                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-09-00368-CV


AMERICAN HAT COMPANY                                                APPELLANT AND
                                                                         APPELLEE

                                            V.

W ISE ELECTRIC COOPERATIVE, INC.                                     APPELLEE AND
                                                                        APPELLANT
                                        ------------

           FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY

                                        ------------

                          MEMORANDUM OPINION1

                                        ------------

                                   I. Introduction

      In three issues, Appellant/Cross-Appellee American Hat Company (AHC)

asserts that 1) the trial court erred by not taking judicial notice of its judgment in a

companion case, 2) the trial court erred by admitting AHC’s tax records, and 3) the

jury finding pertaining to market value was against the great weight and

preponderance of the evidence. Because we reverse and remand for a new trial, we



      1
           See Tex. R. App. P. 47.4.
do not reach Cross-Appellant/Appellee W ise Electric Cooperative, Inc.’s (W ise’s)

issues. See Tex. R. App. P. 47.1.

                        II. Factual and Procedural History

       On November 27, 2005, a wildfire occurred in and around Bowie, burning 900

to 1,200 acres. Bowie’s fire chief, Doug Page, determined that the fire began at a

utility pole owned by W ise, caused by a “conductor [that] had come loose from a

splice and contacted the ground rod[,]” and resulting in molten material falling onto

grass near the pole.

A. AHC and Travelers’s Companion Case

       In 2006, AHC, which owns a manufacturing plant in Bowie, submitted a claim

to its insurance company, The Travelers Lloyds Insurance Company (Travelers),

asserting that smoke and soot from the 2005 wildfire resulted in inventory loss,

building damage, and lost profits. The trial court appointed an umpire pursuant to

an “appraisal” provision in AHC’s insurance contract to determine the value of the

loss. The umpire awarded AHC $8,792,529 for inventory loss, $312,145.72 for

building damages, and $332,921 for lost profits. The trial court, finding no objections

to the umpire’s award, found that the award was final and binding.           Travelers

ultimately paid AHC approximately $2.6 million, including $2 million for inventory

(policy limits).

B. AHC and Wise (Pretrial)




                                          2
      One year later, AHC filed suit against W ise for negligence, alleging that the

damage to its building and contents, including inventory, was “at least $10 [million].”

Travelers intervened, asserting its subrogation rights to the first $2.6 million of any

recovery obtained by AHC.

      Before trial, W ise reached a mediated settlement agreement with Travelers,

in which Travelers, for $1.9 million, agreed to release its claim against W ise and to

assign to W ise “its entire priority claim interest in the amount of [$2.6 million] from

any recovery by [AHC].”

      Also prior to trial, AHC filed a motion asking the trial court to take judicial

notice of its order ratifying the $8,792,529 appraisal award in the companion case.

After a hearing on the matter, the trial court denied AHC’s motion.

C. Evidence at Trial

      In addition to evidence of liability, the jury also received the following evidence

pertaining to damages.

      1. Testimony of Keith Maddox, AHC’s Owner

      Keith Maddox purchased AHC out of foreclosure in 2003, paying $350,000 for

AHC’s inventory and equipment.           Around a year later, he moved AHC’s

manufacturing plant from Conroe to Bowie. On the day of the fire in November

2005, AHC had 490,092 hats in its inventory, totaling $2 million worth of inventory

inside the plant and $11 million worth of inventory in sealed containers in the parking




                                           3
lot. All 490,092 hats had smoke damage as a result of the fire and were not

sellable.2

       The damaged hats were either felt or straw and were in one of three

stages—stage one, “raw bodies”; stage two, finished hats that needed the name and

sweatband added to the inside; and stage three, finished hats ready to be shipped.

Because it takes anywhere from six months to a year to obtain raw bodies from

overseas, AHC lost customers after the fire due to a lack of inventory.3

       The Montague County tax appraisal records listed AHC’s inventory and

equipment at $200,000 as of January 1, 2005, and at $105,000 as of January 1,

2006. W hen questioned about Montague County’s tax appraisal requirement that

local businesses report the actual value for new inventory and the market value for

old inventory, Maddox conceded that AHC reported a value of $200,000 for its

inventory and equipment in January 2005 and that he could not recall AHC ever

reporting a value of a million dollars or more for its inventory.

