trial court’s order denying his motion
tain appellant’s fourth issue as to Choi.         to dismiss for failure of the appellees to
                                                  attach a certificate of merit to their peti-
             CONCLUSION                           tion against a professional engineer. See
  We affirm the trial court’s summary             TEX. CIV. PRAC. & REM.CODE ANN.
judgment in favor of The Michael Group,           § 150.002(a) & (f) (West Supp. 2010). In
we reverse the trial court’s summary judg-        his motion, appellant explains that the trial
ment in favor of Choi, and we remand the          court reconsidered its ruling and on Janu-
cause to the trial court for further pro-         ary 11, 2011, signed an order dismissing
ceedings.                                         the appellees’ claims against him. Accord-
                                                  ingly, appellant asks that this appeal be
                                                  dismissed.

            ,                                       We grant appellant’s motion and dismiss
                                                  the appeal. See TEX.R.APP. P. 42.1(a)(1).


                    1

       Larry SMITH, Appellant,
                                                                  ,
                    v.
       Stephen JONES and Beth
           Jones, Appellees.                                              2

          No. 05–11–00006–CV.                            Lowell MERRITT, Appellant,

       Court of Appeals of Texas,                                         v.
                 Dallas.                                    Robert DAVIS, Appellee.
              Jan. 25, 2011.                                   No. 05–09–01231–CV.
   On Appeal from the 417th Judicial Dis-                  Court of Appeals of Texas,
trict Court, Collin County, Texas, Trial                             Dallas.
Court Cause No. 417–00618–2009, Cynthia
McCrann, Judge.                                                     Jan. 27, 2011.

  Anthony A. Petrocchi, Weil & Petrocchi,             Rehearing Overruled Feb. 23, 2011.
P.C., Dallas, TX, for Appellant.                  Background: Plaintiff brought action
  William Todd Albin, Albin Harrison              against opposing party’s attorney in under-
Roach, Plano, TX, for Appellee.                   lying lawsuit alleging that attorney filed
                                                  fraudulent lien arising from sanctions im-
  Before Chief Justice WRIGHT and                 posed in underlying suit. The 380th Judi-
Justices O’NEILL and LANG–MIERS.                  cial District Court, Collin County, Suzanne
                  STATE FARM MUT. AUTO. INS. CO. v. GRAYSON                             Tex.   769
                           Cite as 983 S.W.2d 769 (Tex.App.—San Antonio 1998)
                                                     3. Insurance O2782, 2787
STATE FARM MUTUAL AUTOMOBILE                              To establish entitlement to underinsured
  INSURANCE COMPANY, Appellant,                      motorist benefits, insured was required to
                      v.                             establish other driver’s negligence, amount of
                                                     her damages, and that other driver was, in
      Patricia GRAYSON, Appellee.                    fact, underinsured.
            No. 04–98–00137–CV.

         Court of Appeals of Texas,                    Alex M. Miller, Robert A. Allen, Allen,
                San Antonio.                         Stein, Powers, Durbin & Hunnicutt, P.C.,
                                                     San Antonio, for Appellant.
                Oct. 28, 1998.
                                                       Paul D. Taylor, Bart L. Brzozowski, Law
     Rehearing Overruled Dec. 8, 1998.
                                                     Offices of Bart L. Brzozowski, San Antonio,
                                                     for Appellee.
     Insured filed action against insurer for
                                                       RICKHOFF, STONE, and GREEN,
failure to pay underinsured motorist benefits.
                                                     Justices.
The 288th Judicial District Court, Bexar
County, Carlos C. Cadena, Visiting Judge
                                                                          OPINION
Presiding, entered take-nothing judgment
against insured but taxed court costs against           RICKHOFF, Justice.
insurer. Insurer appealed. The Court of Ap-             State Farm Mutual Automobile Insurance
peals, Rickhoff, J., held that insured’s recov-      Company appeals from a take-nothing judg-
ery of settlement from other driver’s insurer        ment rendered against Patricia Grayson. In
for amount greater than her damages pre-             its sole issue, State Farm argues that the
cluded her success on merits of her claim            trial court erred by assessing costs against it
against her insurer for underinsured motor-          because it prevailed on Grayson’s cause of
ist benefits and thus her entitlement to re-         action for underinsured motorist benefits.
covery of court costs as successful party.           We agree with State Farm’s contention. We
    Affirmed as modified.                            therefore modify the judgment to assess
                                                     costs against Grayson.

1. Costs O32(2)                                         FACTUAL    AND   PROCEDURAL BACKGROUND
     ‘‘Successful party’’ entitled by rule to           Grayson sued State Farm, claiming she
recover costs of court is one who obtains a          sustained injuries in a car accident caused by
judgment vindicating a civil claim of right.         the negligence of an underinsured motorist,
Vernon’s Ann.Texas Rules Civ.Proc., Rule             Jerome Richard Perales. She alleged that
131.                                                 on the date of the accident, she had underin-
     See publication Words and Phrases               sured motorist coverage under a policy with
   for other judicial constructions and def-
   initions.                                         State Farm, but that State Farm had refused
                                                     to compensate her pursuant to the policy.
2. Insurance O3585                                   Grayson and State Farm stipulated that
     Insured was not successful on merits of         State Farm was entitled to a credit of $20,-
her claim against insurer for breach of con-         000, the amount that Grayson had already
tractual duty to provide underinsured motor-         obtained in settlement from Perales’s insur-
ist benefits, and thus was not entitled to           er. Three special issues were submitted to
recovery of her court costs, even though she         the jury: 1) whether the negligence of Gray-
established other driver’s negligence was sole       son or Perales caused the accident; 2) what
cause of accident, where insured did not dis-        percentage of negligence was attributable to
pute that she had already received settle-           Grayson and Perales; and 3) what sum of
ment from other driver’s insurer for amount          money would compensate Grayson for her
greater than her damages.            Vernon’s        injuries. The jury determined that the acci-
Ann.Texas Rules Civ.Proc., Rule 131.                 dent was 100% attributable to Perales’s neg-
770   Tex.          983 SOUTH WESTERN REPORTER, 2d SERIES

ligence and that Grayson’s damages were           was required to establish Perales’s negli-
$6,550. Because the parties had stipulated        gence and the amount of her damages. See
to the $20,000 credit, the court rendered a       Essman v. General Accident Ins. Co., 961
take-nothing judgment against Grayson.            S.W.2d 572, 573 (Tex.App.—San Antonio
However, the court taxed costs against State      1997, no pet.). Second, she was required to
Farm.                                             establish that Perales was, in fact, underin-
                                                  sured. Cf. State Farm Mut. Auto. Ins. Co. v.
                 DISCUSSION                       Matlock, 462 S.W.2d 277, 278–79 (Tex.1970)
  [1] Rule 131 of the Texas Rules of Civil        (plaintiff in uninsured motorist case has bur-
Procedure provides that a ‘‘successful party’’    den of proving tortfeasor was uninsured).
shall recover costs of court. A successful        Grayson satisfied the first requirement by
party under this rule is one who obtains a        convincing the jury that Perales’s negligence
judgment vindicating a civil claim of right.      caused her damages in the amount of $6,550.
See Scholl v. Home Owners Warranty Corp.,         Grayson does not dispute, however, that she
810 S.W.2d 464, 468 (Tex.App.—San Antonio         received a $20,000 settlement from Perales’s
1991, no writ). State Farm asserts that           insurer. Since her damages were less than
Grayson’s claim for underinsurance benefits       this amount, Perales was not underinsured.
was not vindicated; instead, a take-nothing       See Stracener v. United Servs. Auto. Ass’n,
judgment was rendered on that claim. It           777 S.W.2d 378, 380 (Tex.1989) (‘‘[A] negli-
therefore asserts that the trial court should     gent party is underinsured whenever the
have taxed costs against Grayson. See Den-        available proceeds of his liability insurance
                                                  are insufficient to compensate for the injured
ney v. Texas Employers Ins. Ass’n, 780
                                                  party’s actual damages.’’).
S.W.2d 412, 413 (Tex.App.—Texarkana 1989,
no writ) (‘‘The party in whose favor a take-        In Perez, the plaintiff sued a premises
nothing judgment is entered is the prevailing     owner for negligence. A take-nothing judg-
party.’’).                                        ment was rendered against the plaintiff be-
                                                  cause a second defendant had settled with
   [2] Characterizing this case as a personal     the plaintiff in an amount greater than the
injury action, Grayson counters that she was      total damages assessed against the premises
successful on the merits because the jury         owner. Nevertheless, the trial court as-
found that Perales’s negligence was the sole      sessed costs against the premises owner.
cause of the accident. She relies on Perez v.     See Perez, 694 S.W.2d at 143. The appellate
Baker Packers, 694 S.W.2d 138, 143 (Tex.          court upheld the assessment of costs. See
App.—Houston [14th Dist.] 1985, writ ref’d        id. It is apparent that the plaintiff in Perez
n.r.e.), in which the court held that ‘‘the       proved his cause of action against the defen-
determination of a successful party under         dant. Thus, he succeeded ‘‘on the merits,’’
rule 131 is to be based upon success upon the     even though he was not entitled to recover
merits, not upon damages.’’ We disagree           damages from the defendant after the appli-
with Grayson’s characterization of this case      cation of the offset. See id. As explained
and with her assertion that Perez is on point.    above, however, Grayson was not successful
  Although Grayson’s petition alleged that        on the merits because Perales was not under-
her injuries were caused by Perales’s negli-      insured.
gence, and State Farm denied this allegation         Since State Farm, rather than Grayson,
and claimed that Grayson was contributorily       was the successful party, the trial court erred
negligent, Grayson’s asserted basis for recov-    by taxing costs against State Farm. We
ering from State Farm was its contractual         therefore modify the judgment to provide
duty to provide her underinsured motorist         that costs are taxed against Grayson. As
benefits. She alleged that State Farm re-         modified, the judgment of the trial court is
fused to pay these benefits ‘‘as it is contrac-   affirmed.
tually required to do.’’
  [3] To establish her entitlement to the
underinsured motorist benefits, Grayson was                     ,
required to establish two things. First, she
                  STATE FARM MUT. AUTO. INS. CO. v. NORRIS                         Tex.   819
                               Cite as 216 S.W.3d 819 (Tex. 2006)

