                                                                                  ACCEPTED
                                                                              12-11-00303-cv
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                        3/13/2015 4:46:09 PM
                                                                                CATHY LUSK
                                                                                      CLERK

                          No. 12-11-00303-CV

__________________________________________________________________
                                                       FILED IN
                                                   12th COURT OF APPEALS
                                                        TYLER, TEXAS
                 IN THE TWELFTH COURT OF APPEALS 3/13/2015 4:46:09 PM
                             AT TYLER                   CATHY S. LUSK
                                                            Clerk
__________________________________________________________________

              ENBRIDGE PIPELINES (EAST TEXAS) L.P.
                           Appellant

                                   v.

                    GILBERT WHEELER, INC.
                             Appellee
_________________________________________________________________

                 On Remand from Texas Supreme Court
   Original Appeal from the 273RD District Court of Shelby County, Texas
__________________________________________________________________

        APPELLANT’S SUPPLEMENTAL BRIEF ON REMAND

                                 FLOWERS DAVIS, P.L.L.C.
                                 1021 ESE South Loop 323
                                 Suite 200
                                 Tyler, Texas 75701
                                 (903) 534-8063
                                 (903) 534-1650 Facsimile
                                 JULIE P. WRIGHT
                                 jpw@flowersdavis.com
                                 State Bar No. 00794883
                                 THOMAS H. BUCHANAN
                                 State Bar No. 03290500
                                 ATTORNEYS FOR APPELLANT
                      IDENTITY OF PARTIES AND COUNSEL


Appellant:                        Enbridge Pipelines (East Texas) L.P.


Lead Appellant’s Counsel:         Julie P. Wright
                                  Flowers Davis, PLLC
                                  1021 ESE South Loop 323
                                  Suite 200
                                  Tyler, Texas 75701
                                  (903) 534-8063
                                  (903) 534-1650 Facsimile

Apellee:                          Gilbert Wheeler, Inc.

Appellee’s Counsel:               Mr. Don Wheeler
                                  101 Tenaha Street
                                  Center, Texas 75935
                                  (936) 598-2925
                                  (936) 598-7024 Facsimile

                                  Mr. Darrin Walker
                                  6134 Riverchase Glen Dr.
                                  Kingwood, Texas 77345
                                  (281) 358-2295
                                  (281) 358-5602 Facsimile




                                     ii
                                              TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities .............................................................................................. iv-v

I.    Effect of the Supreme Court’s Decision on the Original Appellate Issues
      raised by Enbridge .............................................................................................. 2

II. Apparent Changes in Law Resulting from Supreme Court’s Decision .............. 8

III. Supplemental Issues Presented in light of Supreme Court’s Decision............. 12

ISSUE NO. 1                  The record contains no objective evidence from Kathryn
                             Wheeler or from any of Wheeler’s experts as to the aesthetic or
                             utilitarian value of the 1.69 acre of cleared trees, or any
                             evidence of any other objective damages.

ISSUE NO. 2                  Alternatively, if this Court determines that the record contains
                             some evidence as to the aesthetic or utilitarian value of the
                             trees, the record is factually insufficient to support an award of
                             $288,000 in damages as found by the jury. In that event,
                             Enbridge requests that this Court remand this matter for a new
                             trial consistent with the Supreme Court’s decision, this Court’s
                             decision, and further orders of this Court.

IV. Conclusion and Prayer ...................................................................................... 26

Certificate of Compliance ........................................................................................ 27

Appendix .................................................................................................................. 29




                                                             iii
                                          INDEX OF AUTHORITIES

Boyce Iron Works, Inc. v. Southwestern Bell Telephone Co.,
747 S.W.2d 785 (Tex. 1988).................................................................................... 12

Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) ............................................................. 24

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................................ 13

Dow Chemical Co. v. Francis, 46 S.W.3d 237 (Tex. 2001).................................... 24

Gilbert Wheeler, Inc. v Enbridge Pipelines (East Texas)L.P.
449 S.W.3d 474 (Tex. 2014) ............................................................. 1-5, 7-10, 14, 26

King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) .................................. 13

Lucas v. Morrison, 286 S.W.2d 190 (Tex. 1956) ..........................................8, 10, 15

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) ..................... 13

Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex. 1989) ............................ 24

Porras v. Craig, 675 S.W.2d 503 (Tex. 1984) .................................................... 8, 14

Strickland v. Medlen, 397 S.W.3d 184 (Tex. 2013) ................................................ 14

Thota v. Young, 366 S.W.3d 678 (Tex. 2012) ......................................................... 11

Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706 (Tex. 2003) ................................ 13

STATUTES AND RULES:

TEX. R. APP. P. 9.4(i)(1) ........................................................................................... 27

TEX. R. APP. P. 9.4(i)(2)(B) ...................................................................................... 27

TEX. R. APP. P. 43.2.................................................................................................. 27


                                                           iv
TEX. R. APP. P. 43.3.................................................................................................. 27

TEX. R. APP. P. 43.4.................................................................................................. 27




                                                           v
                              No. 12-11-00303-CV
                  IN THE TWELFTH COURT OF APPEALS
                             AT TYLER
__________________________________________________________________

                 ENBRIDGE PIPELINES (EAST TEXAS) L.P.
                              Appellant
                                        v.

                      GILBERT WHEELER, INC.
                              Appellee
 _________________________________________________________________
                    On Remand from Texas Supreme Court
     Original Appeal from the 273RD District Court of Shelby County, Texas
 _________________________________________________________________

        APPELLANT’S SUPPLEMENTAL BRIEF ON REMAND
 _________________________________________________________________
TO THE HONORABLE TWELFTH COURT OF APPEALS AT TYLER:

      COMES NOW ENBRIDGE PIPELINE (EAST TEXAS) L.P., Defendant

below and Appellant herein, and submits this Appellant’s Supplemental Brief on

Remand, and would respectfully show unto the Court that, even in light of the

Texas Supreme Court’s decision in Gilbert Wheeler, Inc. v. Enbridge Pipelines

(East Texas) L.P. 449 S.W.3d 474 (Tex. 2014), this matter must be reversed and

rendered in Enbridge’s favor because the trial record contains no evidence of

intrinsic value (aesthetic or utilitarian) upon which a judgment could be rendered.


                                        1
Alternatively, if this Court concludes that there is some evidence in the record of

intrinsic value damages so as to preclude a rendition in Enbridge’s favor, Enbridge

is entitled to a new trial on the issue because the Supreme Court significantly

changed the law governing the measures of damages applicable to this case, and, as

a result, has changed the manner in which the evidence should be presented to the

jury and in which charge issues should be submitted to a jury. Enbridge is entitled

to have a jury make a determination as to whether and to what extent Wheeler Inc.

has been damaged – under the new law.

      I. EFFECT OF THE SUPREME COURT’S DECISION ON THE
         ORIGINAL APPELLATE ISSUES RAISED BY ENBRIDGE
ISSUE NO.1         Wheeler, Inc.’s claim, based upon breach of Right of Way
                   Agreement provisions, sounded exclusively in contract as a
                   matter of law. It was therefore error to deny Enbridge’s Motion
                   for Directed Verdict as to Wheeler, Inc.’s trespass claim; it was
                   error to submit Question Nos. 3, 4, and 5 to the jury based upon
                   a trespass claim; and it was error to deny Enbridge’s Motion for
                   Judgment Notwithstanding the Verdict relating to Wheeler,
                   Inc.’s trespass claim.

      The Supreme Court unequivocally agreed that the claim sounded in breach

of contract. It stated first that “[i]n today’s case, we consider whether [the general

rule for compensating an owner for injuries to real property] applies when the

wrongful conduct causing the injury stems from breach of contract rather than

tort.” Wheeler, Inc., 449 S.W.3d at 476. (emphasis added). It later stated that

                                          2
“[o]ur analysis takes into consideration the fact that the property in question was

injured due to a breach of contract, as well as the fact that the injury involves loss

of trees.” Wheeler, Inc., 449 S.W.3d at 478. (emphasis added).

      However, although the Supreme Court determined that breach of contract

was a correct theory of liability, it further noted that “it is not immediately clear

whether the trial court erred in submitting Wheeler’s [trespass] claim to the jury…

However, we need not resolve that question to conclude that, even if the

submission of the trespass cause of action was error, it was harmless.” … Wheeler,

Inc., 449 S.W.3d at 485-86.

ISSUE NO. 2        The trial court erred in submitting Questions No. 3, 4, and 5 to
                   the jury based upon a trespass cause of action because there was
                   no evidence or no legally sufficient evidence to support
                   submission of a trespass cause of action to the jury.

      This issue was not considered or resolved by the Supreme Court.

ISSUE NO. 3        The trial court erred in submitting the breach of contract theory
                   to the jury based upon a cost-to-restore measure of damages.
                   The evidence conclusively established that temporary damages
                   were barred as a matter of law in this case, and that the only
                   proper measure of damages was the diminution in fair market
                   value. Therefore the trial court erred in denying Enbridge’s
                   Motion for Directed Verdict as to this issue, it erred in refusing
                   to submit Enbridge’s properly submitted question as to breach
                   of contract based upon diminution of fair market value, and
                   such error was calculated to and probably did cause the
                   rendition of an improper verdict.


                                          3
      The Supreme Court deemed the injury to the property to be permanent as a

matter of law, “due to the parties’ agreement and the application of the economic

feasibility exception.” Wheeler, Inc., 449 S.W.3d at 484. The Supreme Court held

that “because the injury [to the property] is deemed permanent, … the trial court

improperly instructed the jury to calculate damages based on the cost to restore the

property. In turn, the trial court’s judgment may not be upheld based on the jury’s

calculation of such damages.” Id.

      The Supreme Court recognized that the proper measure of damages in this

case was, and is, diminution in fair market value. It also recognized prior law

which allowed recovery of intrinsic value damages when the injury does not

diminish the value of the property, and further created a new avenue for awarding

intrinsic value damages based upon a finding of nominal diminution in value.

ISSUE NO. 4        Because cost-to-restore damages were barred as a matter of law,
                   there is no evidence or legally insufficient evidence in the
                   record to support the jury’s verdict, and Enbridge is entitled to a
                   reversal of the trial court’s judgment.

      This issue was not considered or resolved by the Supreme Court. However,

even when considered in the light of the Court’s new law, Enbridge is still entitled

to a reversal of the trial court’s judgment. The only evidence contained in the

record upon which the jury could have based either of its damage awards -- the


                                         4
$300,000 award or the $288,000 award – was either 1) the personal sentimental

value as testified by Kathryn Wheeler, which may not be considered; or 2) the

testimony of Wheeler’s two cost-to-restore experts, Gregory David and Lynwood

Smelser.

ISSUE NO. 5         Enbridge is entitled to rendition of judgment based upon the
                    only competent evidence of record regarding diminution of fair
                    market value, which conclusively establishes that the property
                    suffered a diminution in value of $3,000.00, because Wheeler,
                    Inc.’s only controverting expert on diminution of value should
                    have been excluded.
      The Supreme Court stated in footnote 5 that “[t]he jury agreed with Wheeler

that there was no loss in fair market value, but Enbridge challenges the sufficiency

of the evidence to support that finding. We need not decide the issue because the

result is the same even if we assume there was a $3,000 loss in far market value.”

Wheeler, Inc., 449 S.W.3d at 485. Even if we accept the Supreme Court’s analysis

as accurate, this Court must render a take nothing judgment in favor of Enbridge

because the record contains no evidence to support the intrinsic value finding (as

briefed in the Supplemental Issues on Remand herein below).

           Enbridge’s Conditional Issues which Supreme Court determined
                     that this Court should consider and resolve

ISSUE NO. 6         The trial court erred in failing to exclude the testimony of
                    Plaintiff’s expert witnesses Gregory David and Lynwood
                    Smelser because their testimony was wholly based upon cost-

                                         5
                  to-restore damages, because cost-to restore damages were
                  barred as a matter of law as the measure of recovery, because
                  the only proper measure of damages in this case was diminution
                  in fair market value, and because David and Smelser were not
                  real estate appraisers or the landowners and could therefore not
                  opine as to the diminution in fair market value.

      This issue was not considered or resolved by the Supreme Court.

ISSUE NO. 7       The trial court erred in excluding Enbridge’s rebuttal testimony
                  of Dr. Gary Kronrad related to Gregory David’s testimony and
                  Daniel Plume’s testimony because the grounds of objection
                  asserted by Wheeler, Inc. were factually incorrect and were
                  wholly unsupported by the record.

      This issue was not considered or resolved by the Supreme Court.

ISSUE NO. 8       The trial court erred in submitting the trespass claim to the jury
                  based upon an intrinsic value measure of damages, as requested
                  by Wheeler, Inc., because said questions were not properly
                  predicated upon a requisite finding of permanent injury.

       This issue was considered and resolved by the Supreme Court as addressed
in Issue No. 3 above.

ISSUE NO. 9       The evidence of record is legally insufficient to support the jury
                  finding of intrinsic value damages because Wheeler, Inc.’s only
                  expert on diminution of value should have been excluded, and
                  thus, there was no competent evidence in the record
                  demonstrating that the diminution in value to Wheeler, Inc.’s
                  entire 153 acre tract was “zero”, and there could be no finding
                  of intrinsic value damages absent such a finding.

      This issue was considered and resolved by the Supreme Court.

ISSUE NO. 10      The evidence of record is legally insufficient to support the
                  jury’s finding of intrinsic value damages because the record

                                        6
                   contains undisputed evidence which conclusively established
                   that the lost trees had a market value separate and apart from
                   the 153 acre tract.

      This issue was mentioned in footnote 4 of its opinion, but not resolved by
the Supreme Court.

      Wheeler, Inc., and now the Supreme Court, misunderstand the second part of

this issue as raised by Enbridge regarding the market value of the severed timber.

Enbridge did not and does not contend that such market value should have been

submitted to the jury as a measure of damages (as stated by the Supreme Court in

footnote 4). Wheeler, Inc., 449 S.W.3d at 486.      To the contrary, Enbridge’s

position is that Wheeler, Inc. was precluded from submitting an intrinsic value

question to the jury because the record contains uncontradicted evidence that the

trees had a specific market value separate and apart from the land. That testimony

was presented by Gary Kronrad (RR 8, pp. 133-45), Jeff Williams (RR 8, pp. 198-

202), and Mark Tietz (RR 8, pp. 207-213), and heard by the jury, and may form the

basis of a modified judgment by this Court.

      The confusion likely arises because Wheeler, Inc. attempted to subvert

existing case authority in order to recover more than the applicable law would

allow. Wheeler, Inc. attempted to recover for the loss of 1.69 acres of forest

wood/timber [which do have a market value when severed from the land] as


                                        7
though each of the “trees” were ornamental / shade trees [which do not have a

market value when severed from the land]. According to the Supreme Court, in

order to recover for ornamental / shade trees, as in the Lucas v. Morrison case, the

plaintiff must show that the destroyed trees have no market value when severed

from the land. Wheeler, Inc., 449 S.W.3d at 484, fn. 4; Lucas v. Morrison, 286

S.W.2d 190, 191 (Tex. 1956).      If attempting to recover for loss of acreage of

forest/timber, as in Porras v. Craig¸ no such requirement exists. Wheeler, Inc., 449

S.W.3d at 484, fn. 4, Porras v. Craig, 675 S.W.2d 503, 506 (Tex. 1984).

      The legal analysis utilized by the Supreme Court makes sense in theory, but

it applied the wrong case to the facts at hand. Here, Wheeler, Inc. was precluded

from submitting an intrinsic value question to the jury for both reasons – 1) these

were not ornamental / shade trees, they were native forest timber, and 2) that

timber had a specific market value separate and apart from the land.

ISSUE NO. 11       The trial court erred in refusing to submit questions/instructions
                   to jury on Enbridge's defense of non-agreement.
      This issue was not considered or resolved by the Supreme Court.

      II. APPARENT CHANGES IN THE LAW RESULTING FROM

                    THE SUPREME COURT’S DECISION
      Rather than directly addressing or refuting Enbridge’s issues presented to

this Court, the Supreme Court has made a concerted effort to commingle, blend

                                         8
and blur Wheeler, Inc.’s two fatally submitted causes of action – breach of contract

and trespass – together in an obvious result-oriented effort to allow Wheeler, Inc.

one more chance to hold on to a jury award, which cannot stand according to

longstanding Texas case authority or under the new law created by the Supreme

Court in this case.

      In what appears to be a very result-oriented opinion, the Supreme Court held

that Wheeler, Inc.’s breach of contract theory of liability was correct, but that cost

of repair was an improper measure of damages. It also held that the determination

as to whether the injury is temporary or permanent is now a question of law, and

on that basis, rejected the entirety of this Court’s analysis based upon long standing

law governing charge submissions. Wheeler, Inc., 449 S.W.3d at 481. It also could

not (would not) decide whether trespass was a proper theory of liability under these

facts, but opined that in any event, it believed that the error in submitting the

trespass theory of liability was harmless error because it found that intrinsic value

damages could be recoverable under either theory of liability. “Because breach of

contract was a valid theory of liability on which Wheeler prevailed, it is of no

moment that the intrinsic value of trees jury question was submitted in conjunction

with a trespass cause of action.” Wheeler, Inc., 449 S.W.3d at 486.



                                          9
      The Supreme Court further, for the first time, defined intrinsic value as

aesthetic or utilitarian value which could be objectively measured (i.e. by an

expert), Wheeler, Inc., 449 S.W.3d at 482-83, and allowed for the possibility of

additional objective intrinsic damages if an expert provided the proper predicate.

Id. at 483. It expressly excluded from intrinsic value, the subjective sentimental

value which might be placed upon the trees/property by the owner. Id. And, for

the first time, the Supreme Court held that intrinsic value damages could be

predicated upon either a zero finding of diminution in value or upon an amount of

“nominal damages.” Id. It set no parameters for assessing “nominal damages” but

determined, under these facts, and contrary to its holding in Lucas v. Morrison, that

$3000 was “nominal” as a matter of law. Id. at 485. (In Lucas, the Supreme Court

stated that “nominal damage is damages in name only. It should be in some trivial

amount and is usually in the sum of $1.” Lucas v. Morrison, 286 S.W.2d 190, 191-

92 (Tex. 1956)).

      The Court did not state whether the breach of contract theory of liability

(submitted in this charge with an improper measure of damages) could be

somehow tied to the evidence in the record of the $3000 diminution in value

(rejected by the jury which found $0) to support the intrinsic value damage finding

(submitted under a separate theory of liability) so as to allow this Court to render a

                                         10
judgment for the Wheelers for the intrinsic value damages. And, Enbridge has

found no cases allowing damages submitted under one theory of liability to be

cross-tied to another theory of liability to support a judgment.

      And, it left open this court’s analysis of the remaining issues raised by

Enbridge in light of its opinion – including specifically the issues Enbridge raised

conditionally in the event the Court of Appeals determined that remand for a new

trial would be appropriate.

      The Supreme Court’s decision makes new law which was not in effect

during trial of this case or during the initial appeal. Enbridge does not agree with

the Supreme Court’s position that the error in submitting the trespass was

harmless; and in fact the case cited by the Supreme Court in support of that

position does not stand for that proposition. That case involved submission of a

single theory of liability and multiple defensive issues, not multiple theories of

liability each with separate measures of damages. Thota v. Young, 366 S.W.3d 678,

693-94 (Tex. 2012).

      However, if Enbridge had known that a possibility existed that trespass

would be held to be proper, either in and of itself, or as harmless error, and if

Enbridge had known that the Court would decide that it was no longer necessary to

have a finding of zero diminution in value, but instead allow “nominal

                                          11
diminution,” and if Enbridge had known that the Court would clarify the intrinsic

value of the trees to be specifically limited to aesthetic or utilitarian value (or some

other objective criteria proffered by an expert who lays the proper predicate),

Enbridge would have tried its case differently and would have also included a legal

and factual sufficiency of the evidence to support the intrinsic value award from

the jury.

      It is well settled that on original submission, parties are not required to

address the question of whether, in the event the trial court's judgment is reversed,

the party who prevailed at trial is entitled to recover based on the jury's favorable

findings under an alternative theory. See Boyce Iron Works, Inc. v. Southwestern

Bell Telephone Co., 747 S.W.2d 785, 787 (Tex.1988). Therefore, upon remand to

this Court following the Supreme Court’s reversal, Enbridge respectfully submits

its remaining issues, as noted above, to the Court for consideration, along with the

following additional issues which it is entitled to raise in light of the Supreme

Court’s ruling.

        III. SUPPLEMENTAL ISSUES PRESENTED IN LIGHT OF
                 THE SUPREME COURT’S DECISION
ISSUE NO. 1         The record contains no objective evidence from Kathryn
                    Wheeler or from any of Wheeler’s experts as to the aesthetic or
                    utilitarian value of the 1.69 acre of cleared trees, or any
                    evidence of any other objective damages.

                                          12
A. Standard of Review

      In a legal sufficiency review, the Court “must view the evidence in a light

that tends to support the finding of disputed fact and disregard all evidence and

inferences to the contrary.” Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709

(Tex.2003). Such an issue will be sustained when “‘(a) there is a complete absence

of evidence of a vital fact, (b) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact, (c) the

evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the

evidence conclusively establishes the opposite of the vital fact.’” King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex.1997). "The final test ... must always be

whether the evidence at trial would enable reasonable and fair-minded people to

reach the verdict under review.... [L]egal-sufficiency review in the proper light

must credit favorable evidence if reasonable jurors could, and disregard contrary

evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex.2005).

B. Argument and Case Authority
      Here, reviewing the testimony, there is a complete absence of a vital fact

necessary to uphold Wheeler, Inc.’s verdict.

                                        13
      The Supreme Court stated that in “cases involving real property injured by

the destruction of trees, even when the proper measure of damages is the loss in the

fair market value of the property to which the trees were attached, and the value of

the land has not declined, we have held that the injured party may nevertheless

recover for the intrinsic value.      This exception was created to compensate

landowners for the loss of the aesthetic and utilitarian value that trees confer on

real property.” Wheeler, Inc., 449 S.W.3d at 482. It noted that “a tree’s intrinsic

value is not “rooted in an owner’s subjective emotions” nor does it encompass the

tree’s “sentimental value” to the owner. But rather, the intrinsic value of a tree lies

in “its ornamental (aesthetic) value and its utility (shade) value.” Strickland v.

Medlen, 397 S.W.3d 184, 190 (Tex. 2013)(citing Porras v. Craig, 675 s.W.2d 503,

506 (Tex. 1984).

      Aesthetic is defined as “of or relating to art or beauty.” MERRIAM

WEBSTER’S, online. Therefore, aesthetic value of trees on property would be the

monetary enhancement or value added to the realty based upon the beauty or

appearance of the trees. Likewise, utilitarian is defined “to be useful or practical

rather than attractive; functional, serviceable…” MERRIAM WEBSTER’S, online.

Therefore, utilitarian value of trees on property would be monetary enhancement



                                          14
or value attributable to their usefulness as shade for cattle (i.e. as in Lucas v.

Morrison) or wind barriers.

      Wheeler, Inc. sought monetary damages solely based upon the cost-to-

restore for its claimed loss of trees and stream damages as follows:

      (1)    “Tree loss” damages, based on the calculations of Gregory P. David

(Plaintiff’s arborist expert) using three methods: Depreciated Replacement Costs,

Cost of Cure - Existing Tree Density and USACE Cost of Cure. Significantly, all

three methods utilized by Gregory P. David assign monetary damages for “the cost

to reforest the land” (i.e., the cost to replant numerous species of trees on the

subject 1.69-acre Right-of-Way area) and for “costs to irrigate and maintain” the

replanted trees for three years. (RR 7, 238-305)

      (2)    “Cost of Stream Restoration”, based on the calculations of Lynwood

Smelser, PE (Plaintiff’s engineering expert), for monetary damages related to (a)

excavation, backfilling and compacting, (b) pile driving, (c) erosion control -

grading, fertilizing and seeding, (d) ground cover, (e) shrub purchase - planting and

temporary maintenance, (f) hand labor (6-8 laborers at 160 hours), and (g) five

years annual maintenance on all the aforementioned elements of damage. (RR 6,

100-180).



                                         15
       Neither of these proffered experts provided any such aesthetic or utilitarian

value testimony whatsoever. Gregory David testified exclusively as to the cost to

restore the 1.69 acre cleared area to its original condition. He did not opine as to

the aesthetic value that the cleared trees added to the property, and he did not opine

as to the utilitarian value attributable to those trees.

 Q: Mr. David, why is it that you would be the appropriate person to talk
    to, to evaluate damages or what it’s going to cost to replace trees and
    landscape – the trees on this particular piece of property…?
 A: Well, I think it’s because I did a lot of this kind of work.
 Q: If we were trying to cut this timber down and sell it down at the local
    sawmill, is that what your evaluation is?
 A: No.

 Q: What’s the difference?... between cutting this timber down and just
    sending it down to the sawmill versus pushing all this timber down
    and trying to get it back to its …like it was?
 A: Well the timber value at the sawmill, or the pulp mill or whatever that
    forest product value is, is a definable, you know, market value. It’s
    what the mill is going to give us for it minus the cost to harvest it and
    get it there. And the cost actually going in and reforest the land,
    restore it to the way it was before or best we can, in this case is quite a
    bit higher than what the timber product value is. (RR 7, pp. 248-49).

 Q: And you heard Mr. Smelser’s testimony this morning, was that
    accurate as far as the tree types and sizes and those types of things that
    you were evaluating?...

 A: …we don’t need to go back through the pictures and what was there
    and their usefulness and those type of things. (RR 7, p. 252).

                                            16
 A: What the Wheelers loved about the place is the natural setting, and so
    it would recreate a natural setting.

 A: It’s just a natural mix of forest, and so we would just try to recreate
    that. (RR 7, pp. 298-99).

      Lynwood Smelser did testify generally regarding the purposes served by

plants, animals, trees, etc. in an ecosystem, and did opine that certain species of

trees found on the property (and likely included in the cleared area) provided

habitat, and food (i.e. nuts and berries) for animals. However, he did not opine as

to the aesthetic value that the cleared trees added to the property, and he did not

opine as to the utilitarian value attributable to those trees. His valuation testimony

was limited exclusively to the cost of restoration of the stream.

 Q: Have you prepared a presentation where a determination was made by
    a survey as the number of different types of species of trees that were
    destroyed by Enbridge in doing their pipeline right of way? (RR6, p.
    104).

 A: inventory of what’s out there on the land. (RR6, p. 105).

 Q: what a forest is really worth.

 A: values and benefits of different plants.
 A: we want to make them aware of the benefits of various plants other
    than their commercial value. (RR6, p. 111).

 A: shows the interdependence of how organisms depend on each other.
    (RR6, p. 112).

 A: The ground dwellers are the heart of life on earth. Without them,
    there wouldn’t be any life on earth. (RR6, p. 114).

                                          17
Q: And as far as the vegetation that was actually surveyed, can you tell
   what was surveyed and where it was surveyed from to come up with
   the number of different trees that were taken?

A: Yes. Since all the vegetation in the right of way was destroyed and
   the soil had been disturbed, what we want to do, as close as we can,
   say what that right of way looked like. So what we did was set up
   four sample plots adjacent to the cleared area, and I forget the size of
   them. And then what we did was survey those, inventory everything
   in there that was four inches in diameter at 12 inches high off the
   ground. We surveyed everything in there. (RR6, p. 116).

A: what their value is other than the commercial value. (RR6, p. 118).
A: There are some benefits of a forest ecosystem that applies
   everywhere. It’s a forest ecosystem. They provide food for
   organisms; they provide cover and shelter for wildlife; they provide
   habitat for reproduction of wildlife; they provide water conservation
   to the root systems and everything, to keep the soil from washing
   away; they provide nutrients to make the soil fertile so plants will
   grow in it. (RR6, p. 118-119).

A: Aesthetic values. They’re beautiful to look at, okay, to some people.
   Then, of course, they provide buffers against weather, bad wind and
   whatever. (RR6, p. 119).
Q: And what values do they have that you’ve been able to determine?
   (RR6, p. 120).



A: Canopies of short leaves provide the protection from the winds and
   cold to many animals. (RR6, p. 122).

A: soil conservation. And it’s extensively used by wildlife for food and
   cover. (RR6,p. 123).
A: White Oak trees are used a lot as ornamental trees.


                                      18
A: It’s used in like an ornamental landscape application for tropical
   affect. (RR6, p. 124).

A: It’s an extremely valuable plant for wildlife because it seeds, fruit,
   flowers, twigs, bark, and leaves are utilized by various animals. It’s
   highly regarded for landscaping and urban forestry purposes. (RR6, p.
   125).

A: It provides food and cover to small and large animals. (RR6, p. 126).
Q: Cost to restore the stream back to its –as near back as you could,
   original condition. (RR 6, p. 131).

Q: Therefore, we would ask that he not be allowed to testify as to those
   costs to repair because the property measure of damages is a
   diminution of value of property. (RR6, p. 132).

Q: Did you prepare a stream restoration plan?
A: I was asked to do it in order to restore the stream to the condition that
   it probably was in at the time it was cleared and destroyed. (RR6, p.
   138).

Q: determine what would be the reasonable necessary cost to do this
   work as of November 2007? (RR6, p. 141).
Q: As far as that cost in ’07 to restore that’s shown of Exhibit 5 of 51 – to
   $66,000 (RR6, p. 142).
Q: So, you know whether it was straight or not, you don’t know?

A: No.
Q: So – but what you did was you went back out there and you put …a
   couple of big curves on it; did you not?

A: Yes, sir.
Q: And does that serve any function?


                                       19
A: Certainly it does.
Q: What function does that serve?

A: It slows the water velocity down when the water’s flowing through
   there. Keeps it from eroding the soil.

Q: How fast is that – is that stream, what you call a stream? Is that a live
   stream?

A: No. It’s intermittent.

Q: Okay. And basically it – so that the jury will understand –
   intermittent stream means that when it rains, water runs through it.
A: Yeah.

Q: So if it’s not raining, it’s not wet, that’s dry.
A: Yes. (RR6, pp. 148-49).

Q: Okay. But let me ask you this: The ecology is still the same, the
   environment?

A: No.

Q: It’s changed?
A: It’s changed. Drastically.

Q: It’s no longer a forest?

A: That’s right. (RR6, p. 154).
Q: Now how big of an area was changed?

A: about 1.7 acres. (RR6, Page 155).

Q: That is a forest out there, isn’t it?

A: That’s right.

                                           20
Q: It’s not anybody’s lawn.
A: No

Q: No. It’s --it’s the woods.

A: It’s a forest.

Q: Well, it’s not a lawn –
A: No.

Q:   --at somebody’s house. (RR6, p. 160).
A: They don’t manicure it and all that kind of stuff…,

Q: It’s the –
A: -- the forest is being natural.

Q: All the trees that were growing out there on that tract of land were
   native indigenous trees, were they not?

A: Yes.

Q: There wasn’t a planted tree, there wasn’t a fruit tree out there?
A: Not that I am aware of.

Q: And there was no planted ornamental trees that you were aware of?
A: No (RR6, p. 161).

Q: Do you have an opinion that the reasonable person would go out and
   spend the type of money that we’re talking about here, $51,381 or
   $66,193 to restore that stream?
A: If I wanted it restored. (RR6, p. 166).

Q: …you’re not giving any estimate as to the replacement value or cost
   of those trees.

                                       21
 Q: Yours deals solely with the stream restoration?
 A: Yeah. (RR6, p.177).

 A: It’s got all kinds of curves and bends and everything in it.

 Q: And then what you did on your stream restoration is try to recreate
    that natural curves and bend?
 A: Yeah. (RR6, p.180).

      Further, the record contains no evidence of any such damages from Kathryn

Wheeler (assuming she as the landowner could qualify as an expert to testify

regarding same for the property of her corporation). She offered only testimony

regarding the sentimental value of the property to her and family.

 Q: Now, on this 1532-acre tract, what was that used for?

 A: Well, it was just to go up and enjoy.

 Q: Was it used for recreation?

 A: Recreation (RR 7, p. 192).
 A: we would just go over there and have a different scenery (RR 7, p.
    194).
 A: and it’s always been just a little puddle of water there that we always
    checked to see if something was in it.
 Q: sanctuary, respite, whatever?

 Q: Hunting?

 A: they did hunt deer. (RR 7, p. 195).
 Q: …it’s stamped with his memory out there, correct?

                                         22
 A: very much so. (RR 7, p. 197).
 Q: …use of the property for your family, Gilbert Wheeler, Inc., you your
    husband?

 A: Strictly for recreation.

 A: a place for family and friends
 A: enjoy animals and nature; it’s beautiful at night. (RR 7, p. 200).

 Q: You don’t have an expertise in planting trees or refurbishing property
    and doing things like that, correct?

 A: I do not. (RR 7, p. 206).
 A: I do not have those big oak trees that I get them big acorns off of, the
    squirrels and all that. (RR 7, p. 210).
 Q: Do you know what the land was worth on the fair market value, if you
    were intending to sell it?
 A: I do not.

 A: the 153 acres was designated for family get-togethers. (RR 7, p. 212).

ISSUE NO. 2       Alternatively, if this Court determines that the record contains
                  some evidence as to the aesthetic or utilitarian value of the
                  trees, the record is factually insufficient to support an award of
                  $288,000 in damages as found by the jury. In that event,
                  Enbridge requests that this Court remand this matter for a new
                  trial consistent with the Supreme Court’s decision, this Court’s
                  decision, and further orders of this Court.

A. Standard of Review

      In reviewing a factual-sufficiency challenge to a finding of fact on an issue

on which appellants did not have the burden of proof, this Court must consider and

                                        23
weigh all of the evidence and set aside the judgment only if the evidence that

supports the challenged finding is so weak as to make the judgment clearly wrong

and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In so doing,

this court must examine both the evidence supporting and that contrary to the

judgment. See Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001);

Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989).

B. Argument and Case Authority

      As noted above, the only evidence offered by Wheeler, Inc. which even

conceivably mentions any aesthetic value or utilitarian value was offered by

Lynwood Smelser. That testimony is unquestionably factually insufficient to

support the jury’s verdict or a judgment of $288,000, as the evidentiary support for

the challenged finding of intrinsic value damages is so weak as to make a judgment

based upon the jury’s verdict awarding those damages clearly wrong and

manifestly unjust. In that regard, even if Smelser’s testimony regarding workings

of an ecosystem and the benefit the trees provided to the natural forest habitat

could be somehow considered as evidence of the aesthetic or utilitarian nature of

the trees, he provided no testimony whatsoever as to the value added to the forest

habitat by the presence of those trees.



                                          24
      Moreover, testimony provided from one of Enbridge’s experts, Dr. Gary

Kronrad, which was admitted without objection by Wheeler, Inc. establishes that

the trees at issue were not the sort of “aesthetic” or “utilitarian” trees for which

intrinsic value damages may be recovered (whether considered under prior caselaw

or under the Supreme Court’s newly created guidelines).

      Dr. Gary Kronrad testified as follows:

         A: Now, I know hardwoods were growing on that property, but I
         assumed that you could have grown pine on it. I know much
         more valuable, so I used the value for pine when valuing this
         land.
         Q: And did you see any ornamental trees in this area when you
         did your evaluation?

         A: No, sir.

         Q: Did you see any fruit trees when you did this evaluation?
         A: No, sir.
         Q: Did you see any particular special use that that area would be
         put to, say, for a wind break?