       2. Testimony of Gary Moore, Retired Hatco Employee

       Gary Moore, a retired employee of one of AHC’s competitors with over twenty-

six years of experience in the hat industry, had been hired to inspect the damaged


       2
         Maddox stated that, based on his experience, it would be impossible to get
the smoke smell out of a hat by cleaning it. And because it costs $75 to clean a hat,
cleaning the hats would not be cost efficient. He added that it would be fraudulent
to sell a smoke-damaged hat as new.
       3
         Of AHC’s damaged inventory, about $1.2 million had been designated to
ship to Cavender’s—one of the customers AHC lost.

                                           4
hats and to give his opinion on them.4 He opined that all of AHC’s hats were smoke-

damaged, water-damaged, or both. Based on his experience, a hat with smoke

damage could not be cleaned, and, even if the hats could be cleaned, they could not

be sold as new.

      3. Testimony of Steve Startz, Owner of Startz Insurance Salvage

      AHC hired Steve Startz to determine the replacement cost of AHC’s inventory

immediately before the fire. Startz determined the actual cost of producing each hat

at the various stages of production from AHC’s 2005 invoices, profit and loss

statements, and tax records.

      In 2005, AHC calculated an inventory loss of $8.7 million. Three years later,

AHC submitted a new calculation, showing an inventory loss of approximately $10

million. Startz later found errors in the previous calculations and submitted a new

amount of $13,385,969.37.

      At trial, Startz testified that based upon his education, experience, and

investigation, he concluded that the total replacement cost would be $13,385,969.37,

based on the following calculations:


     Hat Type        Number of Hats          Cost per Hat    Replacement Cost

 Stage 1 Felt              38,670              $ 40.25          $1,556,467.50




      4
        The record does not identify who hired Moore, but it was a group with
interests adverse to Maddox and AHC. After Moore formed his opinion, AHC hired
him to give that opinion at trial.

                                         5
 Stage 2 Felt               63,381                $123.58         $7,832,623.98

 Stage 3 Felt                4,574                $137.11         $ 627,141.14

 Stage 1 Straw             345,870                $   5.43        $1,878,074.10

 Stage 2 Straw              23,701                $ 39.25         $ 930,264.25

 Stage 3 Straw              13,896                $ 40.04         $ 561,398.40


      4. Testimony of Shannon Henry Shipp, Ph.D.

      AHC hired Shannon Henry Shipp, Ph.D., a partner of a firm that provides

economic analysis and calculations for litigation support, to calculate AHC’s lost

profits.5 Although he did not have any prior experience with the hat manufacturing

process, Dr. Shipp calculated $5,774,923 as total lost profits for AHC from 2005 to

2011.6


      5
         Dr. Shipp, also a professor at the Neeley School of Business at Texas
Christian University, is a Certified Earnings Analyst who has been determining lost
profits since 1994.
      6
         Dr. Shipp’s original report showed a lost profit calculation of $3.6 million.
Dr. Shipp updated his calculations after receiving an inventory valuation change and
new information about increased costs. Dr. Shipp’s total lost profits are based on
the following calculations:


                               Year         Lost Profits
                               2005           $   807,459

                               2006           $ 1,124,292

                               2007           $ 1,063,617

                               2008           $ 1,021,848

                               2009           $   805,148

                                          6
      To calculate AHC’s lost profits, Dr. Shipp “had several conversations with Mr.

Maddox over time, also met with several folks at his company, and . . . talked about

everything from how many people there were and how they—how those folks were

organized, production people, financial people, office people.”          Most of the

background information he used to calculate AHC’s lost profits came from Maddox

and Startz. Dr. Shipp testified that he considered seasonal sales as well as the

different types of entities AHC sold to—stand alone stores, chain stores, and

individuals.   He based future projections on past sales, testifying that these

“projections and forecasts have a margin of error [and] . . . hitting something exactly

on the number, probably that’s not going to happen; within a range, probably.”