  Because the contract did not require           take-nothing judgment. Insured appealed.
Trinity to pay UIM benefits before Premi-        The Waco Court of Appeals, Vance, J., 217
er’s negligence and underinsured status          S.W.3d 1, 2004 WL 811722, reversed and
were determined, Brainard did not present        remanded. Review was granted.
a contract claim before the trial court ren-     Holdings: The Supreme Court, Jefferson,
dered its judgment, and the court of ap-         C.J., held that:
peals correctly concluded that Brainard is       (1) prejudgment interest could not be cal-
not entitled to recover attorney’s fees un-          culated without payment dates for lia-
der Chapter 38.                                      bility coverage proceeds and personal
                                                     injury protection (PIP) benefits;
                     V
                                                 (2) as a matter of first impression, insured
               Conclusion                            released claim for prejudgment inter-
                                                     est on difference between liability cov-
  We reverse the portion of the court of
                                                     erage limits and tort settlement;
appeals’ judgment that denied Brainard
prejudgment interest, affirm the portion         (3) UIM carrier’s credits reduced princi-
that denied attorney’s fees, and remand              pal, if payment was made before pre-
this case to the trial court to calculate            judgment interest began to accrue, and
prejudgment interest consistent with this            reduced interest, if payment was made
opinion. TEX.R.APP. P. 60.2(a), (d).                 after interest began to accrue; and
                                                 (4) insured was not entitled to attorney
  Justice O’NEILL and Justice                        fees after take-nothing judgment in fa-
JOHNSON did not participate in the                   vor of carrier, disapproving Allstate
decision.                                            Insurance Company v. Lincoln, 976
                                                     S.W.2d 873.
                                                 Reversed and remanded.
             ,
                                                 1. Interest O56
                                                      The declining principal formula is
                                                 used to calculate prejudgment interest on
 STATE FARM MUTUAL AUTOMO-                       underinsured motorist (UIM) benefits;
    BILE INSURANCE COMPA-                        thus, the trial court considers the date on
          NY, Petitioner,                        which the insured received each payment
                                                 and cannot calculate prejudgment interest
                     v.
                                                 until those dates are established.
   Jimmie R. NORRIS, Respondent.
                                                 2. Insurance O2793(1), 2803
               No. 04–0514.
                                                     Interest O26
        Supreme Court of Texas.                       When automobile accident victim set-
                                                 tled tort claim for less than liability cover-
          Argued April 14, 2005.
                                                 age limits and released tortfeasor, he also
          Decided Dec. 22, 2006.                 released any prejudgment interest in the
Background: Insured brought action to            difference between the policy limits and
recover underinsured motorist (UIM) ben-         the settlement amount; thus, the victim
efits. The 87th District Court, Limestone        could recover from his underinsured mo-
County, Sam B. Bournias, J., entered a           torist (UIM) carrier prejudgment interest
820   Tex.        216 SOUTH WESTERN REPORTER, 3d SERIES


only on the settlement amount plus the         tablishing the liability and underinsured
amount of judgment in excess of the liabili-   status of the other motorist. V.T.C.A.,
ty coverage limits.                            Civil    Practice  &     Remedies   Code
                                               § 38.002(2, 3).
3. Interest O39(2.35)
     Prejudgment interest began to accrue
on claim for underinsured motorist (UIM)
benefits 180 days after UIM carrier re-
ceived written notice of accident.                Trenton Colby Hood, Naman Howell
V.T.C.A., Finance Code § 304.104.              Smith & Lee, and Michael L. Scanes,
                                               Scanes, Routh & James, Waco, for Peti-
4. Insurance O2806
                                               tioner.
     Automobile accident victim’s settle-
ment with tortfeasor’s liability insurer for    Amy C. Thomas, The Law Offices of
less than policy limits entitled underin-      Amy Thomas, Mexia, for Respondent.
sured motorist (UIM) carrier to credit
equal to liability coverage limits.              Chief Justice JEFFERSON delivered
                                               the opinion of the Court.
5. Insurance O2806
     Underinsured motorist (UIM) carri-           An underinsured motorist (UIM) policy
er’s payment of personal injury protection     allows an insured to recover the difference
(PIP) benefits to insured entitled carrier     between the negligent driver’s insurance
to credit in than amount.                      policy limit and the full amount of dam-
                                               ages, including prejudgment interest, de-
6. Payment O42                                 termined at trial. The trial court held that
     Underinsured motorist (UIM) carri-        the insured was not entitled to prejudg-
er’s credits for payments before prejudg-      ment interest under his UIM policy be-
ment interest begins to accrue will reduce     cause the insurer had already paid benefits
the principal owed by carrier; thereafter,     that exceeded the actual damages found by
each credit will apply first to the accrued    the jury. Additionally, the trial court re-
prejudgment interest and second to the         fused to award attorney’s fees to the in-
remaining principal.                           sured. The court of appeals reversed on
                                               both issues. In accordance with our Brai-
7. Insurance O3585
                                               nard opinion, we hold that the insured is
     Insured was not entitled to attorney
                                               entitled to prejudgment interest but not
fees after take-nothing judgment in favor
                                               attorney’s fees.
of underinsured motorist (UIM) carrier; no
just amount was owed by carrier; disap-
proving Allstate Insurance Company v.                               I
Lincoln, 976 S.W.2d 873. V.T.C.A., Civil                      Background
Practice & Remedies Code § 38.002(2, 3).
                                                 Jimmie R. Norris was injured during a
8. Insurance O3585                             car accident with Allen Johnston on De-
     An insured may recover attorney fees      cember 8, 1997. Norris sued Johnston on
for an underinsured motorist (UIM) carri-      March 29, 1999, and subsequently settled
er’s failure to pay just amount owed within    with Johnston for $40,000 ($10,000 less
thirty days only if the carrier does not       than Johnston’s policy limit). The record
tender the UIM benefits within thirty days     does not reflect the date of the settlement.
after the trial court signs a judgment es-     On the same day that he dismissed his
                       STATE FARM MUT. AUTO. INS. CO. v. NORRIS                           Tex.   821
                                      Cite as 216 S.W.3d 819 (Tex. 2006)

claims against Johnston, Norris added                   ages award before calculating prejudgment
State Farm as a defendant, seeking to                   interest, leaving no principal on which pre-
recover benefits under his UIM policy.                  judgment interest can accrue.
Although State Farm paid Norris $5,000 in
                                                           [1] We apply the ‘‘declining principal’’
personal injury protection (PIP) benefits,
                                                        formula to calculate prejudgment interest
it never offered to settle Norris’s UIM
                                                        in a UIM case. Brainard v. Trinity Uni-
claim.
                                                        versal Insurance Co., 216 S.W.3d 809, 816
   A jury found that: (1) Johnston’s negli-             (Tex.2006). Under this approach, the trial
gence caused the accident; (2) Norris suf-              court considers the date on which the in-
fered only past damages in the amount of                sured received each payment. Id. at *3.
$51,200; and (3) Norris’s attorney’s fees               As Chief Justice Gray correctly observed,
were $11,500 for trial, $5,000 for appeal to            however, the record in this case does not
the court of appeals, and $7,500 for appeal             reflect the dates of either the PIP or the
to this Court. The trial court applied a                settlement payments. 2004 WL 811722, at
$55,000 credit (the sum of Johnston’s poli-             *3 (Gray, C.J., dissenting). Because pre-
cy limit and the PIP benefits already paid              judgment interest cannot be calculated un-
to Norris) and signed a take-nothing judg-              til those dates are established,1 we remand
ment in State Farm’s favor, finding that                this case to the trial court for that pur-
Norris was not entitled to attorney’s fees              pose. TEX.R.APP. P. 60.2(f), 60.3.
or prejudgment interest. Reversing the
trial court’s judgment, the court of appeals                [2] This case presents an additional is-
held that Norris was entitled to both pre-              sue that Brainard does not answer. Nor-
judgment interest and attorney’s fees.                  ris settled with Johnston for $40,000,
217 S.W.3d 2, 2004 WL 811722, at *1. We                 which is $10,000 less than Johnston’s poli-
hold, contrary to the court of appeals, that:           cy limit of $50,000. Norris argues he is
(1) Norris is entitled to prejudgment inter-            entitled to prejudgment interest on the
est calculated by the declining principal               entire $50,000 amount because, based on
formula; and (2) Norris is not entitled to              the jury’s verdict, he would have been
attorney’s fees under Chapter 38 of the                 ‘‘legally entitled to recover’’ more than
Civil Practice and Remedies Code.                       that amount from the tortfeasor. We dis-
                                                        agree. UIM policies are intended to com-
                          II                            pensate injured parties ‘‘up to the limit
                                                        specified in the policy, reduced by the
              Prejudgment Interest                      amount recovered or recoverable from the
  Norris argues that prejudgment interest               insurer of the underinsured motor vehi-
is covered under his UIM policy and                     cle.’’ TEX. INS.CODE art. 5.06–1(5) (empha-
should be calculated on the full amount of              sis added). When Norris settled and re-
damages before deducting State Farm’s                   leased his claims against Johnston, he also
PIP and settlement credits. State Farm                  released any interest in the difference be-
disputes that it owes prejudgment interest              tween Johnston’s policy limit and the set-
at all. According to State Farm, the                    tlement amount. The purpose of prejudg-
$55,000 in PIP and settlement credits                   ment interest is to compensate a claimant
should be deducted from the $51,200 dam-                for the lost use of money due as damages

1.     In Battaglia v. Alexander, we recognized            more and no less, the timing of settlement
     that ‘‘[i]n order for interest to actually com-       payments must be taken into account.’’ 177
     pensate for the lost time value of money, no          S.W.3d 893, 907 (Tex.2005).
822     Tex.         216 SOUTH WESTERN REPORTER, 3d SERIES


during the lapse of time between the ac-            prejudgment interest remaining after the
crual of the claim and the date of the              credits are applied.
judgment. Battaglia, 177 S.W.3d at 907.
Because Norris has not lost use of that
                                                                          IV
$10,000, having released any entitlement to
it, he can receive prejudgment interest
                                                                  Attorney’s Fees
only on the amount of the settlement ($40,-
000) plus the amount that exceeds John-                [7] Norris argues that he is entitled to
ston’s policy limits ($1,200).                      attorney’s fees under Chapter 38 of the
                                                    Civil Practice and Remedies Code. The
                       III                          trial court denied Norris those fees, not-
     Calculating Prejudgment Interest               withstanding the jury’s verdict. The court
   [3] Prejudgment interest begins to ac-           of appeals reversed and awarded attor-
crue on the earlier of: (1) 180 days after          ney’s fees, citing its opinion in Allstate
the date the defendant receives written             Insurance Company v. Lincoln, 976
notice of a claim; or (2) the date suit is          S.W.2d 873 (Tex.App.-Waco 1998, no pet.).
filed. TEX. FIN.CODE § 304.104; Johnson             We disapprove of Allstate Insurance Com-
& Higgins of Tex., Inc. v. Kenneco Ener-            pany v. Lincoln to the extent it is inconsis-
gy, Inc., 962 S.W.2d 507, 529 (Tex.1998).           tent with our decision in Brainard, and we
Norris asserts that prejudgment interest            hold that State Farm is entitled to a take-
began to accrue 180 days after the acci-            nothing judgment with respect to attor-
dent. The record does not indicate, how-            ney’s fees.
ever, that State Farm had written notice
of the accident on the day it occurred,                [8] An insured may recover attorney’s
December 8, 1997. January 21, 1998, is              fees under Chapter 38 only if the insurer
the earliest date in the record showing             does not tender the UIM benefits within
that State Farm had written notice of the           thirty days after the trial court signs a
accident.2 Therefore, prejudgment inter-            judgment establishing the liability and un-
est began to accrue 180 days after January          derinsured status of the other motorist.
21, 1998.                                           Brainard, 216 S.W.3d at 811. Chapter 38
   [4–6] State Farm is entitled to: (1) a           requires Norris to ‘‘present a claim’’ to
$50,000 credit, representing Johnston’s             State Farm, which must pay the ‘‘just
policy limit, as of the date Johnston remit-        amount owed’’ within thirty days of pres-
ted the settlement amount; and (2) a                entation. TEX. CIV. PRAC. & REM.CODE
$5,000 credit, representing the PIP bene-           § 38.002(2),(3). Under a UIM policy, how-
fits State Farm paid, as of the date it was         ever, there can be no ‘‘just amount owed’’
tendered. Credits applied before prejudg-           until the trial court establishes liability and
ment interest began to accrue will reduce           damages. Brainard, 216 S.W.3d at 818;
the principal. Thereafter, each credit will         Henson v. S. Farm Bureau Cas. Ins. Co.,
apply first to the accrued prejudgment              17 S.W.3d 652, 654 (Tex.2000). Thus, Nor-
interest and second to the remaining prin-          ris could not seek attorney’s fees until, at
cipal. Brainard, 216 S.W.3d at 816.                 the earliest, thirty days after the trial
Thus, State Farm is liable, up to the UIM           court rendered judgment—assuming that
policy limits, for the principal plus accrued       State Farm refused to pay the amount due

2.   This is the date that an attending physician     signed a report sent by State Farm.
                    STATE FARM MUT. AUTO. INS. CO. v. NICKERSON                         Tex.   823
                                     Cite as 216 S.W.3d 823 (Tex. 2006)

under the UIM contract.3 Therefore, the                mar County, Scott McDowell, J., ordered
trial court did not err in refusing to award           insurer to pay insured’s attorney fees. In-
Norris attorney’s fees, and the court of               surer appealed. The Texarkana Court of
appeals erred in reversing that judgment.              Appeals, Ross, J., 130 S.W.3d 487, af-
                                                       firmed. Review was granted.
                         V                             Holding: The Supreme Court, Jefferson,
                                                       C.J., held that carrier was not liable for
                    Conclusion
                                                       insured’s attorney fees.
   We hold that Norris is entitled to pre-
                                                       Affirmed.
judgment interest calculated under the de-
clining principal formula. We reverse that
part of the court of appeals’ judgment and
                                                       Insurance O3585
remand this cause to the trial court for
further proceedings consistent with this                    Underinsured motorist (UIM) carrier
opinion. TEX.R.APP. P. 60.2(f), 60.3. With             was not liable for insured’s attorney fees
respect to the attorney’s fees issue, we               where it paid policy limits within thirty
reverse the court of appeals’ judgment and             days of judgment against the carrier; no
render judgment for State Farm. TEX.                   just amount was owed, and the insured
R.APP. P. 60.2(c).                                     had no claim to present, before the judg-
                                                       ment. V.T.C.A., Civil Practice & Reme-
  Justice O’NEILL did not participate in               dies Code § 38.002(3).
the decision.



