
NO. 07-03-0142-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 4, 2004

______________________________


MINERAL EXCHANGE, LTD., APPELLANT

V.

TEXACO INC., ET AL., APPELLEES


_________________________________

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

NO. 31976; HONORABLE LEE WATERS, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ORDER ON JOINT MOTION TO

VACATE ORAL ARGUMENT SETTING  (1)


 Pending before this Court is the motion of appellants Mineral Exchange and
Bourland & Leverich by which they seek to vacate the March 9, 2004 setting for oral
argument.  The parties also request that the case be reset at a time agreed to by them and
by this Court.  We grant in part and deny in part.
	It is ordered that the March 9, 2004, setting for oral submission is vacated.  In all
other respects, the motion is denied.
	It is further ordered that: (1) all parties to this proceeding designate lead counsel in
writing on or before May 1, 2004; see Tex. R. App. P. 6.1; (2) all parties only designate one
counsel for each side to present oral argument; see Tex. R. App. P. 39.4; and (3) this
Court's letter order of February 23, 2004, is withdrawn and the time allowed for oral
argument at a date and time to be determined later will proceed pursuant to Rule 39.3, of
which the parties will be notified by letter in accordance with Rule 39.9(c).
	It is so ordered.	 
	  						Per Curiam

1. Counsel were advised of the March 9, 2004 setting and panel by letters of
December 19, 2003, and February 13, 2004.  Counsel are advised that the case may be
submitted to a different panel when reset for oral argument in the future.

tions to
question four because the question failed to contain a proper instruction or definition of
what the jury should consider when assessing lost profits.  We reverse and render.
	In 1997, Altman, an experienced cotton farmer with operations in Hockley and
Lubbock Counties, planted his cotton crop with Roundup Ready® 2326 cottonseed. 
Because he was pleased with the performance and yield of his 1997 crop, he decided to
plant the Roundup Ready® cottonseed again in 1998.  His Hockley County fields produced
good crops in both 1997 and 1998; however, his 1998 crop in Lubbock County did not meet
his expectations based on his experience with the seed in 1997.  Altman alleged generally
that some of the seed planted in Lubbock County emerged but died shortly thereafter, there
were skips in the cotton plants, the stand was not uniform, the field included very small
plants next to larger and more mature ones, and the smaller plants would not produce any
marketable cotton.   
	After notifying Monsanto/Delta about the poor performance of the seed planted in
Lubbock County in 1998, Altman filed his sworn complaint, and pursuant to chapter 64 of
the Texas Agriculture Code, he sought arbitration of his claims.  He did not allege that the
seed planted in Lubbock County did not meet the percentage of germination contained on
the label.  See Tex. Agric. Code Ann. § 61.004(a)(3)(A) (Vernon 1995).  Instead, he alleged
generally: 
	such seeds were defective because they did not germinate; the ones that did
germinate do so slowly; the taproot on a large amount of the cotton that did
mature is defective, abnormal and fails to provide the plant with adequate
water so it can develope (sic) the cotton.  Additionally, numerous cotton
plants that did germinate continue to have problems because of the abnormal
taproot and failure of the cotton to grow in a normal manner.  The cotton
plants will not produce a normal cotton crop.

	While his complaint was pending arbitration, Altman filed suit against
Monsanto/Delta seeking damages alleging violations of the DTPA (2) and breach of express
and implied warranties.  By its written report dated November 22, 1999, among other
findings of fact, the State Seed and Plant Board of Arbitration found the labels for the
cottonseeds purchased by Altman included the arbitration notice required by section 64.003
of the Agriculture Code and specified the variety and the rate of germination of the
cottonseeds.  In addition,  the Board concluded the "cottonseeds did perform and produce
as represented by the information on the label."  At trial the entire report of the Board was
admitted into evidence.  See § 64.004 (Vernon Supp. 2004).
	By his supplemental petition, Altman abandoned his original claims based on breach
of express or implied warranties and proceeded to trial on his DTPA claims.  Among other
things, Monsanto/Delta (1) alleged Altman's claims were barred by the disclaimers and
limitations of warranties contained on the packaging label, (2) alleged the cottonseed
conformed with the packaging label, and (3) requested that the court consider the findings
and conclusions of the Board per section 64.004.  Altman did not offer any expert
testimony, but instead proceeded to trial based on his testimony, the testimony of a
Hockley County farmer, and the President and Chief Operating Officer of Delta.  In
response to question one, the jury found that Monsanto/Delta engaged in a "false,
misleading or deceptive act or practice that was a producing cause of damages to Anthony
Altman" (3) and by its answer to question two, found that Monsanto/Delta engaged in 
"unconscionable action or course of conduct that was a producing cause of damages to
Anthony Altman." (4)  For purposes of questions one and two, producing cause was defined
as:

	"Producing cause" means an efficient, exciting, or combining cause that, in
a natural sequence, produced the damages, if any.  There may be more than
one producing cause.  However, a defendant's actions, if any, cannot
constitute a producing cause of plaintiff's damages if such damages are
caused by an "act of God."  Damages are caused by an "act of God" if the
damages are caused directly and exclusively by the violence of nature,
without human intervention or cause, and could not have been prevented by
reasonable foresight or care.	