         A: No, sir.

         Q: And that area that was cleared, was it—did it have any
         specialized use other than just being a part of the forest?

         A: I saw nothing unusual about that piece of property. It looked
         like the area around it. (RR 8, p. 145).




                                        25
      If this Court determines, despite the testimony of Dr. Kronrad, that somehow

the scant testimony of Smelser might possibly rise to the new tests created by the

Supreme Court, Enbridge requests that this matter be remanded for a new trial so

that Enbridge may prepare its case to meet the new evidentiary requirements and

again preserve error for appeal.

                   IV. CONCLUSION AND PRAYER

      The Supreme Court specifically acknowledged its longstanding obligation to

decide cases in a manner that would “ensure that the landowner was adequately,

but not excessively compensated.” Wheeler, Inc., 449 S.W.3d at 482. However, in

reaching its result, it ignored longstanding case authority governing multiple facets

of this appeal, ranging from real property law to review of charge error. To allow

Wheeler, Inc. to hold onto its improper and unsupported verdict of $288,000 is the

windfall that the Supreme Court ostensibly said it was trying to avoid. In short, it

is logically, objectively, inconceivable that removal of approximately 600 feet of

native trees in the woods in Shelby County, on less than 2 acres, is worth

$288,000.

      WHEREFORE, PREMISES CONSIDERED, Enbridge respectfully

requests that this Court sustain its issues presented in Appellant’s Brief as

addressed above, sustain its supplemental issues presented herein above, and

                                         26
render the judgment that the trial court should have rendered; alternatively, if, and

only if, this Court determines that this matter should be remanded based upon

those issues, Enbridge respectfully requests that this Court instruct the trial court

accordingly, in order to provide guidance as to those issues upon retrial; Enbridge

further prays for an award of its costs of court and appellate costs. TEX. R. APP. P.

43.2, 43.3, and 43.4.

                                       Respectfully submitted,

                                       FLOWERS DAVIS, P.L.L.C.
                                       1021 ESE Loop 323, Suite 200
                                       Tyler, Texas 75701
                                       (903) 534-8063
                                       (903) 534-1650 Facsimile

                                       /s/ Julie P. Wright
                                       JULIE P. WRIGHT
                                       State Bar No. 00794883
                                       THOMAS H. BUCHANAN
                                       State Bar No. 03290500
                                       ATTORNEYS FOR APPELLANT
                                       ENBRIDGE PIPELINES (EAST TEXAS)
                                       L.P.

                        CERTIFICATE OF COMPLIANCE

       I certify that this Appellant’s Supplemental Brief on Remand complies with
the limitation of TEX. R. APP. P. 9.4(i)(2)(B) because it contains 5,846 words,
excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).

                                       /s/ Julie P. Wright
                                       JULIE P. WRIGHT

                                         27
                         CERTIFICATE OF SERVICE

       I hereby certify and state that a true and correct copy of this document has
been provided to and served on the following via electronic mail and/or certified
mail, return receipt requested, on this the 13th day of March 2015:

Mr. Don Wheeler
101 Tenaha Street
Center, Texas 75935

J. Mark Mann
300 West Main St.
Henderson, Texas 75652

Mr. Darrin Walker
6134 Riverchase Glen Dr.
Kingwood, Texas 77345

                                      /s/ Julie P. Wright
                                      JULIE P. WRIGHT




                                        28
                                                  APPENDIX

Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Texas) L.P. .........................Tab A

Case Authorities ................................................................................................. Tab B

         Boyce Iron Works, Inc. v Southwestern Bell Telephone Co.
         Cain v. Bain
         City of Keller v. Wilson
         Dow Chemical Co. v. Francis
         King Ranch, Inc. v. Chapman
         Lucas v. Morrison
         Merrell Dow Pharms., Inc. v. Havner
         Plas-Tex, Inc.v. U.S. Steel Corp.
         Porras v. Craig
         Strickland v. Medlen
         Thota v. Young
         Wal-Mart Stores, Inc. v. Miller




                                                          29
TAB A
                                                                                                         Page 1
449 S.W.3d 474, 57 Tex. Sup. Ct. J. 1465
(Cite as: 449 S.W.3d 474)




                                                                Reversed and remanded.

         Supreme Court of Texas.                                              West Headnotes
    GILBERT WHEELER, INC., Petitioner,
                   v.                                       [1] Damages 115       109
  ENBRIDGE PIPELINES (EAST TEXAS), L.P.,
                                                            115 Damages
               Respondent.
                                                               115VI Measure of Damages
                   No. 13–0234.                                   115VI(B) Injuries to Property
              Argued Feb. 27, 2014.                                  115k107 Injuries to Real Property
              Decided Aug. 29, 2014.                                     115k109 k. Temporary injuries. Most
          Rehearing Denied Dec. 19, 2014.                   Cited Cases

Background: Landowner brought action against                Damages 115        110
pipeline company for breach of contract and tres-
                                                            115 Damages
pass arising from company's destruction of trees in
                                                               115VI Measure of Damages
preparing easement area for pipeline construction.
                                                                   115VI(B) Injuries to Property
After a jury trial, the 273rd Judicial District Court,
                                                                      115k107 Injuries to Real Property
Shelby County, Charles R. Mitchell, J., entered
                                                                          115k110 k. Permanent and continuing
judgment on verdict in favor of landowner. Com-
                                                            injuries. Most Cited Cases
pany appealed. On rehearing, the Court of Appeals,
James T. Worthen, C.J., 393 S.W.3d 921, reversed            Limitation of Actions 241       55(6)
and remanded. Landowner sought review.
                                                            241 Limitation of Actions
Holdings: The Supreme Court, Lehrmann, J., held                241II Computation of Period of Limitation
that:                                                               241II(A) Accrual of Right of Action or De-
(1) as a matter of first impression, application of         fense
the distinction between cases involving permanent                     241k55 Torts
and temporary injury to real property is not limited                     241k55(6) k. Continuing injury in gen-
to causes of action that sound in tort;                     eral. Most Cited Cases
(2) an injury to real property is considered perman-             The distinction between temporary and per-
ent if it cannot be fixed or it is substantially certain    manent injury to real property guides courts in de-
that the injury will recur;                                 termining: (1) whether damages are available for
(3) injury to landowner's land due to pipeline com-         future or only past injuries; (2) whether one or a
pany's destruction of trees in preparing easement           series of suits is required; (3) whether claims ac-
area for pipeline construction was “permanent” as a         crue, and thus, limitations begin, with the first or
matter of law; and                                          each subsequent injury; and (4) the proper measure
(4) a landowner may recover for the intrinsic value         of damages for injury to real property.
of the trees on his property so long as the diminu-
tion in the fair market value of the land is essen-         [2] Damages 115       69
tially nominal; overruling Lamar Cnty. Electric
Coop. Ass'n v. Bryant, 770 S.W.2d 921, and Garey            115 Damages
Constr. Co. v. Thompson, 697 S.W.2d 865.                        115III Grounds and Subjects of Compensatory
                                                            Damages




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                                                                                                         Page 2
449 S.W.3d 474, 57 Tex. Sup. Ct. J. 1465
(Cite as: 449 S.W.3d 474)




      115III(C) Interest                                      115VI Measure of Damages
         115k66 Interest                                         115VI(C) Breach of Contract
            115k69 k. Torts. Most Cited Cases                         115k117 k. Mode of estimating damages
                                                          in general. Most Cited Cases
Damages 115        109                                         Application of the distinction between cases in-
                                                          volving permanent and temporary injury to real
115 Damages
                                                          property, in which the measure of damages for per-
    115VI Measure of Damages
                                                          manent injury is the difference in value and the
       115VI(B) Injuries to Property
                                                          damages for temporary injury is the cost of repair,
           115k107 Injuries to Real Property
                                                          is not limited to causes of action that sound in tort,
                115k109 k. Temporary injuries. Most
                                                          rather than contract; both courts and parties benefit
Cited Cases
                                                          from the application of general principles with re-
     If land is temporarily, but not permanently, in-
                                                          spect to calculating damages, and there is no reason
jured by the negligence or wrongful act of another,
                                                          to compensate a party differently because the
the owner is entitled to recover the amount neces-
                                                          wrongful conduct that caused the identical injury
sary to repair the injury, and put the land in the
                                                          stems from breaching a contract rather than com-
condition it was at the time immediately preceding
                                                          mitting a tort.
the injury, with interest thereon to the time of the
trial.                                                    [6] Damages 115        118

[3] Damages 115        110                                115 Damages
                                                             115VI Measure of Damages
115 Damages
                                                                 115VI(C) Breach of Contract
    115VI Measure of Damages
                                                                      115k118 k. Effect of provisions of con-
       115VI(B) Injuries to Property
                                                          tract. Most Cited Cases
           115k107 Injuries to Real Property
                                                               Contracting parties are free to specify in an
               115k110 k. Permanent and continuing
                                                          agreement how damages will be calculated in the
injuries. Most Cited Cases
                                                          event of a breach.
     The true measure of damages in case of per-
manent injury to land is the difference between the       [7] Damages 115        110
value of the land immediately before the injury and
its value immediately after.                              115 Damages
                                                             115VI Measure of Damages
[4] Damages 115        103                                       115VI(B) Injuries to Property
                                                                    115k107 Injuries to Real Property
115 Damages
                                                                        115k110 k. Permanent and continuing
    115VI Measure of Damages
                                                          injuries. Most Cited Cases
       115VI(B) Injuries to Property
                                                               An action or consequence may qualify as per-
            115k103 k. Mode of estimating damages
                                                          manent, such that the proper measure of damages is
in general. Most Cited Cases
                                                          the difference in value, if it is ongoing, continually
     When restoration of damaged property is not
                                                          happening, or occurring repeatedly and predictably.
possible, courts award damages equal to the loss in
fair market value of the property as a whole.             [8] Damages 115        110

[5] Damages 115        117                                115 Damages
                                                             115VI Measure of Damages
115 Damages




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                                                                                                         Page 3
449 S.W.3d 474, 57 Tex. Sup. Ct. J. 1465
(Cite as: 449 S.W.3d 474)




       115VI(B) Injuries to Property                                     115k208(1) k. In general. Most Cited
          115k107 Injuries to Real Property                Cases
              115k110 k. Permanent and continuing              When the facts relating to whether an injury to
injuries. Most Cited Cases                                 real property is permanent or temporary are dis-
     An injury to real property is considered              puted and must be resolved to correctly evaluate the
“permanent,” such that the proper measure of dam-          nature of the injury, the court, upon proper request,
ages is the difference in value, if: (1) it cannot be      must present the issue to the jury.
repaired, fixed, or restored; or (2) even though the
injury can be repaired, fixed, or restored, it is sub-     [12] Damages 115         109
stantially certain that the injury will repeatedly,
                                                           115 Damages
continually, and regularly recur, such that future in-
                                                              115VI Measure of Damages
jury can be reasonably evaluated.
                                                                 115VI(B) Injuries to Property
[9] Damages 115         109                                         115k107 Injuries to Real Property
                                                                        115k109 k. Temporary injuries. Most
115 Damages                                                Cited Cases
   115VI Measure of Damages
       115VI(B) Injuries to Property                       Damages 115        110
           115k107 Injuries to Real Property
                                                           115 Damages
               115k109 k. Temporary injuries. Most
                                                               115VI Measure of Damages
Cited Cases
                                                                  115VI(B) Injuries to Property
     An injury to real property is considered
                                                                     115k107 Injuries to Real Property
“temporary,” such that the proper measure of dam-
                                                                          115k110 k. Permanent and continuing
ages is the cost of repair, if: (1) it can be repaired,
                                                           injuries. Most Cited Cases
fixed, or restored; and (2) any anticipated recur-
                                                                Supreme Court applies with some flexibility
rence would be only occasional, irregular, intermit-
                                                           general rule that the proper measure of damages for
tent, and not reasonably predictable, such that fu-
                                                           permanent damage to real property is the cost to re-
ture injury could not be estimated with reasonable
                                                           store or replace, and the proper measure for tempor-
certainty.
                                                           ary damage is loss of use, considering the circum-
[10] Damages 115         208(1)                            stances of each case to ensure that an award of
                                                           damages neither over- nor under-compensates a
115 Damages                                                landowner for damage to his property; the purpose
   115X Proceedings for Assessment                         of the law in every case, is to compensate the owner
      115k208 Questions for Jury                           for the injury received, and the measure of damages
            115k208(1) k. In general. Most Cited           which will accomplish this in a given case ought to
Cases                                                      be adopted.
    Whether an injury to real property is temporary
or permanent is a question of law for the court to         [13] Damages 115         109
decide.
                                                           115 Damages
[11] Damages 115         208(1)                               115VI Measure of Damages
                                                                 115VI(B) Injuries to Property
115 Damages                                                         115k107 Injuries to Real Property
   115X Proceedings for Assessment                                      115k109 k. Temporary injuries. Most
      115k208 Questions for Jury                           Cited Cases




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                                                                                                           Page 4
449 S.W.3d 474, 57 Tex. Sup. Ct. J. 1465
(Cite as: 449 S.W.3d 474)




Damages 115         110                                       115VI Measure of Damages
                                                                  115VI(B) Injuries to Property
115 Damages                                                          115k107 Injuries to Real Property
   115VI Measure of Damages                                                   115k112 k. Growing crops, grass,
       115VI(B) Injuries to Property                       shrubbery, or trees. Most Cited Cases
           115k107 Injuries to Real Property                    Injury to landowner's land due to pipeline com-
               115k110 k. Permanent and continuing         pany's destruction of trees in preparing easement
injuries. Most Cited Cases                                 area for pipeline construction was “permanent” as a
     Economic feasibility exception to the general         matter of law under economic feasibility exception
rule that the cost to restore is the proper measure of     to the general rule that the cost to restore was the
damages to real property applies when the cost of          proper measure of damages to real property, where
required repairs or restoration exceeds the diminu-        cost to restore the land to the condition it was in be-
tion in the property's market value to such a dispro-      fore company cleared the right of way was at least
portionately high degree that the repairs are no           $300,000 and the diminution of value was no more
longer economically feasible; in those circum-             than $3,000, and, thus, restoration of the land was
stances, a temporary injury is deemed permanent,           technically possible, but exceeded the diminution in
and damages are awarded for loss in fair market            market value to such a disproportionately high de-
value.                                                     gree that the repairs were no longer economically
                                                           feasible.
[14] Damages 115          112
                                                           [16] Damages 115         112
115 Damages
     115VI Measure of Damages                              115 Damages
        115VI(B) Injuries to Property                         115VI Measure of Damages
           115k107 Injuries to Real Property                      115VI(B) Injuries to Property
                  115k112 k. Growing crops, grass,                   115k107 Injuries to Real Property
shrubbery, or trees. Most Cited Cases                                        115k112 k. Growing crops, grass,
      When a landowner can show that the destruc-          shrubbery, or trees. Most Cited Cases
tion of trees on real property resulted in no dimin-           A landowner may recover for the intrinsic
ishment of the property's fair market value, or in so      value of the trees on his property so long as the di-
little diminishment of that value that the loss is es-     minution in the fair market value of the land is es-
sentially nominal, the landowner may recover the           sentially nominal; overruling Lamar Cnty. Electric
intrinsic value of the trees lost, that is, the orna-      Coop. Ass'n v. Bryant, 770 S.W.2d 921, and Garey
mental and utilitarian value of the trees.                 Constr. Co. v. Thompson, 697 S.W.2d 865.

[15] Damages 115          110                              *476 Don Wheeler, Wheeler & Russell, Center,
                                                           TX, J. Mark Mann, Mann Tindel Thompson,
115 Damages
                                                           Henderson, TX, Darrin M. Walker, Law Office of
   115VI Measure of Damages
                                                           Darrin Walker, Kingwood, TX, for Petitioner, Gil-
       115VI(B) Injuries to Property
                                                           bert Wheeler, Inc.
          115k107 Injuries to Real Property
              115k110 k. Permanent and continuing          Julie Wright, J. Mitchell Beard, Stuart Hene,
injuries. Most Cited Cases                                 Thomas H. Buchanan, Morgan Elliott, Flowers
                                                           Davis PLLC, Tyler, TX, Macey Reasoner Stokes,
Damages 115         112
                                                           Baker Botts LLP, Houston, TX, for Respondent.
115 Damages




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                                                                                                          Page 5
449 S.W.3d 474, 57 Tex. Sup. Ct. J. 1465
(Cite as: 449 S.W.3d 474)




Justice LEHRMANN delivered the opinion of the              Enbridge hired a construction company to build the
Court.                                                     pipeline, but failed to inform the contractors about
     This case presents various issues regarding the       the provision requiring them to use the boring
proper manner of compensating a landowner for the          method to install the pipeline. As a result, in clear-
destruction of trees on his property. As a general         ing the right of way the construction company cut
rule, when an injury to real property is temporary,        down several hundred feet of trees and bulldozed
the owner is entitled to damages commensurate              the ground. In the process, the workers also chan-
with the cost of restoring his property, but when an       nelized the stream that once meandered through the
injury to the same property is permanent, the owner        woods.
is entitled to damages commensurate with the loss
in the fair market value to the property as a whole.            Wheeler sued Enbridge for breach of contract
In today's case, we consider whether this general          and trespass. The suit proceeded to a jury trial, and
rule applies when the wrongful conduct causing the         the court charged the jury on both claims. Enbridge
injury stems from breach of contract rather than           objected to the trespass submission, arguing that
tort. Concluding that it does, we also review a com-       Wheeler's claims sounded only in contract. En-
mon law exception to this general rule, which under        bridge also requested a question concerning wheth-
certain circumstances entitles the landowner to            er the damage to the Mountain was temporary or
damages in keeping with the intrinsic value of the         permanent, contending that the question was a ne-
trees that were destroyed. Because we conclude that        cessary predicate to determine whether the jury
the exception properly applies in this case, and hold      should award damages commensurate with the cost
that any error in the jury charge related to such          to restore the trees and stream or damages commen-
damages was harmless, we reverse the judgment of           surate with the loss in the Mountain's fair market
the court of appeals and remand the case to that           value. Wheeler contended that the distinction was
court to address the remaining issues.                     irrelevant. Ultimately, the trial court submitted the
                                                           charge without the question, and the jury found En-
                       I. Facts                            bridge liable for the damage to Wheeler's property
     The Wheeler family, by way of closely held            on both trespass and breach-of-contract theories. In
corporation Gilbert Wheeler, Inc. (Wheeler), owns          conjunction with the breach-of-contract claim, the
a 153–acre tract of land in Shelby County called           jury awarded $300,000 to compensate Wheeler for
“the Mountain.” The property, which the Wheelers           the reasonable cost to restore the property. In con-
use as a family retreat, is heavily wooded and tran-       junction with the trespass claim, the jury found no
sected*477 by a natural stream. When Enbridge              loss in the Mountain's fair market value and awar-
Pipelines, L.P. determined that it needed to con-          ded Wheeler $288,000 in damages for the intrinsic
struct a pipeline across the property, it engaged          value of the trees Enbridge destroyed. Wheeler
INA Field Services to approach Wheeler about ob-           elected to recover the damages awarded for breach
taining an easement. Wheeler agreed to grant En-           of contract.
bridge a right of way, but insisted that Enbridge in-
stall the pipeline by boring underground in order to            Enbridge appealed, arguing that the trial court
preserve the trees on the property. Wheeler agreed         erred in failing to submit the predicate question of
to a contract that reflected this stipulation in expli-    whether the injury to the Mountain was temporary
cit terms. Because this was an unusual provision,          or permanent. Enbridge also contended that the in-
Enbridge was required to specifically approve the          jury was permanent as a matter of law, that cost-
contract.                                                  to-restore damages were therefore improperly awar-
                                                           ded, and that Wheeler could not recover damages
    Soon after the parties executed the agreement,         for the intrinsic value of the trees because that




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449 S.W.3d 474, 57 Tex. Sup. Ct. J. 1465
(Cite as: 449 S.W.3d 474)




measure of damages was unavailable and not prop-           damages are available for future or only past injur-
erly submitted to the jury in any event. Wheeler           ies; (2) whether one or a series of suits is required;
countered that the temporary-versus-permanent dis-         and (3) whether claims accrue (and thus limitations
tinction did not apply because its case sounded in         begins) with the first or each subsequent injury.”
contract. Wheeler argued in the alternative that it        Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d
could recover for the intrinsic value of the trees         264, 275 (Tex.2004). The present case illustrates a
destroyed without respect to the temporary-                fourth application of the distinction: it guides the
versus-permanent distinction. The court of appeals         proper measure of damages for injury to real prop-
                                                                 FN1
agreed with Enbridge and held that, because Wheel-         erty.     To that end, we have applied the distinc-
er had failed to secure a finding as to whether the        tion in evaluating real-property damages across
injury to the property was temporary or permanent,         many different theories of liability. See, e.g., Coin-
Wheeler had waived its entitlement to a damage             mach Corp. v. Aspenwood Apartment Corp., 417
award. For that reason, the court of appeals               S.W.3d 909, 921 (Tex.2013) (trespass); Natural
rendered a take-nothing judgment in Enbridge's fa-         Gas Pipeline Co. v. Justiss, 397 S.W.3d 150, 152
vor. Wheeler petitioned this Court for review.             (Tex.2012) (nuisance); State v. Bristol Hotel Asset
                                                           Co., 293 S.W.3d 170, 172 (Tex.2009) (eminent do-
                     II. Analysis                          main); Coastal Transp. Co. v. Crown Cent. Petro-
     Wheeler's petition raises broad concerns about        leum Corp., 136 S.W.3d 227, 235 (Tex.2004)
the boundaries of the temporary-versus–permanent           (negligence).
distinction and its application to the calculation of
damages for injury to real property. In order to re-                FN1. We specifically recalled this
solve*478 the confusion surrounding this distinc-                   “different purpose” for the temporary-
tion, we take this opportunity to clarify its contours.             versus-permanent distinction in Schneider.
                                                                    147 S.W.3d at 270 n. 12. We note that
   A. Temporary–Versus–Permanent Injury to                          these purposes are not exclusive. We have
                    Real Property                                   held, for example, that a landowner may
     Applying the distinction between temporary                     receive injunctive relief to prevent certain
and permanent injury to real property has proven a                  future trespasses if the trespass is
vexing task for litigants and courts alike. After all,              “continuing.” See, e.g., R.R. Comm'n of
injury to real property often appears permanent in                  Tex. v. Manziel, 361 S.W.2d 560, 567 n. 2
the sense that the exact real estate in question—a                  (Tex.1962).
demolished house or destroyed tree—no longer ex-
ists. However, as discussed below, the law recog-               In today's case, we focus on the significance of
nizes that such items frequently can be replaced in        classifying injury to real property as temporary or
an adequate manner, rendering the landowner suit-          permanent in the context of properly compensating
ably compensated. To further complicate matters,           the injured landowner. Our analysis takes into con-
Texas courts have attempted to categorize various          sideration the fact that the property in question was
aspects of a legal claim, including a party's con-         injured due to a breach of contract, as well as the
duct, an event or occurrence, a condition, an injury       fact that the injury involves loss of trees.
or harm, and the damages resulting from an injury
or harm, as either temporary or permanent.                   B. Application of Distinction to the Measure of
                                                                  Damages for Injury to Real Property
    [1] Further muddling things are the multiple                [2][3][4] As early as 1889, we stated that “[i]f
purposes served by characterizing an injury to real        land is temporarily but not permanently injured by
property as temporary or permanent. The distinc-           the negligence or wrongful act of another, the own-
tion guides courts in determining: “(1) whether            er would be entitled to recover the amount neces-




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449 S.W.3d 474, 57 Tex. Sup. Ct. J. 1465
(Cite as: 449 S.W.3d 474)




sary to repair the injury, and put the land in the         caused by breach of a lease agreement). Others
condition it was at the time immediately preceding         have been more flexible in evaluating damage
the injury, with interest thereon to the time of the       awards. See, e.g., P.G. Lake, Inc. v. Sheffield, 438
trial.” Trinity & S. Ry. Co. v. Schofield, 72 Tex.         S.W.2d 952, 954–55 (Tex.Civ.App.-Tyler 1969,
496, 10 S.W. 575, 576–77 (1889). The companion             writ ref'd n.r.e.) (declining to apply the temporary-
rule, of equally venerable provenance, states that         versus-permanent distinction where an oil and gas
“the true measure of damages in case of permanent          lessee breached his contract to repair the leased
injury to the soil is the difference between the value     premises); see also B.A. Mortg. Co. v. McCullough,
of the land immediately before the injury and its          590 S.W.2d 955, 956–57 (Tex.Civ.App.-Fort Worth
value immediately after.” *479Fort Worth & D.C.            1979, no writ) (affirming cost-to-restore damages in
Ry. Co. v. Hogsett, 67 Tex. 685, 4 S.W. 365, 366           a case involving permanent injury to land because
(1887). These rules are premised on the notion that        “the reasonableness of applying a given measure of
the ordinary measure of damages is the cost to re-         damages in a given case unavoidably hinges on the
store the property. When restoration is not possible,      peculiarities of the case” (citation and internal quo-
however, we award damages equal to the loss in             tation marks omitted)).
fair market value of the property as a whole.
                                                                [5][6] We hold that application of the tempor-
         1. Application of Distinction to the              ary-versus-permanent distinction in cases involving
             Breach–of–Contract Claim                      injury to real property is not limited to causes of ac-
      Wheeler argues that, with respect to calculating     tion that sound in tort rather than contract. Of
damages for injury to real property, the temporary-        course, contracting parties are free to specify in an
versus-permanent distinction has no place when             agreement how damages will be calculated in the
those damages stem from breach of contract rather          event of a breach, but when they do not, both courts
than tort. Wheeler notes that contract damages             and parties benefit from the application of general
serve to give a plaintiff the benefit of his bargain,      principles with respect to calculating damages for
i.e., to place the plaintiff in the position he would      such injury. In this case, we find persuasive our pri-
have occupied if the contract had been performed.          or holding that, with respect to right-of-way agree-
Wheeler contends that restoration costs will give it       ments like the one at issue here, “the measure of
the benefit of its bargain under the right-of-way          damages for breach of an easement that restricted a
agreement and thus are the proper measure of dam-          right to cut trees would be the same as the measure
ages regardless of whether the injury to the Moun-         for negligently cutting trees.” DeWitt Cnty. Electric
tain is characterized as temporary or permanent.           Coop., Inc. v. Parks, 1 S.W.3d 96, 105 (Tex.1999).
                                                           This stands to reason because the injury in question
     We have never directly addressed this issue,          under either cause of action is the same. We see no
and the courts of appeals are not in agreement.            reason to compensate a party differently because
Some have held that calculating damages for injury         the wrongful conduct that caused the identical in-
to real property requires application of “general          jury stems from breaching a contract rather than
principles” across causes of action, whether sound-        committing a tort. Further, the exceptions to the
ing in contract or tort. Hall v. Hubco, Inc., 292          general rules in this area, discussed below, operate
S.W.3d 22, 32 n. 4 (Tex.App.-Houston [14th Dist.]          to ensure landowners are adequately compensated.
2006, pet. denied); see also Z.A.O., Inc. v. Yar-          Accordingly, we hold that the temporary-
brough Drive Ctr. Joint Venture, 50 S.W.3d 531,            versus-permanent distinction underlies the determ-
545–46 (Tex.App.-El Paso 2001, no pet.) (holding           ination of the proper measure of *480 damages for
that cost to restore was the appropriate measure of        both the trespass and breach-of-contract claims at
damages for temporary injury to real property              issue.




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449 S.W.3d 474, 57 Tex. Sup. Ct. J. 1465
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 2. Definitions of Temporary and Permanent In-              real property is physical (as in a trespass) and to
                          jury                              cases in which entry onto real property is not phys-
     [7] Having clarified the significance of whether       ical (as with a nuisance). With these definitions in
injury to real property is temporary or permanent           hand, we turn to whether the jury or the court is the
with respect to measuring the resulting damages,            proper entity to determine whether an injury to real
we turn to how that determination is made. We               property is temporary or permanent.
have previously defined a permanent action or con-
sequence in accordance with its ordinary mean-               3. Whether Injury to Real Property Is Tempor-
ing—that is, as a thing which will continue indefin-               ary or Permanent Is a Question of Law
itely, or at least for a very long time. Tarrant Reg'l            We held long ago that “[w]hether the injury [to
Water Dist. v. Gragg, 151 S.W.3d 546, 558                   real property] amounts to total or only partial de-
(Tex.2004). But we have also recognized that the            struction of value, or whether it be permanent or
same action or consequence “need not be eternal”            temporary, as well as the extent of the injury and
or “perpetual” to qualify as permanent. Schneider,          the resulting amount of damages, are all questions
147 S.W.3d at 277. On the contrary, an action or            for the determination of the jury under proper in-
consequence may qualify as permanent if it is on-           structions.” Trinity & S. Ry. Co. v. Schofield, 72
going, continually happening, or occurring re-              Tex. 496, 10 S.W. 575, 577 (1889). However, we
peatedly and predictably. Gragg, 151 S.W.3d at              have more recently clarified, in the context of a
558; Schneider, 147 S.W.3d at 272; Atlas Chem. In-          nuisance suit, that “[j]urors must still decide the
dus., Inc. v. Anderson, 524 S.W.2d 681, 684–85              frequency, extent, and duration of noxious condi-
(Tex.1975); Brazos River Auth. v. City of Graham,           tions ... [b]ut jurors cannot decide questions such as
163 Tex. 167, 354 S.W.2d 99, 106 (1961). Identify-          whether damages can be estimated with reasonable
ing the opposites of the same themes, we have               certainty, whether principles of res judicata allow
defined as temporary those actions and con-                 one or a series of suits, or when limitations ought to
sequences that do not last for long periods of time,        accrue.” Schneider, 147 S.W.3d at 281. Accord-
are not ongoing, are not likely to occur again, occur       ingly, we instructed that jurors should determine
only sporadically, or occur unpredictably.                  whether a nuisance works temporary or permanent
Schneider, 147 S.W.3d at 272; Atlas, 524 S.W.2d at          injury only “to the extent there is a dispute *481 re-
685; Brazos River Auth., 354 S.W.2d at 108.                 garding what interference has occurred or whether
                                                            it is likely to continue.” Id.
     [8][9] For the sake of clarity, we reformulate
these definitions in the following way. An injury to            [10][11] Because this instruction should apply
real property is considered permanent if (a) it can-        with equal force in cases considering the appropri-
not be repaired, fixed, or restored, or (b) even            ate measure of damages for injury to real property,
though the injury can be repaired, fixed, or re-            we hold that whether an injury is temporary or per-
stored, it is substantially certain that the injury will    manent is a question of law for the court to decide.
repeatedly, continually, and regularly recur, such          At the same time, we recognize that questions re-
that future injury can be reasonably evaluated. Con-        garding the facts that underlie the temporary-
versely, an injury to real property is considered           versus-permanent distinction must be resolved by
temporary if (a) it can be repaired, fixed, or re-          the jury upon proper request. Said another way,
stored, and (b) any anticipated recurrence would be         when the facts are disputed and must be resolved to
only occasional, irregular, intermittent, and not           correctly evaluate the nature of the injury, the
reasonably predictable, such that future injury             court, upon proper request, must present the issue
could not be estimated with reasonable certainty.           to the jury, relying on the definitions we have
These definitions apply to cases in which entry onto        provided in this opinion.