                 ,                                       Michelle E. Robberson, Steven Dillon
                                                       Roberts, Mark Anthony Teague, R. Brent
                                                       Cooper, Cooper & Scully, P.C., Dallas, for
                                                       petitioner.

     STATE FARM MUTUAL AUTOMO-                           Jesse L. Nickerson III, Nickerson Law
        BILE INSURANCE COMPA-                          Office, James R. Rodgers, The Moore Law
              NY, Petitioner,                          Firm, Paris, for respondent.

                         v.                              J. Wade Birdwell, Wallach, Andrews &
                                                       Stouffer, P.C., Fort Worth, for Amicus
      Teresa NICKERSON, Respondent.
                                                       Curiae Judith Moss, D.O.
                   No. 04–0427.
                                                         Chief Justice JEFFERSON delivered
            Supreme Court of Texas.
                                                       the opinion of the Court.
              Argued April 14, 2005.
                                                         The issue in this case is whether an
              Decided Dec. 22, 2006.                   insured can recover attorney’s fees under
Background: Insured brought action to                  Chapter 38 of the Civil Practice and Reme-
recover underinsured motorist (UIM) ben-               dies Code from her underinsured motorist
efits. The 62nd Judicial District Court, La-           (UIM) insurer.

3.    In this case, the trial court entered a take-       Farm was not presented with a claim for a
     nothing judgment against Norris. Thus, State         just amount owed on the day of judgment.
678   Tex.         366 SOUTH WESTERN REPORTER, 3d SERIES


                                                instruction under an abuse of discretion
   Venkateswarlu THOTA, M.D. and                standard of review.
       North Texas Cardiology
                                                2. Trial O182, 215
         Center, Petitioners,
                                                     The trial court has considerable dis-
                     v.                         cretion to determine proper jury instruc-
Margaret YOUNG, individually, and as            tions; if an instruction might aid the jury
 Representative of the Estate of Wil-           in answering the issues presented to them,
     liam R. Young, Respondent.                 or if there is any support in the evidence
                                                for an instruction, the instruction is prop-
               No. 09–0079.
                                                er.
         Supreme Court of Texas.                3. Trial O232(1), 238, 250
          Argued Nov. 10, 2011.                      A jury instruction is proper if it: (1)
                                                assists the jury, (2) accurately states the
          Decided May 11, 2012.
                                                law, and (3) finds support in the pleadings
Background: On behalf of herself and her        and evidence.
deceased husband’s estate, widow brought
medical malpractice action against physi-       4. Appeal and Error O1064.1(1)
cian and cardiology center after husband              Jury charge error is generally consid-
died following complications from internal      ered harmful as required for reversal of a
bleeding caused by cardiac catheterization.     judgment if it relates to a contested, criti-
Following jury trial, the 30th District         cal issue. Rules App.Proc., Rules 44.1(a),
Court, Wichita County, Robert P. Brother-       61.1.
ton, J., entered judgment for defendants.
                                                5. Appeal and Error O230, 231(9), 242(1)
Widow appealed. The Court of Appeals,
                                                     The procedural requirements for de-
271 S.W.3d 822, Terrie Livingston, J., re-
                                                termining whether a party has preserved
versed and remanded. Physician sought
                                                error in the jury charge are explained by
review which was granted.
                                                one basic test: whether the party made the
Holdings: The Supreme Court, Green, J.,         trial court aware of the complaint, timely
held that:                                      and plainly, and obtained a ruling. Rules
(1) presumed harm analysis did not apply        App.Proc., Rule 33.1; Vernon’s Ann.Texas
    to a broad-form submission in a single-     Rules Civ.Proc., Rule 274.
    theory-of-liability case; disapproving of
    Block v. Mora, 314 S.W.3d 440;              6. Appeal and Error O230, 231(9)
                                                     Under Supreme Court’s preservation
(2) any error associated with the inclusion
                                                rules, a timely objection plainly informing
    of a jury question regarding patient’s
                                                the court that a specific element should not
    negligence was harmless; and
                                                be included in a broad-form question be-
(3) any error in the trial court’s submis-
                                                cause there is no evidence to support its
    sion of the new and independent cause
                                                submission preserves the error for appel-
    instruction was harmless.
                                                late review. Rules App.Proc., Rule 33.1;
Reversed and remanded.                          Vernon’s Ann.Texas Rules Civ.Proc., Rule
                                                274.
1. Appeal and Error O969                        7. Appeal and Error O230, 231(9)
     Supreme Court reviews a trial court’s           Specific and timely no-evidence objec-
decision to submit or refuse a particular       tion to jury charge question on patient’s
                                    THOTA v. YOUNG                                  Tex.   679
                                Cite as 366 S.W.3d 678 (Tex. 2012)

contributory negligence and specific objec-       9. Appeal and Error O1031(6)
tion to the disputed instruction on new and            While appellate courts may presume
independent cause was sufficient to place         harm when meaningful appellate review is
the trial court on notice that patient’s wid-     precluded because the submitted charge
ow believed the evidence did not support          mixes valid and invalid theories of liability
an inclusion of patient’s contributory negli-     or commingles improper damage elements,
gence or instruction on new and indepen-          the courts do not presume harm because of
dent cause, and, thus, issue was preserved        improper inferential rebuttal instructions
for appeal, although widow did not cite or        on defensive theories.
specifically reference Casteel, a case which
                                                  10. Appeal and Error O1064.1(8)
held that, when a single broad-form liabili-
ty question erroneously commingled valid               Any error in negligence charge includ-
and invalid liability theories and the appel-     ing both an improper defensive theory of
lant’s objection was timely and specific, the     contributory negligence and an improper
                                                  inferential rebuttal instruction may be
error was harmful when it could not be
                                                  harmless when jury questions are submit-
determined whether the improperly sub-
                                                  ted in a manner that allows the appellate
mitted theories formed the sole basis for
                                                  court to determine that the jury’s verdict
the jury’s finding. Rules App.Proc., Rule
                                                  was actually based on a valid liability theo-
33.1; Vernon’s Ann.Texas Rules Civ.Proc.,
                                                  ry. Vernon’s Ann.Texas Rules Civ.Proc.,
Rule 274.
                                                  Rules 277, 278.
8. Appeal and Error O1031(6)                      11. Trial O252(1), 350.1
      Presumed harm analysis, for when                 Regardless of whether a granulated or
jury question incorporated multiple theo-         broad-form charge is submitted, the trial
ries of liability, of which at least one was      court’s duty is to submit only those ques-
invalid, or when it commingled damage             tions, instructions, and definitions raised
elements that were unsupported by legally         by the pleadings and the evidence. Ver-
sufficient evidence, did not apply to a           non’s Ann.Texas Rules Civ.Proc., Rule 278.
broad-form submission in a single-theory-
                                                  12. Appeal and Error O969
of-liability case in action by patient’s wid-
                                                        When a trial court abuses its discre-
ow against physician and cardiology center
                                                  tion by including erroneous charge ques-
for medical malpractice, even if negligence
                                                  tions or instructions in a single-theory-of-
charge included both an improper defen-
                                                  liability case, Supreme Court’s traditional
sive theory of contributory negligence and
                                                  harmless error analysis applies and the
an improper inferential rebuttal instruc-
                                                  entire record should be reviewed to deter-
tion, where charge provided two separate
                                                  mine whether the charge errors probably
blanks for the jury to answer the single-
                                                  caused the rendition of an improper judg-
theory-of-liability question, the only theory     ment. Rules App.Proc., Rule 61.1(a).
of liability asserted against physician was
negligence, and the jury’s findings on that       13. Appeal and Error O1062.1
theory were clear that physician was not                When jury charge questions are sub-
negligent; disapproving of Block v. Mora,         mitted in a manner that allows the appel-
314 S.W.3d 440. Rules App.Proc., Rule             late court to determine whether the ver-
33.1; Vernon’s Ann.Texas Rules Civ.Proc.,         dict was actually based on a valid theory of
Rule 274.                                         liability, the error may be harmless.
680   Tex.         366 SOUTH WESTERN REPORTER, 3d SERIES


14. Appeal and Error O1062.1                       Diana L. Faust, R. Brent Cooper, Coo-
     Any error associated with the inclu-        per & Scully P.C., Dallas, J. Wade Bird-
sion of a jury question regarding patient’s      well, D. Michael Wallach, Jennifer M. An-
negligence was harmless in action by pa-         drews, Wallach & Andrews P.C., Fort
tient’s widow against physician and cardi-       Worth, Marc Maraman Tittlebaum, Rich-
ology center for medical malpractice,            ard Clark Harrist, Cooper & Scully P.C.,
where physician could only have been neg-        Matthew Christopher Kawalek, Sodal Se-
ligent in causing the tear in patient’s ar-      curity Administration, Michelle E. Robber-
tery, but the jury failed to find that he was    son, Cooper & Scully, P.C., Dallas, for
negligent, and clarifying instructions made      Venkateswarlu Thota, M.D.
it clear that jury could answer question           Doug Perrin, Jerry Mark Perrin, The
regarding whether physician or patient           Perrin Law Firm, Dallas, for Margaret
were negligent in any of the following com-      Young.
binations: (1) ‘‘Yes’’ to both physician and
patient, (2) ‘‘No’’ to both, or (3) ‘‘Yes’’ to     Justice GREEN delivered the opinion of
one and ‘‘No’’ to the other, the choice the      the Court.
jury ultimately made. Rules App.Proc.,              We have held that reversible error is
Rule 61.1(a).                                    presumed when a broad-form question
15. Appeal and Error O1062.5                     submitted to the jury incorporates multiple
     When the answer to a jury question          theories of liability and one or more of
cannot alter the effect of the verdict, the      those theories is invalid, Crown Life Ins.
reviewing court considers that question          Co. v. Casteel, 22 S.W.3d 378, 388 (Tex.
immaterial. Rules App.Proc., Rule 61.1(a).       2000), or when the broad-form question
                                                 commingles damage elements that are un-
16. Health O823(1)                               supported by legally sufficient evidence,
     Fact that defendant-physician in med-       Harris Cnty. v. Smith, 96 S.W.3d 230,
ical malpractice action testified on his own     233–34 (Tex.2002). We have not, however,
behalf did not negate the weight that the        addressed whether that presumed harm
jury could give to his testimony.                analysis applies to a broad-form submis-
                                                 sion in a single-theory-of-liability case
17. Appeal and Error O930(1)
                                                 when the negligence charge includes both
     In circumstances where a reasonable
                                                 an improper defensive theory of contribu-
jury could resolve conflicting evidence ei-
                                                 tory negligence and an improper inferen-
ther way, Supreme Court presumes the
                                                 tial rebuttal instruction. For the reasons
jury did so in favor of the prevailing party.
                                                 explained below, we hold that it does not,
18. Appeal and Error O1064.1(8)                  and that meaningful appellate review is
     Any error in the trial court’s submis-      provided through a traditional harm analy-
sion of the new and independent cause            sis. Inasmuch as the court of appeals
instruction was harmless in action by pa-        ruled otherwise, we reverse its judgment
tient’s widow against physician and cardi-       and remand the case to that court for
ology center for malpractice, where review       further consideration consistent with this
of the entire record provided no clear indi-     opinion.
cation that the new and independent cause
instruction, if erroneous, probably caused                    I.   Background
the rendition of an improper verdict.              William R. Young (Ronnie) died of leu-
Rules App.Proc., Rule 61.1(a).                   kemia on March 10, 2005, at the age of
                                        THOTA v. YOUNG                                  Tex.   681
                                    Cite as 366 S.W.3d 678 (Tex. 2012)