      Dr. Shipp testified that AHC had problems filling its orders prior to the fire.

“According to Mr. Maddox, Cavend[e]r’s had purchased large orders for several

locations, several Cavend[e]r’s locations, in the months before [AHC] moved to

Bowie, Texas.    W hen the factory was closed for the remodel and training the

workforce, AHC was unable to meet all the delivery deadlines.”

      5. Testimony of Dennis McBay, CPA7




                               2010           $   574,229

                               2011           $   378,330


      7
         McBay is also a Certified Fraud Examiner, Certified Valuation Analyst,
Certified Forensic Financial Analyst, and a Certified Fraud Deterrence Analyst.

                                          7
      W ise hired Dennis McBay to evaluate AHC’s lost profits and extra expense

loss. McBay reviewed historical sales, sales orders, historical financial statements,

and shipping information. He calculated AHC’s lost profits for the three months

following the fire as $97,652 8 and its extra expenses as $4,282.80, for a total of

$101,934.80. This number does not take into account seasonal sales and is based

upon AHC using cleaned smoke-damaged hats as inventory. W hen asked if it would

be fraudulent for AHC to sell smoke-damaged hats as new, McBay responded, “At

least, foolish; and probably fraudulent, yes, sir.”

      In a letter sent to W ise’s counsel, McBay opined on the costs paid by

Travelers as a result of the damage to AHC. Specifically, he wrote:

             The building repair costs, clean up expenses, temporary storage
      costs, contents losses, business interruption loss and extra expenses
      incurred by [AHC] were determined in the approximate amount of
      $9,437,592.72. It is my understanding that [AHC’s] damages in the
      amount of $6,792,604.98 were not insured.

           I have calculated that [Travelers] paid [AHC] and American Hat
      vendors $2,644,987.74 as a result of the damage. . . .

      6. Deposition Testimony of Frances Scott Dau




      8
        $184,172 (business interruption loss)
      -$ 15,269 (actual sales)
      -$ 66,043 (cost of sales)
      -$ 5,208 (noncontinuing expenses)
       $ 97,652 (lost profits)

                                           8
         Frances Scott Dau was hired to determine (1) the amount of smoke damage

to AHC’s building and inventory and (2) AHC’s lost profits after the fire.9 After

visiting AHC’s plant, Dau prepared the following statement of loss:

         BUILDING DAMAGES
         Structural Building Cleaning                           $ 81,266.09

         CONTENT DAMAGES
         Storage Rental, Unpack, Inventory, Repack              $ 61,653.54
         Replace Damaged Stage 1 “Felts”                        $ 56,951.00
         Replace Damaged Stage 2 “Felts”                        $ 32,481.00
         Replace Damaged Stage 3 “Felts”                        $ 22,632.00
         Replace Damaged Stage 1 “Straws”                       $ 2,583.00
         Replace Damaged Stage 2 “Straws”                       $ 20,999.00
         Replace Damaged Stage 3 “Straws”                       $ 23,370.00
         Cleaning of 477,080 hats                               $355,663.14
         Total:                                                 $576,332.68

         BUSINESS INCOME
         Lost Profits & Extra Expenses                          $101,934.80 10

         Dau used figures given to him by AHC for replacement costs to calculate

content damages. Dau’s estimate of $576,332.68 for AHC’s content damages

assumes that all but 13,012 of the 490,092 damaged hats could be cleaned. W hen

asked if the hats would be marketable after being cleaned, Dau responded, “I would

not know.” Dau conceded that if the hats were not marketable after being cleaned

then it would change his estimate for AHC’s content damages.

         7. Testimony of John Michael Corn, Forensic Chemist


         9
              It is unclear who originally hired Dau; however, Dau testified on behalf of
W ise.
         10
               Dau hired McBay to calculate AHC’s lost profits.