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 4. Exceptions to the General Rule as to Damages           As a result, the court of appeals concluded that the
     [12] As noted above, the general rule in cases        repairs were not economically feasible as a matter
involving injury to real property is that the proper       of law, and awarded damages in keeping with the
measure of damages is the cost to restore or re-           loss in the property's fair market value. Id. at
place, plus loss of use for temporary injury, and          119–20.
loss in fair market value for permanent injury.
However, we apply this rule with some flexibility,              Although this Court has not expressly recog-
considering the circumstances of each case to en-          nized the economic feasibility exception, we have
sure that an award of damages neither over– nor un-        applied it, or something very similar to it, when ne-
der-compensates a landowner for damage to his              cessary to prevent a landowner from being over-
property. We maintain that the purpose of the law          compensated. Two cases with similar facts illustrate
“in every case, is to compensate the owner for the         the application of this exception. In Pacific Ex-
injury received, and the measure of damages which          press, a landowner sued to recover damages for the
will accomplish this in a given case ought to be ad-       negligent destruction of his house, which by most
opted.” Pac. Express Co. v. Lasker Real–Estate             accounts would be considered a temporary injury
Ass'n, 81 Tex. 81, 16 S.W. 792, 793 (1891). For            because the house could be rebuilt. 16 S.W. at 793.
that reason, Texas courts have appealed to a num-          *482 We held, however, that the house should be
ber of exceptions to the general rule when it would        treated “as a part of the land,” and the measure of
compensate a landowner unjustly. Two of those ex-          damages should be “the difference between the
ceptions are at issue in this case.                        value of the land immediately before and after a
                                                           house on it is injured or destroyed.” Id. at 794. We
      a. The Economic Feasibility Exception                reached that result because declining local land val-
     [13] In cases involving temporary injury, Texas       ues led us to conclude that to award the landowner
courts have recognized the so-called economic              the cost of restoring the home “would be to give to
feasibility exception to the general rule that the cost    him more than would be just compensation.” Id. at
to restore is the proper measure of damages. This          793. By contrast, we reached the opposite result in
exception applies when the cost of required repairs        Coastal Transport Co. v. Crown Central Petro-
or restoration exceeds the diminution in the prop-         leum, 136 S.W.3d 227, 235 (Tex.2004). In that
erty's market value to such a disproportionately           case, fire destroyed a landowner's facility. Id. at
high degree that the repairs are no longer econom-         229. The injury was found to be temporary, and the
ically feasible. In those circumstances a temporary        trial court awarded an amount commensurate with
injury is deemed permanent, and damages are awar-          the cost of replacing the facility, rather than the
ded for loss in fair market value. See N. Ridge            much larger sum the jury found constituted the
Corp. v. Walraven, 957 S.W.2d 116, 119                     property's lost market value. Id. at 230, 235. The
(Tex.App.-Eastland 1997, pet. denied); see also            landowner argued that the injury was permanent, as
Hubco, 292 S.W.3d at 32; Jim Walter Homes, Inc.            the facility had been totally destroyed, but we held
v. Gonzalez, 686 S.W.2d 715, 717 (Tex.App.-San             that the landowner was “entitled to recover only the
Antonio 1985, writ dism'd). In North Ridge, a              amount of money necessary to rebuild its facility
landowner sued for injury to his property caused by        and to compensate for its loss of use during the in-
unrelated spills of saltwater and oil. 957 S.W.2d at       terim.” Id. at 235. This, we explained, was a meas-
117. Although these injuries were capable of being         ure sufficient to place the landowner “in the same
remediated, and therefore temporary, the combined          position [it] occupied prior to the injury.” Id.
cost to complete the restoration would have                (citations and internal quotation marks omitted).
“exceeded the maximum value of the entire
100–acre tract by more than six times.” Id. at 119.            Though we reached divergent results in these




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cases, in each instance we explained that our hold-        their pet. Id. at 198. In arriving at this conclusion,
ing was necessary to ensure that the landowner was         we distinguished Porras. We explained that Porras
adequately, but not excessively, compensated. Con-         presented no obstacle to the result in Strickland
sistent with these decisions, we confirm today our         *483 because a tree's intrinsic value is not “rooted
recognition of the economic feasibility exception to       in an owner's subjective emotions,” nor does it en-
the general rule governing the measure of damages          compass the tree's “sentimental value” to its owner.
for temporary injury to real property.                     Id. at 190. Rather, the intrinsic value of a tree lies
                                                           in “its ornamental (aesthetic) value and its utility
    b. The Intrinsic Value of Trees Exception              (shade) value.” Id. (citing Porras, 675 S.W.2d at
     In cases involving real property injured by the       506). We also do not rule out other elements of ob-
destruction of trees, even when the proper measure         jective value to the extent an expert lays a proper
of damages is the loss in the fair market value of         predicate.
the property to which the trees were attached, and
the value of the land has not declined, we have held            [14] Applying Strickland, we confirm and cla-
that the injured party may nevertheless recover for        rify this exception to the general rule governing
the trees' intrinsic value. This exception was cre-        damages for permanent injury to real property. Spe-
ated to compensate landowners for the loss of the          cifically, we affirm that when a landowner can
aesthetic and utilitarian value that trees confer on       show that the destruction of trees on real property
real property. In Porras v. Craig, a landowner sued        resulted in no diminishment of the property's fair
his neighbor for cutting down trees on his property,       market value, or in so little diminishment of that
some as large as four feet in diameter. 675 S.W.2d         value that the loss is essentially nominal, the
503, 504 (Tex.1984). The parties agreed that the           landowner may recover the intrinsic value of the
damage to the land was permanent, and we noted             trees lost; that is, the ornamental and utilitarian
that the usual measure of damages for permanent            value of the trees. We recognize that in Porras we
injury to real property is “the difference in the mar-     stated that the exception applies when there is “no”
ket value of the land immediately before and imme-         diminution in market value, Porras, 675 S.W.2d at
diately after” the injury occurs. Id. However, we          506, but we decline to limit the exception so
observed that Texas courts of appeals had begun to         strictly. See Moran Corp. v. Murray, 381 S.W.2d
apply “a conditional measure of damages, ... contin-       324, 328 (Tex.Civ.App.-Texarkana 1964, no writ)
gent on a showing of no reduction in market value,”        (holding that intrinsic value measure of damages is
which compensated landowners for the intrinsic             proper when the plaintiff shows “that destruction of
value of the trees that were destroyed. Id. at 506.        the trees did not have a significant effect upon the
We recognized the exception and remanded the               market value of the land”). If we were to permit ap-
case for a new trial in the interest of justice. Id.       plication of the exception when the property
                                                           suffered no loss in fair market value but not permit
    We recently revisited this exception in Strick-        application of the same exception when the prop-
land v. Medlen. 397 S.W.3d 184 (Tex.2013). In that         erty suffered what amounts to a nominal loss in
case, we considered whether pet owners could re-           value, we would controvert the purpose of a dam-
cover noneconomic damages for the negligent loss           age award, which is to adequately compensate the
of their dog. Id. at 185. We concluded that they           injured party. See Pac. Express, 16 S.W. at 793.
could not, as more than a century of case law has
classified pets as personal property. Id. (citing Hei-                     III. Application
ligmann v. Rose, 81 Tex. 222, 16 S.W. 931, 932                 Having considered our case law concerning the
(1891)). Ultimately, we held that the plaintiffs           temporary-versus-permanent distinction, we turn to
could recover only the objective, economic value of        the matter at hand. First, we consider whether




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(Cite as: 449 S.W.3d 474)




Wheeler was required to submit a question asking           restore the Mountain to the condition it was in be-
the jury to characterize the injury to the Mountain        fore Enbridge cleared the right of way was some-
as temporary or permanent. Second, we consider             where between $585,745 and $857,589. The jury
the propriety of the jury's award of cost-to-restore       ultimately found that the reasonable cost to restore
damages. Finally, we consider whether the jury             the Mountain was $300,000. Although Enbridge
question concerning the intrinsic value of the trees       contested the opinions of Wheeler's experts, at the
was properly submitted.                                    very least they show that restoration was possible,
                                                           rendering the injury temporary under the definitions
 A. Absence of a Temporary–Versus–Permanent                supplied above. There was also competing expert
                    Jury Question                          testimony that the loss in the Mountain's fair market
     The court of appeals ultimately held that             value was either $0 (according to Wheeler's expert)
Wheeler's claims failed because it had neglected to        or $3,000 (according to Enbridge's expert). Under
request, and in fact actively opposed, a jury ques-        these circumstances, when restoration of the land is
tion concerning whether the injury to the Mountain         technically possible but exceeds the diminution in
was temporary or permanent. The court of appeals           market value to such a disproportionately high de-
stated that “whether injury to real property is per-       gree that the repairs are no longer economically
manent or temporary is a question of fact.” 393                      FN3
                                                           feasible,     the injury is deemed permanent. See
S.W.3d at 925. As a result, it reasoned that “before       Pac. Express, 16 S.W. at 793–94. Moreover, the
damages for injury to real property may be awar-           parties now agree that the injury is a permanent
ded, the plaintiff must first obtain a finding on          one.
whether the injury to the land was permanent or
temporary.” Id. The court relied on Texas Rule of                  FN3. We note that even the lower range of
Civil Procedure 279 to hold that, because Wheeler                  cost-to-restore damages presented by
had declined to include a necessary predicate ques-                Wheeler's experts significantly exceeded
tion, and Enbridge had objected to that omission,                  the fair market value of the entire 153–acre
Enbridge was entitled to rendition of judgment in                  property. The amount of cost-to-restore
its favor. See State Dep't of Highways & Pub.                      damages awarded by the jury was approx-
Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992).                  imately 78% of the value of the entire
FN2
      As explained above, the court of appeals' ana-               property.
lysis is predicated on an erroneous *484
premise—that the temporary-versus-permanent dis-                We hold that whether the injury to the Moun-
tinction is a question of fact. We therefore reject its    tain was temporary or permanent is a question of
conclusion.                                                law and that Wheeler therefore was not required to
                                                           submit a jury question on that issue. Indeed, it
         FN2. In Payne, we applied Rule 279 to             would have been error for the trial court to include
         hold that when an element of a party's            such a question in the charge. Grohman v. Kahlig,
         claim is omitted from the jury charge, and        318 S.W.3d 882, 887 (Tex.2010). Instead, applying
         the opposing party objects to the omission,       the definitions supplied in this opinion, we hold
         a finding on the element may not be               that the injury to the Mountain is deemed perman-
         deemed in the prevailing party's favor. 838       ent as a matter of law due to the parties' agreement
         S.W.2d at 241.                                    and the application of the economic feasibility ex-
                                                           ception.
     [15] Any dispute about the underlying facts of
the case at bar has no bearing on the classification           Because the injury is deemed permanent,
of the injury to the Mountain as temporary or per-         however, the trial court improperly instructed the
manent. Wheeler presented evidence that the cost to        jury to calculate damages based on the cost to re-




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store the property. In turn, the trial court's judgment    inal. To the extent these opinions hold otherwise,
may not be upheld based on the jury's calculation of       we expressly overrule them.
such damages. Accordingly, we turn to the jury's
award of intrinsic value damages.                               In this case, the record indicates that the fair
                                                           market value of the Mountain as of the date of the
  B. The Intrinsic Value of Trees Jury Question            injury was $383,000. As noted above, Wheeler's
     The jury independently awarded Wheeler                expert testified that the destruction of the trees had
$288,000 in damages for the intrinsic value of the         not diminished the value of the Mountain at all,
trees that were destroyed. Enbridge contends that          while Enbridge's expert testified that the Mountain
Wheeler is barred from recovering such damages             had been reduced in value by $3,000. Assuming
                                                                                                      FN5
because (1) the loss of trees caused some diminu-          that the latter figure is the correct one,     the fair
tion in the Mountain's fair market value, and (2) the      market value of the Mountain was reduced by less
intrinsic value jury question was submitted in con-        than one percent. This negligible reduction in fair
junction with the trespass cause of action, which          market value is essentially nominal and does not
                                 FN4
was itself improperly submitted.                           preclude application of the intrinsic value excep-
                                                           tion.
         FN4. Enbridge also argues that Wheeler
         failed to show that the destroyed trees had                FN5. The jury agreed with Wheeler that
         no market value as timber separate and                     there was no loss in fair market value, but
         apart from the real property to which they                 Enbridge challenges the sufficiency of the
         were attached, rendering intrinsic value                   evidence to support that finding. We need
         damages improper. E.g., Lucas v. Morris-                   not decide that issue because the result is
         on,       286      S.W.2d      190,     191                the same even if we assume there was a
         (Tex.Civ.App.-San Antonio 1956, no writ).                  $3,000 loss in fair market value.
         When we recognized intrinsic value dam-
         ages in Porras, we did not require the                 Enbridge also suggests an independent ground
         plaintiff to make such a showing, which           on which the jury's damage award must be invalid-
         makes sense because that measure applies          ated. In the jury charge, the question that asked the
         to trees that serve ornamental or shade pur-      jury to consider the intrinsic value of the trees was
         poses. 675 S.W.2d at 506.                         posed in connection with a liability question on
                                                           Wheeler's trespass cause of action. Relying on
     [16] In its first argument, Enbridge contends         DeWitt County Electric Cooperative, Inc. v. Parks,
that Wheeler may not recover the intrinsic value of        1 S.W.3d 96 (Tex.1999), Enbridge argues that
the trees that were *485 destroyed because Wheeler         Wheeler cannot recover on its trespass claim as a
did not adduce legally sufficient evidence that the        matter of law and that, as a result, the jury question
value of the Mountain was not at all diminished by         related to the intrinsic value of the trees is infirm.
the destruction. In support of this argument, En-
bridge cites the opinions of several courts of ap-              In Parks, certain landowners entered into a
peals. See, e.g., Lamar Cnty. Electric Coop. Ass'n v.      contract with an electrical services cooperative for
Bryant, 770 S.W.2d 921, 923 (Tex.App.-Texarkana            an easement across the landowners' property. Id. at
1989, no writ); Garey Constr. Co. v. Thompson,             99. The right-of-way agreement that created the
697 S.W.2d 865, 867 (Tex.App.-Austin 1985, no              easement gave the cooperative certain rights with
writ). But, as we have already explained, a                regard to the trees that were located on or near the
landowner may recover for the intrinsic value of the       easement. Id. When the cooperative cut down sev-
trees on his property so long as the diminution in         eral trees, the landowners sued, alleging breach of
the fair market value of the land is essentially nom-      contract and negligence among other claims. Id. We




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                                                                                                       Page 13
449 S.W.3d 474, 57 Tex. Sup. Ct. J. 1465
(Cite as: 449 S.W.3d 474)




considered whether the plaintiffs could maintain          court's disposition of the case. Some of those issues
their negligence claim independently of their con-        were argued in the parties' briefing to this Court
tract claim. Id. at 105. Ultimately, we held that         and have been discussed in this opinion. However,
when a contract between two parties “spells out the       several were not, including various challenges to
parties' respective rights about whether trees may        the trial court's admission of Wheeler's experts'
be cut, the contract and not common-law negli-            testimony, exclusion of Enbridge's experts' testi-
gence governs any dispute about whether trees             mony, and failure to submit a jury question on one
could be cut or how trees were cut.” Id. That is, we      of Enbridge's breach-of-contract defenses. As these
held that the landowners' claims sounded only in          issues were not briefed in this Court, we hereby re-
contract, not in negligence, and we affirmed the tri-     mand the case to the court of appeals to address
al court's grant of directed verdict to the cooperat-     them.
ive on the landowners' negligence claims. Id.
However, in Formosa Plastics Corp. USA v. Presi-                             V. Conclusion
dio Engineers and Contractors, Inc., we held that              The court of appeals erred in rendering judg-
the existence of a contract did not prevent a             ment for Enbridge based on the trial court's failure
plaintiff from bringing an additional claim for           to submit a jury question on whether the injury to
fraudulent inducement. 960 S.W.2d 41, 43                  the Mountain was temporary or permanent. For the
(Tex.1998). Because in the instant suit Wheeler           reasons discussed above, we reverse the court of
brought a claim for trespass-distinct from both the       appeals' judgment and remand the case to that court
negligence claim in Parks and the fraudulent in-          to address the remaining issues in a manner consist-
ducement claim in Formosa Plastics—it is not im-          ent with this opinion.
mediately*486 clear whether the trial court erred in
submitting Wheeler's claim to the jury.                   Tex.,2014.
                                                          Gilbert Wheeler, Inc. v. Enbridge Pipelines (East
     However, we need not resolve that question to
                                                          Texas), L.P.
conclude that, even if the submission of the trespass
                                                          449 S.W.3d 474, 57 Tex. Sup. Ct. J. 1465
cause of action was error, it was harmless. We have
held that the submission of an improper jury ques-        END OF DOCUMENT
tion may be harmless when an appellate court de-
termines that the verdict was based on a valid the-
ory of liability. Thota v. Young, 366 S.W.3d 678,
693–94 (Tex.2012). And, as we have already stated,
the temporary-versus-permanent dichotomy and its
concomitant rules and exceptions—including the
intrinsic value exception—govern the proper meas-
ure of damages on Wheeler's breach-of-contract
claim. See Parks, 1 S.W.3d at 105. Because breach
of contract was a valid theory of liability on which
Wheeler prevailed, it is of no moment that the in-
trinsic value of trees jury question was submitted in
conjunction with a trespass cause of action.

             IV. Remaining Issues
    Enbridge raised several issues in the court of
appeals that were not reached because of that




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TAB B
                                                                                                          Page 1
747 S.W.2d 785
(Cite as: 747 S.W.2d 785)




                                                            30 Appeal and Error
                                                                30XVII Determination and Disposition of Cause
         Supreme Court of Texas.                                       30XVII(F) Mandate and Proceedings in
   BOYCE IRON WORKS, INC., Petitioner,                      Lower Court
                  v.                                                    30k1193 Effect in Lower Court of De-
 SOUTHWESTERN BELL TELEPHONE COM-                           cision of Appellate Court
           PANY, Respondent.                                               30k1194 Construction and Operation
                                                            in General
                   No. C–6376.
                                                                                30k1194(1) k. In General. Most
                   April 6, 1988.
                                                            Cited Cases
      Action was brought against telephone company               When jury returns favorable findings on two or
for property damage resulting from fire started dur-        more alternative theories, prevailing party need not
ing burglary of plaintiff's premises. The 200th Judi-       formally waive alternative findings, and thus may
cial District Court, Travis County, Paul R. Davis,          seek recovery under alternative theory if judgment
Jr., J., held for plaintiff, and telephone company ap-      on one theory is reversed on appeal.
pealed. The Austin Court of Appeals, Third Su-
                                                            [3] Appeal and Error 30        1194(1)
preme Judicial District, 726 S.W.2d 182, Shannon,
C.J., reversed, and plaintiff brought error. The Su-        30 Appeal and Error
preme Court, Mauzy, J., held that plaintiff who ob-             30XVII Determination and Disposition of Cause
tained favorable jury verdicts on theories of negli-                    30XVII(F) Mandate and Proceedings in
gence and deceptive trade practices was entitled to         Lower Court
seek recovery under alternative negligence theory                         30k1193 Effect in Lower Court of De-
once judgment on deceptive trade practices theory           cision of Appellate Court
was reversed on appeal.                                                     30k1194 Construction and Operation
                                                            in General
    Reversed and remanded.
                                                                                 30k1194(1) k. In General. Most
                  West Headnotes                            Cited Cases
                                                                 Plaintiff who obtained favorable jury verdicts
[1] Judgment 228        198                                 on theories of negligence and deceptive trade prac-
                                                            tices was entitled to seek recovery under alternative
228 Judgment                                                negligence theory once judgment on deceptive trade
   228VI On Trial of Issues                                 practices theory was reversed on appeal; plaintiff
       228VI(A) Rendition, Form, and Requisites in          did not waive his right to recover under negligence
General                                                     theory by failing to complain when trial court
            228k198 k. Verdict and Findings of Jury.        entered judgment on deceptive trade practices the-
Most Cited Cases                                            ory.
    When party tries case on alternative theories of
recovery, and jury returns favorable findings on            *786 Robert J. Hearon, Jr., Graves, Dougherty,
two or more theories, party has right to judgment           Hearon & Moody, Austin, Marlin L. Gilbert, San
on theory entitling him to greatest or most favor-          Antonio, David H. Donaldson, Jr., Pamela Stanton
able relief.                                                Baron, Graves, Dougherty, Hearon & Moody, Aus-
                                                            tin, for respondent.
[2] Appeal and Error 30         1194(1)




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                                                                                                           Page 2
747 S.W.2d 785
(Cite as: 747 S.W.2d 785)




Mack Kidd, Thomas R. Harkness, Kidd, White-                 incorporated the jury's verdict “for all purposes.”
hurst, Harkness & Watson, Douglas W. Alexander,             The court of appeals reversed, *787 concluding that
Brown, Maroney, Rose, Barber & Dye, Austin, for             no evidence supported the finding that Southwest-
petitioner.                                                 ern Bell's misrepresentations were a “producing
                                                            cause” of Boyce's actual damages. 726 S.W.2d at
                                                            187. In cross-point, Boyce urged that if the court
MAUZY, Justice.
                                                            reversed the DTPA judgment, it should neverthe-
     Boyce Iron Works, Inc. sued Southwestern Bell
                                                            less render judgment for Boyce on its alternative
Telephone Company on alternative theories of neg-
                                                            negligence theory. The court of appeals rendered
ligence and violations of the Deceptive Trade Prac-
                                                            judgment that Boyce take nothing, concluding that
tices—Consumer Protection Act when a fire des-
                                                            Boyce waived its cross-point because no complaint
troyed Boyce's offices. In accordance with a jury
                                                            was made in the trial court.
verdict, the trial court rendered judgment on
Boyce's DTPA claim, awarding $229,596.88 actual                  [1] Boyce's first point of error, regarding the
damages, $110,937.99 in prejudgment interest, and           cross-point before the court of appeals, is disposit-
$500,000.00 in additional damages and attorneys'            ive in this case. When a party tries a case on altern-
fees. The court of appeals reversed and rendered            ative theories of recovery and a jury returns favor-
judgment that Boyce take nothing. 726 S.W.2d 182.           able findings on two or more theories, the party has
We reverse the judgment of the court of appeals             a right to a judgment on the theory entitling him to
and remand the cause to that court for further con-         the greatest or most favorable relief. Hargrove v.
sideration.                                                 Trinity Universal Insurance Co., 152 Tex. 243, 256
                                                            S.W.2d 73 (1953). See also 31 J. Wicker, Texas
     Boyce maintained a silent burglar alarm to se-
                                                            Practice § 306 (1985). Furthermore, under
cure its premises. At approximately 5 p.m. on Fri-
                                                            Tex.R.Civ.P. 301 the trial court's judgment must
day, October 9, 1981, Boyce employees became
                                                            award the prevailing party all the relief to which he
aware of a problem in the telephone line that con-
                                                            may be entitled.
nected the system to the alarm company's office.
Boyce officials did not notify Southwestern Bell                [2] in the trial court, Boyce moved for judg-
because they believed that it was Southwestern              ment seeking damages under the DTPA. The mo-
Bell's policy that no repairs were performed after          tion contained no waiver of the alternative negli-
business hours, and that Monday would be the                gence findings. In fact, the final judgment incorpor-
earliest that the line could be repaired.                   ated all jury findings, for all purposes. Under this
                                                            court's holding in Birchfield v. Texarkana Memorial
    During the early morning hours on October 10,
                                                            Hospital, 747 S.W.2d 361, (Tex.1987), an election
1981, burglars started a fire that consumed the
                                                            by the prevailing party is not necessary. When the
Boyce premises. Boyce brought suit against South-
                                                            jury returns favorable findings on two or more al-
western Bell and Master Burglar Alarm. The case
                                                            ternative theories, the prevailing party need not
was tried on alternative theories of negligence and
                                                            formally waive the alternative findings. That party
violations of the DTPA. The jury found that Master
                                                            may seek recovery under an alternative theory if the
Burglar Alarm was negligent and the judgment
                                                            judgment is reversed on appeal.
awarded Boyce $25,000.00 in damages. Master
Burglar Alarm is not a party on appeal. The jury                 [3] Generally, before a party may complain by
answered issues against Southwestern Bell on both           cross-point on appeal, the error must have been
theories of recovery. A judgment was rendered               brought to the trial court's attention. West Texas
against Southwestern Bell, granting the more favor-         Utilities Co. v. Irvin, 161 Tex. 5; 336 S.W.2d 609
able relief available under the DTPA. The judgment          (1960). However, that rule does not apply in this




                            © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                       Page 3
747 S.W.2d 785
(Cite as: 747 S.W.2d 785)




case because Boyce received a favorable judgment
and had no reason to complain in the trial court.
Under Chesshir v. First State Bank, 620 S.W.2d
101 (Tex.1981), Boyce had no duty to complain in
the trial court before raising this cross-point before
the court of appeals. In fact, Boyce was not re-
quired under Chesshir to raise the issue of alternat-
ive grounds for recovery until the court of appeals
rendered its judgment reversing the DTPA judg-
ment. 620 S.W.2d at 101. Accord Houston First
American Savings v. Musick, 650 S.W.2d 764, 770
(Tex.1983); McKelvy v. Barber, 381 S.W.2d 59, 62
(Tex.1964). Boyce had no duty to complain in the
trial court when it recovered all relief available un-
der its DTPA claim. By incorporating the jury's
findings in the court's judgment, Boyce did
everything it could to preserve the right of recovery
under the alternative theory.

     The court of appeals erred in concluding that
Boyce waived its right to recover under the altern-
ative negligence theory. We hold that the court of
appeals erred in failing to consider Boyce's negli-
gence claims. We therefore reverse the judgment of
the court of appeals and remand the cause to that
court for consideration of Boyce's negligence
claims.

Tex.,1988.
Boyce Iron Works, Inc. v. Southwestern Bell Tele-
phone Co.
747 S.W.2d 785

END OF DOCUMENT




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                                                                                                         Page 1
709 S.W.2d 175
(Cite as: 709 S.W.2d 175)




                                                                        30k988 Extent of Review
                                                                            30k989 k. In General. Most Cited
            Supreme Court of Texas.                         Cases
James CAIN, d/b/a James Cain Company, et al., Pe-
                    titioners,                              Appeal and Error 30        1003(5)
                         v.
      James Lee BAIN et ux., Respondents.                   30 Appeal and Error
                                                               30XVI Review
                   No. C–4764.                                        30XVI(I) Questions of Fact, Verdicts, and
                  Feb. 12, 1986.                            Findings
          Rehearing Denied June 4, 1986.                               30XVI(I)2 Verdicts
                                                                          30k1003 Against Weight of Evidence
     Purchasers of home brought action against real                          30k1003(5) k. Great or Overwhelm-
estate agency for violations of Deceptive Trade             ing Weight or Preponderance. Most Cited Cases
Practices Act, after being unable to sell house                   Proper standard of review which Court of Ap-
which they procured through agency because of               peals should have used in reviewing jury verdict to
foundation defect. The 215th District Court, Harris         determine factual sufficiency of evidence was to
County, Charles L. Price, granted agency's motion           consider and weigh all evidence, and to set aside
for directed verdict and rendered take-nothing judg-        verdict only if it was so contrary to overwhelming
ment against purchasers, and purchasers appealed.           weight of evidence as to be clearly wrong and un-
The Texarkana Court of Appeals, Sixth Court of              just.
Appeals District, reversed, determining that flaws
and evidence of defects in house did not point un-          *175 Ross, Banks, May, Cron & Cavin by John A.
erringly to substantial foundation defect, such that        Cavin, Houston, for petitioners.
purchasers were put on notice of defect, as jury
found, and agency petitioned for writ of error. The         Ross, Banks, May, Cron & Cavin, Gordon A. Hol-
Supreme Court held that proper standard of review           loway, and N. Carlene Rhodes, Houston, for re-
for Court of Appeals in determining factual suffi-          spondents.
ciency of evidence is to consider and weigh all
evidence and set aside verdict only if it is so con-        PER CURIAM.
trary to overwhelming weight of evidence as to be                James and Karen Bain purchased a 20-year-old
clearly wrong and unjust.                                   house in 1976 from George and Carroll Banks. The
                                                            real estate agent for the transaction was an employ-
     Court of Appeals affirmed in part, reversed in
                                                            ee of James Cain Company. In 1978, the Bains tried
part, and cause remanded thereto.
                                                            to sell their house but were unable to find a buyer
                 West Headnotes                             because of a foundation defect. They sued James
                                                            Cain Company for violations of the Texas Decept-
Appeal and Error 30          989                            ive Trade Practices Act. The trial court granted
                                                            Cain's Motion for Directed Verdict and rendered a
30 Appeal and Error                                         take nothing judgment against the Bains. In an un-
   30XVI Review                                             published opinion, the court of appeals reversed the
         30XVI(I) Questions of Fact, Verdicts, and          trial court's judgment. Tex.R.Civ.P. 452.
Findings
          30XVI(I)1 In General                                  The trial court submitted Issue No. 7 asking the




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                                                                                                           Page 2
709 S.W.2d 175
(Cite as: 709 S.W.2d 175)




jury:                                                       factual sufficiency of the evidence, the court of ap-
                                                            peals must consider and weigh all the evidence, and
    Do you find from a preponderance of the evid-           should set aside the verdict only if it is so contrary
  ence that on or before October 13, 1977 the               to the overwhelming weight of the evidence as to
  Plaintiffs James Lee Bain and wife Karen Sue              be clearly wrong and unjust. Dyson v. Olin Corp.,
  Bain either had knowledge of such substantial             692 S.W.2d 456, 457 (Tex.1985); In Re King's Es-
  foundation structural defect, or were on notice of        tate, 150 Tex. 662, 664–65, 244 S.W.2d 660, 661
  such facts as would cause a reasonable, prudent           (1951).
  person to make inquiry which could lead to the
  discovery of such defect by the exercise of reas-              The court of appeals imposed a different stand-
  onable diligence?                                         ard—that the evidence supporting the jury's finding
                                                            must point “unerringly” to the conclusion found by
  Answer: “We do” or “We do not”                            the jury. The court also held the evidence was
                                                            “much too slight and indefinite” to support the jury
  Answer: We do
                                                            verdict. The jury's task is to decide a fact issue
     The evidence revealed that when the Bains              based on the preponderance of the evidence. We
moved into the house they noticed a bulge under             hold that the court of appeals has decided this case
one window, a crack in the kitchen wall, and a              under an inappropriate standard of law. There is
sticking door. Within six or seven months after oc-         some evidence to support the jury verdict. There-
cupying the house, they noticed a foundation crack          fore, pursuant to Rule 483, we grant Cain's applica-
near the patio. Karen Bain testified that during the        tion for writ of error and, without hearing oral argu-
spring or summer of 1977 she was told there might           ment, reverse the judgment of the court of appeals
be a slab problem with the house.                           on the insufficiency of evidence point and remand
                                                            the cause to that court to consider the insufficiency
     The Bains presented some evidence to the con-          points of error under the proper test. We affirm the
trary. They consulted with a foundation*176 expert          judgment of the court of appeals in all other re-
in April 1978, who informed them that there was             spects.
not a substantial foundation defect. Also, they ar-
gue the flaws in the house could have been indicat-         Tex.,1986.
ive of problems other than a foundation defect, such        Cain v. Bain
as ordinary subsidence problems common to the               709 S.W.2d 175
Houston area, or the effects of age, dampness and
                                                            END OF DOCUMENT
weathering on a 20-year-old house.

     On appeal, the Bains asserted that the jury find-
ing that they were on constructive notice of the
foundation defect was against the great weight and
preponderance of the evidence. The court of ap-
peals reversed the trial court's judgment and re-
manded the cause, holding the flaws and evidence
of defects in the house “do not point unerringly to a
substantial foundation defect.” This is not the cor-
rect standard of review for a challenge to the suffi-
ciency of the evidence.

    When reviewing a jury verdict to determine the




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                                                                                                      Page 1
168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




                                                          Condemnation
                                                                   148k266 k. Nature and grounds in general.
            Supreme Court of Texas.                       Most Cited Cases
       The CITY OF KELLER, Petitioner,                        To recover damages from city for inverse con-
                      v.                                  demnation, landowners had to prove the city inten-
  John W. WILSON, Grace S. Wilson, Johnny L.              tionally took or damaged their property for public
    Wilson and Nancy A. Wilson, Respondents.              use, or was substantially certain that would be the
                                                          result. Vernon's Ann.Texas Const. Art. 1, § 17.
                 No. 02–1012.
             Argued Oct. 19, 2004.                        [2] Appeal and Error 30       1001(3)
            Decided June 10, 2005.
         Rehearing Denied Sept. 2, 2005.                  30 Appeal and Error
                                                             30XVI Review
Background: Landowners brought action against                      30XVI(I) Questions of Fact, Verdicts, and
city to recover damages for inverse condemnation          Findings
and for violations of Water Code. The 96th District                 30XVI(I)2 Verdicts
Court, Tarrant County, Jeff Walker, J., entered                           30k1001 Sufficiency of Evidence in
judgment on jury verdict in favor of landowners.          Support
City appealed. The Fort Worth Court of Appeals,                                30k1001(3) k. Total failure of
86 S.W.3d 693, affirmed. City filed petition for re-      proof. Most Cited Cases
view.                                                         The traditional scope of no-evidence review
                                                          does not disregard contrary evidence if there is no
Holdings: The Supreme Court, Brister, J., held
                                                          favorable evidence, or if contrary evidence renders
that:
                                                          supporting evidence incompetent or conclusively
(1) both the “exclusive” and “inclusive” standards
                                                          establishes the opposite.
for no-evidence review are correct, in that the two
standards reach the same result, and                      [3] Appeal and Error 30       1001(1)
(2) no evidence established that city's approval of
revised drainage plans, which resulted in flooding        30 Appeal and Error
of landowners' farm property, was an intentional             30XVI Review
taking.                                                            30XVI(I) Questions of Fact, Verdicts, and
                                                          Findings
   Judgment of Court of Appeals reversed; case                      30XVI(I)2 Verdicts
remanded.                                                                30k1001 Sufficiency of Evidence in
                                                          Support
   O'Neill, J., filed concurring opinion in which                            30k1001(1) k. In general. Most
Medina, J., joined.                                       Cited Cases
                                                               When conducting a legal-sufficiency review,
                 West Headnotes                           evidence can be disregarded whenever reasonable
                                                          jurors could do so, an inquiry that is necessarily
[1] Eminent Domain 148         266                        fact-specific.

148 Eminent Domain                                        [4] Appeal and Error 30       1001(1)
   148IV Remedies of Owners of Property; Inverse
                                                          30 Appeal and Error




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                                                                                                         Page 2
168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




   30XVI Review                                                 95II(A) General Rules of Construction
         30XVI(I) Questions of Fact, Verdicts, and                     95k143.5 k. Construction as a whole.
Findings                                                  Most Cited Cases
          30XVI(I)2 Verdicts                                  Reviewing courts must construe contracts as a
                30k1001 Sufficiency of Evidence in        whole; courts do not consider only the parts favor-
Support                                                   ing one party and disregard the remainder, as that
                    30k1001(1) k. In general. Most        would render the latter meaningless.
Cited Cases
    When courts conducting legal-sufficiency re-          [8] Contracts 95       164
view use the “exclusive” standard and disregard
                                                          95 Contracts
contrary evidence, they must recognize certain ex-
                                                              95II Construction and Operation
ceptions to it.
                                                                 95II(A) General Rules of Construction
[5] Libel and Slander 237        19                                  95k164 k. Construing instruments togeth-
                                                          er. Most Cited Cases
237 Libel and Slander                                          Writings executed at different times must be
    237I Words and Acts Actionable, and Liability         considered together if they pertain to the same
Therefor                                                  transaction.
         237k19 k. Construction of language used.
Most Cited Cases                                          [9] Appeal and Error 30         1001(1)
    Publications alleged to be defamatory must be
                                                          30 Appeal and Error
viewed as a whole—including accompanying state-
                                                             30XVI Review
ments, headlines, pictures, and the general tenor
                                                                    30XVI(I) Questions of Fact, Verdicts, and
and reputation of the source itself.
                                                          Findings
[6] Appeal and Error 30        840(3)                                30XVI(I)2 Verdicts
                                                                          30k1001 Sufficiency of Evidence in
30 Appeal and Error                                       Support
    30XVI Review                                                               30k1001(1) k. In general. Most
         30XVI(A) Scope, Standards, and Extent, in        Cited Cases
General                                                        In reviewing intentional infliction of emotional
          30k838 Questions Considered                     distress claims for legal sufficiency, appellate court
               30k840 Review of Specific Questions        considers the context and the relationship between
and Particular Decisions                                  the parties.
                   30k840(3) k. Review of constitu-
tional questions. Most Cited Cases                        [10] Appeal and Error 30         1001(1)
     A court reviewing legal sufficiency, in an ac-
                                                          30 Appeal and Error
tion alleging a defamatory publication, cannot dis-
                                                             30XVI Review
regard parts of a publication, considering only false
                                                                   30XVI(I) Questions of Fact, Verdicts, and
statements to support a plaintiff's verdict or only
                                                          Findings
true ones to support a defense verdict.
                                                                    30XVI(I)2 Verdicts
[7] Contracts 95       143.5                                            30k1001 Sufficiency of Evidence in
                                                          Support
95 Contracts                                                                 30k1001(1) k. In general. Most
   95II Construction and Operation                        Cited Cases




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                                                                                                        Page 3
168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




     When conducting legal-sufficiency review,                        30k988 Extent of Review
evidence cannot be taken out of context in a way                           30k989 k. In general. Most Cited
that makes it seem to support a verdict when in fact      Cases
it never did.                                                 Evidence showing supporting evidence to be
                                                          incompetent cannot be disregarded when conduct-
[11] Appeal and Error 30        989                       ing legal-sufficiency review, even if the result is
                                                          contrary to the verdict.
30 Appeal and Error
   30XVI Review                                           [14] Appeal and Error 30        989
         30XVI(I) Questions of Fact, Verdicts, and
Findings                                                  30 Appeal and Error
          30XVI(I)1 In General                               30XVI Review
             30k988 Extent of Review                               30XVI(I) Questions of Fact, Verdicts, and
                   30k989 k. In general. Most Cited       Findings
Cases                                                               30XVI(I)1 In General
     If evidence may be legally sufficient in one                     30k988 Extent of Review
context but insufficient in another, the context can-                       30k989 k. In general. Most Cited
not be disregarded when conducting legal-                 Cases
sufficiency review, even if that means rendering
judgment contrary to the jury's verdict.                  Evidence 157       568(1)

[12] Judgment 228         19                              157 Evidence
                                                             157XII Opinion Evidence
228 Judgment                                                     157XII(F) Effect of Opinion Evidence
   228I Nature and Essentials in General                             157k568 Opinions of Witnesses in Gener-
         228k19 k. Evidence to sustain judgment.          al
Most Cited Cases                                                         157k568(1) k. In general. Most Cited
                                                          Cases
Judgment 228        232                                        When expert testimony is required, lay evid-
                                                          ence supporting liability is legally insufficient; in
228 Judgment
                                                          such cases, a no-evidence review cannot disregard
   228VI On Trial of Issues
                                                          contrary evidence showing the witness was unquali-
       228VI(A) Rendition, Form, and Requisites in
                                                          fied to give an opinion.
General
           228k232 k. Defects and objections. Most        [15] Appeal and Error 30        989
Cited Cases
     Incompetent evidence is legally insufficient to      30 Appeal and Error
support a judgment, even if admitted without objec-          30XVI Review
tion.                                                              30XVI(I) Questions of Fact, Verdicts, and
                                                          Findings
[13] Appeal and Error 30        989                                 30XVI(I)1 In General
                                                                      30k988 Extent of Review
30 Appeal and Error
                                                                            30k989 k. In general. Most Cited
   30XVI Review
                                                          Cases
         30XVI(I) Questions of Fact, Verdicts, and
                                                              If an expert's opinion is based on certain as-
Findings
                                                          sumptions about the facts, an appellate court con-
          30XVI(I)1 In General




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168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




ducting legal-sufficiency review cannot disregard               In claims or defenses supported only by meager
evidence showing those assumptions were unfoun-           circumstantial evidence, the evidence does not rise
ded.                                                      above a scintilla, and thus is legally insufficient, if
                                                          jurors would have to guess whether a vital fact ex-
[16] Appeal and Error 30        837(1)                    ists.