fifty-seven. Prior to his death, Ronnie               condition. Soon thereafter, Dr. Walker
suffered from several physical ailments,              performed an emergency surgery to repair
including a rare blood disorder called poly-          a tear in Ronnie’s right external iliac ar-
cythemia vera, coronary artery disease,               tery, allegedly caused by the catheteriza-
hypertension, and angina. In late 2001,               tion procedure. During the emergency
Ronnie visited Venkateswarlu Thota, M.D.,             surgery, Dr. Walker discovered a large
a cardiologist at the North Texas Cardiolo-           hematoma from severe bleeding in Ron-
gy Center (NTCC), complaining of chest                nie’s peritoneal cavity. After repairing
pains. After medications failed, Dr. Thota            the tear in the iliac artery and draining
recommended that Ronnie undergo a coro-               the retroperitoneal hematoma, the emer-
nary angiography—a test using dye and x-              gency care providers placed Ronnie on a
rays to observe how blood flows through               ventilator.
the heart—to evaluate Ronnie’s heart con-                Ronnie remained on the ventilator for
dition. Dr. Thota performed the cardiac               several months and required additional
catheterization procedure—insertion and               procedures to treat injuries resulting from
threading of a thin tube into the coronary            the severe bleed. Ronnie suffered acute
arteries, through which dye is released               renal failure that required dialysis, had
into the bloodstream—on the morning of                multiple blood transfusions, underwent a
March 4, 2002, at the United Regional                 splenectomy, and had his gallbladder re-
Health Care System in Wichita Falls, Tex-             moved because it had turned gangrenous
as. Ronnie was released from the hospital             as a result of ischemia—the lack of blood
at approximately 2:30 p.m. that afternoon             supply—caused from the bleed. Ronnie
and given routine instructions to call if he          ultimately lost his vision in one eye and
experienced any problems. Ronnie’s wife,              suffered numerous strokes and blood clots,
Margaret, drove him home after the cath-              all allegedly as a result of the catheteriza-
eterization procedure.                                tion. Later, Ronnie was transferred from
   Later that evening, Ronnie experienced             the Wichita Falls hospital to Baylor Uni-
abdominal pain. Ultimately, Ronnie’s con-             versity Medical Center in Dallas to receive
dition worsened, and he fell from his re-             treatment for various other ailments. Af-
clining chair around 11:30 p.m. Margaret              ter several months of additional treatment,
called 911, and Ronnie returned by ambu-              Ronnie was released from the hospital in
lance to the hospital’s emergency room at             August 2002. Nearly three years after the
approximately 1:15 a.m. Dr. Thota’s part-             catheterization procedure, Ronnie died of
ner, Siriam Sudarshan, M.D., saw Ronnie               leukemia, which had developed as a com-
in the emergency room. An abdominal                   plication of his prolonged struggle with
CT scan showed bleeding from the punc-                polycythemia vera.
ture site—where the needle and catheter
were inserted during the catheterization                A.   The Medical–Malpractice Lawsuit
procedure—at Ronnie’s right external iliac               Following Ronnie’s death, Margaret
artery, as well as a large hematoma. Be-              brought this suit both individually and on
cause of those results, Dr. Sudarshan con-            behalf of Ronnie’s estate (collectively,
sulted Olyn Walker, M.D., a vascular sur-             Young) against Dr. Thota and NTCC (col-
geon in Wichita Falls, concerning Ronnie’s            lectively, Dr. Thota).1 Young alleged that

1.    Young alleged that NTCC was liable for             superior.
     Ronnie’s injuries on the basis of respondeat
682   Tex.        366 SOUTH WESTERN REPORTER, 3d SERIES


Dr. Thota was negligent by: (1) failing to     pain, which would have substantially allevi-
obtain Ronnie’s complete medical history;      ated Ronnie’s resulting health problems.
(2) failing to heed Ronnie’s underlying        Dr. Thota averred that the negligence, if
medical conditions, which may have exac-       any, resulted from the concurrent actions
erbated his risk of potential complications;   of both parties, which made this a contrib-
(3) failing to properly locate Ronnie’s fem-   utory negligence issue rather than a miti-
oral artery during the catheterization pro-    gation-of-damages issue.
cedure and lacerating his right iliac artery
                                                  At the charge conference, Young object-
instead; (4) failing to discover the iliac
                                               ed to the inclusion of the definitions of
artery tear before discharging Ronnie
                                               negligence, ordinary care, and proximate
from the hospital; and (5) failing to diag-
                                               cause in reference to Ronnie, arguing that
nose and treat the artery tear. Young
                                               contributory negligence was not supported
sought damages for Ronnie’s pain and suf-
                                               by the evidence and that any delay on
fering and mental anguish, medical ex-
                                               Ronnie’s part in seeking medical treatment
penses, physical disfigurement, and lost
                                               was a mitigation-of-damages issue. The
earnings.     Additionally, Young sought
                                               trial court overruled Young’s objection and
damages for Margaret’s loss of consortium
                                               included a question on Ronnie’s contributo-
and loss of household services.
                                               ry negligence in the charge. Additionally,
   In his answer, Dr. Thota generally de-      the trial court overruled Young’s objec-
nied all of Young’s claims and, alternative-   tions to the inclusion of instructions on
ly, claimed that Ronnie’s injuries were the    new and independent cause and unavoid-
result of an unavoidable accident, a new       able accident. Neither party advised the
and independent cause, or pre-existing or      trial court that the charge might contain a
subsequent medical conditions. Dr. Tho-        Casteel problem, which arises when a
ta’s answer also contended that Ronnie’s       broad-form charge mixes valid and invalid
injuries were partially the result of Ron-     theories of liability, making it impossible
nie’s own negligence and included a coun-      for the appellate courts to determine if the
terclaim against Young for contribution        jury answered the liability question based
due to Young’s alleged failure to mitigate     on an invalid theory, nor did either party
his damages.                                   request separate submissions for the negli-
   The case proceeded to a week-long jury      gence of Dr. Thota and Young. See Cas-
trial. At the charge conference, both par-     teel, 22 S.W.3d at 388–89. Instead,
ties raised several objections and argued      Young’s objections rested on the argument
over the proper questions and instructions     that there was no evidence to support the
that the trial court should submit to the      inclusion of the disputed jury charge items
jury. Young’s theory of liability rested on    in the broad-form question.
the claim that Dr. Thota breached the
                                                  The charge included one broad-form
standard of care by puncturing Ronnie’s
                                               submission as to the single theory of liabil-
iliac artery instead of the femoral artery,
                                               ity—negligence—and additional questions
resulting in the extensive bleeding and
                                               regarding apportionment and calculation of
concomitant injuries that Ronnie suffered.
                                               damages. Question 1 addressed both par-
In contrast, Dr. Thota’s theory of the case
                                               ties’ liability and stated:
considered Ronnie’s injury to be the exten-
sive bleed. Accordingly, Dr. Thota alleged         Did the negligence, if any, of those
that Ronnie was negligent in failing to          named below, proximately cause the in-
return to the hospital at the first sign of      jury in question, if any?
                                   THOTA v. YOUNG                                  Tex.   683
                               Cite as 366 S.W.3d 678 (Tex. 2012)

   ‘‘Negligence,’’ when used with respect           same or similar circumstances or doing
to the conduct of Venkat Thota, M.D.,               that which a person of ordinary pru-
means failure to use ordinary care, that            dence would not have done under the
is, failing to do that which a cardiologist         same or similar circumstances.
of ordinary prudence would have done                  ‘‘Ordinary care,’’ when used with re-
under the same or similar circumstances             spect to the conduct of [Ronnie] Young
or doing that which a cardiologist of               means that degree of care that a person
ordinary prudence would not have done               of ordinary prudence would use under
under the same or similar circum-                   the same or similar circumstances.
stances.
                                                      ‘‘Proximate cause,’’ when used with
   ‘‘Ordinary care,’’ when used with re-
                                                    respect to the conduct of [Ronnie]
spect to the conduct of Venkat Thota,
                                                    Young means that cause which, in a
M.D., means that degree of care that a
                                                    natural and continuous sequence, pro-
cardiologist of ordinary prudence would
                                                    duces an event, and without which cause
use under the same or similar circum-
                                                    such event would not have occurred. In
stances.
                                                    order to be a proximate cause, the act or
   ‘‘Proximate Cause,’’ when used with              omission complained of must be such
respect to the conduct of Venkat Thota,             that a person using ordinary care would
M.D., means that cause which, in a natu-            have foreseen that the event, or some
ral and continuous sequence unbroken                similar event, might reasonably result
by any new and independent cause, pro-              therefrom. There may be more than
duces an event, and without which cause             one proximate cause of an event.
such event would not have occurred. In
                                                        An injury may be an ‘‘unavoidable ac-
order to be a proximate cause, the act or
                                                    cident,’’ that is, an event not proximately
omission complained of must be such
                                                    caused by the negligence of any party to
that a cardiologist using ordinary care
                                                    it.
would have foreseen that the event, or
some similar event, might reasonably re-               Answer ‘‘Yes’’ or ‘‘No’’.
sult therefrom. There may be more                      Venkat Thota, M.D.:
than one proximate cause of an event.                  [Ronnie] Young:
   ‘‘New and independent cause,’’ when                 If you have answered ‘‘Yes’’ to Ques-
used with respect to the conduct of Ven-            tion 1 for both of those named in Ques-
kat Thota, M.D., means the act or omis-             tion 1, then answer Question 2. Other-
sion of a separate and independent                  wise do not answer Question 2.
agency, not reasonably foreseeable by a
                                                       If you have answered ‘‘Yes’’ to Ques-
cardiologist exercising ordinary care,
                                                    tion 1 only as to Mr. Young, then do not
that destroys the causal connection, if
                                                    answer Questions 2, 3, or 4.
any, between the act or omission in-
quired about and the injury in question                If you have answered ‘‘Yes’’ to Ques-
and thereby becomes the immediate                   tion 1 only as to Dr. Thota, then answer
cause of such injury.                               Questions 3 and 4.
   ‘‘Negligence,’’ when used with respect        Question 2 conditionally asked about Dr.
to the conduct of [Ronnie] Young means           Thota’s and Ronnie’s comparative negli-
failure to use ordinary care, that is, fail-     gence, and Questions 3 and 4 concerned
ing to do that which a person of ordinary        the amount of damages owed for Ronnie’s
prudence would have done under the               and Margaret’s injuries.
684         Tex.       366 SOUTH WESTERN REPORTER, 3d SERIES