                                               9
      John Michael Corn analyzes samples from fire scenes to determine if an

accelerant is present. He analyzed hats from AHC’s inventory to determine if there

was any soot residue or odor from soot on the hats, but the hats Corn analyzed did

not come directly from AHC.11 Corn analyzed fourteen hats, each classified as a

sample and representing approximately 35,000 hats. W hen asked if the sampling

was a true sample, Corn responded, “It’s a true sample in that if they were taken

from those trailers, they are a true sample. Now, is it a representative sample, I

can’t answer that.”    Of the fourteen hats sampled, Corn found two that had

“particulates with the morphology of soot on them.” He also found dust, dirt, and

common environmental mold on some of the hats he inspected.

      Corn testified that

      [t]he hats can be easily cleaned by brushing with an appropriate
      material and vacuuming with a HEPA filter or remote vacuum. Hats
      with discernible odor can be treated by placing the hats in a chamber
      that can be purged with heated filtered air. The smoke odor is a
      mixture of high molecular weight alcohols and aldehydes and these
      compounds can be vaporized by heat and moving air.

W hen asked whether the two hats on which he found particulants had been cleaned

before the testing, Corn responded, “They were reported to have been cleaned by

vacuuming, steaming, and brushing, yes.” Corn further recommended putting the

hats in a chamber to get rid of the smell but conceded that he had not tried cleaning




      11
         It is unclear who hired Corn; however, Corn testified that he received the
hats from Blackmon Mooring and Serv Pro.

                                         10
any of the hats in this way. Corn opined that it would not be wrong to sell a hat as

new after being cleaned.

      8. Deposition Testimony of Jeff Biggars, AHC’s Plant Manager

      Jeff Biggars testified that on an average day, AHC produced 300 to 360 straw

hats and 84 to 120 felt hats. Biggars stated that it takes between six months to a

year to receive straw bodies from China. He also opined that the hats, which were

stored in containers in the parking lot, could not be cleaned.

D. AHC’s Closing Argument

      In its closing argument, AHC argued and reiterated in pertinent part that:

             1)      It had 490,092 hats in its inventory at the time of the
             fire;

             2)     The hats could not be cleaned and were not
             sellable;

             3)    Startz estimated         a   replacement      value    of
             $13,385,969.37;

             4)     Dr. Shipp calculated AHC’s past and future lost
             profits in the amount of $5,774,923;

             5)    It had previously been determined in the companion
             case involving Travelers that AHC had a total loss of
             $9,437,592.72, which included: building repair costs,
             clean up expenses, temporary storage costs, contents
             losses, business interruption loss, and extra expenses;
             and
             6)    Travelers paid AHC $2.6 million.

E. Wise’s Closing Argument

      In its closing arguments, W ise argued and reiterated in pertinent part that:

                                           11
            1)     AHC’s estimated value of its inventory was a moving
            target;

            2)   In 2003, Maddox purchased AHC’s inventory and
            equipment for $350,000;

            3)   AHC’s 2005 tax appraisal listed the market value of
            AHC’s inventory and equipment at $200,000;

            4)   AHC’s 2006 tax appraisal listed the market value of
            AHC’s inventory and equipment at $105,000;

            5)     Travelers paid AHC $2 million for its inventory;

            6)    There is a good argument that the money AHC
            received from its insurance fully compensated AHC for its
            property loss;

            7)    Dau calculated content damages in the amount of
            $576,332.68; and

            8)    Dau reported AHC had lost profits in the amount of
            $101,934.80.

F. Jury Charge
     The trial court submitted the following jury charge without objection from AHC:

            “Market value” means the amount that would be paid in
            cash by a willing buyer who desires to buy, but is not
            required to buy, to a willing seller who desires to sell, but
            is under no necessity of selling.

            “Lost profits” are the damages for the loss of net income
            to a business. “Lost profits” means the difference between
            a business’s total receipts and all of the expenses incurred
            in carrying on the business. Lost profits need not be
            proven by a precise calculation, but must be proven by
            reasonable certainty. Lost profits are not recoverable if
            they are dependent upon uncertain or changing market
            conditions, chancy business opportunities, promotion of
            untested products or entry into unknown or unviable


                                         12
              markets, or on the success of a new and unproven
              enterprise.

       Answer, with respect to the elements listed, in dollars and cents for
       damages, if any, for:

              a. The difference, if any, in the market value in Montague
              County, Texas, of [AHC’s] inventory immediately before
              and immediately after the occurrence in question.