30 Appeal and Error                                       [19] Appeal and Error 30          996
   30XVI Review
         30XVI(A) Scope, Standards, and Extent, in        30 Appeal and Error
General                                                      30XVI Review
            30k837 Matters or Evidence Considered                   30XVI(I) Questions of Fact, Verdicts, and
in Determining Question                                   Findings
                 30k837(1) k. In general. Most Cited                 30XVI(I)1 In General
Cases                                                                         30k996 k. Inferences from facts
     An appellate court conducting a no-evidence          proved. Most Cited Cases
review cannot consider only an expert's bare opin-             When the circumstances are equally consistent
ion, but must also consider contrary evidence show-       with either of two facts, neither fact may be in-
ing it has no scientific basis.                           ferred, and the appellate court must view each piece
                                                          of circumstantial evidence, not in isolation, but in
[17] Appeal and Error 30        1001(3)                   light of all the known circumstances.

30 Appeal and Error                                       [20] Appeal and Error 30          1001(1)
   30XVI Review
         30XVI(I) Questions of Fact, Verdicts, and        30 Appeal and Error
Findings                                                     30XVI Review
          30XVI(I)2 Verdicts                                       30XVI(I) Questions of Fact, Verdicts, and
                30k1001 Sufficiency of Evidence in        Findings
Support                                                             30XVI(I)2 Verdicts
                      30k1001(3) k. Total failure of                      30k1001 Sufficiency of Evidence in
proof. Most Cited Cases                                   Support
    Evidence that might be “some evidence” when                               30k1001(1) k. In general. Most
considered in isolation is nevertheless rendered “no      Cited Cases
evidence” when contrary evidence shows it to be                When the circumstantial evidence of a vital
incompetent.                                              fact is meager, a reviewing court conducting legal-
                                                          sufficiency review must consider not just favorable
[18] Appeal and Error 30        1001(1)                   but all the circumstantial evidence, and competing
                                                          inferences as well.
30 Appeal and Error
   30XVI Review                                           [21] Appeal and Error 30          837(1)
         30XVI(I) Questions of Fact, Verdicts, and
Findings                                                  30 Appeal and Error
          30XVI(I)2 Verdicts                                 30XVI Review
              30k1001 Sufficiency of Evidence in                  30XVI(A) Scope, Standards, and Extent, in
Support                                                   General
                   30k1001(1) k. In general. Most                    30k837 Matters or Evidence Considered
Cited Cases                                               in Determining Question




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168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




                30k837(1) k. In general. Most Cited        30 Appeal and Error
Cases                                                         30XVI Review
     An appellate court conducting a legal-                         30XVI(I) Questions of Fact, Verdicts, and
sufficiency review cannot disregard undisputed             Findings
evidence that allows of only one logical inference;                  30XVI(I)2 Verdicts
by definition, such evidence can be viewed in only                          30k1001 Sufficiency of Evidence in
one light, and reasonable jurors can reach only one        Support
conclusion from it.                                                             30k1001(1) k. In general. Most
                                                           Cited Cases
[22] Evidence 157        594                                   Undisputed contrary evidence may become
                                                           conclusive, such that it cannot be disregarded when
157 Evidence
                                                           conducting legal-sufficiency review, when a party
   157XIV Weight and Sufficiency
                                                           admits it is true.
       157k594 k. Uncontroverted evidence. Most
Cited Cases                                                [25] Appeal and Error 30        1001(1)

Trial 388       141                                        30 Appeal and Error
                                                              30XVI Review
388 Trial
                                                                    30XVI(I) Questions of Fact, Verdicts, and
   388VI Taking Case or Question from Jury
                                                           Findings
          388VI(A) Questions of Law or of Fact in
                                                                     30XVI(I)2 Verdicts
General
                                                                          30k1001 Sufficiency of Evidence in
           388k141 k. Uncontroverted facts or evid-
                                                           Support
ence. Most Cited Cases
                                                                               30k1001(1) k. In general. Most
     Jurors are not free to reach a verdict contrary to
                                                           Cited Cases
undisputed evidence that allows of only one logical
                                                                Evidence is conclusive, such that it cannot be
inference; indeed, uncontroverted issues need not
                                                           disregarded during legal-sufficiency review, only if
be submitted to a jury at all.
                                                           reasonable people could not differ in their conclu-
[23] Appeal and Error 30          1001(1)                  sions, a matter that depends on the facts of each
                                                           case.
30 Appeal and Error
   30XVI Review                                            [26] Appeal and Error 30        1001(1)
         30XVI(I) Questions of Fact, Verdicts, and
                                                           30 Appeal and Error
Findings
                                                              30XVI Review
          30XVI(I)2 Verdicts
                                                                    30XVI(I) Questions of Fact, Verdicts, and
                30k1001 Sufficiency of Evidence in
                                                           Findings
Support
                                                                     30XVI(I)2 Verdicts
                     30k1001(1) k. In general. Most
                                                                           30k1001 Sufficiency of Evidence in
Cited Cases
                                                           Support
    Undisputed contrary evidence becomes con-
                                                                               30k1001(1) k. In general. Most
clusive, and thus cannot be disregarded when con-
                                                           Cited Cases
ducting legal-sufficiency review, when it concerns
                                                               For purposes of conducting legal-sufficiency
physical facts that cannot be denied.
                                                           review, undisputed evidence and conclusive evid-
[24] Appeal and Error 30          1001(1)                  ence are not the same—undisputed evidence may or
                                                           may not be conclusive, and conclusive evidence




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168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




may or may not be undisputed.                              standard of proof at trial is elevated, the standard of
                                                           appellate review must likewise be elevated.
[27] Appeal and Error 30         1001(1)
                                                           [30] Appeal and Error 30          930(1)
30 Appeal and Error
   30XVI Review                                            30 Appeal and Error
          30XVI(I) Questions of Fact, Verdicts, and           30XVI Review
Findings                                                          30XVI(G) Presumptions
           30XVI(I)2 Verdicts                                        30k930 Verdict
                 30k1001 Sufficiency of Evidence in                        30k930(1) k. In general. Most Cited
Support                                                    Cases
                      30k1001(1) k. In general. Most           Cases involving what a party knew or why it
Cited Cases                                                took a certain course of action are not amenable to
     Proper legal-sufficiency review prevents re-          legal-sufficiency review under the “exclusive”
viewing courts from substituting their opinions on         standard, under which all contrary evidence is dis-
credibility for those of the jurors, but proper review     regarded.
also prevents jurors from substituting their opinions
for undisputed truth.                                      [31] Appeal and Error 30          994(2)

[28] Appeal and Error 30         989                       30 Appeal and Error
                                                              30XVI Review
30 Appeal and Error                                                 30XVI(I) Questions of Fact, Verdicts, and
    30XVI Review                                           Findings
          30XVI(I) Questions of Fact, Verdicts, and                  30XVI(I)1 In General
Findings                                                               30k994 Credibility of Witnesses
           30XVI(I)1 In General                                           30k994(2) k. Province of jury. Most
             30k988 Extent of Review                       Cited Cases
                   30k989 k. In general. Most Cited
Cases                                                      Appeal and Error 30          1003(3)
     When evidence contrary to a verdict is conclus-
                                                           30 Appeal and Error
ive, it cannot be disregarded when conducting leg-
                                                               30XVI Review
al-sufficiency review.
                                                                     30XVI(I) Questions of Fact, Verdicts, and
[29] Appeal and Error 30         1001(1)                   Findings
                                                                      30XVI(I)2 Verdicts
30 Appeal and Error                                                      30k1003 Against Weight of Evidence
   30XVI Review                                                               30k1003(3) k. Province of jury or
         30XVI(I) Questions of Fact, Verdicts, and         trial court. Most Cited Cases
Findings                                                        Jurors are the sole judges of the credibility of
          30XVI(I)2 Verdicts                               the witnesses and the weight to give their testi-
              30k1001 Sufficiency of Evidence in           mony.
Support
                   30k1001(1) k. In general. Most          [32] Appeal and Error 30          999(1)
Cited Cases
                                                           30 Appeal and Error
    The standard for legal sufficiency works in tan-
                                                              30XVI Review
dem with the standard of review—whenever the
                                                                  30XVI(I) Questions of Fact, Verdicts, and




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168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




Findings                                                   jurors unless the subject matter is one for experts
           30XVI(I)2 Verdicts                              alone.
             30k999 Conclusiveness in General
                30k999(1) k. In general. Most Cited        [36] Trial 388      140(1)
Cases
                                                           388 Trial
Evidence 157        588                                       388VI Taking Case or Question from Jury
                                                                     388VI(A) Questions of Law or of Fact in
157 Evidence                                               General
    157XIV Weight and Sufficiency                                    388k140 Credibility of Witnesses
       157k588 k. Credibility of witnesses in gener-                     388k140(1) k. In general. Most Cited
al. Most Cited Cases                                       Cases
     Jurors may choose to believe one witness and              Jury's decisions regarding credibility must be
disbelieve another, and reviewing courts cannot im-        reasonable.
pose their own opinions to the contrary.
                                                           [37] Evidence 157       594
[33] Appeal and Error 30          930(1)
                                                           157 Evidence
30 Appeal and Error                                           157XIV Weight and Sufficiency
    30XVI Review                                                    157k594 k. Uncontroverted evidence. Most
       30XVI(G) Presumptions                               Cited Cases
          30k930 Verdict                                       Jurors cannot ignore undisputed testimony that
                 30k930(1) k. In general. Most Cited       is clear, positive, direct, otherwise credible, free
Cases                                                      from contradictions and inconsistencies, and could
     Reviewing courts must assume jurors decided           have been readily controverted.
all of credibility questions in favor of the verdict if
reasonable human beings could do so.                       [38] Evidence 157       588

[34] Evidence 157         594                              157 Evidence
                                                               157XIV Weight and Sufficiency
157 Evidence                                                      157k588 k. Credibility of witnesses in gener-
   157XIV Weight and Sufficiency                           al. Most Cited Cases
        157k594 k. Uncontroverted evidence. Most                Jurors are not free to believe testimony that is
Cited Cases                                                conclusively negated by undisputed facts.
    Jurors may disregard even uncontradicted and
unimpeached testimony from disinterested wit-              [39] Appeal and Error 30        930(1)
nesses.
                                                           30 Appeal and Error
[35] Evidence 157         570                                  30XVI Review
                                                                 30XVI(G) Presumptions
157 Evidence                                                          30k930 Verdict
   157XII Opinion Evidence                                                  30k930(1) k. In general. Most Cited
      157XII(F) Effect of Opinion Evidence                 Cases
         157k569 Testimony of Experts                           Whenever reasonable jurors could decide what
               157k570 k. In general. Most Cited           testimony to discard, a reviewing court must as-
Cases                                                      sume they did so in favor of their verdict, and dis-
    Uncontroverted expert testimony does not bind          regard it in the course of legal-sufficiency review.




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168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




[40] Trial 388         143                                   388 Trial
                                                                388VI Taking Case or Question from Jury
388 Trial                                                              388VI(A) Questions of Law or of Fact in
    388VI Taking Case or Question from Jury                  General
            388VI(A) Questions of Law or of Fact in                        388k142 k. Inferences from evidence.
General                                                      Most Cited Cases
               388k143 k. Conflicting evidence. Most              Even if evidence is undisputed, it is the
Cited Cases                                                  province of the jurors to draw from it whatever in-
     It is the province of the jury to resolve conflicts     ferences they wish, so long as more than one is pos-
in the evidence.                                             sible and the jury must not simply guess.

[41] Appeal and Error 30          930(1)                     [44] Appeal and Error 30          930(1)

30 Appeal and Error                                          30 Appeal and Error
   30XVI Review                                                 30XVI Review
      30XVI(G) Presumptions                                         30XVI(G) Presumptions
          30k930 Verdict                                               30k930 Verdict
                30k930(1) k. In general. Most Cited                           30k930(1) k. In general. Most Cited
Cases                                                        Cases
    Courts reviewing all the evidence in a light fa-              Courts reviewing all the evidence in a light fa-
vorable to jury's verdict must assume that jurors re-        vorable to the verdict must assume jurors made all
solved all conflicts in accordance with that verdict.        inferences in favor of their verdict if reasonable
                                                             minds could, and disregard all other inferences in
[42] Appeal and Error 30          930(1)
                                                             their legal-sufficiency review.
30 Appeal and Error
                                                             [45] Appeal and Error 30          930(1)
   30XVI Review
      30XVI(G) Presumptions                                  30 Appeal and Error
         30k930 Verdict                                          30XVI Review
                30k930(1) k. In general. Most Cited                 30XVI(G) Presumptions
Cases                                                                  30k930 Verdict
    In every circumstance in which reasonable jur-                            30k930(1) k. In general. Most Cited
ors could resolve conflicting evidence either way,           Cases
reviewing courts must presume they did so in favor                Both the “exclusive” standard for scope of no-
of the prevailing party, and disregard the conflict-         evidence review, under which contrary evidence is
ing evidence in their legal-sufficiency review.              disregarded, and the “inclusive” standard, under
                                                             which reviewing court considers all of the evidence
[43] Trial 388         141
                                                             in the light favorable to verdict, are correct; the two
388 Trial                                                    standards reach the same result.
   388VI Taking Case or Question from Jury
                                                             [46] Appeal and Error 30          999(1)
          388VI(A) Questions of Law or of Fact in
General                                                      30 Appeal and Error
           388k141 k. Uncontroverted facts or evid-             30XVI Review
ence. Most Cited Cases                                                30XVI(I) Questions of Fact, Verdicts, and
                                                             Findings
Trial 388        142




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168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




         30XVI(I)2 Verdicts                                     Legal sufficiency of the evidence is a question
           30k999 Conclusiveness in General                of law, not of fact.
              30k999(1) k. In general. Most Cited
Cases                                                      [49] Appeal and Error 30        1001(1)
    A reviewing court cannot substitute its judg-
                                                           30 Appeal and Error
ment for that of the trier-of-fact, so long as the
                                                              30XVI Review
evidence falls within the zone of reasonable dis-
                                                                    30XVI(I) Questions of Fact, Verdicts, and
agreement.
                                                           Findings
[47] Appeal and Error 30          930(1)                             30XVI(I)2 Verdicts
                                                                         30k1001 Sufficiency of Evidence in
30 Appeal and Error                                        Support
   30XVI Review                                                               30k1001(1) k. In general. Most
      30XVI(G) Presumptions                                Cited Cases
        30k930 Verdict
              30k930(1) k. In general. Most Cited          Judgment 228         185(5)
Cases
                                                           228 Judgment
Appeal and Error 30         996                               228V On Motion or Summary Proceeding
                                                                 228k182 Motion or Other Application
30 Appeal and Error                                                 228k185 Evidence in General
   30XVI Review                                                        228k185(5) k. Weight and sufficiency.
         30XVI(I) Questions of Fact, Verdicts, and         Most Cited Cases
Findings
          30XVI(I)1 In General                             Judgment 228         199(3.9)
                    30k996 k. Inferences from facts
                                                           228 Judgment
proved. Most Cited Cases
                                                               228VI On Trial of Issues
     Whether a reviewing court conducting legal-
                                                                  228VI(A) Rendition, Form, and Requisites in
sufficiency review starts with all or only part of the
                                                           General
record, the court must consider evidence in the light
                                                                     228k199 Notwithstanding Verdict
most favorable to the verdict, and indulge every
                                                                          228k199(3.9) k. Where directed ver-
reasonable inference that would support it; but if
                                                           dict or binding instructions would have been prop-
the evidence allows of only one inference, neither
                                                           er. Most Cited Cases
jurors nor the reviewing court may disregard it.
                                                           Trial 388      168
[48] Trial 388      139.1(4)
                                                           388 Trial
388 Trial
                                                              388VI Taking Case or Question from Jury
   388VI Taking Case or Question from Jury
                                                                 388VI(D) Direction of Verdict
          388VI(A) Questions of Law or of Fact in
                                                                     388k167 Nature and Grounds
General
                                                                            388k168 k. In general. Most Cited
          388k139.1 Evidence
                                                           Cases
               388k139.1(1) Province of Court and
                                                               The test for legal sufficiency should be the
Jury
                                                           same for summary judgments, directed verdicts,
                    388k139.1(4) k. Sufficiency of
                                                           judgments notwithstanding the verdict (JNOV), and
evidence. Most Cited Cases
                                                           appellate no-evidence review.




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168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




[50] Evidence 157       597                                  taking, although landowners' expert testified that
                                                             flooding was inevitable, city knew that develop-
157 Evidence                                                 ment would increase runoff at the head of drainage
   157XIV Weight and Sufficiency                             system, and prior drainage plan had required drain-
       157k597 k. Sufficiency to support verdict or          age ditch across landowners' property; three sets of
finding. Most Cited Cases                                    engineers had certified that revised plans met city's
    The final test for legal sufficiency must always         codes and regulations and thus would not increase
be whether the evidence at trial would enable reas-          downstream flooding, and no evidence showed that
onable and fair-minded people to reach the verdict           city knew more than it was told by the engineers.
under review.                                                Vernon's Ann.Texas Const. Art. 1, § 17.

[51] Appeal and Error 30          930(1)                     [53] Eminent Domain 148           315

30 Appeal and Error                                          148 Eminent Domain
   30XVI Review                                                   148IV Remedies of Owners of Property; Inverse
       30XVI(G) Presumptions                                 Condemnation
           30k930 Verdict                                               148k315 k. Appeal and error. Most Cited
                30k930(1) k. In general. Most Cited          Cases
Cases                                                              In conducting legal-sufficiency review of find-
     Whether a reviewing court begins by consider-           ing that city's approval of revised drainage plans,
ing all the evidence or only the evidence supporting         which resulted in flooding of landowners' farm
the verdict, legal-sufficiency review in the proper          property, was an intentional taking, appellate court
light must credit favorable evidence if reasonable           could not disregard contrary evidence explaining
jurors could, and disregard contrary evidence unless         why city had approved the revised drainage plans;
reasonable jurors could not.                                 critical question in the case was city's state of mind,
                                                             i.e., whether city knew or should have known that
[52] Eminent Domain 148           300
                                                             flooding was substantially certain, and appellate
148 Eminent Domain                                           court could not evaluate what city knew by disreg-
   148IV Remedies of Owners of Property; Inverse             arding most of what it was told. Vernon's
Condemnation                                                 Ann.Texas Const. Art. 1, § 17.
      148k294 Evidence
                                                             [54] Evidence 157        570
          148k300 k. Weight and sufficiency. Most
Cited Cases                                                  157 Evidence
                                                                157XII Opinion Evidence
Evidence 157        571(1)
                                                                   157XII(F) Effect of Opinion Evidence
157 Evidence                                                           157k569 Testimony of Experts
   157XII Opinion Evidence                                                     157k570 k. In general. Most Cited
      157XII(F) Effect of Opinion Evidence                   Cases
         157k569 Testimony of Experts                            When a case involves scientific or technical is-
             157k571 Nature of Subject                       sues requiring expert advice, jurors cannot disreg-
                   157k571(1) k. In general. Most            ard a party's reliance on experts hired for that very
Cited Cases                                                  purpose without some evidence supplying a reason-
    No evidence established that city's approval of          able basis for doing so.
revised drainage plans, which resulted in flooding
                                                             *807 Dabney D. Bassel, Larry Bracken, Law
of landowners' farm property, was an intentional




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                                                                                                       Page 11
168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




Snakard & Gambill, P.C., Fort Worth, Douglas H.                   I. Factual and Procedural History
Conner III, L. Stanton Lowry, Boyle & Lowry,                  The City of Keller is one of several fast-
L.L.P., Irving, for petitioner.                           growing communities on the outskirts of *808 Fort
                                                                 FN1
                                                          Worth.       As part of that growth, the City ap-
James B. Barlow, Barlow & Garsek, Fort Worth,             proved plans for two new subdivisions, Estates of
Robert L. Russell Bush, Bush & Morrison, Arling-          Oak Run and Rancho Serena, including plans for
ton, David R. Casey, Hurst, for respondents.              storm water drainage.

Jay Doegey, Assistant City Attorney for the City of               FN1. The City of Fort Worth asserts in an
Corpus Christi, Texas, Corpus Christi, Theodore P.                amicus brief that in 2001 alone it approved
Gorski Jr., Office of the City Attorney for City of               325 subdivision plats creating 5,857 resid-
Fort Worth, Mark G. Daniel, Evans Gandy Daniel                    ential lots within its extraterritorial juris-
& Moore, Fritz Quast, Taylor Olson Adkins Sralla                  diction, which of course excludes sur-
& Elam, LLP, Fort Worth, Monte Akers, Texas                       rounding communities.
Municipal League, Austin, Michael A. Bucek, Seni-
or Assistant City Attorney, Irving, Robert F. Brown           The Wilsons own property southeast of the new
, Brown & Hofmeister, L.L.P., Richardson, Bruce           subdivisions, with a tract owned by Z.T. Sebastian
S. Powers, Assistant County Attorney, Michael A.          lying between. Before development, surface water
Stafford, Harris County Attorney, Houston, for            flowed generally north to south from the land
Amicus Curiae.                                            where the subdivisions were built, across the Se-
                                                          bastian and Wilson properties, and into the Little
                                                          Bear Creek Watershed.
Justice BRISTER delivered the opinion of the
Court, in which Chief Justice JEFFERSON, Justice              In 1991, the City adopted a Master Drainage
HECHT, Justice WAINWRIGHT, and Justice                    Plan providing for drainage easements across both
GREEN joined, and in which Justice O'NEILL and            the Sebastian and Wilson properties, and thence in-
Justice MEDINA joined as to Parts I through IV.           to Little Bear Creek. The City's codes require de-
     Must an appellate court reviewing a verdict for      velopers to comply with the Master Plan, to provide
legal sufficiency start by considering all the evid-      drainage for a 100–year rain event, and to avoid in-
ence or only part? Over the years, we have stated         creasing the volume or velocity of water discharged
both as the proper scope of review. While some see        upon downhill properties.
the standards as opposing, we disagree; like a glass
that is half-full or half-empty, both arrive at the            The developers of Oak Run and Rancho Serena
same point regardless of where they start.                submitted plans to the City indicating they would
                                                          buy a drainage easement and build a ditch forty-
    But both standards must be properly applied.          five feet wide and more than two hundred yards
Rules and reason sometimes compel that evidence           long across the Sebastian property, and deed both to
must be credited or discarded whether it supports a                                  FN2
                                                          the City upon completion.        The plans also in-
verdict or contradicts it. Under either scope of re-      cluded detention basins on the subdivision proper-
view, appellate courts must view the evidence in          ties, but omitted any drainage easement or ditch
the light favorable to the verdict, crediting favor-      across the Wilsons' property. The City's director of
able evidence if reasonable jurors could, and dis-        public works approved the developers' plans, and
regarding contrary evidence unless reasonable jur-        the City accepted the works on completion.
ors could not. As we find the evidence here meets
neither standard, we reverse.                                     FN2. Evidence at trial and briefs by amici
                                                                  indicate that cities normally acquire title to




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                                                                                                      Page 12
168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




        these easements to ensure they are properly               FN4. 86 S.W.3d 693, 715, 717.
        mowed and maintained after the de-
        velopers' departure.                                      FN5. Id. at 700.

     In accordance with the Master Plan, the City              We have on many occasions stated the scope of
built a box culvert south of the Wilsons' property.       review precisely as the court of appeals says (the
                                                                                 FN6
But as the developers' drainage ditch ended at the        “exclusive” standard).      But we have also stated
Wilsons' north property line, there was no link           that a reviewing court must consider “ all of the
between the two. The Wilsons alleged and the jury         evidence” in the light favorable to the verdict (the
                                                                                  FN7
found this omission increased flooding on the             “inclusive” standard).       Sometimes we have
Wilsons' property, ruining eight acres of farmland        mentioned neither reviewing all evidence nor dis-
                                                                                      FN8
the jury valued at almost $300,000.                       regarding some part of it.        Finally, we have
                                                                                               FN9
                                                          sometimes expressly mentioned both.
     [1] To recover damages for inverse condemna-
tion, the Wilsons had to prove the City intentionally             FN6. See, e.g., Wal–Mart Stores, Inc. v.
took or damaged their property for public use, or                 Canchola, 121 S.W.3d 735, 739
was substantially certain that would be the result.               (Tex.2003) (per curiam); Bradford v.
FN3                                                               Vento, 48 S.W.3d 749, 754 (Tex.2001);
       They do not allege the City intentionally
flooded their land, but do allege it approved revised             City of Fort Worth v. Zimlich, 29 S.W.3d
plans that it knew were substantially certain to have             62, 69 (Tex.2000); Wal–Mart Stores, Inc.
that effect.                                                      v. Gonzalez, 968 S.W.2d 934, 936
                                                                  (Tex.1998); Cont'l Coffee Prods. Co. v.
        FN3. TEX. CONST. art. I, § 17; City of                    Cazarez, 937 S.W.2d 444, 450 (Tex.1996);
        Dallas v. Jennings, 142 S.W.3d 310,                       Burroughs Wellcome Co. v. Crye, 907
        313–14 (Tex.2004).                                        S.W.2d 497, 499 (Tex.1995); Brown-
                                                                  ing–Ferris, Inc. v. Reyna, 865 S.W.2d 925,
     The City contends no evidence supports the                   928 (Tex.1993); Holt Atherton Indus., Inc.
jury's finding of an intentional taking. It presented             v. Heine, 835 S.W.2d 80, 84 (Tex.1992);
evidence that engineers for the developers, for the               Weirich v. Weirich, 833 S.W.2d 942, 945
City, and for an outside firm the City retained all               (Tex.1992); Havner v. E–Z Mart Stores,
certified that the revised drainage plan complied                 Inc., 825 S.W.2d 456, 458 (Tex.1992);
with the City's codes and regulations—including                   Lewelling v. Lewelling, 796 S.W.2d 164,
the ban against increasing downstream runoff.                     166 (Tex.1990); Burkard v. ASCO Co.,
Thus, the City asserts it had no reason to be sub-                779 S.W.2d 805, 806 (Tex.1989) (per curi-
stantially certain the opposite would occur, until it             am); Brown v. Edwards Transfer Co., 764
did.                                                              S.W.2d 220, 223 (Tex.1988); City of
                                                                  Gladewater v. Pike, 727 S.W.2d 514, 518
     A divided court of appeals rejected this conten-
      FN4                                                         (Tex.1987); King v. Bauer, 688 S.W.2d
tion.     In its legal sufficiency review, the court
                                                                  845, 846 (Tex.1985); Tomlinson v. Jones,
refused to consider the various engineers' certifica-
                                                                  677 S.W.2d 490, 492 (Tex.1984); Glover
tions because “we are to consider only the evidence
                                                                  v. Tex. Gen. Indem. Co., 619 S.W.2d 400,
and inferences that tend to support the finding and
                                                                  401 (Tex.1981) (per curiam); Holley v.
disregard all evidence and inferences to the con-
        FN5                                                       Adams, 544 S.W.2d 367, 370 (Tex.1976);
trary.”     The City challenges *809 this omission
                                                                  Garza v. Alviar, 395 S.W.2d 821, 823
as applying the wrong scope of review.
                                                                  (Tex.1965); Wininger v. Ft. Worth & D.C.
                                                                  Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152




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        (1912).                                                   this Court [is] to examine and consider all
                                                                  of the evidence bearing on the controlling
        FN7. See, e.g., St. Joseph Hosp. v. Wolff,                issues, and having done so to decide
        94 S.W.3d 513, 519 (Tex.2002) (plurality                  whether there is evidence of probative
        op.); Associated Indem. Corp. v. CAT Con-                 value to support the answers made by the
        tracting, Inc., 964 S.W.2d 276, 285–86                    jury to the issues.”) (quotation omitted)
        (Tex.1998); State Farm Lloyds Ins. Co. v.                 (emphasis added), and Cartwright v. Can-
        Maldonado, 963 S.W.2d 38, 40 (Tex.1998)                   ode, 106 Tex. 502, 171 S.W. 696, 698
        ; Formosa Plastics Corp. v. Presidio                      (1914) (“[W]e must reject all evidence fa-
        Eng'rs & Contractors, Inc., 960 S.W.2d                    vorable to the plaintiffs in error, and con-
        41, 48 (Tex.1998); Merrell Dow Pharms.,                   sider only the facts and circumstances
        Inc. v. Havner, 953 S.W.2d 706, 711                       which tend to sustain the verdict.... In con-
        (Tex.1997); White v. Southwestern Bell                    sidering this question, we must take into
        Tel. Co., 651 S.W.2d 260, 262 (Tex.1983);                 account all of the facts and circumstances
        Burk Royalty v. Walls, 616 S.W.2d 911,                    attending the transaction.”).
        922 (Tex.1981); Harbin v. Seale, 461
        S.W.2d 591, 592 (Tex.1970); De Winne v.                Although this Court has used both the exclus-
        Allen, 154 Tex. 316, 277 S.W.2d 95, 97            ive and the inclusive standards interchangeably
        (1955); Hall v. Med. Bldg. of Houston, 151        over the years, commentators say the two are differ-
                                                               FN10
        Tex. 425, 251 S.W.2d 497, 498 (1952).             ent.        Because this *810 important issue is dis-
                                                          positive here, we address it in some detail, and re-
        FN8. Tarrant Reg'l Water Dist. v. Gragg,          serve for another day the City's arguments that a
        151 S.W.3d 546, 552 (Tex.2004); Bostrom           governmental entity cannot be liable for approving
        Seating, Inc. v. Crane Carrier Co., 140           a developer's plans, or accepting rather than con-
        S.W.3d 681, 684 (Tex.2004); Lozano v.             structing the works at issue.
        Lozano, 52 S.W.3d 141, 144 (Tex.2001)
        (per curiam); La.-Pac. Corp. v. Andrade,                  FN10. See, e.g., W. Wendell Hall, Stand-
        19 S.W.3d 245, 247 (Tex.1999); Latham v.                  ards of Review in Texas, 34 ST. MARY'S
        Castillo, 972 S.W.2d 66, 68 (Tex.1998);                   L.J. 1, 159–62 (2002); William V.
        Brown v. Bank of Galveston, Nat'l Ass'n,                  Dorsaneo, III, Judges, Juries, & Reviewing
        963 S.W.2d 511, 513 (Tex.1998).                           Courts, 53 SMU L.R. 1497, 1498, 1507–11
                                                                  (2000); Phil Hardberger, Juries Under
        FN9. See, e.g., Coastal Transp. Co. v.                    Siege, 30 ST. MARY'S L.J. 1, 40–41
        Crown Cent. Petroleum Corp., 136 S.W.3d                   (1998). But see William Powers, Jr., Judge
        227, 234 (Tex.2004); Szczepanik v. First S.               & Jury in the Texas Supreme Court, 75
        Trust Co., 883 S.W.2d 648, 649                            TEX. L.REV. 1699, 1699–1700, 1704–19
        (Tex.1994) (per curiam); compare Biggers                  (1997) (concluding the Court is not chan-
        v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303               ging the no-evidence standard of review
        S.W.2d 359, 363 (1957) (“We may con-                      but is moving away from broad definitions
        sider only that evidence, if any, which,                  of duty and toward particularized defini-
        viewed in its most favorable light, supports              tions of duty).
        the jury findings, and we must disregard
        all evidence which would lead to a con-            II. Contrary Evidence That Cannot Be Disreg-
        trary result.”) (emphasis added), with Big-                             arded
        gers v. Cont'l Bus Sys., Inc., 157 Tex. 351,           The question presented here is not a new one.
                                                                                                       FN11
        298 S.W.2d 79, 81 (1956) (“[T]he duty of          More than 40 years ago, then Justice Calvert




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addressed the standards for reviewing legal and fac-                 FN16. See, e.g., King Ranch, Inc. v. Chap-
tual sufficiency in the most-cited law review article                man, 118 S.W.3d 742, 751 (Tex.2003);
                        FN12
in Texas legal history.        Frustrated that despite               Marathon Corp. v. Pitzner, 106 S.W.3d
this Court's efforts to explain those standards “a                   724, 727 (Tex.2003) (per curiam); Uniroy-
growing number of recent decisions indicate a con-                   al Goodrich Tire Co. v. Martinez, 977
                              FN13
tinuing misunderstanding,”           the author sum-                 S.W.2d 328, 334 (Tex.1998); Mar. Over-
marized and attempted to clarify Texas law up to                     seas Corp. v. Ellis, 971 S.W.2d 402, 409
      FN14
1960.        The article's impact remains substantial                (Tex.1998); Merrell Dow Pharm., Inc. v.
today, having been cited more than 100 times by                      Havner, 953 S.W.2d 706, 711 (Tex.1997);
Texas courts in the last five years.                                 Anderson v. City of Seven Points, 806
                                                                     S.W.2d 791, 795 n. 3 (Tex.1991); Cecil v.
         FN11. Robert W. Calvert was an associate                    Smith, 804 S.W.2d 509, 510 n. 2
         justice of this Court from 1950 to 1960,                    (Tex.1991); Juliette Fowler Homes, Inc. v.
         and Chief Justice from 1961 to 1972.                        Welch Assocs., Inc., 793 S.W.2d 660, 666
                                                                     n. 9 (Tex.1990).
         FN12. Robert W. Calvert, “No Evidence”
         & “Insufficient Evidence” Points of Error,               Notably, Justice Calvert then proceeded to put
         38 TEX. L.REV. 361 (1960).                          the question before us in the proper context:

         FN13. Id. at 361.                                     It is in deciding “no evidence” points in situation
                                                               (c) that the courts follow the further rule of view-
         FN14. “Most of what has been said here is
                                                               ing the evidence in its most favorable light in
         repetitious of what has been said before in
                                                               support of the finding of the vital fact, consider-
         the cited cases and articles. The purpose of
                                                               ing only the evidence and the inferences which
         the writer here has been to try to bring
                                                               support the finding and rejecting the evidence
         former writings on the subject into com-
                                                               and the inferences which are contrary to the find-
         pact form and under somewhat closer ana-                   FN17
                                                               ing.
         lysis.” Id. at 371.

    According to the article:                                        FN17. Calvert, supra note 12, at 364.