   The jury answered Question 1 with a                 S.W.3d 822, 841 (Tex.App.-Fort Worth
‘‘No’’ as to Dr. Thota’s negligence and a              2008, pet. granted). The appellate court
‘‘Yes’’ as to Ronnie’s negligence. On July             found that the ‘‘injury in question’’ was the
18, 2005, the trial court entered final judg-          tear in Ronnie’s iliac artery and, contrary
ment that Young take nothing. Young filed              to Dr. Thota’s arguments, not the exten-
a motion for new trial, arguing that the               sive bleed. Id. at 834–35. The court of
trial court had erred in overruling Young’s            appeals compared the parties’ theories of
objections to the jury charge and that the             liability and concluded that Dr. Thota’s
jury’s findings were against the great                 premise for Ronnie’s contributory negli-
weight and preponderance of the evidence               gence was ‘‘based upon Ronnie’s alleged
or based on insufficient evidence. The                 negligence occurring after the tear, not
trial court denied Young’s motion for new              Ronnie’s negligence in causing the tear.’’
trial, and Young timely appealed.                      Id. at 833. The court recognized that con-
                                                       tributory negligence must have a causal
       B.     Appellate Court Proceedings              connection with the original accident, while
   On appeal, Young raised the same issues             a failure to mitigate damages ‘‘arises from
presented in the motion for new trial.                 an injured party’s duty to act reasonably
Specifically, Young challenged the trial               in reducing his damages.’’ Id. (citing Hyg-
court’s judgment for the following reasons:            eia Dairy Co. v. Gonzalez, 994 S.W.2d 220,
(1) the jury’s finding of no negligence as to          226 (Tex.App.-San Antonio 1999, no pet.)).
Dr. Thota was against the great weight                 Because it found that Dr. Thota’s theory
and preponderance of the evidence and                  pointed only to Young’s ‘‘subsequent negli-
was manifestly unjust and/or the opposite              gence that might have increased his dam-
answer was conclusively proven as a mat-               ages as opposed to Dr. Thota’s original
ter of law; (2) the evidence was insuffi-              negligence,’’ the court concluded ‘‘that
cient to support the jury’s findings as to             Ronnie’s negligence, if any, only increased
Ronnie’s contributory negligence, and the              the damages he suffered after the cathet-
trial court erred by overruling Young’s                erization or tear, as opposed to causing the
objection to the inclusion of contributory             ‘injury,’ ‘accident,’ or ‘occurrence’ itself.’’
negligence in the jury charge; and (3) the             Id.
trial court erred in overruling Young’s ob-              The appellate court then considered
jections and submitting jury instructions              whether the disputed inferential rebuttal
on unavoidable accident and new and inde-              instructions on new and independent cause
pendent cause.                                         and unavoidable accident were proper. Id.
  The court of appeals held that the trial             at 836–39. Finding that Dr. Thota pre-
court’s inclusion of the question on Ron-              sented some evidence that the tear in Ron-
nie’s contributory negligence and the new              nie’s artery could have been a natural re-
and independent cause instruction in the               sult of Ronnie’s then-existing illnesses or
jury charge was an abuse of discretion and             an unexpected catastrophe, the court of
constituted harmful error; accordingly, it             appeals held that the trial court did not
reversed the trial court’s judgment and                abuse its discretion in submitting the un-
remanded the case for a new trial. 271                 avoidable accident instruction.2 Id. at 837.

2.     In this Court, the parties do not contest the     issues concerning the inclusion of Ronnie’s
     court of appeals’ holding as to the unavoid-        contributory negligence and the instruction
     able accident instruction. Therefore, our           on new and independent cause.
     opinion focuses solely on the disputed charge
                                            THOTA v. YOUNG                                        Tex.   685
                                        Cite as 366 S.W.3d 678 (Tex. 2012)

The court concluded that Ronnie’s massive                 improper inferential rebuttal instructions,
bleed and resulting injuries were foresee-                id. at 757, but distinguished Young’s situa-
able risks in the catheterization procedure               tion because ‘‘the jury was not only given
and held that the trial court abused its                  an erroneous defensive instruction on new
discretion by submitting the new and inde-                and independent cause that benefitted only
pendent cause instruction in connection                   Dr. Thota but also an erroneous jury ques-
with Dr. Thota’s negligence. Id. at 838.                  tion on liability—Ronnie’s contributory
   After holding that the trial court erred               negligence—a theory not supported by the
in submitting the question of Ronnie’s con-               evidence.’’ 271 S.W.3d at 839. Conclud-
tributory negligence and the new and inde-                ing that Casteel’s presumed harm analysis
pendent cause instruction as to Dr. Thota,                applied, the court of appeals reasoned:
the court of appeals considered which level                  We simply cannot determine, on this
of harm analysis applied. Id. at 839. The                    evidence, whether the jury properly
court, sua sponte, held that Young’s objec-                  found Dr. Thota not negligent, properly
tions to these specific aspects of the charge                found that his negligence was excused
invoked Casteel’s presumed harm analysis                     based upon the unavoidable accident in-
because the improperly submitted broad-                      struction, or improperly found that his
form question commingled valid and inval-                    negligence was excused based upon the
id theories of liability. Id. at 836 (citing                 new and independent cause instruction
Casteel, 22 S.W.3d at 388–89).3 The court                    alone or combined with its improper
acknowledged our opinion in Bed, Bath &                      finding of Ronnie’s negligence.
Beyond, Inc. v. Urista, 211 S.W.3d 753                    Id. Specifically, the court held that the
(Tex.2006), which held that Casteel’s pre-                charge commingled Dr. Thota’s improper
sumed harm analysis does not apply to                     theory of liability (the extensive bleeding)
broad-form questions based on a single                    with Young’s proper theory of liability (the
theory of liability that are submitted with               torn artery) and, consequently, prevented

3.     As mentioned by Young’s counsel at oral               that the trial court erred in submitting his
     argument, at least one other appellate court            negligence to the jury. Id. On appeal, the
     has followed this approach and held that a              court of appeals held that it was error to
     broad-form charge that includes separate                submit the invalid theory of the plaintiff’s
     blanks for multiple parties’ fault, under a sin-        contributory negligence to the jury. Id. at
     gle theory of liability, presents a Casteel issue.      450. Like the court of appeals in Thota, the
     See Block v. Mora, 314 S.W.3d 440, 450 (Tex.            Block court held that because ‘‘the trial court
     App.-Amarillo 2009, pet. dism’d by agr.). In            submitted two competing theories of liability
     Block, Question 1 of the jury charge asked:             within one broad-form liability question that
     ‘‘Did the negligence, if any, of those named
                                                             asked whether the negligence of the two par-
     below proximately cause the injuries, if any,
                                                             ties involved in the accident caused the plain-
     to [the plaintiff]?’’ Id. at 444. Question 1
                                                             tiff’s injuries,’’ it could not ‘‘determine wheth-
     included two separate answer blanks next to
     the names of the plaintiff and the defendant.           er the jury truly found that [the defendant]
     Id. The jury answered ‘‘Yes’’ to the plaintiff’s        was not negligent in causing the accident or
     negligence and ‘‘No’’ to the defendant’s negli-         [that the plaintiff] was solely negligent in
     gence. Id. On appeal, the plaintiff com-                causing his injuries (both of which findings
     plained that the evidence supported judgment            would be against the great weight and pre-
     in his favor because the defendant’s negli-             ponderance of the evidence).’’ Id. The court
     gence was established as a matter of law. Id.           cited to Casteel’s presumed harm analysis, but
     The plaintiff also alleged that there was no            held, under the traditional harmless error
     evidence of his contributory negligence nor             analysis that the charge error ‘‘likely caused
     any evidence that he had proximately caused             the rendition of an improper judgment.’’ Id.;
     the accident or his injuries, and he claimed            see TEX.R.APP. P. 44.1.
686    Tex.        366 SOUTH WESTERN REPORTER, 3d SERIES


the appellate court ‘‘from being able to           Young counters that the trial court’s
determine whether the jury’s finding of no      submission of Ronnie’s contributory negli-
liability as to Dr. Thota was a finding of no   gence and the inferential rebuttal instruc-
negligence on his part, an erroneous find-      tion on new and independent cause was an
ing of contributory negligence on Ronnie’s      abuse of discretion. According to Young,
part, or an erroneous finding of new and        the court of appeals correctly interpreted
independent cause.’’ Id. at 841. The            Elbaor because Ronnie could not have
court concluded: ‘‘Because these instruc-       been negligent in causing the tear to his
tions likely caused rendition of an improp-     iliac artery and any fault on Ronnie’s part
er judgment or, at least, prevented             should have been submitted only through
[Young] from properly presenting her case       an instruction on Ronnie’s failure to miti-
on appeal, we conclude that such error was      gate his damages. See Elbaor, 845 S.W.2d
harmful.’’ Id.                                  at 244–45. Young asserts that Casteel’s
                                                presumed harm analysis applies because
  C.   Dr. Thota’s Petition for Review
                                                the submitted jury charge was based on
   Dr. Thota petitioned our Court for re-       one valid and one invalid theory of liability,
view, and we granted his petition on re-        which obviously confused the jury to such
hearing. 54 Tex.Sup.Ct.J. 682 (Mar. 18,         a degree that an appellate court cannot
2011). Dr. Thota argues that the court of       determine whether the jury based its deci-
appeals erred in holding that the trial         sion on the valid or invalid theory. Young
court’s inclusion of Ronnie’s contributory      claims that direct mention of Casteel to the
negligence and the inferential rebuttal in-     trial court was not required to preserve
struction constituted an abuse of discre-       the Casteel error, and Young’s timely and
tion. Dr. Thota claims that even if there       specific no-evidence objections to the
were error in the jury charge, it was harm-
                                                charge errors were sufficient to inform the
less, and Casteel’s presumed harm analysis
                                                trial court of the Casteel problem. Alter-
does not apply. Furthermore, Dr. Thota
                                                natively, Young claims that the trial
claims that the court of appeals improperly
                                                court’s judgment must be reversed even
reversed the trial court’s judgment based
                                                under the traditional harmless error analy-
on unassigned error because Young nei-
                                                sis.
ther raised a Casteel issue before the court
of appeals nor made a timely or specific
                                                           II.   Harm Analysis
objection before the trial court to assert
that the submission of Young’s contributo-         Assuming, but not deciding, that it was
ry negligence or the inferential rebuttal       error for the trial court to submit the
instruction would improperly commingle          question on Ronnie’s contributory negli-
valid and invalid theories of liability and,    gence and the instruction on new and inde-
therefore, prevent the appellate court from     pendent cause, we consider whether these
conducting a meaningful appellate review.       charge issues constituted harmful error.
Finally, Dr. Thota claims that the appel-       See, e.g., TEX.R.APP. P. 61.1; Urista, 211
late court misapplied our holding in Elbaor     S.W.3d at 756. We first address whether
v. Smith, 845 S.W.2d 240 (Tex.1992), by         the court of appeals correctly applied Cas-
holding that the trial court abused its dis-    teel’s presumed harm analysis to the con-
cretion by submitting a question on Ron-        tested jury charge. We hold that it did
nie’s contributory negligence instead of an     not. For reasons stated below, we further
instruction on Ronnie’s duty to mitigate        hold that even if the submission of the
his damages.                                    contested charge issues were an abuse of
                                          THOTA v. YOUNG                                    Tex.   687
                                      Cite as 366 S.W.3d 678 (Tex. 2012)