Questions three, four, five, six, seven, and eight need not be considered because they are
not material to our analysis and disposition of the case.
	Addressing Monsanto/Delta's issues in a logical rather than numerical order, we first
address issue three by which they contend there is no evidence or insufficient evidence to
support the jury's finding to question one that they committed a false, misleading, or
deceptive act which was detrimentally relied upon by Altman causing his damages.  Then,
by issue four, Monsanto/Delta contend there is no evidence or insufficient evidence to
support the jury's finding in answer to question two that they engaged in unconscionable
action or course of conduct which caused Altman damages.  We agree with both
contentions.  Because these two issues implicate the common question of producing cause
and the same standard of review, we will consider them simultaneously. 
	Altman had the burden to secure a favorable jury finding that the conduct of
Monsanto/Delta was a producing cause of his damages.  A favorable jury finding may not
stand without probative evidence to support the finding.  Williams v. Gaines, 943 S.W.2d
185, 193 (Tex.App.--Amarillo 1997, writ denied).  As defined in Bailey Cty. Appraisal Dist.
v. Smallwood, 848 S.W.2d 822, 825 (Tex.App.--Amarillo 1993, no writ), probative evidence
is evidence which "serves to prove the asserted proposition, and it must be more than a
surmise or suspicion."  The trial court gave the following special instruction:
	[a] fact may be established by direct evidence or by circumstantial evidence
or both.  A fact is established by direct evidence when proved by
documentary evidence or by witnesses who saw the act done or heard the
words spoken.  A fact is established by circumstantial evidence when it may
be fairly and reasonably inferred from other facts proved.

See Texas & N.O.R. Co v. Warden, 125 Tex. 193, 78 S.W.2d 164, 167 (1935).  Although
circumstantial evidence may be considered, meager circumstantial evidence from which
equally plausible but opposite inferences may be drawn is speculative and thus will not
survive a legal sufficiency challenge.  Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934,
936 (Tex. 1998).  Further, although probative circumstantial evidence may be sufficient, a
vital fact essential to establishing legal elements for recovery may not be established by
piling inference upon inference.  See Briones v. Levine's Department Store, Inc., 446
S.W.2d 7, 10 (Tex. 1969); Schlumberger Well Sur. Corp. v. Nortex Oil & G. Corp, 435
S.W.2d 854, 858 (Tex. 1968).   
Standard of Review
	In our examination of a no-evidence contention, we consider all the evidence and
reasonable inferences therefrom in the light most favorable to the prevailing party. 
Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). 
In evaluating legal sufficiency, we are required to determine whether the proffered evidence
as a whole rises to the level that would enable reasonable and fair-minded people to differ
in their conclusions.  Id.; Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). 

Reliance
	Among other things, Monsanto/Delta contend, without referencing authority, that
Altman did not introduce any evidence to support the essential element of detrimental
reliance.  Altman does not contend that reliance is not an essential element but instead
argues that the issue of detrimental reliance was undisputed and that Monsanto/Delta did
not request it be submitted to the jury.  A consumer is not required to prove reliance as an
element to recover under the DTPA.  Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex. 1985).
However, three courts of appeals have held that reliance is a factor to consider in deciding
whether the defendant's conduct was a producing cause of damages to the consumer. 
See Cianfichi v. White House Motor Hotel, 921 S.W.2d 441, 443 (Tex.App.--Houston [1st
Dist.] 1996, writ denied); Celtic Life Ins. Co. v. Coats, 831 S.W.2d 592, 596 (Tex.App.--Austin 1992), aff'd as modified, 885 S.W.2d 96 (1994); see also James V. Mazuca and
Associates v. Schumann, 82 S.W.3d 90, 95 (Tex.App.--San Antonio 2002, pet. denied). 
In Mazuca, the court observed in reversing a judgment based on DTPA claims after noting
that reliance may be a factor in determining whether a misrepresentation was a producing
cause of damages:
	[i]t is apparent from Schumann's own testimony that he in no way relied on
Mazuca's statement . . . . 