  “No evidence” points must, and may only, be                     [2] Clearly, the traditional rule in Texas has
  sustained when the record discloses one of the             never been that appellate courts must reject con-
  following situations: (a) a complete absence of            trary evidence in every no-evidence review. In-
  evidence of a vital fact; (b) the court is barred by       stead, the traditional scope of review does not dis-
  rules of law or of evidence from giving weight to          regard contrary evidence if there is no favorable
  the only evidence offered to prove a vital fact; (c)       evidence*811 (situation (a) above), or if contrary
  the evidence offered to prove a vital fact is no           evidence renders supporting evidence incompetent
  more than a mere scintilla; (d) the evidence es-           (situation (b) above) or conclusively establishes the
  tablishes conclusively the opposite of the vital           opposite (situation (d) above).
        FN15
  fact.
                                                                 [3][4] As the following examples show, this
                                                             has remained the rule since. We do not presume to
         FN15. Id. at 362–63.
                                                             categorize all circumstances in which contrary
    We have quoted a similar formulation on many             evidence must be considered in a legal sufficiency
           FN16                                              review. Evidence can be disregarded whenever
occasions.




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                               FN18
reasonable jurors could do so,         an inquiry that              581 (Tex.2002) (considering remarks in
is necessarily fact-specific. But it is important that              context of series of talk-show programs);
when courts use the exclusive standard and disreg-                  Turner, 38 S.W.3d at 115 (holding defama-
ard contrary evidence, they must recognize certain                  tion includes story in which details are
exceptions to it.                                                   right but gist is wrong).

         FN18. See In re J.F.C., 96 S.W.3d 256,                 [7][8] Similarly, reviewing courts must con-
         266 (Tex.2002); Uniroyal, 977 S.W.2d at           strue contracts as a whole; we do not consider only
         340; Triton Oil & Gas Corp. v. Marine             the parts favoring one party and disregard the re-
         Contractors & Supply, Inc., 644 S.W.2d            mainder, as that would render the latter meaning-
                                                                 FN22
         443, 446 (Tex.1982).                              less.      Even writings executed at different times
                                                           must be considered together if they pertain to the
              A. Contextual Evidence                                         FN23
                                                           same transaction.
     In Justice Calvert's first situation—a complete
absence of evidence of a vital fact—it is generally                 FN22. Shell Oil Co. v. Khan, 138 S.W.3d
irrelevant whether a reviewing court considers con-                 288, 292 (Tex.2004).
                FN19
trary evidence.       If supporting evidence is ab-
sent, opposing evidence cannot change that result.                  FN23. DeWitt County Elec. Co-op., Inc. v.
But in a number of cases, the lack of supporting                    Parks, 1 S.W.3d 96, 102 (Tex.1999).
evidence may not appear until all the evidence is
                                                                [9] It is not just writings that reviewing courts
reviewed in context.
                                                           must consider in context. For example, in reviewing
         FN19. Calvert, supra note 12, at 364 (“If         intentional infliction of emotional distress claims
         there is an absolute absence of evidence of       for legal sufficiency, “we consider the context and
                                                                                                      FN24
         a vital fact ... an appellate court has no oc-    the relationship between the parties.”           Acts
         casion to concern itself with an abstract         that might constitute outrageous conduct when
                                                                                                           FN25
         rule such as how minds of reasonable men          dealing with a hearing-impaired consumer
         might view the situation.”).                      may be legally insufficient between*812 business
                                                                    FN26
                                                           parties.        In our no-evidence reviews of suc-
     [5][6] For example, publications alleged to be        cessful claims, we have invariably reviewed not
defamatory must be viewed as a whole—including             just evidence showing the conduct was outrageous,
accompanying statements, headlines, pictures, and          but also evidence showing that, in context, it was
                                                                FN27
the general tenor and reputation of the source itself.     not.
FN20
       A court reviewing legal sufficiency cannot
disregard parts of a publication, considering only                  FN24. Tiller v. McLure, 121 S.W.3d 709,
false statements to support a plaintiff's verdict or                714 (Tex.2003) (per curiam); see also Tex.
                                             FN21                   Farm Bureau Mut. Ins. Cos. v. Sears, 84
only true ones to support a defense verdict.
                                                                    S.W.3d 604, 610–11 (Tex.2002); GTE
         FN20. New Times, Inc. v. Isaacks, 146                      Southwest, Inc. v. Bruce, 998 S.W.2d 605,
         S.W.3d 144, 158–59 (Tex.2004); Turner v.                   612 (Tex.1999).
         KTRK Television, Inc., 38 S.W.3d 103, 114
         (Tex.2000); Guisti v. Galveston Tribune,                   FN25. See George Grubbs Enters., Inc. v.
         105 Tex. 497, 150 S.W. 874, 877–78                         Bien,     881    S.W.2d     843,    852–53
         (1912).                                                    (Tex.App.-Fort Worth 1994) (holding that
                                                                    efforts to pressure deaf-mute consumer to
         FN21. Bentley v. Bunton, 94 S.W.3d 561,                    buy car were legally sufficient evidence of




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         intentional infliction), rev'd on other           ent evidence would always be legally sufficient, be-
         grounds, 900 S.W.2d 337, 338 (Tex.1995).          cause the evidence showing it to be incompetent
                                                           could never be considered.
         FN26. See Tiller, 121 S.W.3d at 714
         (holding efforts to pressure widow of con-                FN29. Coastal Transp. Co. v. Crown Cent.
         tracting party to complete project were leg-              Petroleum Corp., 136 S.W.3d 227, 232 n.
         ally insufficient evidence of intentional in-             1 (Tex.2004) (citing Henry v. Phillips, 105
         fliction).                                                Tex. 459, 151 S.W. 533, 538 (1912)). This
                                                                   rule was changed for hearsay evidence in
         FN27. See, e.g., id. at 713–14 (discussing                1983.    See     TEX.R.      EVID.      802
         contrary evidence showing defendant's                     (“Inadmissible hearsay admitted without
         reasonable concerns about timeliness of                   objection shall not be denied probative
         plaintiff's work); Sears, 84 S.W.3d at 612                value merely because it is hearsay.”).
         (discussing contrary evidence that defend-
         ant believed claimant was involved in sus-             Thus, for example, if an eyewitness's location
         picious dealings).                                renders a clear view of an accident “physically im-
                                                           possible,” it is no evidence of what occurred, even
     [10] More generally, evidence cannot be taken                                             FN30
                                                           if the eyewitness thinks otherwise.      Similarly,
out of context in a way that makes it seem to sup-         an employee's testimony that he was in the course
                                            FN28
port a verdict when in fact it never did.         If a     and scope of his employment is legally insufficient
witness's statement “I did not do that” is contrary to     to support a verdict against his employer if the
the jury's verdict, a reviewing court may need to          evidence shows that legal conclusion to be incom-
disregard the whole statement, but cannot rewrite it               FN31
                                                           petent.
by disregarding the middle word alone.
                                                                   FN30. Tex. & P. Ry. Co. v. Ball, 96 Tex.
         FN28. Bostrom Seating, Inc. v. Crane Car-                 622, 75 S.W. 4, 6 (1903).
         rier Co., 140 S.W.3d 681, 684, 685
         (Tex.2004) (holding no evidence supported                 FN31. Minyard Food Stores, Inc. v. Good-
         defect as comments from deposition “were                  man, 80 S.W.3d 573, 579 (Tex.2002)
         read out of context”).                                    (holding defamation was not in course and
                                                                   scope of employment as duties required
     [11] Thus, if evidence may be legally sufficient              employee to cooperate in investigation but
in one context but insufficient in another, the con-               not to lie); Robertson Tank Lines, Inc. v.
text cannot be disregarded even if that means ren-                 Van Cleave, 468 S.W.2d 354, 360
dering judgment contrary to the jury's verdict.                    (Tex.1971) (holding truck driver was not
Either “evidence contrary to the verdict” must be                  in course of employment during social visit
defined to exclude material contextual evidence, or                to his father).
it must be an exception to the general rule.
                                                               [14][15] This exception frequently applies to
             B. Competency Evidence                        expert testimony. When expert testimony is re-
     [12][13] It has long been the rule in Texas that      quired, lay evidence supporting liability is legally
incompetent evidence is legally insufficient to sup-                     FN32
                                                           insufficient.       In *813 such cases, a no-
port a judgment, even if admitted without objection.       evidence review cannot disregard contrary evidence
FN29
       Thus, evidence showing it to be incompetent         showing the witness was unqualified to give an
cannot be disregarded, even if the result is contrary               FN33
                                                           opinion.        And if an expert's opinion is based
to the verdict. If the rule were otherwise, incompet-      on certain assumptions about the facts, we cannot




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disregard evidence showing those assumptions                      er, 953 S.W.2d 706, 714, 720 (Tex.1997).
                FN34
were unfounded.
                                                                  FN37. Id. at 711, 724–30.
        FN32. Bowles v. Bourdon, 148 Tex. 1, 219
        S.W.2d 779, 782–83 (1949) (affirming dir-                 FN38. Kerr–McGee Corp. v. Helton, 133
        ected verdict against malpractice claim as                S.W.3d 245, 254–57 (Tex.2004).
        inadequate expert testimony from doctor of
                                                               [17] Thus, evidence that might be “some evid-
        same school or practice as defendant
                                                          ence” when considered in isolation is nevertheless
        rendered proof legally insufficient).
                                                          rendered “no evidence” when contrary evidence
        FN33. See Leitch v. Hornsby, 935 S.W.2d           shows it to be incompetent. Again, such evidence
        114, 119 (Tex.1996).                              cannot be disregarded; it must be an exception
                                                          either to the exclusive standard of review or to the
        FN34. See Burroughs Wellcome Co. v.               definition of contrary evidence.
        Crye, 907 S.W.2d 497, 499–500
        (Tex.1995) (holding opinion that spray                     C. Circumstantial Equal Evidence
        caused frostbite was legally insufficient as           As noted above, Justice Calvert believed the
        it assumed absence of redness when                exclusive standard applied only when a no-evidence
        plaintiff admitted the contrary); Roark v.        challenge asserted the evidence was no more than a
                                                                     FN39
        Allen, 633 S.W.2d 804, 809 (Tex.1982)             scintilla.      But he went on to note a “variation”
        (holding opinion that physician should            that required contrary inferences to be considered
                                                                                                 FN40
        have warned of possible skull fracture was        when the equal-inference rule applied.
        legally insufficient as it assumed physician
                                                                  FN39. Calvert, supra note 12, at 364.
        was aware of fracture when there was no
        proof he was).                                            FN40. Id. at 364–65.
     [16] After we adopted gate-keeping standards             [18][19] In claims or defenses supported only
                       FN35
for expert testimony,        evidence that failed to      by meager circumstantial evidence, the evidence
meet reliability standards was rendered not only in-      does not rise above a scintilla (and thus is legally
                                     FN36
admissible but incompetent as well.         Thus, an      insufficient) if jurors would have to guess whether
appellate court conducting a no-evidence review                                FN41
                                                          a vital fact exists.       “When the circumstances
cannot consider only an expert's bare opinion, but        are equally consistent with either of two facts,
must also consider contrary evidence showing it has                                       FN42
                      FN37                                neither fact may be inferred.”        In such cases,
no scientific basis.        Similarly, review of an       we must “view each piece of circumstantial*814
expert's damage estimates cannot disregard the ex-        evidence, not in isolation, but in light of all the
pert's admission on cross-examination that none can                                FN43
             FN38                                         known circumstances.”
be verified.
                                                                  FN41. Ford Motor Co. v. Ridgway, 135
        FN35. See E.I. du Pont de Nemours & Co.                   S.W.3d 598, 601 (Tex.2004) (holding evid-
        v. Robinson, 923 S.W.2d 549, 556                          ence that truck caught fire unaccompanied
        (Tex.1995) (adopting reasoning of Daubert                 by proof identifying any defect did not ex-
        v. Merrell Dow Pharms., Inc., 509 U.S.                    ceed a scintilla, as jurors would have to
        579, 113 S.Ct. 2786, 125 L.Ed.2d 469                      guess cause); Marathon Corp. v. Pitzner,
        (1993)).                                                  106 S.W.3d 724, 729 (Tex.2003) (per curi-
                                                                  am); Hammerly Oaks, Inc. v. Edwards, 958
        FN36. Merrell Dow Pharms., Inc. v. Havn-
                                                                  S.W.2d 387, 392 (Tex.1997); W. Tel. Corp.




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        v. McCann, 128 Tex. 582, 99 S.W.2d 895,           a vital fact is meager, a reviewing court must con-
        900 (Tex.1937); Calvert, supra note 12, at        sider not just favorable but all the circumstantial
        365.                                              evidence, and competing inferences as well.

        FN42. Tubelite, a Div. of Indal, Inc. v. Ris-                    D. Conclusive Evidence
        ica & Sons, Inc., 819 S.W.2d 801, 805                  [21][22] Next, Justice Calvert noted that Texas
        (Tex.1991); see also Litton Indus. Prods.,        courts conducting a no-evidence review tradition-
        Inc. v. Gammage, 668 S.W.2d 319, 324              ally do not disregard contrary evidence that con-
        (Tex.1984) (citing Tex. Sling Co. v.              clusively establishes the opposite of a vital fact.
                                                          FN48
        Emanuel, 431 S.W.2d 538, 541 (Tex.1968)                  He argued that this is to some extent not a
        ).                                                “true” no-evidence claim, as proponents may have
                                                          to show not only that no evidence supports the ver-
        FN43. Lozano, 52 S.W.3d at 167.                   dict but that the opposite was proved as a matter of
                                                               FN49
                                                          law.        There are several types of conclusive
     Justice Calvert argued there was “no necessity
                                                          evidence. First, an appellate court conducting a leg-
for the variation” because drawing an inference
                                                          al sufficiency review cannot “disregard undisputed
based on meager evidence was unreasonable wheth-
                                                          evidence that allows of only one logical inference.”
er or not the reviewing court considered the oppos-       FN50
                FN44                                             By definition, such evidence can be viewed
ing inferences.        Nevertheless, he recognized
                                                          in only one light, and reasonable jurors can reach
that “[t]he opposing inference is present and it does
                               FN45                       only one conclusion from it. Jurors are not free to
no harm to note its presence.”                                                                        FN51
                                                          reach a verdict contrary to such evidence;        in-
        FN44. Calvert, supra note 12, at 365.             deed, uncontroverted issues *815 need not be sub-
                                                                                   FN52
                                                          mitted to a jury at all.
        FN45. Id.
                                                                  FN48. Calvert, supra note 12, at 363–64.
    In subsequent cases this Court has continued to               But other commentators disagree. See
note rather than disregard the presence of equal but              Powers, supra note 10, at 1703–10. We
opposite inferences, often because lower courts                   have held that a “conclusively and as a
have overlooked them. Thus, for example, one                      matter of law” point may be asserted under
might infer from cart tracks in spilled macaroni                  a “no evidence” point. O'Neil v. Mack
salad that it had been on the floor a long time, but              Trucks, Inc., 542 S.W.2d 112, 113
one might also infer the opposite—that a sloppy                   (Tex.1976). And the cases in this section
                           FN46
shopper recently did both.       Similarly, when in-              note that conclusive proof is often asserted
jury or death occurs without eyewitnesses and only                by parties that do not carry the burden of
meager circumstantial evidence suggests what                      proof. See also Dow Chem. Co. v. Francis,
happened, we cannot disregard other meager evid-                  46 S.W.3d 237, 241 (Tex.2001) (per curi-
                               FN47
ence of equally likely causes.                                    am) (court must first examine record for
                                                                  evidence supporting verdict, ignoring all
        FN46. Wal–Mart Stores, Inc. v. Gonzalez,                  evidence to the contrary; if there is no such
        968 S.W.2d 934, 938 (Tex.1998).                           evidence, the court then examines the en-
                                                                  tire record to see if the contrary finding is
        FN47. See Marathon Corp. v. Pitzner, 106
                                                                  established as a matter of law).
        S.W.3d 724, 729 (Tex.2003) (per curiam);
        McCann, 99 S.W.2d at 900.                                 FN49. Calvert, supra note 12, at 363–64.
                                                                  But see, e.g., Cecil v. Smith, 804 S.W.2d
    [20] Thus, when the circumstantial evidence of
                                                                  509, 510 n. 2 (Tex.1991) (“Cecil's points




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        that (1) there was no evidence to support         cess claim if it is undisputed that access remains
                                                                                                  FN53
        the findings and (2) the contrary of each         along 90 percent of a tract's frontage.        Evid-
        finding was established as a matter of law        ence that a buyer believed a product had been re-
        will hereinafter collectively be referred to      paired is conclusively negated by an accompanying
                                                                                  FN54
        as her “no evidence” points.”).                   letter to the contrary.      And an insured's liabil-
                                                          ity has not been determined by an “actual trial” if
        FN50. St. Joseph Hosp. v. Wolff, 94               the insured did not appear, present evidence, or
        S.W.3d 513, 519–20 (Tex.2002) (plurality                                                        FN55
                                                          challenge anything presented by his opponent.
        op.) (quoting Universe Life Ins. Co. v.
        Giles, 950 S.W.2d 48, 51 n. 1 (Tex.1997)).                FN53. County of Bexar v. Santikos, 144
                                                                  S.W.3d 455, 460–61 (Tex.2004).
        FN51. Tex. & N.O.R Co. v. Burden, 146
        Tex. 109, 203 S.W.2d 522, 528, 530                        FN54. PPG Indus., Inc. v. JMB/Houston
        (1947); see also Prudential Ins. Co. of Am.               Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79,
        v. Krayer, 366 S.W.2d 779, 783                            97–98 (Tex.2004).
        (Tex.1963) (finding evidence of suicide
        undisputed after disregarding disputed por-               FN55. State Farm Lloyds Ins. Co. v. Mal-
        tion of facts).                                           donado, 963 S.W.2d 38, 40 (Tex.1998).

        FN52. Sullivan v. Barnett, 471 S.W.2d 39,              [24] Undisputed contrary evidence may also
        44 (Tex.1971); Wright v. Vernon Compress          become conclusive when a party admits it is true.
        Co., 156 Tex. 474, 296 S.W.2d 517, 523            Thus, a claimant's admission that he was aware of a
        (1956) (“[T]he trial court is required to         dangerous premises condition is conclusive evid-
                                                                                                FN56
        submit only controverted issues. No jury          ence he needed no warning about it.           Simil-
        finding is necessary to establish undisputed      arly, an ex-employee's admission that she obtained
        facts.”); Clark v. Nat'l Life & Accident Ins.     other employment may prove conclusively that she
        Co., 145 Tex. 575, 200 S.W.2d 820, 822            did not detrimentally rely on a defendant's promise
                                                                          FN57
        (1947) ( “Uncontroverted questions of fact        to re-hire her.      And jurors may not find that an
        need not be and should not be submitted to        indictment was based on a defendant's misleading
        the jury for its determination.”); S. Under-      report when the district attorney admits it was his
                                                                        FN58
        writers v. Wheeler, 132 Tex. 350, 123             own mistake.
        S.W.2d 340, 341 (Tex.1939).
                                                                  FN56. Wal–Mart Stores, Inc. v. Miller, 102
     Reviewing legal sufficiency in such cases en-                S.W.3d 706, 709–10 (Tex.2003) (per curi-
compasses a general no-evidence review, because if                am).
some evidence supports the verdict then the con-
                                                                  FN57. See Johnson & Johnson Med., Inc.
trary evidence was not “undisputed.” But the re-
                                                                  v. Sanchez, 924 S.W.2d 925, 930
view does not stop there; the evidence must also
                                                                  (Tex.1996).
have only one logical inference. Undisputed evid-
ence that reasonable jurors could disbelieve has                  FN58. King v. Graham, 126 S.W.3d 75,
two: (1) it is true, or (2) it is not.                            78–79 (Tex.2003) (per curiam) (holding no
                                                                  evidence supported malicious prosecution
    [23] Most often, undisputed contrary evidence
                                                                  claim as district attorney admitted prosecu-
becomes conclusive (and thus cannot be disreg-
                                                                  tion was due to item he overlooked rather
arded) when it concerns physical facts that cannot
                                                                  than any false statements by defendants).
be denied. Thus, no evidence supports an impaired-ac-




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     [25] It is impossible to define precisely when       found no evidence to support a verdict establishing
undisputed evidence becomes conclusive. For ex-           the defendant's paternity when blood tests conclus-
                                                                                                      FN64
ample, an injured employee's return to work may           ively proved he was not the child's father.      The
prove conclusively that an injury was not total,          evidence was directly disputed—the child's mother
FN59                  FN60
       or it may not.       Circumstances in which a      testified she had conjugal relations with no one else
                                                                                      FN65
body is found may conclusively establish suicide,         during the relevant time.          Nevertheless, we
FN61                                           FN62
       or allow*816 jurors to infer otherwise.            held there was no evidence to support the paternity
Evidence is conclusive only if reasonable people          verdict because of conclusive evidence to the con-
                                       FN63                      FN66
could not differ in their conclusions,       a matter     trary.
that depends on the facts of each case.
                                                                   FN64. 811 S.W.2d 557, 560 (Tex.1991).
        FN59. Travelers Ins. Co. v. Seabolt, 361
        S.W.2d 204, 206 (Tex.1962) (return to reg-                 FN65. Id. at 558.
        ular job in which use of hand was required
                                                                   FN66. Id. at 560. In defense of jurors, it
        conclusively established claimant did not
                                                                   should be noted that the trier-of-fact in
        suffer total loss of use).
                                                                   Murdock was a judge.
        FN60. Navarette v. Temple Indep. Sch.
                                                               Similarly, in Texas & New Orleans Railroad
        Dist., 706 S.W.2d 308, 309–10 (Tex.1986)
                                                          Co. v. Compton, we found no evidence that a rail-
        (return to work did not conclusively estab-
                                                          road's negligence caused an automobile to slam into
        lish injury was not total as claimant could                                                FN67
                                                          the sixtieth car of a slow-moving train.       Again,
        not do regular work and employer volun-
                                                          the evidence was hotly disputed—while railroad
        tarily accommodated her with lesser du-
                                                          witnesses testified that warning signs were in place
        ties).
                                                          at the crossing, the car's driver and a passenger test-
        FN61. See, e.g., Prudential Ins. Co. of Am.       ified they saw nothing, and would have been able to
                                                                            FN68
        v. Krayer, 366 S.W.2d 779, 783                    stop if they had.         Nevertheless, we held there
        (Tex.1963).                                       was no evidence to support the claim because, if the
                                                          driver could not see the side of a train before he hit
        FN62. See Republic Nat'l Life Ins. Co. v.         it, he could not have seen a crossing sign either.
                                                          FN69
        Heyward, 536 S.W.2d 549, 552 (Tex.1976)
        .
                                                                   FN67. 135 Tex. 7, 136 S.W.2d 1113, 1115
        FN63. Uniroyal Goodrich Tire Co. v. Mar-                   (1940).
        tinez, 977 S.W.2d 328, 340 (Tex.1998);
        Triton Oil & Gas Corp. v. Marine Con-                      FN68. Id.
        tractors & Supply, Inc., 644 S.W.2d 443,
                                                                   FN69. Id.
        446 (Tex.1982).
                                                              Of course, there are few instances in which dis-
    [26] There is another category of conclusive
                                                          puted evidence is conclusive, and many instances in
evidence, in which the evidence is disputed. Undis-
                                                          which undisputed evidence is not. As our sister
puted evidence and conclusive evidence are not the
                                                          court has noted, testimony by a paid informant is
same—undisputed evidence may or may not be
                                                          legally sufficient to support a conviction, even if
conclusive, and conclusive evidence may or may
                                                          “[t]wenty nuns testify that the defendant was with
not be undisputed.
                                                          them at the time, far from the scene of the crime ...
    Thus, for example, in Murdock v. Murdock, we          [and] [t]wenty more nuns testify that they saw the




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                               FN70                                                            FN73
informant commit the crime.”        But a more             review must likewise be elevated.”       If the rule
famous clerical hypothetical by Judge Learned              were otherwise, legally sufficient evidence to sup-
Hand shows the opposite limit:                             port a preponderance-of-the-evidence verdict would
                                                           satisfy the higher burdens as well, thus rendering
         FN70. Clewis v. State, 922 S.W.2d 126,                                           FN74
                                                           their differences meaningless.
         133 n. 12 (Tex.Crim.App.1996) (en banc)
         (citation omitted).                                       FN72. 443 U.S. 307, 320 n. 14, 99 S.Ct.
                                                                   2781, 61 L.Ed.2d 560 (1979).
  If, however, it were proved by twenty bishops
  that either party, when he used the words [in a                  FN73. Southwestern Bell Tel. Co. v. Gar-
  contract], intended something else than the usual                za, 164 S.W.3d 607, 627 (Tex.2004).
  meaning which the law imposes upon them, he
                          FN71                                     FN74. Our sister court reviews the legal
  would still be held....
                                                                   sufficiency of criminal convictions by con-
         FN71. Hotchkiss v. Nat'l City Bank, 200 F.                sidering “ all evidence which the jury was
         287, 293 (S.D.N.Y.1911).                                  permitted, whether rightly or wrongly, to
                                                                   consider” in the light most favorable to the
    While jurors may generally believe either sin-                 prosecution. Moff v. State, 131 S.W.3d
ners or saints, their discretion is limited when it is             485, 488 (Tex.Crim.App.2004); see also
proved beyond question that an “eyewitness” was                    Vodochodsky v. State, 158 S.W.3d 502,
actually far away in prison or totally blind on the                509 (Tex.Crim.App.2005).
day of the crime.
                                                                Accordingly, we have held that a legal suffi-
     [27][28] Proper legal-sufficiency review pre-         ciency review must consider all the evidence (not
vents reviewing courts from substituting*817 their         just that favoring the verdict) in reviewing cases of
opinions on credibility for those of the jurors, but                              FN75               FN76
                                                           parental termination,         defamation,        and
proper review also prevents jurors from substituting                           FN77
                                                           punitive damages.         In such cases, again, evid-
their opinions for undisputed truth. When evidence         ence contrary to a verdict cannot be disregarded.
contrary to a verdict is conclusive, it cannot be dis-
regarded.                                                          FN75. In re J.F.C., 96 S.W.3d 256, 266
                                                                   (Tex.2002).
       E. Clear–and–Convincing Evidence
    [29] Since the time of Justice Calvert's article,              FN76. Bentley v. Bunton, 94 S.W.3d 561,
new claims and burdens of proof have arisen that                   596 (Tex.2002); Turner v. KTRK Televi-
require additions to the four types of no-evidence                 sion, Inc., 38 S.W.3d 103, 120 (Tex.2000).
review Justice Calvert considered exhaustive. Be-
ginning with the United States Supreme Court's                     FN77. Garza, 164 S.W.3d at 627.
opinion in Jackson v. Virginia, appellate courts
                                                                       F. Consciousness Evidence
have recognized that, while “one slender bit of
                                                                [30] Further, we have had to particularize leg-
evidence” may be all a reviewing court needs to af-
                                                           al-sufficiency review in cases involving what a
firm a verdict based on the preponderance of the
                                                           party knew or why it took a certain course, as they
evidence, a higher burden of proof requires a higher
                     FN72                                  are not amenable to review under the exclusive
standard of review.        As we recently stated, the
                                                           standard.
standard for legal sufficiency works in tandem with
the standard of review—“whenever the standard of               Long before gross negligence had to meet a
proof at trial is elevated, the standard of appellate      clear-and-convincing burden, we recognized in




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Burk Royalty Co. v. Walls that no-evidence review                  after noting that insurer gave contradictory
of such findings had to include “all of the surround-              reasons for not interviewing potential ar-
ing facts, circumstances, and conditions, not just in-             sonists); Minn. Life Ins. Co. v. Vasquez,
                               FN78
dividual elements or facts.”          As then Chief                133 S.W.3d 320, 330 (Tex.App.-Corpus
Justice Greenhill noted in concurring, speeding and                Christi 2004, pet. filed) (finding some
running a red light may not be legally sufficient                  evidence of bad faith because, though in-
evidence of gross negligence if one's wife and                     surer showed hospital stymied its efforts to
daughter are bleeding to death in the back seat.                   obtain records, insurer failed to seek same
FN79
       Reviewing courts assessing evidence of con-                 information from other sources); Allstate
scious indifference cannot disregard part of what a                Tex. Lloyds v. Mason, 123 S.W.3d 690,
                        FN80
party was conscious of.                                            704–06 (Tex.App.-Fort Worth 2003, no
                                                                   pet.) (reversing bad-faith verdict for legal
         FN78. 616 S.W.2d 911, 922 (Tex.1981).                     insufficiency because insurer reasonably
                                                                   relied on expert report); Allison v. Fire Ins.
         FN79. Id. at 926 (Greenhill, C.J., concur-
                                                                   Exch.,     98     S.W.3d     227,     249–50
         ring).
                                                                   (Tex.App.-Austin 2002, pet. granted,
         FN80. See Coastal Transp. Co. v. Crown                    judgm't vacated w.r.m.) (affirming bad-
         Cent. Petroleum Corp., 136 S.W.3d 227,                    faith verdict after reviewing insurer's reas-
         234–35 (Tex.2004).                                        ons for delay and insured's responsive
                                                                   evidence); Oram v. State Farm Lloyds, 977
     For the same reasons, the exclusive standard of               S.W.2d 163, 167 (Tex.App.-Austin 1998,
review has proven problematic in insurance bad-                    no pet.) (reversing bad-faith verdict for
faith cases. Liability in *818 such cases requires                 legal insufficiency because insurer's inter-
proof that the insurer denied coverage after it be-                pretation of exclusion was reasonable
                        FN81
came reasonably clear.        But that standard will               though incorrect).
always be met if reviewing courts must disregard
                                         FN82                   This problem arises in other contexts as well.
any evidence that coverage was unclear.        Sub-
sequent cases show that reviewing courts are in fact       In discrimination cases, discharged employees will
looking at all the evidence to determine whether           never have to prove that the reason given for ter-
                               FN83                        mination was a pretext if no-evidence review must
coverage was reasonably clear.                                                    FN84
                                                           disregard that reason.         Government officials
         FN81. Universe Life Ins. Co. v. Giles, 950        will never be entitled to immunity if we consider
         S.W.2d 48, 55–56 (Tex.1997).                      only evidence suggesting they should have acted
                                                                        FN85
                                                           differently.       And limitations will never run
         FN82. See id. at 51 (noting same problem          under the discovery rule if reviewing courts must
         with previous test whether insurer had            disregard all evidence that claimants knew of their
         reasonable basis for denying claim).                      FN86
                                                           claims.

         FN83. See Rocor Int'l, Inc. v. Nat'l Union                FN84. Wal–Mart Stores, Inc. v. Canchola,
         Fire Ins. Co., 77 S.W.3d 253, 262–63                      121 S.W.3d 735, 740 (Tex.2003) (per curi-
         (Tex.2002) (finding no evidence of bad                    am) (noting liability may be established by
         faith based in part on defendant's corres-                proof of discrimination plus proof employ-
         pondence showing misunderstanding re-                     er's reason was pretext); Cont'l Coffee
         garding settlement terms); State Farm Fire                Prods. Co. v. Cazarez, 937 S.W.2d 444,
         & Cas. Co. v. Simmons, 963 S.W.2d 42, 45                  452 (Tex.1996) (same).
         (Tex.1998)(affirming bad-faith verdict




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         FN85. See, e.g., Univ. of Houston v. Clark,       sidering considerably less.
         38 S.W.3d 578, 583 (Tex.2000) (noting
         good-faith test considers all circumstances           Again, we do not presume to categorize all cir-
         on which official acted).                         cumstances in which contrary evidence must be dis-
                                                           regarded; a few examples serve to demonstrate that
         FN86. See, e.g., PPG Indus., Inc. v. JMB/         even under the inclusive standard, viewing all the
         Houston Ctrs. Partners Ltd. P'ship, 146           evidence in a light favorable to the verdict often re-
         S.W.3d 79, 94 (Tex.2004) (holding no              quires that much of it be disregarded.
         evidence supported jury verdict applying
         discovery rule based on contrary evidence                        A. Credibility Evidence
         that claimant's predecessor knew 3,000                 [31][32] Jurors are the sole judges of the cred-
         windows had failed).                              ibility of the witnesses and the weight to give their
                                                                       FN89
                                                           testimony.        They may choose to believe one
                                                                                              FN90
    This is not to say a reviewing court may credit        witness and disbelieve another.           Reviewing
a losing party's explanations or excuses if jurors         courts cannot impose their own opinions to the con-
                                                                  FN91
could disregard them. For example, while an in-            trary.
surer's reliance on an expert report may foreclose
                    FN87                                            FN89. Golden Eagle Archery, Inc. v. Jack-
bad faith recovery,       it will not do so if the in-
                                           FN88                     son, 116 S.W.3d 757, 761 (Tex.2003);
surer had some reason to doubt the report.        But
a reviewing court cannot review whether jurors                      Jaffe Aircraft Corp. v. Carr, 867 S.W.2d
could reasonably disregard a losing party's explana-                27, 28 (Tex.1993); McGalliard v. Kuhl-
tions or excuses without considering what they                      mann, 722 S.W.2d 694, 697 (Tex.1986);
were.                                                               Edrington v. Kiger, 4 Tex. 89, 93 (1849).

         FN87. See, e.g., Provident Am. Ins. Co. v.                 FN90. McGalliard, 722 S.W.2d at 697; Sil-
         Castaneda, 988 S.W.2d 189, 194–95                          cott v. Oglesby, 721 S.W.2d 290, 293
         (Tex.1998) (finding no evidence insurer                    (Tex.1986); Ford v. Panhandle & Santa Fe
         denied claim in bad faith due to conflicting               Ry. Co., 151 Tex. 538, 252 S.W.2d 561,
         medical evidence).                                         563 (1952) (holding it was up to jurors “to
                                                                    resolve conflicts and inconsistencies in the
         FN88. See, e.g., State Farm Lloyds v. Nic-                 testimony of any one witness as well as in
         olau, 951 S.W.2d 444, 448 (Tex.1997)                       the testimony of different witnesses”);
         (holding some evidence showed expert re-                   Houston, E. & W.T. Ry. Co. v. Runnels, 92
         port was pretext and thus denial of claim                  Tex. 305, 47 S.W. 971, 972 (1898).
         had no reasonable basis).
                                                                    FN91. Turner v. KTRK Television, Inc., 38
  III. Contrary Evidence That Must Be Disreg-                       S.W.3d 103, 120 (Tex.2000).
                       arded
    As trials normally focus on issues that jurors              [33] Most credibility questions are implicit
could decide either way, reviewing *819 courts             rather than explicit in a jury's verdict. Thus, review-
must disregard evidence contrary to the verdict far        ing courts must assume jurors decided all of them
more often than they must consider it. Just as no-         in favor of the verdict if reasonable human beings
evidence review that starts by disregarding contrary       could do so. Courts reviewing all the evidence in a
evidence often must end up considering consider-           light favorable to the verdict thus assume that jurors
ably more, no-evidence review that begins by con-          credited testimony favorable to the verdict and dis-
                                                                                               FN92
sidering all the evidence must usually end up con-         believed testimony contrary to it.