discretion, a review of the entire record               pecially likely to cause an unfair trial when
provides no clear indication that the con-              the trial is contested and the evidence
tested charge issues probably caused the                sharply conflictingTTTT’’)
rendition of an improper judgment and,
therefore, we must conclude that the trial                      B. Casteel and Its Progeny
court’s submission was harmless. See TEX.
                                                           Casteel involved a dispute between an
R.APP. P. 44.1(a), 61.1(a).
                                                        insurance agent and the insurer. 22
                A.   General Law                        S.W.3d at 381. In Casteel, the trial court
                                                        submitted a single broad-form question on
   [1–4] ‘‘We review a trial court’s deci-
                                                        the issue of the insurer’s liability to the
sion to submit or refuse a particular in-
                                                        agent, which included thirteen independent
struction under an abuse of discretion
                                                        grounds for liability. Id. at 387. We de-
standard of review.’’ In re V.L.K., 24
                                                        termined that five of the thirteen indepen-
S.W.3d 338, 341 (Tex.2000). The trial
court has considerable discretion to deter-             dent grounds for liability did not apply and
mine proper jury instructions, and ‘‘[i]f an            held that the trial court erred by submit-
instruction might aid the jury in answering             ting the invalid grounds for liability in the
the issues presented to them, or if there is            charge. Id. We then considered whether
any support in the evidence for an instruc-             the charge error was harmful. Id. Be-
tion, the instruction is proper.’’ La.-Pac.             cause the single broad-form charge mixed
Corp. v. Knighten, 976 S.W.2d 674, 676                  valid and invalid theories of liability, we
(Tex.1998). ‘‘An instruction is proper if it            held that the charge error constituted
(1) assists the jury, (2) accurately states             harmful error, explaining:
the law, and (3) finds support in the plead-               It is fundamental to our system of jus-
ings and evidence.’’         Columbia Rio                  tice that parties have the right to be
Grande Healthcare, L.P. v. Hawley, 284                     judged by a jury properly instructed in
S.W.3d 851, 855–56 (Tex.2009). An appel-                   the law. Yet, when a jury bases a find-
late court will not reverse a judgment for a               ing of liability on a single broad-form
charge error unless that error was harmful                 question that commingles invalid theo-
because it ‘‘probably caused the rendition                 ries of liability with valid theories, the
of an improper judgment’’ or ‘‘probably                    appellate court is often unable to deter-
prevented the petitioner from properly                     mine the effect of this error. The best
presenting the case to the appellate                       the court can do is determine that some
courts.’’ TEX. R. APP. P. 61.1; see TEX.                   evidence could have supported the jury’s
R.APP. P. 44.1(a).4 ‘‘Charge error is gener-               conclusion on a legally valid theory. To
ally considered harmful if it relates to a                 hold this error harmless would allow a
contested, critical issue.’’ Hawley, 284                   defendant to be held liable without a
S.W.3d at 856; see also Quantum Chem.                      judicial determination that a factfinder
Corp. v. Toennies, 47 S.W.3d 473, 480                      actually found that the defendant should
(Tex.2001) (‘‘An improper instruction is es-               be held liable on proper, legal grounds.

4.     Rule 61.1 is the Supreme Court version of             concludes that the error complained of: (1)
     the harmful error rule. See TEX.R.APP. P. 61.1.         probably caused the rendition of an im-
     Similarly, the appellate court provision, Rule          proper judgment; or (2) probably prevent-
     44.1(a), states:                                        ed the appellant from properly presenting
       No judgment may be reversed on appeal on              the case to the court of appeals.
       the ground that the trial court made an             TEX.R.APP. P. 44.1(a).
       error of law unless the court of appeals
688   Tex.          366 SOUTH WESTERN REPORTER, 3d SERIES


Id. at 388. Therefore, we held: ‘‘When a            sis does not apply. Moreover, when a
single broad-form liability question errone-        defensive theory is submitted through
ously commingles valid and invalid liability        an inferential rebuttal instruction, Cas-
theories and the appellant’s objection is           teel’s solution of departing from broad-
timely and specific, the error is harmful           form submission and instead employing
when it cannot be determined whether the            granulated submission cannot apply.
improperly submitted theories formed the            Unlike alternate theories of liability and
sole basis for the jury’s finding.’’ Id. at         damage elements, inferential rebuttal is-
389.                                                sues cannot be submitted in the jury
    Following Casteel, we have clarified the        charge as separate questions and in-
extent of its presumed harm analysis on             stead must be presented through jury
several occasions. See Urista, 211 S.W.3d           instructions. Therefore, although harm
753; Romero v. KPH Consolidation, Inc.,             can be presumed when meaningful ap-
166 S.W.3d 212 (Tex.2005); Harris Cnty.,            pellate review is precluded because valid
96 S.W.3d 230. In Harris County, we                 and invalid liability theories or damage
extended Casteel’s presumed harm analy-             elements are commingled, we are not
sis to a broad-form question that commin-           persuaded that harm must likewise be
gled valid and invalid elements of damages          presumed when proper jury questions
for which there was no evidence. 96                 are submitted along with improper in-
S.W.3d at 233–34. In Romero, we applied             ferential rebuttal instructions.
Casteel’s presumed harm analysis to a sin-
gle broad-form proportionate responsibili-        Id. (citations omitted). Cf. Hawley, 284
ty question that included a factually-un-         S.W.3d at 865 (applying Rule 61.1(b) in a
supported malicious credentialing claim.          non-Casteel context where the trial court
166 S.W.3d at 227–28 (noting that ‘‘unless        omitted the defendant’s proposed instruc-
the appellate court is ‘reasonably certain        tion in a single-theory-of-liability case,
that the jury was not significantly influ-        thereby allowing the jury to potentially
enced by issues erroneously submitted to          find the defendant liable on an invalid ba-
it,’ the error is reversible’’ (citations omit-   sis). Because we held that Casteel’s pre-
ted)). Later, in Urista, we declined to           sumed harm analysis did not apply to the
extend Casteel’s presumed harm analysis           inferential rebuttal question in Urista, we
to the trial court’s submission of an erro-       applied the traditional harmless error
neous inferential rebuttal instruction. 211       analysis, which considers whether the in-
S.W.3d at 756–57. In Urista, we ex-               struction ‘‘probably caused the rendition of
plained:                                          an improper judgment.’’ 211 S.W.3d at
       We specifically limited our holdings in    757; see TEX.R.APP. P. 61.1(a); see also
    Casteel and Harris County to submis-          Reinhart v. Young, 906 S.W.2d 471, 473
    sion of a broad-form question incorpo-        (Tex.1995) (‘‘Error in the jury charge is
    rating multiple theories of liability or      reversible only if, in the light of the entire
    multiple damage elements. We have             record, it was reasonably calculated to and
    never extended a presumed harm rule to        probably did cause the rendition of an
    instructions on defensive theories such       improper judgment.’’). After reviewing
    as unavoidable accident, and we decline       the entire record, we concluded in Urista
    to do so nowTTTT When, as here, the           that there was some evidence the plaintiff
    broad-form questions submitted a single       failed to meet his burden of proof and
    liability theory (negligence) to the jury,    therefore held that the unavoidable acci-
    Casteel’s multiple-liability-theory analy-    dent instruction did not probably cause the
                                   THOTA v. YOUNG                                     Tex.   689
                               Cite as 366 S.W.3d 678 (Tex. 2012)

jury to render an improper verdict. 211                    C.       Preservation of Error
S.W.3d at 758–59.
                                                    [5] We first address Dr. Thota’s argu-
   Notwithstanding Casteel’s presumed
                                                 ment that the court of appeals improperly
harm analysis in situations that errone-
                                                 reversed the judgment of the trial court
ously commingle valid and invalid theories
                                                 based on unassigned and unpreserved er-
of liability, we have repeatedly reaffirmed
                                                 ror. Our procedural rules govern the
our longstanding, fundamental commit-
                                                 preservation requirements for raising a
ment to broad-form submission. See, e.g.,
Harris Cnty., 96 S.W.3d at 235–36. We            jury charge complaint on appeal and re-
first expressed our preference for broad-        quire the complaining party to make an
form practice in 1973 and, after issuing         objection before the trial court. TEX.R.
multiple opinions in which we supported          CIV. P. 274; TEX.R.APP. P. 33.1. Rule 274
broad-form submission, we modified Rule          requires that an objecting party ‘‘must
277 of the Texas Rules of Civil Procedure        point out distinctly the objectionable mat-
in 1988 to more expressly mandate the            ter and the grounds of the objection,’’ and
use of broad-form submission. See id.;           states that ‘‘[a]ny complaint as to a ques-
see also Lemos v. Montez, 680 S.W.2d             tion, definition, or instruction, on account
798, 801 (Tex.1984) (explaining our pro-         of any defect, omission, or fault in plead-
gression from separate, granulated charge        ing, is waived unless specifically included
issues to the broad-form charge). See            in the objections.’’ TEX.R. CIV. P. 274.
generally William G. ‘‘Bud’’ Arnot, III &        Additionally, to preserve error for appel-
David Fowler Johnson, Current Trends in          late review, the rules generally require the
Texas Charge Practice: Preservation of           complaining party to (1) make a timely
Error and Broad–Form Use, 38 ST.                 objection to the trial court that ‘‘state[s]
MARY’S L.J. 371, 416–40 (2007) (providing        the grounds for the ruling that the com-
a more detailed history of Texas jury            plaining party [seeks] from the trial court
charge practice); William L. Davis, Tools        with sufficient specificity to make the trial
of Submission: The Weakening Broad–              court aware of the complaint, unless the
Form ‘‘Mandate’’ in Texas and the Roles          specific grounds were apparent from the
of Jury and Judge, 24 REV. LITIG. 57             context,’’ and (2) obtain a ruling. TEX.
(2005) (same). Since 1988, Rule 277 has          R.APP. P. 33.1. As we stated twenty years
stated, in pertinent part: ‘‘In all jury         ago, the procedural requirements for de-
cases the court shall, whenever feasible,        termining whether a party has preserved
submit the cause upon broad-form ques-           error in the jury charge are explained by
tions.’’ TEX.R. CIV. P. 277. Casteel and         one basic test: ‘‘whether the party made
its progeny denote situations where              the trial court aware of the complaint,
broad-form submission may be unfeasible.         timely and plainly, and obtained a ruling.’’
See, e.g., Casteel, 22 S.W.3d at 389. But        State Dep’t of Highways v. Payne, 838
‘‘whenever feasible,’’ broad-form submis-        S.W.2d 235, 241 (Tex.1992).
sion should be the norm. See TEX.R. CIV.
P. 277; Harris Cnty., 96 S.W.3d at 235–             Although Young made a timely and spe-
36; see also Tex. Dep’t of Human Servs.          cific objection at the charge conference to
v. E.B., 802 S.W.2d 647, 649 (Tex.1990)          the inclusion of the question on Ronnie’s
(interpreting ‘‘whenever feasible’’ to man-      contributory negligence and the instruc-
date broad-form submission ‘‘in any or ev-       tion on new and independent cause, Dr.
ery instance in which it is capable of be-       Thota argues that because Young failed to
ing accomplished’’).                             specifically state that these charge issues
690   Tex.         366 SOUTH WESTERN REPORTER, 3d SERIES