See also Prudential Ins. v. Jefferson Associates, 896 S.W.2d 156, 166 (Tex. 1995)
(concurring opinion of Justice Cornyn) (noting the existence of an "as is" clause is relevant
to the producing cause inquiry).  Following, Cianfichi, Celtic Life, and Mazuca, we focus our
review of the evidence on whether any false, misleading, deceptive act or practice, or
unconscionable action of Monsanto/Delta was a producing cause of Altman's damages.
Analysis
	Altman testified that he planted Roundup Ready® cottonseed in 1997 and was
pleased with the crop and its yield.  On cross-examination he admitted he knew that
Monsanto/Delta did not guaranty the seed or a yield and that in 1998, he planted all his
acreage to Roundup Ready® cottonseed because he was "happy with it from the year
before, from 1997."
	Altman's crop planted in Hockley County and his dry land crop in Lubbock County
were acceptable, although he was dissatisfied with his irrigated fields in Lubbock County
in 1998.  He admitted it was normal for crop yields to vary from year to year and that
notwithstanding his disappointment with the 1998 irrigated crop, he planted Roundup
Ready® cottonseed in 1999. 
	In describing his irrigated field in Lubbock County, Altman testified that "one day he
had a beautiful crop," and "a couple of days later it was horrible."  He claimed the
cottonseed was defective because it did not germinate and focused his claim on
Monsanto/Delta's failure to inform him of the cool germination test results.  However,
Altman admitted that before 1998, he never questioned a cottonseed provider about the
results of a cool germination test nor inquired about the results of the test when he
purchased the Roundup Ready® cottonseed for planting in 1999.  Although the expression
in a brochure or advertising material of an opinion by a seller is generally not actionable
unless it contains representations of fact, Altman also based his DTPA complaints on a
brochure provided in 1997.  See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d
472, 480 (Tex. 1995). 
	In addition to its written report denying Altman any recovery on his claim, the Board
made findings of fact and conclusions.  As material here, it found:
	7.  Test conducted on the plants located in the fields in which the plants died
at the seedling state revealed the presence of seedling disease.
	8.  The problems that Complainant experienced with his cotton crop
appeared to be due to factors other than defective cottonseeds.
	9.  The cottonseeds purchased by Complainant did include the arbitration
notice required by the Act (Texas Agriculture Code, Section 64.003).  The
labels also specified the variety and the rate of germination of the
cottonseeds.  The label did not contain any information regarding the vigor,
yield of the crop produced by the seeds, or any other warranties regarding
the seeds. (5)
	10.  The cotton crop produced from the seeds purchased and planted by
Complainant was consistent with the information represented on the labels.

Because the report was admitted into evidence without any limiting instruction, it could be
considered by the factfinder for all purposes.  See Tex. R. Evid. 105(a); In re K.S., 76
S.W.3d 36, 40 (Tex.App.--Amarillo 2002, no pet.).
	Altman's acknowledgment that he planted the Roundup Ready® cottonseed in 1998
because of his favorable experience with it in 1997 is similar to the analysis in Mazuca that
the consumer "in no way relied on" the defendant's statement.  82 S.W.3d at 95.  Moreover,
Altman did not introduce any evidence, expert or otherwise, disputing the accuracy of the
information on the labels of the seed he purchased nor challenge the findings of the Board
that the cottonseed was properly labeled and the crop produced was consistent with the
germination information on the labels.  Further, Altman did not claim the germination or
other information provided on the labels was incorrect or that the crop did not conform to
the representations contained on the label.  Because the evidence regarding germination
information on the label and other findings is not disputed, the jury was not free to disregard
the uncontradicted evidence.  Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 434
(Tex.App.--Houston [14th Dist.] 1997, no writ).
	Altman had the burden to show by probative evidence that the claimed
misrepresentations, deceptive acts or practices, or unconscionable action induced him to
purchase Roundup Ready® cottonseed for planting in 1998 and, consequently, was the
producing cause of his damages.  Doe, 907 S.W.2d at 481.  Instead, the evidence shows
he purchased the cottonseed for planting in 1998 because of his successful experience
with it in 1997.  Further, according to the undisputed evidence, the cottonseed was properly
labeled for germination and other purposes, and the crop was consistent with the
representations on the label.  Questions one and two presented two sub-questions, to-wit:
(1) conduct and (2) producing cause of damages.  Directing our attention to the "producing
cause of damages" sub-question, even when viewed in the light most favorable to Altman
and considering the evidence in its entirety, we conclude there was no probative evidence
rising above surmise or suspicion to support the jury's finding that the conduct of
Monsanto/Delta was the producing cause of Altman's damages.  Issues three and four are
sustained.  Our sustension of issues three and four pretermits our consideration of the
remaining issues.  
	Accordingly, the judgment of the trial court is reversed and judgment is hereby
rendered that Altman take and recover nothing against Monsanto/Delta.

						Don H. Reavis
						    Justice
1. Issues restated in the interest of brevity.
2. Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Com. Code Ann.,
§§ 17.41 - 17.885 (Vernon 2002 & Supp. 2004).
3. The charge defined false, misleading, or deceptive act or practice to mean any of
the following:

	Representing that the goods had characteristic uses, benefits or qualities
which they did not have; or

	Representing that the goods were of a particular standard, quality or grade,
if they are of another; or

	Failing to disclose information concerning the goods which was known at the
time of the transaction with the intent to induce Anthony Altman into a
transaction into which he otherwise would not have entered into if the
information had been disclosed.
4. The charge defined unconscionable action or course of action as an act or practice,
that to a person's detriment; either-


	takes advantage of the lack of knowledge, ability, experience, or
capacity of a person to a grossly unfair degree; or
 	results in a gross disparity between value received and consideration
paid in a transaction involving transfer of consideration.
5. Among other requirements, per section 61.004(A) and (C) of the Agriculture Code,
a label on agricultural seed must contain the percentage of germination, exclusive of hard
seed, as determined by rule of the department, and the calendar month and year that the
test was completed to determine the percentage of germination. 