              Answer:

              ...

              c. Lost profits sustained in the past.

              Answer:

              d. Lost profits that, in reasonable probability, will be
              sustained in the future.

              Answer:

G. Jury’s Verdict

       The jury found that W ise was negligent and awarded AHC $95,000 for the

decrease in market value of its inventory, $270,000 for its past lost profits, and $0

for future lost profits.

H. Post-trial

       W ise filed a motion for entry of judgment asserting that, under the “one

satisfaction” rule, the trial court should render a take-nothing judgment because AHC

had been made whole by the $2.6 million payment from Travelers. Alternatively,

W ise argued that it was entitled to a credit under chapter 33 of the civil practice and



                                          13
remedies code for the $1.9 million settlement payment it made to Travelers in

exchange for a release of Travelers’s claim against W ise.

      AHC filed a motion to disregard the jury’s answers and a motion for judgment

on the verdict, arguing that (1) W ise was collaterally estopped from requesting a

damage award inconsistent with the trial court’s judgment in the companion case,

which awarded AHC damages in the amount of $8,729,529, and (2) the jury’s award

of damages—$95,000 for AHC’s loss of inventory, $270,000 for past lost profits, and

$0 for future lost profits—was against the great weight and preponderance of the

evidence.

      The trial court entered a final judgment awarding AHC damages in accordance

with the jury’s findings. W ise filed a motion to modify the judgment or for judgment

notwithstanding the verdict, reasserting its entitlement to a take-nothing judgment

by virtue of either the settlement payment to Travelers or the assignment of

Travelers’s subrogation right. AHC filed a motion for new trial. The motions were

overruled by operation of law. This appeal and cross-appeal followed.

                   III. Judicial Notice and Collateral Estoppel

      In its first issue, AHC asserts that (1) the trial court erred by not taking judicial

notice of its judgment in the AHC-Travelers companion case and (2) W ise is

collaterally estopped from contesting the damage award in the companion case.

      Although AHC presents its first issue as a judicial notice challenge and as an

issue of collateral estoppel, AHC’s briefing focuses solely on the issue of collateral


                                           14
estoppel. Therefore, we do not address AHC’s judicial notice challenge. See Tex.

R. App. P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W .2d 279,

284–85 (Tex. 1994). W e do note, however, that even if the trial court had taken

judicial notice of its prior judgment, the use to which that judgment may have been

put is circumscribed by the doctrine of collateral estoppel. See Tex. Real Estate

Comm’n v. Nagle, 767 S.W .2d 691, 694 (Tex. 1989) (“A court may take judicial

notice of its own records and judgments, but the use to which such records may be

put is circumscribed by the doctrines of res judicata and collateral estoppel.”).

      Collateral estoppel can be applied offensively or defensively. Case Funding

Network, L.P. v. Anglo-Dutch Petroleum Int'l, Inc., 264 S.W .3d 38, 57 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied). A plaintiff uses offensive collateral

estoppel when it seeks to estop a defendant from relitigating an issue that the

defendant previously litigated and lost in a suit involving another party. Id. A trial

court has broad discretion in determining whether to allow a plaintiff to use collateral

estoppel offensively. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.

Ct. 645, 651 (1979); see also Scurlock Oil Co. v. Smithwick, 724 S.W .2d 1, 7 (Tex.

1986) (citing Parklane Hosiery with approval). A trial court abuses its discretion only

when its action is arbitrary and unreasonable, without reference to guiding rules or

principles. Beaumont Bank, N.A. v. Buller, 806 S.W .2d 223, 226 (Tex. 1991).

      As a preliminary matter, we agree with W ise that AHC failed to plead collateral

estoppel in its petition. However, even assuming the issue of collateral estoppel was


                                          15
tried by consent, AHC failed to present sufficient evidence to establish that collateral

estoppel applied. See Scurlock Oil Co. v. Smithwick, 787 S.W .2d 560, 562 (Tex.

App.—Corpus Christi 1990, no writ) (“The burden is on appellants to present

sufficient evidence to establish that the doctrine of collateral estoppel should

apply.”).