raised a Casteel problem or notify either       objections to items included in the broad-
the trial or appellate court that the charge    form charge. See A.V., 113 S.W.3d at 357;
would prevent Young from obtaining              B.L.D., 113 S.W.3d at 349. Moreover, the
meaningful appellate review, Young waived       charge complaint at issue in those paren-
the right to invoke Casteel and the court of    tal-rights-termination cases was that sepa-
appeals improperly reversed the trial court     rate statutory grounds for terminating the
on unassigned error. In essence, Dr. Tho-       parents’ parental rights should not have
ta argues that because Young did not cite       been submitted within a single broad-form
Casteel or specifically object to the form of   question. See A.V., 113 S.W.3d at 357;
the charge question, Young waived any           B.L.D., 113 S.W.3d at 349. The basis for
benefit of the presumed harm analysis.          the parents’ complaints was not that the
                                                charge should not include the termination
   Contrary to Dr. Thota’s narrow and
                                                grounds at all, but that it was error for the
technical interpretation of our preservation
                                                trial court to submit them in a broad-form
of error requirements, we have never held
                                                question. See A.V., 113 S.W.3d at 357;
that a no-evidence objection in this context
                                                B.L.D., 113 S.W.3d at 349. In those cir-
is insufficient to preserve a broad-form
                                                cumstances, it was necessary for the com-
complaint on appeal. See, e.g., Romero,
                                                plaining party to make a specific objection
166 S.W.3d at 229; Harris Cnty., 96
                                                to the form of the charge to put the trial
S.W.3d at 236; Casteel, 22 S.W.3d at 387,
                                                court on notice of the alleged error and
389. Moreover, we have long favored a
                                                afford the court an opportunity to correct
common sense application of our procedur-
                                                the error. See A.V., 113 S.W.3d at 363
al rules that serves the purpose of the
                                                (holding that the parent failed to preserve
rules, rather than a technical application
                                                the issue for appellate review because he
that rigidly promotes form over substance.
                                                did not make ‘‘a specific objection to the
See Alaniz v. Jones & Neuse, Inc., 907
                                                charge to put [the] trial court on notice to
S.W.2d 450, 451–52 (Tex.1995) (per curiam)
                                                submit a granulated question to the jury’’);
(citing Payne, 838 S.W.2d at 241) (‘‘While
                                                B.L.D., 113 S.W.3d at 349; TEX. R. APP.
Payne does not revise the requirements of
                                                P. 33.1. Cf. Keetch v. Kroger Co., 845
the rules of procedure regarding the jury
                                                S.W.2d 262, 267 (Tex.1992) (stating that
charge, it does mandate that those re-
                                                ‘‘[e]rror in the charge must be preserved
quirements be applied in a common sense
                                                by distinctly designating the error and the
manner to serve the purposes of the rules,
                                                grounds for the objection’’ and holding
rather than in a technical manner which
                                                that error was not preserved when the
defeats them.’’).                               complaint of the trial court’s failure to
  In addition, Dr. Thota’s reliance on our      submit in broad form was first raised in
opinions in In re A.V., 113 S.W.3d 355, 362     this Court). In this case, a separate objec-
(Tex.2003), and In re B.L.D., 113 S.W.3d        tion to the form of the charge question was
340, 349–50 (Tex.2003), to support his con-     not necessary to inform the trial court of
tention that Young failed to preserve any       Young’s complaint—that the inclusion of
complaint regarding the charge’s broad-         Ronnie’s contributory negligence and the
form submission is misplaced. Although          instruction on new and independent cause
in those cases we did hold that complaints      should not be submitted to the jury. A
of harmful charge error were not pre-           granulated submission would have cured
served, those cases are distinguishable         the alleged charge defect in A.V. and
from this case because in both A.V. and         B.L.D., but here, even if the trial court
B.L.D., the complaining party raised no         submitted the issue of Ronnie’s contributo-
                                   THOTA v. YOUNG                                Tex.   691
                               Cite as 366 S.W.3d 678 (Tex. 2012)

ry negligence in a separate question, this       dent cause, and our procedural rules re-
would not have cured Young’s no-evidence         quire nothing more.
objection.                                          By making timely and specific objections
   [6, 7] In every case in which we have         that there was no evidence to support the
considered Casteel’s presumed harm analy-        disputed items submitted in the broad-
sis, including Casteel itself, we have em-       form charge and raising these issues for
phasized the need for the complaining par-       the court of appeals to consider, Young
ty to make a timely and specific objection       properly preserved these issues for appel-
to preserve complaints of error in broad-        late review; Young did not have to cite or
form submission. See, e.g., Casteel, 22          reference Casteel specifically to preserve
S.W.3d at 387–89; Romero, 166 S.W.3d at          the right for the appellate court to apply
229. As we stated in Harris County, un-          the presumed harm analysis, if applicable,
der our preservation rules: ‘‘A timely ob-       to the disputed charge issues. See, e.g.,
jection, plainly informing the court that a      Harris Cnty., 96 S.W.3d at 236; Casteel,
specific element TTT should not be included      22 S.W.3d at 387–88, 390. Cf. Pat Baker
in a broad-form question because there is        Co., Inc. v. Wilson, 971 S.W.2d 447, 450
no evidence to support its submission,           (Tex.1998) (per curiam) (‘‘It is axiomatic
therefore preserves the error for appellate      that an appellate court cannot reverse a
review.’’ 96 S.W.3d at 236 (emphasis add-        trial court’s judgment absent properly as-
ed). Again in A.V. and B.L.D., we quoted         signed error.’’). With the charge issues
that statement from Harris County and            properly preserved and contested on ap-
held that without some objection to the          peal, an appellate court reviews the basis
charge, claiming the submitted theory had        of the complaints and reverses only if the
no evidentiary support, or an objection to       alleged charge errors were harmful. TEX.
the form of the charge, any complaint of         R.APP. P. 44.1(a), 61.1. Because Young
charge error was not preserved for review        properly preserved error as to the disput-
by the court of appeals. See A.V., 113           ed charge issues, we must consider wheth-
S.W.3d at 362–63; B.L.D., 113 S.W.3d at          er the appellate court properly applied the
349–50. In contrast to A.V. and B.L.D.,          correct harm analysis. See Urista, 211
Young made a specific and timely no-evi-         S.W.3d at 757.
dence objection to the charge question on
Ronnie’s contributory negligence and also        D.    Application of Harm Analysis Law
specifically objected to the disputed in-           [8] Young alleges, and the court of ap-
struction on new and independent cause.          peals agreed, that the trial court erred by
In addition to Young’s timely and specific       submitting a jury question on Dr. Thota’s
objections at the charge conference, Young       theory of the case—Ronnie’s contributory
submitted a proposed charge to the trial         negligence. Even if Young is correct, Cas-
court, which omitted any inclusion of Ron-       teel’s presumed harm analysis does not
nie’s contributory negligence and the new        apply because the separate answer blanks
and independent cause instruction and pre-       allow us to determine whether the jury
sented the charge according to Young’s           found Dr. Thota negligent. Unlike Cas-
theory of the case. This was sufficient to       teel, which involved thirteen independent
place the trial court on notice that Young       grounds for liability with one answer blank
believed the evidence did not support an         for the defendant’s liability, here, the
inclusion of Ronnie’s contributory negli-        charge provided two separate blanks for
gence or instruction on new and indepen-         the jury to answer the single-theory-of-
692   Tex.        366 SOUTH WESTERN REPORTER, 3d SERIES


liability question. See Casteel, 22 S.W.3d     271 S.W.3d at 839. And in response to the
at 387. The charge mirrors the Texas           dissent, the majority added:
Pattern Jury Charges’s longstanding use
                                                 It is the combination of these two incor-
of separate blanks when multiple parties’
                                                 rect theories that prevents us from be-
negligence are in issue. See Comm. On
                                                 ing able to determine whether the jury’s
Pattern Jury Charges, State Bar of Tex.,
                                                 finding of no liability as to Dr. Thota
Texas Pattern Jury Charges: General
                                                 was a finding of no negligence on his
Negligence & Intentional Personal Torts
                                                 part, an erroneous finding of contributo-
PJC 4.1 (2010). The only theory of liabili-
                                                 ry negligence on Ronnie’s part, or an
ty asserted against Dr. Thota was negli-
                                                 erroneous finding of new and indepen-
gence, and the jury’s findings on that theo-
                                                 dent cause.
ry are clear: Dr. Thota was not negligent.
We hold that this charge question simply           Importantly, we are not trying to ex-
does not raise a Casteel issue, and the          tend Casteel’s presumed harm analysis
court of appeals erred in applying Casteel’s     to defensive theories; we are applying it
presumed harm analysis.                          to a single broad-form question that er-
  Additionally, we hold that the new and         roneously includes two different theories
independent cause instruction fails to pres-     of liability. This error is only exacer-
ent a Casteel situation. See Urista, 211         bated by the erroneous defensive in-
S.W.3d at 756–57. In concluding that the         struction of new and independent cause.
new and independent cause instruction          Id. at 841.
constituted harmful error, the appellate
court reasoned:                                   [9] We disagree with the court of ap-
     Here, however, the jury was not only      peals’ interpretation of our holding in Ur-
  given an erroneous defensive instruction     ista and hold that, even assuming the new
  on new and independent cause that ben-       and independent cause instruction in this
  efitted only Dr. Thota but also an erro-     charge constituted error, it does not raise
  neous jury question on liability—Ron-        a Casteel issue. Like Urista, this case
  nie’s contributory negligence—a theory       involves a single liability theory—negli-
  not supported by the evidence. So, we        gence—so Casteel’s multiple-liability-theo-
  should not be limited to Urista’s tradi-     ry analysis does not apply. See 211
  tional harm analysis when trying to de-      S.W.3d at 756–57. Moreover, as we noted
  termine the impact of the improperly         in Urista, ‘‘when a defensive theory is
  submitted instruction on new and inde-       submitted through an inferential rebuttal
  pendent cause when combined with the         instruction, Casteel’s solution of departing
  improperly submitted question of Ron-        from broad-form submission and instead
  nie’s contributory negligence. We sim-       employing granulated submission cannot
  ply cannot determine, on this evidence,      apply.’’ Id. at 757. Inferential rebuttal
  whether the jury properly found Dr.          issues are distinct from theories of liability
  Thota not negligent, properly found that     and damage elements because they ‘‘can-
  his negligence was excused based upon        not be submitted in the jury charge as
  the unavoidable accident instruction, or     separate questions and instead must be
  improperly found that his negligence         presented through jury instructions.’’ Id.
  was excused based upon the new and           Like the inferential rebuttal instruction on
  independent cause instruction alone or       unavoidable accident in Urista, the new
  combined with its improper finding of        and independent cause instruction ‘‘was
  Ronnie’s negligence.                         given in reference to the causation element
                                    THOTA v. YOUNG                                  Tex.   693
                                Cite as 366 S.W.3d 678 (Tex. 2012)

of the plaintiff’s negligence claim.’’ Id. at     evidence.’’ Harris Cnty., 96 S.W.3d at
756–57. While appellate courts may pre-           236; see TEX.R. CIV. P. 278; Elbaor, 845
sume harm when meaningful appellate re-           S.W.2d at 243.
view is precluded because the submitted              [12] While Casteel’s presumed harm
charge mixes valid and invalid theories of        analysis is necessary in instances where
liability or commingles improper damage           the appellate court cannot determine
elements, the courts do not presume harm          ‘‘whether the improperly submitted theo-
because of improper inferential rebuttal          ries formed the sole basis for the jury’s
instructions on defensive theories. See id.       finding’’ because the broad-form question
at 757. Therefore, assuming without de-           mixed valid and invalid theories of liability,
ciding that the submission of the new and         Casteel, 22 S.W.3d at 389, or when the
independent cause instruction was an              broad-form question commingled damage
abuse of discretion, we hold that this            elements that are unsupported by legally
charge error does not present a Casteel           sufficient evidence, Harris Cnty., 96
problem.                                          S.W.3d at 235, an improper inferential re-
   [10, 11] Even if the inclusion of a jury       buttal instruction and improper defensive
question regarding a party’s contributory         theory of contributory negligence present-
negligence and an inferential rebuttal in-        ed in a broad-form question with separate
struction were erroneous in a single-theo-        answer blanks in a single-theory-of-liability
ry-of-liability case, the combination of          case does not prevent the harmed party
these errors would not automatically trig-        from obtaining meaningful appellate re-
ger a situation where the appellate court         view. When a trial court abuses its discre-
must presume the error was harmful. If            tion by including erroneous charge ques-
presumed harm analysis were required,             tions or instructions in a single-theory-of-
then our fundamental commitment to sub-           liability case, our traditional harmless er-
mitting broad-form questions, whenever            ror analysis applies and the appellate
feasible, would routinely be discarded for        courts should review the entire record to
separate, granulated submissions to the           determine whether the charge errors prob-
jury. See TEX.R. CIV. P. 277; Harris              ably caused the rendition of an improper
Cnty., 96 S.W.3d at 235–36. Moreover,             judgment. See TEX.R.APP. P. 44.1, 61.1;
even in multiple-theory-of-liability cases        Urista, 211 S.W.3d at 757.
like Casteel, the presumed harm analysis is          Because we hold that Casteel’s pre-
not automatic. See Casteel, 22 S.W.3d at          sumed harm analysis does not apply, we
389–90; Romero, 166 S.W.3d at 227–28.             next consider whether, applying traditional
As we stated in Casteel, ‘‘when questions         harmless error analysis, the alleged charge
are submitted in a manner that allows the         errors constitute reversible error. See
appellate court to determine that the             TEX.R.APP. P. 61.1(a); Urista, 211 S.W.3d
jury’s verdict was actually based on a valid      at 757. We address Young’s objections to
liability theory, the error may be harm-          the inclusion of Ronnie’s contributory neg-
less.’’ 22 S.W.3d at 389 (citing City of          ligence and the instruction of new and
Brownsville v. Alvarado, 897 S.W.2d 750,          independent cause in turn.
752 (Tex.1995)). And regardless of wheth-
er ‘‘a granulated or broad-form charge is                  1.   Contributory Negligence
submitted, the trial court’s duty is to sub-        [13, 14] When charge questions are
mit only those questions, instructions, and       submitted in a manner that allows the
definitions raised by the pleadings and the       appellate court to determine whether the
694   Tex.         366 SOUTH WESTERN REPORTER, 3d SERIES