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         FN92. Runnels, 47 S.W. at 972.                    mony about lost furnishings binding on jurors when
                                                           the fire scene contained several indications of arson
     For example, viewing the evidence in the light                                    FN97
                                                           but few of burnt furniture.        Even uncontrover-
favorable to the verdict means that if both parties in     ted expert testimony does not bind jurors unless the
a traffic accident testify they had the green light, an                                             FN98
                                                           subject matter is one for experts alone.
appellate court must presume the prevailing party
did and the losing party did not. If the parties to an             FN95. MCI Telecomms. Corp. v. Tex.
oral contract testify to conflicting terms, a review-              Utils. Elec. Co., 995 S.W.2d 647, 653–54
ing court must presume the terms were those asser-                 (Tex.1999) (holding evidence allowed jur-
ted by the winner. When all the evidence is viewed                 ors to disbelieve defendant's experts' testi-
in the light most favorable to the jury verdict, some              mony even though plaintiff's expert's testi-
of it must be completely discounted. Though not                    mony was shown to be in error); Runnels,
disregarded at the outset, the end result is the same.             47 S.W. at 972; Cheatham v. Riddle, 12
                                                                   Tex. 112, 118 (1854).
     This has always been our practice in cases us-
ing the inclusive scope of review. Thus, we have                   FN96. PPG Indus., Inc. v. JMB/Houston
concluded that a bailee sold cotton without the bail-              Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79,
or's consent, despite the former's denials, because                100 (Tex.2004).
                                     FN93
the jury verdict favored the latter.        And we
have affirmed a gross negligence verdict based on                  FN97. Anchor Cas. Co. v. Bowers, 393
testimony that the defendant's speed was 80 miles                  S.W.2d 168, 169–70 (Tex.1965).
per hour, without mentioning his own testimony to
                   FN94                                            FN98. Uniroyal Goodrich Tire Co. v. Mar-
a speed half that.
                                                                   tinez, 977 S.W.2d 328, 338 (Tex.1998);
         FN93. Cochran v. Wool Growers Cent.                       McGalliard v. Kuhlmann, 722 S.W.2d 694,
         Storage Co., 140 Tex. 184, 166 S.W.2d                     697 (Tex.1986).
         904, 907 (1942) (noting the Court “read
                                                                [36][37][38][39] Of course, “[t]he jury's de-
         the entire statement of facts”).
                                                           cisions regarding credibility must be reasonable.”
                                                           FN99
         FN94. Harbin v. Seale, 461 S.W.2d 591,                   Jurors cannot ignore undisputed testimony
         594 (Tex.1970); compare Harbin v. Seale,          that is clear, positive, direct, otherwise credible,
         454         S.W.2d         271,        272        free from contradictions and inconsistencies, and
                                                                                                   FN100
         (Tex.Civ.App.-Dallas 1970) (reporting de-         could have been readily controverted.          And
         fendant's testimony that he was traveling         as noted above, they are not free to believe testi-
         only 40 miles per hour), rev'd, 461 S.W.2d        mony that is conclusively negated by undisputed
         591 (Tex.1970).                                   facts. But whenever reasonable jurors could decide
                                                           what testimony to discard, a reviewing court must
     [34][35] Nor is it necessary to have testimony        assume they did so in favor of their verdict, and
from both parties before jurors*820 may disbelieve         disregard it in the course of legal sufficiency re-
either. Jurors may disregard even uncontradicted           view.
and unimpeached testimony from disinterested wit-
        FN95                                                       FN99. Bentley v. Bunton, 94 S.W.3d 561,
nesses.       Thus, an architect's uncontradicted
testimony that he relied on a 20–year warranty was                 599 (Tex.2002).
not binding on jurors when the bid specifications he
                                                                   FN100. See TEX.R. CIV. P. 166a(c);
prepared included only much shorter warranties.
FN96                                                               Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d
       Nor was an insured's uncontradicted testi-
                                                                   812, 817 (Tex.2002) (finding no evidence




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         that store knew of puddle based in part on                 FN103. Formosa Plastics Corp. USA v.
         uncontradicted testimony by only employ-                   Presidio Eng'rs & Contractors, Inc., 960
         ee in the area); In re Doe 4, 19 S.W.3d                    S.W.2d 41, 48–49 (Tex.1998).
         322, 325 (Tex.2000); WFAA–TV, Inc. v.
         McLemore, 978 S.W.2d 568, 574                              FN104. Associated Indem. Corp. v. CAT
         (Tex.1998) (holding reporter's detailed ex-                Contracting, Inc., 964 S.W.2d 276, 286
         planation of foundation of report estab-                   (Tex.1998).
         lished lack of malice as matter of law).
                                                                    FN105. White v. Southwestern Bell Tel.
               B. Conflicting Evidence                              Co., 651 S.W.2d 260, 262–63 (Tex.1983).
     [40][41] It is the province of the jury to resolve
                                FN101                               FN106. Hall v. Med. Bldg. of Houston, 151
conflicts in the evidence.                Accordingly,
                                                                    Tex. 425, 251 S.W.2d 497, 502 (1952).
courts reviewing all the evidence in a light favor-
able to the verdict must assume that jurors resolved            In none of these cases did we state that the
                                               FN102
all conflicts in accordance with that verdict.             scope of review required us to disregard evidence
                                                           contrary to the verdict; instead, we started by con-
         FN101. See, e.g., Dresser Indus., Inc. v.
                                                           sidering the entire record in each. But in each case
         Lee, 880 S.W.2d 750, 754 (Tex.1993); Ly-
                                                           we either discounted or never mentioned conflict-
         ons v. Millers Cas. Ins. Co., 866 S.W.2d
                                                           ing evidence contrary to the verdict because view-
         597, 601 (Tex.1993); Biggers v. Cont'l Bus
                                                           ing the evidence in the light favorable to the verdict
         Sys., Inc., 157 Tex. 351, 303 S.W.2d 359,
                                                           required us to do so.
         365 (1957); Howard Oil Co. v. Davis, 76
         Tex. 630, 13 S.W. 665, 667 (1890)                      Of course, it is not always clear whether evid-
         (holding reviewing court must uphold jury         ence is conflicting. Evidence is not conflicting just
         verdict despite strong evidence to the con-       because the parties cannot agree to it. For example,
         trary if evidence is conflicting).                evidence that a hospital controlled a doctor's rota-
                                                           tion and patient assignments raises no material con-
         FN102. See, e.g., Gen. Motors Corp. v.
                                                           flict with evidence that a different entity controlled
         Sanchez, 997 S.W.2d 584, 592 (Tex.1999);
                                                           the details of medical treatment, as only the latter is
         Caller–Times Publ'g Co. v. Triad Commu-                                              FN107
                                                           material in a malpractice case.             Similarly,
         nications, Inc., 826 S.W.2d 576, 580
                                                           evidence showing the terms of one loan does not
         (Tex.1992); Bendalin v. Delgado, 406
                                                           conflict with undisputed evidence that the parties
         S.W.2d 897, 899 (Tex.1966).
                                                           never reached an agreement regarding the terms of
                                                                    FN108
     Again, this has always been the case even in          another.
those cases using the inclusive scope of review. For
                                                                    FN107. St. Joseph Hosp. v. Wolff, 94
example, in such cases we have sometimes detailed
                                                                    S.W.3d 513, 542–43 (Tex.2002) (plurality
only the evidence that supported a jury's fraud find-
     FN103                                                          op.).
ing.        We have affirmed a bad-faith verdict for
legal sufficiency despite “significant evidence” that               FN108. T.O. Stanley Boot Co. v. Bank of
                                          FN104
the insurer acted in *821 good faith.             We                El Paso, 847 S.W.2d 218, 221 (Tex.1992).
have found some evidence of lost profits, even
though income tax returns showed the contrary.                  [42] But in every circumstance in which reas-
FN105
        And we have affirmed a jury's negligence           onable jurors could resolve conflicting evidence
finding despite a defendant's evidence asserting it        either way, reviewing courts must presume they did
                                        FN106
could not have prevented the accident.                     so in favor of the prevailing party, and disregard the




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conflicting evidence in their legal sufficiency re-            [46] Whether a court begins by reviewing all
view.                                                     the evidence or disregarding part in a legal-
                                                          sufficiency review, there can be no disagreement
              C. Conflicting Inferences                   about where that review should end. If the evidence
     [43] Even if evidence is undisputed, it is the       at trial would enable reasonable and fair-minded
province of the jury to draw from it whatever infer-      people to differ in their conclusions, then jurors
ences they wish, so long as more than one is pos-                                   FN112
                                                          must be allowed to do so.        A reviewing court
sible and the jury must not simply guess. Thus, in        cannot substitute its judgment for that of the trier-
product liability cases jurors may find evidence of a     of-fact, so long as the evidence falls within this
defect from subsequent modifications, even if there                                        FN113
                                              FN109       zone of reasonable disagreement.
were plenty of other reasons for the changes.
Even if a defendant admits approaching an intersec-               FN112. See Tarrant Reg'l Water Dist. v.
tion from the wrong way on a one-way street, jurors               Gragg, 151 S.W.3d 546, 552 (Tex.2004);
may infer the plaintiff failed to keep a proper                   Coastal Transp. Co. v. Crown Cent. Petro-
lookout, as that is one possible inference from the               leum Corp., 136 S.W.3d 227, 234
                 FN110
accident itself.         Similarly, jurors may infer              (Tex.2004); Ford Motor Co. v. Ridgway,
that relatives tore down posters of a missing child               135 S.W.3d 598, 601 (Tex.2004); Mobil
to assist the child's father, even though another in-             Oil Corp. v. Ellender, 968 S.W.2d 917,
ference was that the signs simply embarrassed                     922 (Tex.1998); Merrell Dow Pharm., Inc.
      FN111
them.                                                             v. Havner, 953 S.W.2d 706, 711
                                                                  (Tex.1997); Burroughs Wellcome Co. v.
        FN109. Uniroyal Goodrich Tire Co. v.                      Crye, 907 S.W.2d 497, 499 (Tex.1995);
        Martinez, 977 S.W.2d 328, 341–42                          Transp. Ins. Co. v. Moriel, 879 S.W.2d 10,
        (Tex.1998).                                               25 (Tex.1994); Orozco v. Sander, 824
                                                                  S.W.2d 555, 556 (Tex.1992); Kindred v.
        FN110. De Winne v. Allen, 154 Tex. 316,
                                                                  Con/Chem, Inc., 650 S.W.2d 61, 63
        277 S.W.2d 95, 98–99 (1955).
                                                                  (Tex.1983); Corbin v. Safeway Stores, Inc.,
        FN111. Lozano v. Lozano, 52 S.W.3d 141,                   648 S.W.2d 292, 297 (Tex.1983) (per curi-
        144 (Tex.2001) (per curiam); id. at 162–63                am).
        (Hecht, J., concurring and dissenting).
                                                                  FN113. See William Powers, Jr. & Jack
    [44] Accordingly, courts reviewing all the                    Ratliff, Another Look at “No Evidence” &
evidence in a light favorable to the verdict must as-             “Insufficient Evidence,” 69 TEX. L.R. 515,
sume jurors made all inferences in favor of their                 517–20 (1991).
verdict if reasonable minds could, and disregard all
                                                               [47] Similarly, there is no disagreement about
other inferences in their legal sufficiency review.
                                                          how a reviewing court should view evidence in the
          IV. Reconciling the Standards                   process of that review. Whether a reviewing court
     [45] Having noted the dual lines of authority        starts with all or only part of the record, the court
stating the scope of no-evidence review, and the          must consider evidence in the light most favorable
proper application and exceptions to each, we turn        to the verdict, and indulge every reasonable infer-
                                                                                       FN114
to the question of which one is correct. For the          ence that would support it.          But if the evid-
reasons *822 discussed below, we believe the an-          ence allows of only one inference, neither jurors
                                                                                                    FN115
swer is both.                                             nor the reviewing court may disregard it.

  A. Goals: The Standards Must Be The Same                        FN114. Gragg, 151 S.W.3d at 552; St.




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         Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519                  (citing Choate v. San Antonio & A.P. Ry.,
         (Tex.2002) (plurality op.); Southwestern                   91 Tex. 406, 44 S.W. 69, 69 (1898); Muhle
         Bell Mobile Sys., Inc. v. Franco, 971                      v. N.Y., T. & M. Ry., 86 Tex. 459, 25 S.W.
         S.W.2d 52, 54 (Tex.1998) (per curiam);                     607, 608 (1894)).
         Formosa Plastics Corp. USA v. Presidio
         Eng'rs & Contractors, Inc., 960 S.W.2d                 This is not to say judges and lawyers will al-
         41, 48 (Tex.1998); Havner, 953 S.W.2d at          ways agree whether evidence is legally*823 suffi-
         711; Universe Life Ins. Co. v. Giles, 950         cient. As discussed more fully below, reasonable
         S.W.2d 48, 75 (Tex.1997) (Hecht, J., con-         people may disagree about what reasonable jurors
         curring); Preferred Heating & Air Condi-          could or must believe. But once those boundaries
         tioning Co. v. Shelby, 778 S.W.2d 67, 68          are settled, any standard of review must coincide
         (Tex.1989) (per curiam); Burk Royalty Co.         with those boundaries—affirming jury verdicts
         v. Walls, 616 S.W.2d 911, 922 (Tex.1981);         based on evidence within them and reversing jury
         Harbin v. Seale, 461 S.W.2d 591, 592              verdicts based on evidence that is not. Any standard
         (Tex.1970); W. Tel. Corp. v. McCann, 128          that does otherwise is improperly applied.
         Tex. 582, 99 S.W.2d 895, 898 (Tex.1937).
                                                            B. Other Motions: The Standards Must Be The
         FN115. See St. Joseph Hosp., 94 S.W.3d at                                 Same
         519–20 (Tex.2002) (plurality op.); Giles,              [49] Just as the scope of no-evidence review
         950 S.W.2d at 51 n. 1 (citing Wininger v.         must coincide with its goals, the scope of review
         Ft. Worth & D.C. Ry. Co., 105 Tex. 56,            should not depend upon the motion in which it is
         143 S.W. 1150, 1152 (1912) and Tex. &             asserted. Judgment without or against a jury verdict
         N.O. Ry. Co. v. Rooks, 293 S.W. 554,              is proper at any course of the proceedings only
         556–57 (Tex.Comm'n.App.1927)).                    when the law does not allow reasonable jurors to
                                                           decide otherwise. Accordingly, the test for legal
     Given these premises, it is no coincidence that       sufficiency should be the same for summary judg-
the two standards should reach the same res-               ments, directed verdicts, judgments notwithstand-
ult—indeed they must. Any scope of appellate re-           ing the verdict, and appellate no-evidence review.
view smaller than what reasonable jurors could be-
lieve will reverse some verdicts that are perfectly             Our statements of the standard for reviewing a
reasonable; any scope of review larger than what           directed verdict present the same mixed bag found
reasonable jurors could believe will affirm some           with general no-evidence review. We have most of-
verdicts that are not.                                     ten used the exclusive standard, stating that courts
                                                           reviewing directed verdicts must consider only
     [48] Further, the two must coincide if this           evidence supporting the nonmovant's case and dis-
                                                                                           FN117
Court is to perform its constitutional duties. Al-         regard all contrary evidence.            But we have
though factual sufficiency has been the sole domain        also stated that reviewing courts should use the in-
of the intermediate appellate courts in Texas since        clusive standard, considering all the evidence in a
                                                                                                   FN118
1891, our jurisdiction has always included legal           light contrary to the directed verdict.        And we
sufficiency, as that is a question of law, not of fact.    have sometimes stated both, requiring reviewing
FN116
        Construing either standard to require us to        courts to consider all the evidence in a light con-
do less would be just as unconstitutional as constru-      trary to the directed verdict and then to disregard all
                                                                                                  FN119
ing either to allow us to do more.                         conflicting evidence that supports it.

         FN116. Southwestern Bell Tel. Co. v. Gar-                  FN117. Coastal Transp. Co. v. Crown
         za, 164 S.W.3d 607, 620 (Tex.2004)                         Cent. Petroleum Corp., 136 S.W.3d 227,




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        234 (Tex.2004); Qantel Bus. Sys., Inc. v.                 Travelers Ins. Co., 544 S.W.2d 649, 650
        Custom Controls Co., 761 S.W.2d 302,                      (Tex.1976); Jones v. Nafco Oil & Gas,
        303 (Tex.1988); Hart v. Van Zandt, 399                    Inc., 380 S.W.2d 570, 574 (Tex.1964).
        S.W.2d 791, 793 (Tex.1965); Triangle Mo-
        tors v. Richmond, 152 Tex. 354, 258                   By contrast, cases concerning judgments non
        S.W.2d 60, 61 (1953); Ford v. Panhandle           obstante veredicto most often utilize the inclusive
        & Santa Fe Ry. Co., 151 Tex. 538, 252             scope of review. Beginning with the 1931 amend-
                                                                                                        FN120
        S.W.2d 561, 562 (1952); Anglin v. Cisco           ment authorizing trial judges to grant them,
        Mortgage Loan Co., 135 Tex. 188, 141              we have generally reviewed such orders by consid-
        S.W.2d 935, 938 (1940).                           ering all the evidence in a light favorable to the
                                                                                           FN121
                                                          *824 verdict that was set aside.       In later years
        FN118. Bostrom Seating, Inc. v. Crane             we have sometimes adopted the exclusive standard,
                                                          FN122
        Carrier Co., 140 S.W.3d 681, 684                          but our opinions doing so usually cite to
        (Tex.2004); S.V. v. R.V., 933 S.W.2d 1, 8         general no-evidence cases in which no judgment
                                                                               FN123
        (Tex.1996); Colvin v. Red Steel Co., 682          n.o.v. was involved.
        S.W.2d 243, 245 (Tex.1984); White v.
        Southwestern Bell Tel. Co., 651 S.W.2d                    FN120. Act of April 25, 1931, 42d Leg.,
        260, 262 (Tex.1983); Seideneck v. Cal                     R.S., ch. 77, § 1, 1931 Tex. Gen. Laws
        Bayreuther Assocs., 451 S.W.2d 752, 753                   119; Myers v. Crenshaw, 134 Tex. 500,
        (Tex.1970); Dunagan v. Bushey, 152 Tex.                   137 S.W.2d 7, 13 (Tex.1940); Hines v.
        630, 263 S.W.2d 148, 153 (1953);                          Parks, 128 Tex. 289, 96 S.W.2d 970, 971
        Fitz–Gerald v. Hull, 150 Tex. 39, 237                     (Tex.1936). Cf. Deal v. Craven, 277 S.W.
        S.W.2d 256, 258 (1951); Kelly v. McKay,                   1046, 1047 (Tex.Com.App.1925, judgm't
        149 Tex. 343, 233 S.W.2d 121, 122 (1950)                  adopted) (“It has long been settled in this
        ; White v. White, 141 Tex. 328, 172                       state that the judgment must follow the
        S.W.2d 295, 296 (1943); McAfee v. Travis                  verdict, and that the courts are without
        Gas Corp., 137 Tex. 314, 153 S.W.2d 442,                  power to enter a judgment notwithstanding
        445 (1941); Wellington Oil Co. v. Maffi,                  a verdict upon a material issue.”).
        136 Tex. 201, 150 S.W.2d 60, 61 (1941);
                                                                  FN121. Brown v. Bank of Galveston, Nat'l
        Chicago, R.I. & G. Ry. Co. v. Carter, 261
                                                                  Ass'n, 963 S.W.2d 511, 513 (Tex.1998)
        S.W. 135, 135 (Tex.Com.App.1924,
                                                                  (“[W]e consider the evidence in the light
        judgm't adopted); Charles v. El Paso Elec.
                                                                  most favorable to the verdict and reason-
        Ry. Co., 254 S.W. 1094, 1094–95
                                                                  able inferences that tend to support it.”);
        (Tex.Com.App.1923, holding approved,
                                                                  Trenholm v. Ratcliff, 646 S.W.2d 927, 931
        judgm't adopted).
                                                                  (Tex.1983) (“In acting on the motion [for
        FN119. Szczepanik v. First S. Trust Co.,                  judgment notwithstanding the verdict], all
        883 S.W.2d 648, 649 (Tex.1994) (per curi-                 testimony must be viewed in a light most
        am); Vance v. My Apartment Steak House                    favorable to the party against whom the
        of San Antonio, Inc., 677 S.W.2d 480, 483                 motion is sought, and every reasonable in-
        (Tex.1984); Corbin v. Safeway Stores, Inc.,               tendment deducible from the evidence is to
        648 S.W.2d 292, 295 (Tex.1983); Jones v.                  be indulged in that party's favor.”)
        Tarrant Util. Co., 638 S.W.2d 862, 865                    (emphasis added); Dowling v. NADW Mk-
        (Tex.1982); Collora v. Navarro, 574                       tg., Inc., 631 S.W.2d 726, 728 (Tex.1982)
        S.W.2d 65, 68 (Tex.1978); Henderson v.                    (same); Douglass v. Panama, Inc., 504
                                                                  S.W.2d 776, 777 (Tex.1974) (same); Leyva




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        v. Pacheco, 163 Tex. 638, 358 S.W.2d                      S.W.2d 186, 191 (Tex.1980); Dodd v. Tex.
        547, 550 (1962) (same); Houston Fire &                    Farm Prods. Co., 576 S.W.2d 812, 814–15
        Cas. Ins. Co. v. Walker, 152 Tex. 503, 260                (Tex.1979); Campbell v. Northwestern
        S.W.2d 600, 603–04 (1953) (affirming trial                Nat'l Life Ins. Co., 573 S.W.2d 496, 497
        court's implied disregard of one jury an-                 (Tex.1978); Miller v. Bock Laundry Mach.
        swer based on “consideration of the tran-                 Co., 568 S.W.2d 648, 650 (Tex.1977); So-
        script as a whole”); Burt v. Lochausen, 151               bel v. Jenkins, 477 S.W.2d 863, 865
        Tex. 289, 249 S.W.2d 194, 199 (1952)                      (Tex.1972); C. & R. Transp., Inc. v. Camp-
        (“[W]e must consider all the testimony in                 bell, 406 S.W.2d 191, 193 (Tex.1966).
        the record from the standpoint most favor-
        able to the plaintiff.”) (emphasis added);                FN123. See Tiller, 121 S.W.3d at 713
        Neyland v. Brown, 141 Tex. 253, 170                       (citing Bradford v. Vento, 48 S.W.3d 749,
        S.W.2d 207, 211 (Tex.1943) (considering                   754 (Tex.2001)); Miller, 102 S.W.3d at
        judgment non obstante veredicto “in the                   709 (same); Best, 786 S.W.2d at 671
        light of the record as a whole”); Le Master               (citing King v. Bauer, 688 S.W.2d 845,
        v. Fort Worth Transit Co., 138 Tex. 512,                  846 (Tex.1985)); Tomlinson, 677 S.W.2d
        160 S.W.2d 224, 225 (1942) (“[W]e must                    at 492 (citing Glover v. Tex. Gen. Indem.
        view LeMaster's testimony, as well as all                 Co., 619 S.W.2d 400, 401 (Tex.1981));
        other testimony in the record, from a                     Campbell, 573 S.W.2d at 497 (citing Mar-
        standpoint most favorable to him.”)                       tinez v. Delta Brands, Inc., 515 S.W.2d
        (emphasis added); McAfee v. Travis Gas                    263, 265 (Tex.1974)); Campbell, 406
        Corp., 137 Tex. 314, 153 S.W.2d 442, 445                  S.W.2d at 193 (citing Cartwright v. Can-
        (1941) (“[W]e must regard the evidence                    ode, 106 Tex. 502, 171 S.W. 696, 697–98
        contained in this record in its most favor-               (1914)).
        able light for McAfee ... because of the in-
                                                              The one exception in which both standards do
        structed verdict and judgment non obstante
                                                          not expressly appear is in the scope of review for
        veredicto.”); see also Ballantyne v. Cham-
                                                          summary judgments. Here, there is only one stand-
        pion Builders, Inc., 144 S.W.3d 417,
                                                          ard—a reviewing court must examine the entire re-
        424–29 (Tex.2004) (upholding judgment
                                                          cord in the light most favorable to the nonmovant,
        non obstante veredicto based on conclusive
                                                          indulging every reasonable inference and resolving
        evidence contrary to verdict).                                                     FN124
                                                          any doubts against the motion.           Reviewing
        FN122. See Tiller v. McLure, 121 S.W.3d           courts do not disregard the evidence supporting the
        709, 713 (Tex.2003) (per curiam);                 motion;*825 if they did, all summary judgments
        Wal–Mart Stores, Inc. v. Miller, 102              would be reversed.
        S.W.3d 706, 709 (Tex.2003) (per curiam);
                                                                  FN124. IHS Cedars Treatment Ctr. of
        Mancorp, Inc. v. Culpepper, 802 S.W.2d
                                                                  Desoto, Tex., Inc. v. Mason, 143 S.W.3d
        226, 227 (Tex.1990); Best v. Ryan Auto
                                                                  794, 798 (Tex.2004); Provident Life & Ac-
        Group, Inc., 786 S.W.2d 670, 671
                                                                  cident Ins. Co. v. Knott, 128 S.W.3d 211,
        (Tex.1990) (per curiam); Navarette v.
                                                                  215–16 (Tex.2003); Wal–Mart Stores, Inc.
        Temple Indep. Sch. Dist., 706 S.W.2d 308,
                                                                  v. Rodriguez, 92 S.W.3d 502, 506
        309 (Tex.1986); Tomlinson v. Jones, 677
                                                                  (Tex.2002); Gonzalez v. Mission Am. Ins.
        S.W.2d 490, 492 (Tex.1984); Williams v.
                                                                  Co., 795 S.W.2d 734, 736 (Tex.1990);
        Bennett, 610 S.W.2d 144, 145 (Tex.1980);
                                                                  Bayouth v. Lion Oil Co., 671 S.W.2d 867,
        Freeman v. Tex. Comp. Ins. Co., 603
                                                                  868 (Tex.1984).




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     In practice, however, a different scope of re-          of the nonmovant.
view applies when a summary judgment motion is
                                      FN125                  On closer examination, this conflict seems more
filed without supporting evidence.            In such
cases, evidence supporting the motion is effectively         semantic than real. Those decisions holding that
disregarded because there is none; under the rule, it        review under Rule 50 should be limited to evid-
is not allowed. Thus, although a reviewing court             ence favorable to the nonmovant appear to have
                                                                                                        FN128
must consider all the summary judgment evidence              their genesis in Wilkerson v. McCarthy [          ].
on file, in some cases that review will effectively be       In Wilkerson, we stated that “in passing upon
restricted to the evidence contrary to the motion.           whether there is sufficient evidence to submit an
                                                             issue to the jury we need look only to the evid-
         FN125. See TEX.R. CIV. P. 166a(i).                  ence and reasonable inferences which tend to
                                                             support the case of” the nonmoving party.[
     The standards for taking any case from the jury         FN129
                                                                     ] But subsequent decisions have clarified
should be the same, no matter what motion is used.           that this passage was referring to the evidence to
If only one standard were proper, we would not ex-           which the trial court should give credence, not
pect both to appear in cases reviewing directed ver-         the evidence that the court should review. In the
dicts, judgments notwithstanding the verdict, and            analogous context of summary judgment under
summary judgments. But both do.                              Rule 56, we have stated that the court must re-
                                                             view the record “taken as a whole.” And the
C. Federal Courts: The Standards Are The Same
                                                             standard for granting summary judgment
     The federal courts have had a similar split of
                                                             “mirrors” the standard for judgment as a matter
authority between the inclusive and exclusive
                                                             of law, such that “the inquiry under each is the
standards for scope of review. But no longer—the
                                                             same.” It therefore follows that, in entertaining a
United States Supreme Court recently concluded in
                                                             motion for judgment as a *826 matter of law, the
Reeves v. Sanderson Plumbing Products, Inc. that
                            FN126                            court should review all of the evidence in the re-
the two tests are the same.                                        FN130
                                                             cord.
         FN126. 530 U.S. 133, 150, 120 S.Ct. 2097,
         147 L.Ed.2d 105 (2000).                                   FN128. 336 U.S. 53, 69 S.Ct. 413, 93
                                                                   L.Ed. 497 (1949).
     Under Rule 50 of the federal rules of proced-
ure, a court should render judgment as a matter of                 FN129. Id. at 57, 69 S.Ct. 413.
law when “there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on              FN130. Reeves, 530 U.S. at 149–50, 120
             FN127
that issue.”        In deciding whether all or only                S.Ct. 2097 (citations omitted).
part of the evidence should be considered, the Su-
preme Court stated:                                             We address the Supreme Court's conclusion as
                                                           to the most appropriate standard below; the relevant
         FN127. FED.R.CIV.P. 50(a)(1).                     point here is its conclusion that differences between
                                                           the inclusive and exclusive standards are more se-
  The Courts of Appeals have articulated differing         mantic than real.
  formulations as to what evidence a court is to
  consider in ruling on a Rule 50 motion. Some de-         D. Objections: The Standards Are Not The Same
  cisions have stated that review is limited to that           While we have used the two standards for the
  evidence favorable to the nonmoving party, while         scope of review interchangeably for many years in
  most have held that review extends to the entire         many different contexts, several arguments suggest
  record, drawing all reasonable inferences in favor       they are not the same.




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     First, the courts of appeals often use the two         court cannot. It is not surprising that in drawing the
standards in illustrations of the difference between        general distinction between legal and factual suffi-
legal and factual sufficiency, with the exclusive           ciency, courts have not complicated that distinction
standard tied to the former and the inclusive stand-        by listing the several exceptions in which the scope
ard to the latter:                                          of review—though not the standard of re-
                                                            view—may overlap.
  When [reviewing] legal sufficiency, we consider
  only the evidence and inferences that tend to sup-                 FN132. Burk Royalty Co. v. Walls, 616
  port the award of damages and disregard all evid-                  S.W.2d 911, 922 (Tex.1981) (noting that
  ence and inferences to the contrary.... When we                    review of gross negligence finding by con-
  review factual sufficiency, we consider and                        sidering all the evidence appeared to but
  weigh all of the evidence and will set aside the                   did not conflict with traditional no-
  verdict only if it is so against the great weight                  evidence test).
  and preponderance of the evidence that it is
                            FN131                               Second, it has been argued that the exclusive
  clearly wrong and unjust.
                                                            standard “is an important prophylactic” against in-
                                                            vasion of the jury's province, as appellate judges
         FN131. Carter v. Steverson & Co., 106              are less likely to consider contrary evidence when
         S.W.3d 161, 166 (Tex.App.-Houston [1st             they should not if the exclusive standard is used.
         Dist.] 2003, pet. denied) (emphasis added)         FN133
                                                                     But if that is true, the opposite should also
         (citation omitted); accord Long v. Long,           be the case—appellate courts are less likely to con-
         144 S.W.3d 64, 67 (Tex.App.-El Paso                sider contrary evidence when they must (as shown
         2004, no pet.); Gore v. Scotland Golf, Inc.,       in Part II) if the exclusive standard is used. No mat-
         136 S.W.3d 26, 29 (Tex.App.-San Antonio            ter which standard is used, appellate courts must
         2003, pet. denied); Exxon Corp. v. Breeze-         take care not to consider or disregard too little or
         vale Ltd., 82 S.W.3d 429, 438                      too much.
         (Tex.App.-Dallas 2002, pet. denied); N.
         Am. Van Lines, Inc. v. Emmons, 50 S.W.3d                    FN133. Dorsaneo, supra note 10, at 1503;
         103, 113 n. 3 (Tex.App.-Beaumont 2001,                      see also Hardberger, supra note 10, at 17
         pet. denied); Molina v. Moore, 33 S.W.3d                    (arguing exclusive standard is “designed to
         323, 329 (Tex.App.-Amarillo 2000, no                        afford high deference to jury verdicts”).
         pet.); Wal–Mart Stores, Inc. v. Itz, 21
         S.W.3d 456, 470 n. 3 (Tex.App.-Austin                   *827 Conversely, several factors appear to fa-
         2000, pet. denied); see also In re King's          vor application of the inclusive standard. First,
         Estate, 150 Tex. 662, 244 S.W.2d 660, 661          when we have said “we must look only at that evid-
                                                                                                           FN134
         (1951) (per curiam) (holding court of ap-          ence which tends to support the judgment,”
         peals erred in failing to distinguish              we could not have been speaking literally; no
         between legal and factual sufficiency re-          glasses filter evidence, and judges cannot abandon
         view by not weighing all the evidence              such judgments to law clerks or litigants. It is often
         when conducting the latter).                       hard to say whether evidence does or does not sup-
                                                            port a verdict—the same facts may support differ-
                                                                             FN135
     But there have always been exceptions to this          ent conclusions,        or may support one part of a
             FN132                                                                    FN136
distinction.         As demonstrated in Parts II and        verdict but not another.         Nor can evidence
III above, it is generally true that the result of legal-   supporting a verdict be identified by which party
sufficiency review is to disregard contrary evid-           offered it—parties depend on admissions and cross-
ence, but there are exceptions when a reviewing             examination during their opponent's case, and min-




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imize damaging evidence by presenting it during            clusive standard is helpful in recognizing what
their own. As a practical matter, a court cannot be-       courts actually do, and must be seen to do. Both are
gin to say what evidence supports a verdict without        important; we should avoid choosing between them
reviewing it all.                                          if we can.