      To establish collateral estoppel, AHC had to show: (1) the facts pertaining to

damages in this case were fully and fairly litigated in the AHC-Travelers case, (2) the

facts pertaining to damages in this case were essential to the judgment in the AHC-

Travelers case, and (3) that AHC and W ise were cast as adversaries in the first

case. See Tex. Dep’t of Pub. Safety v. Petta, 44 S.W .3d 575, 579 (Tex. 2001).

      Here, neither the judgment nor the pleadings from the companion case are

part of the record. Consequently, it is unclear from the record whether the facts

pertaining to damages in this case were fully and fairly litigated in the AHC-Travelers

case. See Jones v. City of Houston, 907 S.W .2d 871, 874 (Tex. App.—Houston [1st

Dist.] 1995, writ denied) (holding party relying on the doctrine of collateral estoppel

is required to introduce into evidence both the judgment and pleadings from the prior

suit); see also Cuellar v. City of San Antonio, 821 S.W .2d 250, 256 (Tex. App.—San

Antonio 1991, writ denied) (same). Thus, the trial court did not abuse its discretion

by refusing to give collateral estoppel effect to the damages awarded in the AHC-

Travelers case. Accordingly, we overrule AHC’s first issue.

                                    IV. Damages


                                          16
      In its third issue, AHC asserts that the jury’s finding as to the difference in the

market value of AHC’s inventory immediately before and immediately after the fire

was against the great weight and preponderance of the evidence. W e agree.

A. Standard of Review

      W hen a party attacks the factual sufficiency of an adverse finding on an issue

on which it had the burden of proof, it must demonstrate on appeal that the adverse

finding is against the great weight and preponderance of the evidence. Dow Chem.

Co. v. Francis, 46 S.W .3d 237, 242 (Tex. 2001). W e consider all the evidence and

set aside the judgment only if it is so contrary to the overwhelming weight of the

evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W .2d 175, 176 (Tex.

1986).

B. Market Value

      Market value is the primary method of valuation in cases involving damage to

personal property. See Int’l-Great N. R.R. Co. v. Casey, 46 S.W .2d 669, 670 (Tex.

Comm’n App. 1932, holding approved).           Market value is defined as the price

property would bring when it is offered for sale by one who desires to sell, but is not

bound to do so, and is bought by one under no necessity to purchase it.           Exxon

Corp. v. Middleton, 613 S.W .2d 240, 246 (Tex. 1981); Ford Motor Co. v. Cooper,

125 S.W .3d 794, 799 (Tex. App.—Texarkana 2004, no pet.). The market value of

property is determined at the place where the damage occurred. See Thomas v.

Oldham, 895 S.W .2d 352, 359 (Tex. 1995). If the property has a market value, a


                                          17
plaintiff’s damages are measurable as the difference in market value immediately

before and after the injury. Id.

C. Analysis

      At trial, Maddox testified that 490,092 hats, over $13 million in inventory, had

been damaged by the fire and could not be sold. Startz, AHC’s expert, testified that

the replacement cost for AHC’s inventory was $13,385,969.37. Based on the

evidence presented by AHC at trial, AHC sought the replacement cost of its

inventory and not the market value. See Shaw Tank Cleaning Co. v. Tex. Pipeline

Co., 442 S.W .2d 851, 854 (Tex. Civ. App.—Amarillo 1969, writ ref’d n.r.e.) (holding

that if the property has no market value and can be replaced, replacement costs are

the proper measure of damages); see also Moran Corp. v. Murray, 381 S.W .2d 324,

328 (Tex. Civ. App.—Texarkana 1964, no writ) (stating that it is the plaintiff’s burden

to show which method of valuation other than market value is appropriate). This

conclusion is further supported by AHC’s request for lost profits, which are not

recoverable if market value is awarded. See State v. Whataburger, Inc., 60 S.W .3d

256, 262 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (stating that any award

for lost profits and the difference in market value constitutes a double recovery).