verdict was actually based on a valid theo-      Thota and Ronnie, it is evident that the
ry of liability, the error may be harmless.      jury was well aware that its findings as to
Casteel, 22 S.W.3d at 389; see also Alvara-      Dr. Thota’s and Ronnie’s negligence were
do, 897 S.W.2d at 752 (‘‘Submission of an        separate and that there could be more
improper jury question can be harmless           than one proximate cause of an event.
error if the jury’s answers to other ques-
tions render the improper question imma-            [15] When the answer to a jury ques-
terial.’’); Boatland of Hous., Inc. v. Bailey,   tion cannot alter the effect of the verdict,
609 S.W.2d 743, 750 (Tex.1980) (holding          the reviewing court considers that question
that the potentially erroneous submission        immaterial. See Alvarado, 897 S.W.2d at
of defensive theories was harmless error         752. In Alvarado, we held that even if it
because the jury found for the defendant         were error for the trial court to submit a
on independent grounds and the complain-         question as to the deceased plaintiff’s neg-
ing party failed to show how it probably         ligence, that question was immaterial be-
resulted in an improper verdict). Young’s        cause of the jury’s finding of ‘‘No’’ as to
argument that the inclusion of Ronnie’s          the defendant’s liability for negligence.
contributory negligence was harmful error        Id. Like Alvarado, any error in submitting
fails for several reasons. First, Dr. Thota      the question of Ronnie’s contributory neg-
could only have been negligent in causing        ligence to the jury was harmless and ren-
the tear in Ronnie’s artery, and the jury        dered immaterial in light of the jury’s find-
failed to find that he was. The jury’s           ing of no negligence as to Dr. Thota.
finding as to Dr. Thota’s non-negligence is      Once the jury answered ‘‘No’’ to whether
entirely separate from its finding as to         any negligence of Dr. Thota proximately
Ronnie’s negligence. Perhaps the jury            caused Ronnie’s injury, Dr. Thota was ex-
was confused about whether to find Ronnie        onerated, and neither a ‘‘Yes’’ nor a ‘‘No’’
negligent and, despite the unavoidable ac-       answer as to Ronnie’s contributory negli-
cident instruction, believed that they had       gence could alter the verdict. See id.
to find someone negligent. Either way,
any error associated with the inclusion of a
                                                     2.   New and Independent Cause
jury question regarding Ronnie’s negli-
gence was harmless.                                 Assuming without deciding that the new
   Moreover, when determining whether            and independent cause instruction was im-
harm occurred, we consider the entire            proper, a review of the record does not
charge. See, e.g., Tex. Emp’rs Ins. Assoc.       indicate that it probably caused the rendi-
v. McKay, 146 Tex. 569, 210 S.W.2d 147,          tion of an improper judgment. See TEX.
149 (1948). Here, the clarifying instruc-        R.APP. P. 61.1(a); Urista, 211 S.W.3d at
tions at the end of Question 1 made it clear     757; Reinhart, 906 S.W.2d at 473. At
that the jury could answer in any of the         trial, Dr. Thota testified on his own behalf,
following combinations: (1) ‘‘Yes’’ to both      and Neill Doherty III, M.D. testified as
Dr. Thota and Ronnie; (2) ‘‘No’’ to both;        Young’s expert witness. The evidence
or (3) ‘‘Yes’’ to one and ‘‘No’’ to the oth-     from the medical records and Dr. Thota’s
er—the choice the jury ultimately made.          testimony indicated that good hemostasis
The charge’s definition of proximate cause       was most likely obtained, which would
also clearly informed the jury that ‘‘[t]here    mean that Ronnie was in a stable condition
may be more than one proximate cause of          by the time he was released from the
an event.’’ In light of the entire charge        hospital. Even Young’s own medical ex-
and the separate answer blanks for Dr.           pert, Dr. Doherty, admitted on cross-ex-
                                     THOTA v. YOUNG                                  Tex.   695
                                 Cite as 366 S.W.3d 678 (Tex. 2012)

amination that there was a 99% chance              Dr. Walker’s report, the CT scan men-
that Ronnie was not bleeding when he was           tioned on Dr. Sudharshan’s report, and the
released after the catheterization proce-          bleed in Ronnie’s retroperitoneal cavity,
dure and that, based on the totality of the        which could occur when the puncture is too
medical records, there was no objective            high, rather than the more visible femoral
evidence that Ronnie was bleeding or ex-           bleed that would occur if the puncture is in
periencing any complications at the time           the femoral artery. In contrast, Dr. Thota
he was discharged from the hospital.               claimed at trial that he did not breach the
Both Dr. Thota and Dr. Doherty testified           standard of care during Ronnie’s catheteri-
that if there had been an improper punc-           zation procedure. He testified that he had
ture in the iliac artery preventing hemos-         no problems inserting the catheter and
tasis, Ronnie would likely have developed          that he believed he entered the artery at
signs of bleeding before his discharge.            the appropriate location. Dr. Thota stated
Dr. Doherty also testified that the cardiac        that Dr. Sudharshan’s finding that the
catheterization was a reasonable proce-            puncture site was at ‘‘about the inguinal
dure, given Ronnie’s condition, and that           ligament,’’ would indicate that the punc-
the medical records did not indicate Dr.           ture site was correct. He further testified
Thota had incorrectly performed the pro-           that Dr. Walker’s report was ambiguous as
cedure.                                            to what he repaired and how far above or
   Both parties’ experts based their opin-         below the inguinal ligament the bleed orig-
ions, in part, on their interpretations of the     inated. Also, Dr. Thota testified that a
doctors’ reports from the emergency sur-           retroperitoneal bleed can occur with a fem-
gery the night of Ronnie’s catheterization         oral artery stick as well as an iliac artery
procedure. The report by Dr. Thota’s               stick and that, based on his review of the
partner, Dr. Sudharshan, noted that Ron-           medical records and his own knowledge of
nie had a ‘‘puncture site just about the           the procedure, he met the standard of
inguinal ligament’’ and that a CT scan             care.
‘‘apparently revealed bleeding from [the]            [16, 17] Like many medical malpractice
external iliac artery puncture site.’’ Based       cases, this record contains conflicting ex-
on Dr. Sudharshan’s assessment, Dr.                pert opinions. The fact that Dr. Thota
Walker performed the emergency surgery,            testified on his own behalf does not negate
and Dr. Walker’s report noted that he              the weight that the jury could give to his
repaired a ‘‘high tear’’ in Ronnie’s right         testimony. See City of Keller v. Wilson,
external iliac artery. Neither Dr. Sudhar-         168 S.W.3d 802, 827 (Tex.2005) (holding
shan nor Dr. Walker testified at trial.            that the proper test for legal-sufficiency
   At trial, Dr. Thota’s and Dr. Doherty’s         review must ‘‘credit favorable evidence if
testimony about Ronnie’s medical reports           reasonable jurors could, and disregard
conflicted. Dr. Doherty testified that the         contrary evidence unless reasonable jurors
standard of care for cardiac catheterization       could not’’); see also Wilson v. Scott, 412
was to insert a needle and catheter into           S.W.2d 299, 303 (Tex.1967) (noting that the
the right femoral artery below the inguinal        defendant physician’s own testimony can
ligament. In Dr. Doherty’s opinion, Dr.            establish the standard of care). ‘‘Jurors
Thota punctured Ronnie’s artery at the             are the sole judges of the credibility of the
wrong location, above the inguinal liga-           witnesses and the weight to give their
ment and into the right external iliac ar-         testimony.’’ City of Keller, 168 S.W.3d at
tery. Dr. Doherty’s opinion was based on           819. Because of the conflicting testimony
696       Tex.          366 SOUTH WESTERN REPORTER, 3d SERIES


of Dr. Doherty and Dr. Thota, and because                Even assuming the trial court abused its
both testifying experts agreed that Ronnie               discretion by including a question as to
was likely not bleeding upon his discharge               Ronnie’s contributory negligence and an
from the hospital, the jury could have rea-              instruction on new and independent cause,
sonably believed Dr. Thota’s opinions and                for the reasons explained above, we hold
discounted Dr. Doherty’s opinions. In cir-               that these alleged charge errors were
cumstances where a reasonable jury could                 harmless and did not probably cause the
resolve conflicting evidence either way, we              rendition of an improper judgment. Be-
presume the jury did so in favor of the                  cause Casteel’s presumed harm analysis
prevailing party. See id. at 821.                        does not apply and any error in the disput-
   [18] Based on the conflicting evidence,               ed charge issues was harmless, we need
the jury could have reasonably concluded                 not address Dr. Thota’s remaining issues.
that Dr. Thota did not breach the standard               Accordingly, we reverse the court of ap-
of care without reaching the issue of proxi-             peals’ judgment and, without addressing
mate cause. In that case, the jury would                 whether the trial court erred by submit-
not have relied on the new and indepen-                  ting the question as to Ronnie’s contributo-
dent cause instruction because it pertains               ry negligence or the instruction on new
only to the proximate cause element. See                 and independent cause, we remand the
Hawley, 284 S.W.3d at 856 (‘‘New and                     case to the court of appeals to consider
independent cause is a component of the                  Young’s remaining issues.
proximate cause issue.’’). Thus, the record


                                                                      ,
supports the jury’s finding of no negli-
gence as to Dr. Thota. Accordingly, our
review of the entire record provides no
clear indication that the new and indepen-
dent cause instruction, if erroneous, proba-
bly caused the rendition of an improper
verdict. We therefore conclude that any
                                                         In re Billy Frederick ALLEN, Relator.
error in the trial court’s submission of the
new and independent cause instruction was                               No. 10–0886.
harmless. See Urista, 211 S.W.3d at 759.
                                                                 Supreme Court of Texas.
                 III.   Conclusion
                                                                   Argued Jan. 12, 2012.
   In sum, we hold that Young’s timely and
specific no-evidence objections were suffi-                        Decided May 18, 2012.
cient to preserve the disputed charge is-                Background: Applicant sought compensa-
sues for appellate review. Because the                   tion under the Tim Cole Act (TCA), which
trial court submitted a broad-form ques-                 allowed a wrongfully imprisoned person to
tion on a single theory of liability that                seek compensation from the state for the
included separate answer blanks for Dr.                  period of wrongful imprisonment, after the
Thota’s and Ronnie’s negligence, we hold                 Court of Criminal Appeals, 2009 WL
that the court of appeals misapplied Cas-                282739, granted habeas relief from a judg-
teel and its presumed harm analysis.5                    ment of conviction against him for two

5.     To the extent that it conflicts with this opin-    440 (Tex.App.-Amarillo 2009, pet. dism’d by
     ion, we expressly disapprove the appellate           agr.).
     court’s opinion in Block v. Mora, 314 S.W.3d