         FN134. State v. Biggar, 873 S.W.2d 11, 13           E. Conclusion: The Standards Are The Same
         (Tex.1994).                                           As both the inclusive and exclusive standards
                                                           for the scope of legal-sufficiency review have a
         FN135. See, e.g., CMH Homes, Inc. v.              long history in Texas, as both have been used in
         Daenen, 15 S.W.3d 97, 102 (Tex.2000)              other contexts to review matter-of-law motions, as
         (noting plaintiff argued defendant's fre-         the federal courts have decided the differences
         quent inspections of stairs showed know-          between the two are more semantic than real, and
         ledge of inherent danger, while court held        as both—properly applied—must arrive at the same
         it showed the opposite as inspections found       result, we see no compelling reason to choose
         nothing); State Farm Fire & Cas. Co. v.           among them.
         Simmons, 963 S.W.2d 42, 45 (Tex.1998)
         (affirming bad-faith verdict after noting in-          [50][51] The key qualifier, of course, is
         surer's reasons for denial were contradict-       “properly applied.” The final test for legal suffi-
         ory).                                             ciency must always be whether the evidence at trial
                                                           would enable reasonable and fair-minded people to
         FN136. See, e.g., Wal–Mart Stores, Inc. v.        reach the verdict under review. Whether a review-
         Alexander, 868 S.W.2d 322, 327                    ing court begins by considering all the evidence or
         (Tex.1993) (noting evidence of single pre-        only the evidence supporting the verdict, legal-
         vious minor stumble supported negligence          sufficiency review in the proper light must credit
         finding but not gross negligence).                favorable evidence if reasonable jurors could, and
                                                           disregard contrary evidence unless reasonable jur-
     Second, an appellate court that begins by dis-
                                                           ors could not.
regarding one party's evidence may strike many cit-
izens as extending something less than justice for              While judges and lawyers often disagree about
all. Concerns about open government and open               legal sufficiency in particular cases, *828 the dis-
courts suggest an appellate process that considers         agreements are almost always about what evidence
all the evidence, though deferring to the jury's ver-      jurors can or must credit and what inferences they
dict. While there is some dispute whether Lady             can or must make. It is inevitable in human affairs
                                  FN137
Justice should wear a blindfold,           the meta-       that reasonable people sometimes disagree; thus, it
phor was surely never intended to suggest that             is also inevitable that they will sometimes disagree
justice disregards the facts.                              about what reasonable people can disagree about.
                                                           This is not a new problem; Justice Calvert noted it
         FN137. See Judith Resnik, Managerial
                                                           almost fifty years ago:
         Judges, 96 HARV. L.R.. 374, 382–83
         (1982) (noting that images of justice ap-           The rule as generally stated is that if reasonable
         peared blindfolded only within the last             minds cannot differ from the conclusion that the
         four hundred years).                                evidence lacks probative force it will be held to
                                                             be the legal equivalent of no evidence. The ap-
    In sum, the exclusive standard is helpful in re-
                                                             plication of the rule can lead to strange results. It
cognizing the distinctive roles of judge and jury, in-
                                                             is theoretically possible, and sometimes not far
termediate and supreme court. By contrast, the in-
                                                             from actual fact, that five members of the Su-




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  preme Court will conclude that the evidence sup-            there was enough to leave the case to the jury
  porting a finding of a vital fact has no probative          does not indicate that the other [is] unmindful of
  force, and in reaching the conclusion through ap-           the jury's function. The easy but timid way out
  plication of the rule will thus hold, in effect, that       for a trial judge is to leave all cases tried to a jury
  the trial judge who overruled a motion for in-              for jury determination, but in so doing he fails in
  structed verdict, the twelve jurors who found the           his duty to take a case from the jury when the
  existence of the vital fact, the three justices of the      evidence would not warrant a verdict by it. A
  Court of Civil Appeals who overruled a “no evid-            timid judge, like a biased judge, is intrinsically a
                                                                              FN140
  ence” point of error and four dissenting justices           lawless judge.
                                             FN138
  of the Supreme Court are not men                    of
                        FN139
  “reasonable minds.”
                                                                     FN140. Wilkerson v. McCarthy, 336 U.S.
                                                                     53, 65, 69 S.Ct. 413, 93 L.Ed. 497 (1949)
         FN138. Justice Calvert's use of the mascu-                  (Frankfurter, J., concurring).
         line in 1960 may perhaps be forgiven, for
         although Hattie Hennenberg, Hortense                           V. Application to the Facts
         Ward, and Ruth Brazzil served temporarily               It remains to apply the scope of review to the
         on this Court in 1925, and Sarah T. Hughes         facts presented.
         was appointed as a state district judge ten
                                                                 [52] A majority of the court of appeals af-
         years later, it was not until 1954 that the
                                                            firmed the verdict for the Wilsons, finding legally
         Texas Constitution was amended to allow
                                                            sufficient evidence that the City knew increased
         women to serve as jurors, and not until
                                                            flooding on the Wilsons' property was substantially
         1973 that Mary Lou Robinson became the                               FN141
                                                            certain to occur.        The majority pointed to the
         first women to serve as a state appellate
                                                            following proof. First, the Wilsons' expert testified
         judge. See James T. “Jim” Worthen, The
                                                            that the revised plan was certain to *829 create
         Organizational & Structural Development                       FN142
                                                            flooding.          Second, as the City admittedly
         of Intermediate Appellate Courts in Texas,
                                                            knew that development would increase runoff and
         46 S. TEX. L.REV. 33, 75 (2004); Robert
                                                            the Sebastian ditch would channel it toward the
         L. Dabney, Jr. We Were There, HOUSTON
                                                            Wilsons, so it knew “with absolute certainty” that
         B.J. Nov.-Dec.1999, at 42, 44.                                                   FN143
                                                            flooding would be the result.        Third, the City
         FN139. Calvert, supra note 12, at 364.             “did not explain” why the Master Plan required a
                                                            drainage ditch across the Wilsons' property but the
     It is not hubris that occasionally requires an ap-     revised plan did not, thus allowing jurors to infer
pellate court to find a jury verdict has no reasonable      that the City knew this omission would cause flood-
                                                                 FN144
evidentiary basis. As Justice Frankfurter stated long       ing.
ago:
                                                                     FN141. 86 S.W.3d 693, 709.
  Only an incompetent or a wilful judge would take
  a case from the jury when the issue should be left                 FN142. Id. at 703, 705.
  to the jury. But since questions of negligence are
                                                                     FN143. Id. at 705.
  questions of degree, often very nice differences
  of degree, judges of competence and conscience                     FN144. Id. at 704–05.
  have in the past, and will in the future, disagree
  whether proof in a case is sufficient to demand               [53] Of course, the City did explain why it ap-
  submission to the jury. The fact that [one] thinks        proved the new plan—because three sets of engin-




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eers said the omitted ditch was unnecessary—but            expert gave no opinion on the latter point.
the court felt compelled by the scope of review to
disregard that evidence.                                        Second, ending a ditch at a neighbor's property
                                                           line may be evidence that a defendant was substan-
     For several of the reasons stated earlier, we be-     tially certain of the result in some cases, but not in
lieve the court of appeals did not properly apply the      the context of this one. City witnesses admitted
scope of review. The critical question in this case        knowing development would increase runoff at the
was the City's state of mind—the Wilsons had to            head of this drainage system, but not flooding at its
prove the City knew (not should have known) that           foot. Calculating the effect of detention ponds and
flooding was substantially certain. A reviewing            absorption in a grassy drainage ditch forty-five feet
court cannot evaluate what the City knew by dis-           wide and over two hundred yards long required hy-
regarding most of what it was told.                        drological formulas, computer models, and math-
                                                           ematical calculations. The omission of the ditch
     [54] Moreover, when a case involves scientific        across the Wilsons' property obviously raised con-
or technical issues requiring expert advice (as this       cerns that the City investigated, but was no evid-
one does), jurors cannot disregard a party's reliance      ence that the City knew the advice it received in re-
on experts hired for that very purpose without some        sponse was wrong.
evidence supplying a reasonable basis for doing so.
FN145
         Here, it was uncontroverted that three sets            The Wilsons also point to a letter Sebastian's
of engineers certified that the revised plans met the      attorney wrote the City demanding indemnity in
City's codes and regulations—and thus would not            case the new ditch flooded the Wilsons. But attor-
increase downstream flooding. The same firm that           neys must protect a client from potential liability
drew up the original Master Plan certified the re-         whether it is *830 real or imagined—and justly so.
vised one; unless the City had some reason to know         In the letter, the attorney never purports to be an
the first certification was true and the second one        expert in hydrology, or cite the opinions of anyone
was false (of which there was no evidence), there          who was. This letter may have required the City to
was only one logical inference jurors could draw.          investigate, but again is no evidence it knew the ad-
                                                                                        FN146
                                                           vice it received was wrong.
         FN145. Provident Am. Ins. Co. v.
         Castañeda, 988 S.W.2d 189, 194–95                          FN146. Cf. Nissan Motor Co. Ltd. v. Arm-
         (Tex.1998); see also State Farm Lloyds v.                  strong, 145 S.W.3d 131, 140 (Tex.2004)
         Nicolau, 951 S.W.2d 444, 448 (Tex.1997)                    (holding complaint letters may require
         (holding reliance on expert report did not                 manufacturer to investigate, but are not
         foreclose bad-faith claim because claimant                 evidence complaints are true).
         “presented evidence from which a fact-
         finder could logically infer that Haag's re-          Our concurring colleagues believe reasonable
         ports were not objectively prepared, that         jurors could nevertheless disregard what all the en-
         State Farm was aware of Haag's lack of ob-        gineers certified because the City had a financial in-
         jectivity, and that State Farm's reliance on      centive to believe them rather than pay the Wilsons.
         the reports was merely pretextual.”).             Of course, defendants have a financial incentive to
                                                           avoid paying damages in every case; if that incent-
     None of the evidence cited by the court of ap-        ive alone is some evidence of liability, then
peals showed the City knew more than it was told           plaintiffs create enough evidence to go to the jury
by the engineers. The Wilsons' expert testified that       every time they file suit.
flooding was (in his opinion) inevitable, but not
that the City knew it was inevitable. The Wilsons'             But more important, this ignores what the




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Wilsons had to prove—not that the City might have          Justice O'NEILL, joined by Justice MEDINA, con-
disbelieved the engineers' reports, but that it did.       curring.
This requires evidence of “objective indicia of in-             The Court does an excellent job of explaining
tent” showing the City knew identifiable harm was          the appropriate scope of no-evidence review: the re-
                                              FN147
occurring or substantially certain to result.              viewing court “must view the evidence in the light
Jurors' doubts about the engineers' reports or the         favorable to the verdict, crediting favorable evid-
City's motives could not supply them with objective        ence if reasonable jurors could, and disregarding
indicia that the City knew flooding would occur.           contrary evidence unless reasonable jurors could
Constitutional concerns about the roles of judge and       not.” 168 S.W.3d at 807. I agree with this standard
jury do not allow either to make such evidence up.         and join Parts I through IV of the Court's opinion.
                                                           But I cannot join Part V, because the Court misap-
         FN147. Tarrant Reg'l Water Dist. v.               plies the standard that it so carefully *831 articu-
         Gragg, 151 S.W.3d 546, 555 (Tex.2004)             lates by crediting evidence the jury could reason-
         (emphasis added).                                 ably disregard.

     We agree with the court of appeals that the                The City of Keller's Master Drainage Plan re-
Wilsons presented some evidence that the City              quired it in part to condemn a 2.8–acre drainage
damaged their property, and that in drawing up and         easement on the Wilson property for construction
approving drainage plans it was acting for a public        of an earthen channel forty-five feet wide and five
purpose. The missing piece in the evidence here is         feet deep that would funnel water from the adjoin-
proof that the City knew the plans it approved were        ing Sebastian property over the Wilson property in-
substantially certain to increase flooding on the          to the Little Bear Creek Watershed. The City chose
Wilsons' properties. While the City certainly knew         not to proceed with this portion of the plan, though,
that fact after the flooding started, the Wilsons nev-     claiming reliance on engineers' assurances that the
er pleaded or submitted to the jury any takings the-       developers' installation of retention ponds on neigh-
ory other than the City's initial approval.                boring land could prevent flooding. The drainage
                                                           channel that was actually built ended at the edge of
     Crediting all favorable evidence that reason-
                                                           the Sebastian property and funneled water directly
able jurors could believe and disregarding all con-
                                                           onto the Wilsons' land, destroying eight acres of
trary evidence except that which they could not ig-
                                                           farmland worth almost $300,000. The Court holds
nore, we hold there was no evidence the City's ap-
                                                           that the jury was required to believe the City's testi-
proval of the revised drainage plan was an inten-
                                                           mony that it relied on the engineers' assurances and
tional taking.
                                                           thus did not know flooding was substantially cer-
     Accordingly, we reverse the court of appeals'         tain to occur, stating that when a case requires ex-
judgment against the City under article I, section 17      pert testimony “jurors cannot disregard a party's re-
of the Texas Constitution. Because the court of ap-        liance on experts hired for that very purpose
peals declined to address the jury's alternate verdict     without some evidence supplying a reasonable basis
for the Wilsons on a claim under the Texas Water           for doing so.” 168 S.W.3d at 829. Even if this were
Code, we remand the case to that court to determine        an appropriate review standard—which it hasn't
that issue.                                                been until today—I believe the jury had a reason-
                                                           able basis upon which to disregard the City's pro-
Justice O'NEILL filed a concurring opinion in              fessed reliance; the City had a financial incentive to
which Justice MEDINA joined.                               disclaim knowledge of the flooding, and the
Justice JOHNSON did not participate in the de-             Wilsons presented some evidence that the City had
cision.                                                    independent knowledge flooding was substantially




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certain to occur. In my view, the jury was the prop-        second.” *83286 S.W.3d at 703. Second, the City
er body to weigh the witnesses' credibility and re-         was aware that water flowed across the Wilson
solve these disputed fact issues. I nevertheless            property before the development commenced, and,
agree that the City cannot be liable for a taking in        as the court of appeals pointed out, the City's Dir-
this case because I believe that a city's mere act of       ector of Public Works admitted that the City knew
approving a private development plan cannot con-            the development would increase the water's flow
stitute a taking for public use. Accordingly, I con-        and velocity; specifically, he testified that “the City
cur in the Court's judgment but not its reasoning.          knew the upstream water would be absorbed less
                                                            and would flow faster due to the removal of trees
                            I                               and vegetation from the developments and from the
     Questions of intent are generally proved only          forty-five-foot-wide earthen channel” that ended at
by circumstantial evidence; as the court of appeals         the Wilson property's edge. Id. at 705. Finally,
in this case aptly noted, “defendants will rarely ad-       there was evidence that the City received a letter
mit knowing to a substantial certainty that given           warning that the developers' plan would subject the
results would follow from their actions,” and there-        Wilson property to flooding.
fore the jury must be “free to discredit defendants'
protestations that no harm was intended and to                   While I believe there is some evidence that the
draw inferences necessary to establish intent.” 86          City knew flooding was substantially certain to oc-
S.W.3d 693, 704. I agree with the Court that the            cur, there is also some evidence that it did not. City
jury's ability to disbelieve the City's protestations is    officials testified that they relied on the representa-
not itself “evidence of liability.” 168 S.W.3d at           tions of engineers who assured them retention
830. Instead, the jury's ability to weigh the wit-          ponds could substitute for a drainage easement and
nesses' credibility means that the City's testimony         the Wilson property would not be damaged. If the
did not conclusively establish its lack of liability.       jury accepted this evidence as true, I agree that the
Because liability is not conclusively negated, we           intent element would be negated, which would pre-
must examine the record to see if there is legally          clude the City's takings liability. But I do not agree
sufficient evidence from which the jury could infer         that the jury was bound to accept the City's testi-
that the City knew flooding was substantially cer-          mony as true. The Court itself notes that jurors
tain to occur. I would hold that the evidence of in-        “may choose to believe one witness and disbelieve
tent that was presented in this case allowed the jury       another,” and that “[c]ourts reviewing all the evid-
to draw such an inference.                                  ence in a light favorable to the verdict thus assume
                                                            that jurors credited testimony favorable to the ver-
    At trial, the Wilsons presented evidence that           dict and disbelieved testimony contrary to it.” 168
the City had independent sources of knowledge that          S.W.3d at 819. This statement mirrors our prior jur-
flooding was substantially certain to occur. First,         isprudence, which has long provided that a jury
they demonstrated that the developers' plan itself          “has several alternatives available when presented
was flawed. Rather than incorporate a drainage              with conflicting evidence” because it “may believe
ditch running across the Wilson property, as the            one witness and disbelieve others,” “may resolve
City's Master Plan required, the developers' plan           inconsistencies in the testimony of any witness,”
ended the drainage ditch abruptly at the edge of the        and “may accept lay testimony over that of ex-
Wilson property. The Wilsons' expert testified that         perts.” McGalliard v. Kuhlmann, 722 S.W.2d 694,
the plan's implementation would necessarily                 697 (Tex.1986) (citations omitted).
“increase the volume and flow of water across the
Wilson property from the rate of fifty-five cubic               As the Court itself states, jurors are required to
feet per second to ninety-three cubic feet per              credit undisputed testimony only when it is “clear,




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positive, direct, otherwise credible, free from con-       bad-faith insurance case. There, the Court noted
tradictions and inconsistencies, and could have            “we have never held that the mere fact that an in-
been readily controverted.” 168 S.W.3d at 820. The         surer relies upon an expert's report to deny a claim
City's testimony does not meet this standard. The          automatically forecloses bad faith recovery as a
City Manager did testify that the City “would not          matter of law,” and again concluded that purported
have approved the developments unless [it was] as-         “reliance upon an expert's report, standing alone,
sured that the developments did not increase the ve-       will not necessarily shield” the defendant from liab-
locity of water or the flow of water” onto the neigh-      ility. Nicolau, 951 S.W.2d at 448. The Court con-
boring property. 86 S.W.3d at 706. But the Wilsons         ceded that “[w]ere we the trier of fact in this case,
disputed whether the City's protestations were cred-       we may well have concluded that [the insurer] did
ible, pointing out that the City had a powerful in-        not act in bad faith,” but concluded that the
centive to profess a lack of knowledge through reli-       “determination is not ours to make” because “the
ance on the engineers' assurances because it would         Constitution allocates that task to the jury and pro-
then avoid the considerable expense of compensat-          hibits us from reweighing the evidence.” Id. at 450
ing the Wilsons for the property that would other-         (citing TEX. CONST. art. I, § 15, art. V, §§ 6, 10).
wise have been condemned under the Master Drain-
age Plan. See id. at 705.                                       The same is true in this case. The jury was not
                                                           required to believe that the City did not know
    Moreover, the Court's conclusion that juries           flooding was substantially certain to occur because
cannot disregard a party's reliance on expert opin-        it relied on assurances to the contrary; as a review-
ions is not consistent with our jurisprudence. The         ing Court, we should “assume that jurors credited
Court cites two cases for this proposition, but            testimony favorable to the verdict and disbelieved
neither supports the Court's analysis; instead, both       testimony contrary to it.” 168 S.W.3d at 819. Such
cases support the conclusion that the jury, as the         credibility determinations are uniquely suited and
finder of fact, should appropriately resolve factual       constitutionally committed to the fact finder. See
disputes regarding a party's reliance on hired ex-         TEX. CONST. art. I, § 15, art. V, § 6; see also Nic-
perts. Provident Am. Ins. Co. v. Castañeda, 988            olau, 951 S.W.2d at 450.
S.W.2d 189, 194–95 (Tex.1998); State Farm Lloyds
v. Nicolau, 951 S.W.2d 444, 448–50 (Tex.1997).                                       II
                                                                Although I disagree with the Court's conclusion
     In Castañeda, a bad-faith insurance case, there       that the jury was required to credit the City's testi-
was no question that the insurer had relied on an          mony, I agree with its judgment in the City's favor
expert's assurances and thus no dispute about              because, in my view, the City's mere approval of
whether the *833 jury could have disregarded that          the private development plans did not result in a
evidence. Castañeda, 988 S.W.2d at 194–95. In that         taking for public use, as the constitutional standard
case, we performed a traditional legal sufficiency         requires for a compensable taking. TEX. CONST.
analysis and concluded there was no evidence that          art. I, § 17. The City did not appropriate or even
the defendant acted in bad faith. Id. at 194. We did       regulate the use of the Wilsons' land, nor did it
state that reliance on an expert's opinion will not        design the drainage plan for the proposed subdivi-
preclude a finding of bad faith if the expert's opin-      sions. Instead, the City merely approved subdivi-
ion was “unreliable and the insurer knew or should         sion plans designed by private developers, and that
have known that to be the case.” Id. However, we           design included inadequate drainage capabilities.
did not hold that the jury must credit a party's testi-    The City argues, and I agree, that its mere approval
mony that it relied on an expert.                          of private plans did not transfer responsibility for
                                                           the content of those plans from the developers to
    We reiterated this point in Nicolau, another




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the City. Municipalities review subdivision plats          Co., 73 Wash.App. 523, 871 P.2d 601, 606 (1994).
“to ensure that subdivisions are safely constructed        In Phillips, the Washington Supreme Court ob-
and to promote the orderly development of the              served that there is no public aspect to a private de-
community.” City of Round Rock v. Smith, 687               velopment and concluded that “[i]f the county or
S.W.2d 300, 302 (Tex.1985); see TEX. LOC.                  city were liable for the negligence of a private de-
GOV'T CODE § 212.002. Such a review is inten-              veloper, based on approval under existing regula-
ded to protect the city's residents; it is not intended    tions, then the municipalities, and ultimately the
to transfer responsibility for a flawed subdivision        taxpayers, would become the guarantors or insurers
design from the developers to the municipality. See,       for the actions of private developers whose devel-
e.g., City of Round Rock, 687 S.W.2d at 302; see           opment damages neighboring properties.” Phillips,
also Cootey v. Sun Inv., Inc., 68 Haw. 480, 718            968 P.2d at 878. The court in Pepper similarly ex-
P.2d 1086, 1091 (1986) (holding that “[t]he permit         amined an inverse condemnation claim based upon
process by which the County approves or disap-             a county's approval of private developments with
proves the development of a proposed subdivision           defective drainage plans; it, too, concluded that the
reflects an effort by government to require the de-        county's approval did not cause the resultant flood-
veloper to meet his responsibilities under the subdi-      ing and did not result in an unconstitutional taking.
vision rules, regulations, and laws,” and that “the        Pepper, 871 P.2d at 606. The court noted that the
primary responsibility of providing an adequate and        flooding was “not the result of the County appropri-
safe development rests with ... the developer, and         ating or regulating their use of the land,” and held
not with the County”).                                     that “[t]he fact that a county regulates development
                                                           and requires compliance with road and drainage re-
     Because the primary responsibility for a devel-       strictions does not transform a private development
opment's design rests with the developer,*834 and          into a public project.” Id. The court concluded that
because the plat-approval process does not transfer        because “land use regulation of [the plaintiffs']
such responsibility to the municipality, mere plat         property did not cause the damages, no inverse con-
approval cannot be a basis upon which to predicate         demnation was involved.” Id. I am persuaded by the
takings liability. We have held that, to be liable for     reasoning of the courts in Phillips and Pepper, and
a taking, a governmental entity must “perform cer-         would similarly conclude that the City's plat ap-
tain acts in the exercise of its lawful authority ...      proval in this case did not amount to an unconstitu-
which resulted in the taking or damaging of                tional taking as a matter of law.
plaintiffs' property, and which acts were the prox-
imate cause of the taking or damaging of such                   The court of appeals in this case advanced an
property.” State v. Hale, 136 Tex. 29, 146 S.W.2d          alternative reason for affirming the trial court's
731, 736 (1941) (emphasis added). In this case,            judgment, suggesting that even if the City could not
flooding resulted from the developers' defective           be liable for merely approving a subdivision plat, it
drainage design, not from the City's approval of the       could nevertheless be held liable for failing to con-
plat; thus, the City's approval was not the proximate      demn a drainage easement across the Wilson prop-
cause of the damage to the Wilson property.                erty. 86 S.W.3d at 707. The court of appeals stated
                                                           that “the City chose not to condemn any of the
    Other courts, faced with similar facts, have also      Wilson property,” but instead “allow[ed] the water
concluded that a governmental entity cannot be li-         flowing from the Sebastian easement to discharge,
able for a taking when its only action is to approve       uncontrolled, across the Wilson property.” Id. As
a private development plan. See Phillips v. King           noted above, however, it was the developers'
County, 136 Wash.2d 946, 968 P.2d 871, 879                 plan—not the City's actions—that allowed the wa-
(1998); see also Pepper v. J.J. Welcome Constr.            ter to flood the Wilson property. Because the City's




                           © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                     Page 39
168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
(Cite as: 168 S.W.3d 802)




action did not cause the flooding, I disagree that the     in the Court's judgment.
City's failure to condemn an easement is relevant to
takings liability. If the City were responsible for the    Tex.,2005.
flooding but chose not to condemn the property, it         City of Keller v. Wilson
might be subject to inverse-condemnation liability.        168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848
See Tarrant County Reg'l Water Dist. v. Gragg, 151
                                                           END OF DOCUMENT
S.W.3d 546, 554 (Tex.2004) (“When the govern-
ment takes private property without first paying for
it, the owner may recover damages for inverse con-
demnation.”). However, if a governmental entity's
actions are not the *835 “proximate cause of the
taking or damaging” of the property, then the entity
cannot be liable for a taking. Hale, 146 S.W.2d at
736. Accordingly, the entity need not condemn
property merely because a private entity is causing
damage. This rule does not leave owners of flooded
property without a remedy; when a private develop-
ment floods neighboring land, the owner of the
damaged property will ordinarily have recourse
against the private parties causing the damage. See
TEX. WATER CODE § 11.086(a), (b) (providing
that “[n]o person may divert or impound the natural
flow of surface waters in this state ... in a manner
that damages the property of another by the over-
flow of the water diverted or impounded” and that
“[a] person whose property is injured by an over-
flow of water caused by an unlawful diversion or
impounding has remedies at law and in equity and
may recover damages occasioned by the over-
flow”). Because the developers' design of the
plat—not the City's approval—caused the flooding
damage in this case, I would hold that the City can-
not be held liable for an unconstitutional taking un-
der Article I, Section 17 of the Texas Constitution.

                           III
     Because I believe the Court fails to give due re-
gard to the jury's right to make credibility determin-
ations, I cannot join Part V of the Court's opinion.
But because I conclude that the City's mere act of
approving a private development plan did not cause
the Wilson property to be “taken, damaged or des-
troyed for or applied to public use,” TEX. CONST.
art. I, § 17, I agree that the City cannot be held li-
able for a taking in this case. Accordingly, I concur




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                                                                                                        Page 1
46 S.W.3d 237, 44 Tex. Sup. Ct. J. 664
(Cite as: 46 S.W.3d 237)




                                                           trial.

          Supreme Court of Texas.                          [2] Trial 388     18.9
 The DOW CHEMICAL COMPANY and Joseph
             Hegyesi, Petitioners,                         388 Trial
                      v.                                      388III Course and Conduct of Trial in General
       Renee K. FRANCIS, Respondent.                                 388k18.9 k. Time limitations. Most Cited
                                                           Cases
                   No. 00–0299.                               (Formerly 388k18)
                   April 26, 2001.                              Trial court may properly intervene to maintain
                                                           control in the courtroom, to expedite the trial, and
     Former employee sued employer and co-                 to prevent what it considers to be a waste of time.
worker, alleging discrimination, fraud, constructive
discharge, and retaliation. After granting summary         [3] Trial 388     29(1)
judgment against employee on her fraud claims and
dismissing co-worker from the case, the 281st Dis-         388 Trial
trict Court, Harris County, entered a take-nothing             388III Course and Conduct of Trial in General
judgment on a jury verdict against employee. Em-                  388k29 Remarks of Judge
ployee appealed. The Houston Court of Appeals,                       388k29(1) k. In general. Most Cited Cases
First District, reversed and remanded. Employer                 Trial judge's comments toward former employ-
and co-worker filed petition for review. The Su-           ee's counsel were made as judge exercised her
preme Court held that: (1) trial judge's comments          broad discretion to maintain control and promote
toward employee's counsel were insufficient to sup-        expedition and, as such, were insufficient to sup-
port a finding of judicial bias or misconduct; (2)         port a finding of judicial bias or misconduct.
court of appeals did not conduct a proper “matter of
                                                           [4] Appeal and Error 30        207
law” or factual sufficiency review on retaliation
claim; and (3) failure of court of appeals to con-         30 Appeal and Error
sider, as an alternative ground for summary judg-               30V Presentation and Reservation in Lower
ment, claims of employer and co-worker that                Court of Grounds of Review
former employee failed to produce evidence of                    30V(B) Objections and Motions, and Rulings
damages as to her fraudulent-inducement claim was          Thereon
error.                                                                  30k207 k. Arguments and conduct of
                                                           counsel. Most Cited Cases
    Reversed and remanded.
                                                           Appeal and Error 30        216(1)
                  West Headnotes
                                                           30 Appeal and Error
[1] Trial 388      29(1)
                                                                 30V Presentation and Reservation in Lower
388 Trial                                                  Court of Grounds of Review
   388III Course and Conduct of Trial in General                  30V(B) Objections and Motions, and Rulings
      388k29 Remarks of Judge                              Thereon
          388k29(1) k. In general. Most Cited Cases                  30k214 Instructions
    Trial court has the authority to express itself in                   30k216 Requests and Failure to Give
exercising its broad discretion over the conduct of a      Instructions




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                                                                                                          Page 2
46 S.W.3d 237, 44 Tex. Sup. Ct. J. 664
(Cite as: 46 S.W.3d 237)




                 30k216(1) k. In general. Most Cited       burden of proof, she must demonstrate on appeal
Cases                                                      that the evidence establishes, as a matter of law, all
     Trial court's alleged objectionable conduct to-       vital facts in support of the issue.
ward former employee's counsel was presumptively
curable by instruction and, therefore, employee            [7] Appeal and Error 30         930(1)
failed to preserve for appeal her bias complaint by
                                                           30 Appeal and Error
not objecting or requesting a jury instruction at tri-
                                                              30XVI Review
al. Rules App.Proc., Rule 44.1(a)(1).
                                                                 30XVI(G) Presumptions
[5] Appeal and Error 30         930(1)                             30k930 Verdict
                                                                         30k930(1) k. In general. Most Cited
30 Appeal and Error                                        Cases
   30XVI Review
      30XVI(G) Presumptions                                Appeal and Error 30         989
        30k930 Verdict
                                                           30 Appeal and Error
              30k930(1) k. In general. Most Cited
                                                               30XVI Review
Cases
                                                                    30XVI(I) Questions of Fact, Verdicts, and
Labor and Employment 231H             861                  Findings
                                                                     30XVI(I)1 In General
231H Labor and Employment                                               30k988 Extent of Review
   231HVIII Adverse Employment Action                                         30k989 k. In general. Most Cited
       231HVIII(B) Actions                                 Cases
          231Hk859 Evidence                                     In reviewing a “matter of law” challenge, the
              231Hk861 k. Presumptions and burden          reviewing court must first examine the record for
of proof. Most Cited Cases                                 evidence that supports the finding, while ignoring
   (Formerly 255k40(1) Master and Servant)                 all evidence to the contrary; if there is no evidence
    Former employee had the burden of proof on             to support the finding, the reviewing court will then
her retaliation claim and, thus, in considering only       examine the entire record to determine if the con-
the evidence favorable to employee, the Court of           trary proposition is established as a matter of law.
Appeals did not conduct a proper “matter of law”
review. V.T.C.A., Labor Code § 451.002(c).                 [8] Appeal and Error 30         1001(1)

[6] Appeal and Error 30         1001(1)                    30 Appeal and Error
                                                               30XVI Review
30 Appeal and Error                                                 30XVI(I) Questions of Fact, Verdicts, and
   30XVI Review                                            Findings
         30XVI(I) Questions of Fact, Verdicts, and                   30XVI(I)2 Verdicts
Findings                                                                   30k1001 Sufficiency of Evidence in
          30XVI(I)2 Verdicts                               Support
               30k1001 Sufficiency of Evidence in                               30k1001(1) k. In general. Most
Support                                                    Cited Cases
                   30k1001(1) k. In general. Most               Point of error asserted by a party attacking the
Cited Cases                                                legal sufficiency of an adverse finding on an issue
    When a party attacks the legal sufficiency of an       on which she has the burden of proof should be sus-
adverse finding on an issue on which she has the           tained only if the contrary proposition is conclus-




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                                                                                                         Page 3
46 S.W.3d 237, 44 Tex. Sup. Ct. J. 664
(Cite as: 46 S.W.3d 237)




ively established.                                           30XVI Review
                                                                   30XVI(I) Questions of Fact, Verdicts, and
[9] Appeal and Error 30        930(1)                     Findings
                                                                    30XVI(I)2 Verdicts
30 Appeal and Error
                                                                      30k1003 Against Weight of Evidence
   30XVI Review
                                                                             30k1003(6) k. Clear or palpable
       30XVI(G) Presumptions
                                                          weight or preponderance. Most Cited Cases
          30k930 Verdict
                30k930(1) k. In general. Most Cited       Appeal and Error 30         1182
Cases
     Court of Appeals did not conduct a proper fac-       30 Appeal and Error
tual-sufficiency review when it improperly con-               30XVII Determination and Disposition of Cause
sidered only the evidence favorable to former em-                  30XVII(E) Rendition, Form, and Entry of
ployee's retaliation claim and did not review the         Judgment
evidence supporting the jury verdict. V.T.C.A.,                         30k1182 k. Form and requisites. Most
Labor Code § 451.002(c).                                  Cited Cases
                                                               Court of Appeals, in reviewing the factual suf-
[10] Appeal and Error 30        1003(5)                   ficiency of an adverse finding on which the appel-
                                                          lant has the burden of proof, must consider and
30 Appeal and Error
                                                          weigh all of the evidence, and can set aside a ver-
   30XVI Review
                                                          dict only if the evidence is so weak or if the finding
         30XVI(I) Questions of Fact, Verdicts, and
                                                          is so against the great weight and preponderance of
Findings
                                                          the evidence that it is clearly wrong and unjust; in
          30XVI(I)2 Verdicts
                                                          doing so, Court of Appeals must detail the evidence
             30k1003 Against Weight of Evidence
                                                          relevant to the issue and state in what regard the
                30k1003(5) k. Great or overwhelm-
                                                          contrary evidence greatly outweighs the evidence in
ing weight or preponderance. Most Cited Cases
                                                          support of the verdict.
     When a party attacks the factual sufficiency of
an adverse finding on an issue on which she has the       [12] Appeal and Error 30         856(1)
burden of proof, she must demonstrate on appeal
that the adverse finding is against the great weight      30 Appeal and Error
and preponderance of the evidence.                            30XVI Review
                                                                   30XVI(A) Scope, Standards, and Extent, in
[11] Appeal and Error 30        989                       General
                                                                     30k851 Theory and Grounds of Decision
30 Appeal and Error
                                                          of Lower Court
   30XVI Review
                                                                          30k856 Grounds for Sustaining De-
         30XVI(I) Questions of Fact, Verdicts, and
                                                          cision Not Considered
Findings
                                                                          30k856(1) k. In general. Most Cited
          30XVI(I)1 In General
                                                          Cases
            30k988 Extent of Review
                                                               Court of Appeals should have considered, as an
                  30k989 k. In general. Most Cited
                                                          alternative ground for summary judgment, claims
Cases
                                                          of employer and co-worker that former employee
Appeal and Error 30        1003(6)                        failed to produce evidence of damages as to her
                                                          fraudulent-inducement claim and its failure to do so
30 Appeal and Error                                       was error. Vernon's Ann.Texas Rules Civ.Proc.,




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                                                                                                          Page 4
46 S.W.3d 237, 44 Tex. Sup. Ct. J. 664
(Cite as: 46 S.W.3d 237)




Rule 166a(i).                                             Joseph Hegyesi, alleging discrimination, fraud,
                                                          constructive discharge, and retaliation. The trial
[13] Fraud 184       3                                    court granted summary judgment for Dow and
                                                          Hegyesi on Francis' fraud claims and dismissed
184 Fraud
                                                          Hegyesi from the case. The remaining claims
     184I Deception Constituting Fraud, and Liabil-
                                                          against Dow were tried to a jury. After a two-week
ity Therefor
                                                          trial, the jury rejected Francis' discrimination and
       184k2 Elements of Actual Fraud
                                                          constructive-discharge claims. The jury found for
          184k3 k. In general. Most Cited Cases
                                                          Francis on her retaliation claim *239 but awarded
     Fraud cause of action requires: (1) a material
                                                          zero damages. Based on these findings, the trial
misrepresentation; (2) that was either known to be
                                                          court rendered a take-nothing judgment against
false when made or was asserted without know-
                                                          Francis. Francis appealed. The court of appeals re-
ledge of its truth; (3) which was intended to be ac-
                                                          versed both the take-nothing judgment for Dow and
ted upon; (4) which was relied upon; and (5) which
                                                          the summary judgment for Dow and Hegyesi. 46
caused injury.
                                                          S.W.3d 264. In doing so, the court of appeals con-
[14] Appeal and Error 30        852                       cluded, among other things, that the cumulative ef-
                                                          fect of the trial court's abuse of discretion with re-
30 Appeal and Error                                       gard to its evidentiary rulings and its bias against
    30XVI Review                                          Francis resulted in the rendition of an improper
        30XVI(A) Scope, Standards, and Extent, in         judgment. 46 S.W.3d at 281. We conclude that the
General                                                   court of appeals erred, reverse its judgment, and re-
           30k851 Theory and Grounds of Decision          mand this cause to that court for further proceed-
of Lower Court                                            ings consistent with this opinion.
                30k852 k. Scope and theory of case.
Most Cited Cases                                               In their petition for review, Dow and Hegyesi
     When a trial court's order granting summary          argue that the court of appeals erred in: (1) holding
judgment does not specify the ground or grounds           that the trial judge's bias resulted in an improper
relied on for its ruling, summary judgment will be        judgment; (2) sustaining Francis' evidentiary com-
affirmed on appeal if any of the theories advanced        plaints; (3) applying incorrect legal and factual-
are meritorious.                                          sufficiency standards in reviewing the jury's zero
                                                          damages verdict on Francis' retaliation claim; and
*238 Kevin Wayne Cole, Wickliff & Hall, Austin,           (4) reversing the summary judgment on Francis'
Barbara L. Johnson, Anthony J. Sadberry, Wickliff         fraud claim. We begin with the court of appeals' bi-
& Hall, Houston, Ruben D. Campos, Wickliff &              as holding.
Hall, San Antonio, Bob E. Shannon, Joseph R.
Knight, Baker & Botts, Austin, for Petitioners.               Without citing any particular examples, the
                                                          court of appeals concluded that:
Barbara J. Gardner, Barbara Gardner & Associates,
Eliot P. Tucker, Mandel & Wright, David W. Hol-               Here, the record reveals that some of the trial
man, The Holman Law Firm, Houston, for Re-                  court's comments were not so much directed to-
spondent.                                                   ward Francis, her attorney, or the merits of her
                                                            case, as they were to the trial court's desire to ex-
                                                            pedite the proceedings. However, there are many
PER CURIAM.                                                 instances of conduct by the trial court that we do
   Renee Francis, a former employee of The Dow              not condone and which cause us concern over
Chemical Company, sued Dow and its employee,                whether there was prejudice towards Francis.