      However, the trial court submitted, without objection by AHC, a jury charge on

market value and not replacement cost. Thus, we must determine whether the

evidence was sufficient to support the jury’s award for market value. See Wal-Mart

Stores, Inc. v. Sturges, 52 S.W .3d 711, 715 (Tex. 2001) (stating that an assessment


                                          18
of the evidence “must be made in light of the jury charge that the district court gave

without objection”); see also City of Fort Worth v. Zimlich, 29 S.W .3d 62, 71 (Tex.

2000) (“Since neither party objected to this instruction [regarding malice], we are

bound to review the evidence in light of this definition.”).

      For the jury to have calculated AHC’s damages based on market value, there

had to be evidence of the value of AHC’s inventory immediately before and

immediately after the fire. See Thomas, 895 S.W .2d at 359. As both W ise and AHC

point out, and we agree, the jury’s $95,000 figure is apparently the difference

between the inventory figures submitted for tax appraisal purposes in 2005 and

those submitted in 2006 (that is, $200,000 and $105,000).              The only other

calculation resulting in a damage figure in any way similar to this again uses the

2005 tax figure ($200,000) and subtracts AHC’s 2005 cost of goods sold ($106,016)

found in Shipp’s lost profits calculations, to yield a figure of $93,984. Either way, the

jury’s calculations require the use of AHC’s 2005 inventory appraisal figure.

      The inventory appraisal figure calculated sometime before January 1, 2005,

and submitted to the taxing authorities for the January 1, 2005 date is certainly not

immediately before the occurrence in question, which took place on November 27,

2005, approximately eleven months later. Nor is there evidence linking the 2005

appraisal figure to the value of AHC’s inventory immediately before the fire. That is,

there is no evidence that the value of AHC’s inventory immediately before the fire

was the same as the 2005 appraisal figure eleven months earlier.


                                           19
      The jury, however, heard Maddox testify that the value of AHC’s inventory

immediately before the fire was over $13 million. Although the evidence suggests

that Maddox was referring to replacement costs and not market value, it is

reasonable to infer that the market value of AHC’s inventory would not be less than

the cost to replace the inventory.    The jury also heard that the umpire in the

companion case determined that the value of AHC’s inventory loss was $8,792,529.

Even Dau, Wise’s own expert, testified that AHC had market value damages in the

amount of $355,663.14 and replacement costs of over $150,000. Finally, it was

undisputed that AHC had 490,092 hats in its inventory at the time of the fire. Using

the 2005 tax figure to calculate market value would result in a market value of

approximately $0.41 per hat ($200,000/490,092). That amount is far less than the

replacement cost per hat, which, based on the evidence presented at trial, ranges

from $5.43 to $137.11 per hat. Thus, based on the record as a whole, we hold that

the jury’s finding as to market value is so contrary to the overwhelming weight of the

evidence that it is clearly wrong and unjust. Accordingly, we sustain AHC’s third

issue.12

                                  V. Conclusion

      Our resolution here does not expressly affect the liability portion of the trial

court’s judgment. However, under current Texas law, we are nevertheless required



      12
        Because AHC’s third issue is dispositive, we do not address AHC’s
second issue, nor do we reach W ise’s cross-issues. See Tex. R. App. P. 47.1.

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to remand this proceeding for a new trial on both liability and damages. That is,

when liability is contested, as here,13 we are not permitted to remand for a separate

trial solely on unliquidated damages. See Tex. R. App. P. 44.1(b) (prohibiting a

separate trial solely on unliquidated damages when liability is contested); see also

Estrada v. Dillon, 44 S.W .3d 558, 562 (Tex. 2001) (stating party’s failure to present

on appeal an additional discrete challenge to liability when party challenges

damages does not defeat plain language of rule 44.1(b)). Accordingly, we reverse

the trial court’s judgment and remand for a new trial.



                                                     BOB MCCOY
                                                     JUSTICE


PANEL: W ALKER and MCCOY, JJ.; and W ILLIAM BRIGHAM (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: October 14, 2010




      13
         W ise contested its liability by challenging whether it acted negligently,
asserting that the fire was the result of an Act of God, an unavoidable accident,
condition, or situation as defined by Texas law.

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