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46 S.W.3d 237, 44 Tex. Sup. Ct. J. 664
(Cite as: 46 S.W.3d 237)




    The cumulative effect of the trial court's abuse        “You can just say compound, and I can listen to the
  of its discretion with regard to its evidentiary rul-     question.” *240 Sixth, Francis complains that the
  ings and its bias against the appellant resulted in       judge did not allow Francis' counsel to read from
  the rendition of an improper judgment and consti-         documents already admitted into evidence. For ex-
  tutes reversible error.                                   ample, at one point, the judge said, “I instructed
                                                            you not to read from the document. Would you
     46 S.W.3d at 280. Dow first complains that as          please just direct questions to the witness? As I
a matter of law, the trial judge's comments were in-        said, the document is in evidence and can be re-
sufficient to support a finding of judicial bias or         viewed by the jury; and continuing to read the doc-
misconduct, and that the court of appeals erred in          ument at this late hour only prolongs the time we
not describing the conduct it determined to be im-          are here.” And at another point in the trial, the
proper. Second, Dow maintains that the trial court's        judge again reminded Francis' counsel: “But I once
objectionable conduct was presumptively curable             again caution you that these documents are in evid-
by instruction, and therefore, Francis failed to pre-       ence. So, rather than reviewing the documents with
serve her bias complaint by not objecting or re-            the jury, ask the question of the witness; and let's
questing a jury instruction at trial. Third, Dow ar-        focus specifically on information you need to get
gues that the court of appeals failed to analyze how        from this witness and not information from the doc-
the alleged judicial misconduct probably caused the         ument that the jury has seen several times already.”
rendition of an improper judgment. See                      Francis argues that these comments were intended
TEX.R.APP. P. 44.1.                                         to prevent the impeachment of defense witnesses.

     Francis responds with seven examples of al-                 As a seventh example of alleged judicial bias,
leged judicial bias. First, Francis claims that the tri-    Francis describes an exchange that took place near
al judge assisted Dow's counsel during voir dire by         the end of the trial, out of the jury's presence. The
commenting, “Ms. Johnson [Dow's counsel], there             judge criticized Francis' counsel for calling a Dow
were a couple of other hands on your question               executive to testify when counsel had not indicated
about labor union [sic].” Second, Francis cites the         his intention to do so the day before. Francis' attor-
following exchange as an example of the judge en-           ney explained that he had developed his strategy
couraging Dow's counsel to object:                          just the evening before and had not made any mis-
                                                            representations to the court. The judge then apolo-
  Counsel: “Objection, Your Honor. Remote as to
                                                            gized for her comment: “Okay. Well, I apologize.
  time. Vague.”
                                                            That was out of line. I shouldn't have said that. But
  Judge: “Go ahead.”                                        honestly, I'm about to my limit with the conduct of
                                                            how this trial has proceeded and—you know, I'm a
  Counsel: “Not relevant.”                                  patient person. That was out of line, and I do apolo-
                                                            gize.” Francis argues the judge's improper com-
  Judge: “Sustained.”                                       ments spanned the two-week trial, grew increas-
                                                            ingly caustic in nature, and were incurable by in-
     Third, Francis contends that the judge fre-
                                                            struction. We disagree with Francis.
quently added additional bases to Dow's objections.
Fourth, Francis asserts that the judge twice instruc-            First, we consider whether the trial judge's
ted Francis' counsel to “move on” “so that we can           comments constituted bias as a matter of law. The
get this case to the jury.” Fifth, Francis claims that      United States Supreme Court, when presented with
the judge frequently reprimanded Francis' counsel           similar allegations of judicial bias, has determined
in a condescending manner; as an example, Francis           that “judicial rulings alone almost never constitute
cites this response by the judge to an objection:




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46 S.W.3d 237, 44 Tex. Sup. Ct. J. 664
(Cite as: 46 S.W.3d 237)




a valid basis for a bias or partiality motion,” and             [3] We apply these principles to this case, and
opinions the judge forms during a trial do not ne-         after carefully examining the judge's allegedly im-
cessitate recusal “unless they display a deep-seated       proper comments in the context of the entire record,
favoritism or antagonism that would make fair              we conclude there is no evidence of judicial bias.
judgment impossible. Thus, judicial remarks during         The record indicates that the judge exercised her
the course of a trial that are critical or disapproving    broad discretion to “maintain control and promote
of, or even hostile to, counsel, the parties, or their     expedition.” Hoggett, 971 S.W.2d at 495. Thus, the
cases, ordinarily do not support a bias or partiality      court of appeals erred in concluding that the trial
challenge.” Liteky v. United States, 510 U.S. 540,         judge's conduct exhibited bias.
555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); see
also, e.g., Matassarin v. Lynch, 174 F.3d 549, 571              [4] The court of appeals also erred in excusing
(5th Cir.1999); Hollywood Fantasy Corp. v. Gabor,          Francis' failure to preserve her complaint. In State
151 F.3d 203, 216 n. 6 (5th Cir.1998); United              v. Wilemon, 393 S.W.2d 816 (Tex.1965), this Court
States v. Landerman, 109 F.3d 1053, 1066 (5th              held that objection to a trial court's alleged improp-
Cir.1997). Further, “[n]ot establishing bias or parti-     er conduct or comment must be made when it oc-
ality ... are expressions of impatience, dissatisfac-      curs if a party is to preserve error for appellate re-
tion, annoyance, and even anger.... A judge's ordin-       view, unless the conduct or comment cannot be
ary efforts at courtroom administration—even a             rendered harmless by proper instruction. Id. at 818.
stern and short-tempered judge's ordinary efforts at       Neither Francis nor the court of appeals explain
courtroom       administration—remain         immune.”     how any comments made by the trial judge were in-
Liteky, 510 U.S. at 555–56, 114 S.Ct. 1147. In             curable or would excuse Francis' failure to preserve
short, a trial court has the inherent power to control     error. For this additional reason, the court of ap-
the disposition of cases “with economy of time and         peals erred in sustaining Francis' allegations of ju-
effort for itself, for counsel, and for litigants.”        dicial bias.
Landis v. North Am. Co., 299 U.S. 248, 254, 57
                                                                The second issue is whether the court of ap-
S.Ct. 163, 81 L.Ed. 153 (1936).
                                                           peals erred in sustaining five of Francis' evidentiary
    [1][2] Similarly, Texas courts have held that          complaints. Dow argues that the court of appeals
“the discretion vested in the trial court over the         did not analyze how the alleged evidentiary errors
conduct of a trial is great.” Schroeder v. Brandon,        caused the trial court to render an improper judg-
141 Tex. 319, 172 S.W.2d 488, 491 (1943); see              ment. See TEX.R.APP. P. 44.1(a)(1). Francis re-
Metzger v. Sebek, 892 S.W.2d 20, 38                        sponds that the court of appeals correctly determ-
(Tex.App.—Houston [1st Dist.] 1994, writ denied).          ined that the evidentiary errors were harmful. We
A trial court has the authority to express itself in       agree with Dow. Without deciding whether the
*241 exercising this broad discretion. Bott v. Bott,       court of appeals erred in its substantive analysis of
962 S.W.2d 626, 631 (Tex.App.—Houston [14th                the evidentiary rulings, we conclude that the court
Dist.] 1997, no writ). Further, a trial court may          of appeals erred in not conducting a harm analysis
properly intervene to maintain control in the              for the evidentiary rulings it reversed. See TEX.R.
courtroom, to expedite the trial, and to prevent what      EVID. 103(a).
it considers to be a waste of time. Hoggett v.
                                                               In its third issue, Dow contends that the court
Brown, 971 S.W.2d 472, 495 (Tex.App.—Houston
                                                           of appeals erred by applying incorrect legal and
[14th Dist.] 1997, no pet.); Great Global Assurance
                                                           factual-sufficiency standards in reviewing the jury's
Co. v. Keltex Props., Inc., 904 S.W.2d 771, 777
                                                           zero-damages verdict on Francis' retaliation claim.
(Tex.App.—Corpus Christi 1995, no writ).
                                                           Francis responds that the evidence was legally and
                                                           factually insufficient to support the jury verdict.




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                                                                                                           Page 7
46 S.W.3d 237, 44 Tex. Sup. Ct. J. 664
(Cite as: 46 S.W.3d 237)




Again, we agree with Dow and review the legal and           evidence greatly outweighs the evidence in support
factual-sufficiency standards in turn.                      of the verdict.” Pool, 715 S.W.2d at 635. Here, the
                                                            court of appeals improperly considered only the
     [5][6][7][8] When a party attacks the legal suf-       evidence favorable to Francis' retaliation claim and
ficiency of an adverse finding on an issue on which         did not review the evidence supporting the jury ver-
she has the burden of proof, she must demonstrate           dict. Thus, we conclude that the court of appeals
on appeal that the evidence establishes, as a matter        did not conduct a proper factual-sufficiency review.
of law, all vital facts in support of the issue. Sterner
v. Marathon Oil Co., 767 S.W.2d 686, 690                         [12] Finally, Dow and Hegyesi argue that the
(Tex.1989); Hall, Standards of Review in Texas, 29          court of appeals erred in reversing and remanding
ST. MARY'S L.J. 351, 481–82 (1998). In reviewing            the summary judgment on Francis' fraudulent-in-
a “matter of law” challenge, the reviewing court            ducement claim. Although Dow and Hegyesi do not
must first examine the record for evidence that sup-        challenge the court of appeals' determination that
ports the finding, while ignoring all evidence to the       Francis raised a fact issue about misrepresentation,
contrary. Sterner, 767 S.W.2d at 690; Hall, supra,          they do argue that they were entitled to summary
at 482. If there is no evidence to support the find-        judgment as a matter of law based on Francis' fail-
ing, the reviewing court will then examine the en-          ure to produce evidence of damages. Thus, Dow
tire record to determine if the contrary proposition        and Hegyesi contend, the court of appeals should
is established as a matter of law. Sterner, 767             have considered the damages issue as an alternative
S.W.2d at 690; Hall, supra, at 482. The point of er-        ground for summary judgment. Francis responds
ror should be sustained only if the contrary proposi-       that the court of appeals correctly determined that
tion is conclusively established. Croucher v.               fact issues precluded summary judgment for Dow
Croucher, 660 S.W.2d 55, 58 (Tex.1983); *242                and Hegyesi. We agree with Dow and Hegyesi.
Hall, supra, at 482. Here, Francis had the burden of
proof on her retaliation claim. See TEX.                         [13][14] A fraud cause of action requires: (1) a
LAB.CODE § 451.002(c). Thus, in considering                 material misrepresentation, (2) that was either
only the evidence favorable to Francis, the court of        known to be false when made or was asserted
appeals did not conduct a proper “matter of law” re-        without knowledge of its truth, (3) which was inten-
view.                                                       ded to be acted upon, (4) which was relied upon,
                                                            and (5) which caused injury. Formosa Plastics
     [9][10][11] When a party attacks the factual           Corp. U.S.A. v. Presidio Eng'rs and Contractors,
sufficiency of an adverse finding on an issue on            Inc., 960 S.W.2d 41, 47 (Tex.1998). The trial court
which she has the burden of proof, she must                 rendered summary judgment on the fraud claim
demonstrate on appeal that the adverse finding is           without specifying the grounds. Because Dow and
against the great weight and preponderance of the           Hegyesi filed a no-evidence summary-judgment
evidence. Croucher, 660 S.W.2d at 58; Hall, supra,          motion challenging each of these elements, if Fran-
at 485. The court of appeals must consider and              cis failed to raise a “genuine issue of material fact”
weigh all of the evidence, and can set aside a ver-         about any of these elements, the summary judgment
dict only if the evidence is so weak or if the finding      for Dow and Hegyesi should stand. TEX.R. CIV. P.
is so against the great weight and preponderance of         166a(i). Here, the court of appeals reversed the
the evidence that it is clearly wrong and unjust. See       summary judgment after determining that Francis
Pool v. Ford Motor Co., 715 S.W.2d 629, 635                 raised a fact issue concerning a material misrepres-
(Tex.1986); Hall, supra, at 484. In doing so, the           entation, but failed to consider Dow and Hegyesi's
court of appeals must “detail the evidence relevant         alternative ground for summary judgment—that
to the issue” and “state in what regard the contrary        Francis presented no evidence of damages. “When




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46 S.W.3d 237, 44 Tex. Sup. Ct. J. 664
(Cite as: 46 S.W.3d 237)




a trial court's order granting summary judgment
does not specify the ground or grounds relied on for
its ruling, summary judgment will be affirmed on
appeal if any of the theories advanced are meritori-
ous.” Carr v. Brasher, 776 S.W.2d 567, 569
(Tex.1989). We therefore conclude that the court of
appeals erred in not considering this alternative
ground.

    Accordingly, without hearing oral argument,
we grant Dow and Hegyesi's petition for review, re-
verse the court of appeals' judgment, and remand
the case to the court of appeals for further proceed-
ings*243 consistent with this opinion. See
TEX.R.APP. P. 59.1.

Tex.,2001.
Dow Chemical Co. v. Francis
46 S.W.3d 237, 44 Tex. Sup. Ct. J. 664

END OF DOCUMENT




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                                                                                                           Page 1
118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




                                                            to its denials of motion to strike and petition for
                                                            writ of mandamus, in which heirs and devisees of
            Supreme Court of Texas.                         former non-possessory co-tenant in 15,449.4-acre
           KING RANCH, INC., et al.                         tract of land sought to disqualify attorney represent-
                      v.                                    ing current possessors of land, where heirs and de-
      William Warren CHAPMAN, III, et al.                   visees did not file a motion for rehearing or any
                                                            other document seeking review of rulings until
                  No. 01–0430.
                                                            more than five months after the orders had been is-
              Argued April 2, 2003.
                                                            sued.
             Decided Aug. 28, 2003.
         Rehearing Denied Nov. 21, 2003.                    [2] Appeal and Error 30         934(1)
      Heirs and devisees of former non-possessory           30 Appeal and Error
co-tenant in 15,449.4-acre tract of land sought bill           30XVI Review
of review as a direct attack to set aside a                       30XVI(G) Presumptions
120-year-old consent judgment, or, in the alternat-                  30k934 Judgment
ive, they asserted a trespass to try title claim, seek-                   30k934(1) k. In General. Most Cited
ing to recover their title and possession to an undi-       Cases
vided one-half interest in the property. The 28th               On review of a no-evidence motion for sum-
District Court, Nueces County, Nanette Hasette, J.,         mary judgment, the Supreme Court considers the
granted defendants' motion for no-evidence sum-             evidence in the light most favorable to the non-
mary judgment. Plaintiffs appealed. The Corpus              movant.
Christi-Edinburg Court of Appeals, 41 S.W.3d 693,
reversed and remanded. Defendants filed petition            [3] Appeal and Error 30         863
for review. The Supreme Court, Jefferson, J., held
that: (1) heirs failed to produce evidence of extrins-      30 Appeal and Error
ic fraud, as was required for bill of review to set            30XVI Review
aside consent judgment; (2) consent judgment was                    30XVI(A) Scope, Standards, and Extent, in
a notorious act of ouster, repudiating any claim of         General
title by heirs, which occurred not later than the date                 30k862 Extent of Review Dependent on
the court entered judgment, for purposes of adverse         Nature of Decision Appealed from
possession statutes; and (3) defendants established                          30k863 k. In General. Most Cited
as a matter of law that they cultivated, used, and en-      Cases
joyed tract for over a hundred years.
                                                            Appeal and Error 30         866(3)
    Reversed and judgment rendered.
                                                            30 Appeal and Error
                  West Headnotes                               30XVI Review
                                                                    30XVI(A) Scope, Standards, and Extent, in
[1] Motions 267        39                                   General
                                                                       30k862 Extent of Review Dependent on
267 Motions                                                 Nature of Decision Appealed from
   267k39 k. Reargument or Rehearing. Most Cited                          30k866 On Appeal from Decision on
Cases                                                       Motion for Dismissal or Nonsuit or Direction of
    Supreme Court would not revisit issues related          Verdict




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118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




                 30k866(3) k. Appeal from Ruling          228 Judgment
on Motion to Direct Verdict. Most Cited Cases                228V On Motion or Summary Proceeding
                                                                228k182 Motion or Other Application
Judgment 228        178                                            228k185 Evidence in General
                                                                      228k185(5) k. Weight and Sufficiency.
228 Judgment
                                                          Most Cited Cases
    228V On Motion or Summary Proceeding
                                                              Less than a scintilla of evidence exists, for pur-
         228k178 k. Nature of Summary Judgment.
                                                          poses of a no-evidence summary judgment motion,
Most Cited Cases
                                                          when the evidence is so weak as to do no more than
     A no-evidence summary judgment is essen-
                                                          create a mere surmise or suspicion of a fact. Ver-
tially a pretrial directed verdict, and the Supreme
                                                          non's Ann.Texas Rules Civ.Proc., Rule 166a(i).
Court applies the same legal sufficiency standard in
reviewing a no-evidence summary judgment as it            [7] Judgment 228        185(5)
applies in reviewing a directed verdict.
                                                          228 Judgment
[4] Judgment 228        185(5)                               228V On Motion or Summary Proceeding
                                                                 228k182 Motion or Other Application
228 Judgment
                                                                    228k185 Evidence in General
   228V On Motion or Summary Proceeding
                                                                       228k185(5) k. Weight and Sufficiency.
       228k182 Motion or Other Application
                                                          Most Cited Cases
          228k185 Evidence in General
                                                               More than a scintilla of evidence exists, for
              228k185(5) k. Weight and Sufficiency.
                                                          purposes of a no-evidence summary judgment mo-
Most Cited Cases
                                                          tion, when the evidence rises to a level that would
     A no evidence summary judgment point will be
                                                          enable reasonable and fair-minded people to differ
sustained when: (1) there is a complete absence of
                                                          in their conclusions. Vernon's Ann.Texas Rules
evidence of a vital fact; (2) the court is barred by
                                                          Civ.Proc., Rule 166a(i).
rules of law or of evidence from giving weight to
the only evidence offered to prove a vital fact; (3)      [8] Judgment 228        335(1)
the evidence offered to prove a vital fact is no more
than a mere scintilla; or (4) the evidence conclus-       228 Judgment
ively establishes the opposite of the vital fact.             228VIII Amendment, Correction, and Review in
                                                          Same Court
[5] Judgment 228        185(5)                                     228k335 Actions and Other Proceedings to
                                                          Review Judgment
228 Judgment
                                                                        228k335(1) k. In General. Most Cited
   228V On Motion or Summary Proceeding
                                                          Cases
      228k182 Motion or Other Application
                                                               A “bill of review” is an equitable proceeding to
         228k185 Evidence in General
                                                          set aside a judgment that is not void on the face of
            228k185(5) k. Weight and Sufficiency.
                                                          the record but is no longer appealable or subject to
Most Cited Cases
                                                          a motion for new trial.
    A no-evidence summary judgment is improp-
erly granted if the respondent brings forth more          [9] Judgment 228        335(1)
than a scintilla of probative evidence to raise a
genuine issue of material fact. Vernon's Ann.Texas        228 Judgment
Rules Civ.Proc., Rule 166a(i).                               228VIII Amendment, Correction, and Review in
                                                          Same Court
[6] Judgment 228        185(5)




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118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




       228k335 Actions and Other Proceedings to                 A bill of review petitioner must ordinarily
Review Judgment                                            plead and prove: (1) a meritorious defense to the
           228k335(1) k. In General. Most Cited            cause of action alleged to support the judgment; (2)
Cases                                                      that the petitioner was prevented from making by
                                                           the fraud, accident, or wrongful act of his or her op-
Judgment 228         335(2)                                ponent; and (3) the petitioner was not negligent.

228 Judgment                                               [12] Judgment 228           335(2)
    228VIII Amendment, Correction, and Review in
Same Court                                                 228 Judgment
         228k335 Actions and Other Proceedings to              228VIII Amendment, Correction, and Review in
Review Judgment                                            Same Court
            228k335(2) k. Grounds for Review. Most                  228k335 Actions and Other Proceedings to
Cited Cases                                                Review Judgment
     A bill of review is proper where a party has ex-                 228k335(2) k. Grounds for Review. Most
ercised due diligence to prosecute all adequate legal      Cited Cases
remedies against a former judgment, and at the time             Fraud in relation to attacks on final judgments
the bill of review is filed, there remains no such ad-     is either extrinsic or intrinsic, but only extrinsic
equate legal remedy still available because, through       fraud will support a bill of review.
no fault of the bill's proponent, fraud, accident, or
mistake precludes presentation of a meritorious            [13] Judgment 228           335(2)
claim or defense.
                                                           228 Judgment
[10] Judgment 228         335(2)                               228VIII Amendment, Correction, and Review in
                                                           Same Court
228 Judgment                                                        228k335 Actions and Other Proceedings to
   228VIII Amendment, Correction, and Review in            Review Judgment
Same Court                                                             228k335(2) k. Grounds for Review. Most
        228k335 Actions and Other Proceedings to           Cited Cases
Review Judgment                                                 “Extrinsic fraud,” which will support a bill of
          228k335(2) k. Grounds for Review. Most           review, is fraud that denied a party the opportunity
Cited Cases                                                to fully litigate at trial all the rights or defenses that
    The grounds upon which a bill of review can be         could have been asserted; by contrast, “intrinsic
obtained are narrow because the procedure conflicts        fraud” relates to the merits of the issues that were
with the fundamental policy that judgments must            presented and presumably were or should have
become final at some point.                                been settled in the former action, including such
                                                           matters as fraudulent instruments, perjured testi-
[11] Judgment 228         335(3)                           mony, or any matter which was actually presented
                                                           to and considered by the trial court in rendering the
228 Judgment
                                                           judgment assailed.
   228VIII Amendment, Correction, and Review in
Same Court                                                 [14] Judgment 228           335(2)
       228k335 Actions and Other Proceedings to
Review Judgment                                            228 Judgment
            228k335(3) k. Pleading and Evidence.              228VIII Amendment, Correction, and Review in
Most Cited Cases                                           Same Court




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118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




         228k335 Actions and Other Proceedings to               228VIII Amendment, Correction, and Review in
Review Judgment                                             Same Court
           228k335(2) k. Grounds for Review. Most                   228k335 Actions and Other Proceedings to
Cited Cases                                                 Review Judgment
    Intrinsic fraud will not support a bill of review,                    228k335(3) k. Pleading and Evidence.
because each party must guard against adverse find-         Most Cited Cases
ings on issues directly presented.                               A bill of review petitioner who alleges that the
                                                            wrongful act of his or her attorney caused an ad-
[15] Judgment 228          335(2)                           verse judgment is not excused from the necessity of
                                                            pleading and proving his or her opponent's extrinsic
228 Judgment
                                                            fraud.
    228VIII Amendment, Correction, and Review in
Same Court                                                  [18] Judgment 228        335(3)
         228k335 Actions and Other Proceedings to
Review Judgment                                             228 Judgment
           228k335(2) k. Grounds for Review. Most               228VIII Amendment, Correction, and Review in
Cited Cases                                                 Same Court
     Issues underlying the judgment attacked by a                    228k335 Actions and Other Proceedings to
bill of review are intrinsic and thus have no probat-       Review Judgment
ive value on the fraud necessary to a bill of review.                     228k335(3) k. Pleading and Evidence.
                                                            Most Cited Cases
[16] Judgment 228          335(2)                                Heirs and devisees of former non-possessory
                                                            co-tenant in 15,449.4-acre tract of land failed to
228 Judgment
                                                            produce evidence of dealings between other co-
    228VIII Amendment, Correction, and Review in
                                                            tenant and attorney who represented co-executor of
Same Court
                                                            non-possessory owner's estate which would support
         228k335 Actions and Other Proceedings to
                                                            an inference that other co-tenant engaged in ex-
Review Judgment
                                                            trinsic fraud, as was required for bill of review to
           228k335(2) k. Grounds for Review. Most
                                                            set aside 120-year-old consent judgment by which
Cited Cases
                                                            co-executor relinquished non-possessory owner's
     Allegations of fraud or negligence on the part
                                                            interest in tract; simultaneous representation in un-
of a party's attorney are insufficient to support a bill
                                                            related matters, fictionalized conversation between
of review.
                                                            other co-tenant and attorney, and historian's opinion
[17] Judgment 228          335(2)                           questioning attorney's actions did not evidence
                                                            fraudulent conspiracy between other co-tenant and
228 Judgment                                                attorney.
   228VIII Amendment, Correction, and Review in
Same Court                                                  [19] Judgment 228        335(3)
        228k335 Actions and Other Proceedings to
                                                            228 Judgment
Review Judgment
                                                               228VIII Amendment, Correction, and Review in
          228k335(2) k. Grounds for Review. Most
                                                            Same Court
Cited Cases
                                                                   228k335 Actions and Other Proceedings to
Judgment 228         335(3)                                 Review Judgment
                                                                        228k335(3) k. Pleading and Evidence.
228 Judgment                                                Most Cited Cases




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                                                                                                          Page 5
118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




     Co-tenant's admission that he and former non-         cited as some evidence that co-tenant in fact paid
possessory co-tenant jointly bought property and           other co-tenant for his share of land, was intrinsic
jointly took a deed rendered harmless absence of           to consent judgment in case disputing ownership
actual deed, such that deed and circumstances of its       and, thus, did not provide basis for bill of review to
late recording did not provide evidence of co-             challenge consent judgment by which co-executor
tenant's alleged extrinsic fraud, as was required for      of non-possessory owner's estate relinquished non-
bill of review to set aside 120-year-old consent           possessory owner's interest in tract.
judgment by which co-executor relinquished non-
possessory owner's interest in 15,449.4-acre tract of      [22] Judgment 228         335(3)
land. 5th Cong., R.S. § 21, 1841 Repub. Tex. Laws
                                                           228 Judgment
163, 169.
                                                               228VIII Amendment, Correction, and Review in
[20] Judgment 228         335(3)                           Same Court
                                                                     228k335 Actions and Other Proceedings to
228 Judgment                                               Review Judgment
     228VIII Amendment, Correction, and Review in                         228k335(3) k. Pleading and Evidence.
Same Court                                                 Most Cited Cases
          228k335 Actions and Other Proceedings to              In light of presumption in favor of ancient
Review Judgment                                            judgments, particularly those involving land titles,
              228k335(3) k. Pleading and Evidence.         conspiracy theories, which were unsupported by
Most Cited Cases                                           evidence, could not be used to upend 120-year-old
      Fact of settlement which produced consent            consent judgment quieting title to 15,449.4-acre
judgment by which co-executor of non-possessory            tract of land.
co-tenant's estate relinquished non-possessory own-
er's interest in tract of land established only that       [23] Judgment 228         335(2)
both sides wanted to compromise and did not tend
                                                           228 Judgment
to establish a conspiracy that provided some evid-
                                                               228VIII Amendment, Correction, and Review in
ence of extrinsic fraud by other co-tenant, for pur-
                                                           Same Court
poses of bill of review to set aside 120-year-old
                                                                    228k335 Actions and Other Proceedings to
consent judgment; settlement awarded estate over
                                                           Review Judgment
three times what co-tenants had agreed to pay for
                                                                      228k335(2) k. Grounds for Review. Most
one-half interest in property 30 years earlier and
                                                           Cited Cases
title to 240 acres of property, and heirs were litigat-
                                                                Even if co-executor of non-possessory owner's
ing via long distance.
                                                           estate was required by statute to apply for or obtain
[21] Judgment 228         335(2)                           probate court authority to settle litigation regarding
                                                           ownership of land, the absence of evidence that he
228 Judgment                                               did so did not impart a sinister motive, so as to sup-
   228VIII Amendment, Correction, and Review in            port bill of review to set aside 120-year-old consent
Same Court                                                 judgment.
        228k335 Actions and Other Proceedings to
Review Judgment                                            [24] Descent and Distribution 124         74
          228k335(2) k. Grounds for Review. Most
                                                           124 Descent and Distribution
Cited Cases
                                                                124III Rights and Liabilities of Heirs and Dis-
    Account book of former non-possessory co-
                                                           tributees
tenant in 15,449.4-acre tract of land, which was




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118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




            124III(A) Nature and Establishment of         [28] Tenancy in Common 373            15(11)
Rights in General
          124k73 Title of Heirs or Distributees           373 Tenancy in Common
                  124k74 k. In General. Most Cited             373II Mutual Rights, Duties, and Liabilities of
Cases                                                     Cotenants
    Presumptions must be indulged in favor of pro-                373k15 Adverse Possession
bate proceedings, especially when they are ancient,                     373k15(11) k. Questions for Jury. Most
and titles have been acquired and transmitted under       Cited Cases
them.                                                          While repudiation of a non-possessory co-
                                                          tenant's title is often a fact question, in an adverse
[25] Judgment 228        185(5)                           possession action, when the pertinent facts are un-
                                                          disputed, repudiation may be established as a mat-
228 Judgment                                              ter of law.
   228V On Motion or Summary Proceeding
      228k182 Motion or Other Application                 [29] Tenancy in Common 373            15(2)
          228k185 Evidence in General
             228k185(5) k. Weight and Sufficiency.        373 Tenancy in Common
Most Cited Cases                                               373II Mutual Rights, Duties, and Liabilities of
    While anything more than a scintilla of evid-         Cotenants
ence is legally sufficient to survive a no-evidence              373k15 Adverse Possession
summary judgment motion, some suspicion linked                        373k15(2) k. Necessity of Actual Ouster
to other suspicion produces only more suspicion,          or Notice of Adverse Claim. Most Cited Cases
which is not the same as some evidence.                        Even if co-executor of non-possessory co-
                                                          tenant's estate had not admitted repudiation in her
[26] Trespass to Try Title 387      1                     pleadings, consent judgment itself was a notorious
                                                          act of ouster, repudiating any claim of title by co-
387 Trespass to Try Title                                 tenant or her heirs, which occurred not later than
   387I Right of Action and Defenses                      the date the court entered judgment, for purposes of
      387k1 k. Nature and Scope of Remedy. Most           adverse possession statutes. V.T.C.A., Civil Prac-
Cited Cases                                               tice & Remedies Code §§ 16.026–16.028.
    A trespass to try title action is a procedure by
which rival claims to title or right of possession        [30] Tenancy in Common 373            15(1)
may be adjudicated.
                                                          373 Tenancy in Common
[27] Tenancy in Common 373          15(2)                     373II Mutual Rights, Duties, and Liabilities of
                                                          Cotenants
373 Tenancy in Common                                           373k15 Adverse Possession
    373II Mutual Rights, Duties, and Liabilities of                    373k15(1) k. In General. Most Cited
Cotenants                                                 Cases
      373k15 Adverse Possession
           373k15(2) k. Necessity of Actual Ouster        Tenancy in Common 373            15(4)
or Notice of Adverse Claim. Most Cited Cases
    A co-tenant may not adversely possess against         373 Tenancy in Common
another co-tenant unless it clearly appears he has            373II Mutual Rights, Duties, and Liabilities of
repudiated the title of his co-tenant and is holding      Cotenants
adversely to it.                                                373k15 Adverse Possession
                                                                    373k15(4) k. Duration and Continuity of




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118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




Possession. Most Cited Cases                              of property, much of it contained within the storied
    Current possessors of 15,449.4-acre tract of          King Ranch in South Texas. The Chapman heirs al-
land established as a matter of law that they cultiv-     lege that, in the late 1800s, their forebears' lawyer
ated, used, and enjoyed tract for over a hundred          conspired with Captain Richard King to deprive the
years, as was required to prove adverse possession        Chapman heirs of rightful title to the property.
as a matter of law and defeat trespass to try title       Seeking to avoid an 1883 agreed judgment, they
claim of heirs and devisees of former non-                have filed a bill of review and a trespass to try title
possessory co-tenant in tract.                            action. For the reasons set forth below, we reject
                                                          their claims.
*745 Howard P. Newton, San Antonio, James H.
Robichaux,       Corpus   Christi,   Matthews     &                                I
Branscomb, P.C., Mary Taylor Henderson, Office                           Factual Background
of the Attorney General, Leon Vadim Komkov,               A. The Property
Baskin Bennett & Komkov, Carroll G. Martin,                   Roughly one hundred fifty years ago, the State
Scott Douglass & McConnico, Austin, Keith R.              of Texas issued a patent to the heirs of Juan Men-
Verges, Mark T. Davenport, Figari Davenport &             diola, conveying to them three-and-one-half
Graves, LLP, Dallas, Robert R. Sykes, The Law             leagues of land totaling 15,449.4 acres located in
Office of Robert R. Sykes, Midland, J.W. Cooper,          Nueces County. These lands were known as the
Jr., Cooper & Cooper, J.A. (Tony) Canales, Canales        Rincon de Santa Gertrudis. Today, the Rincon in-
& Simonson, P.C., Russell H. McMains, Law Of-             cludes portions of the King Ranch, the City of
fices of Russell H. McMains, Corpus Christi, J.           Kingsville, and the Kingsville Naval Air Station.
Scott Carothers, Andrews & Kurth, Gerri M. Fore,
Exxon Company, U.S.A., John B. Thomas, Laura                   In 1853, the Mendiola heirs transferred their in-
B. Rowe, Hicks Thomas & Lilienstern, LLP, Jess            terest in the Rincon to Captain Richard King. Later
H. Hall, Jr., Stacy Lee Williams, Roland Garcia, Jr.,     that year, King conveyed a one-half interest to
Locke Liddell & Sapp LLP, Karen L. Chisholm,              Gideon Lewis. Three years later, in 1856, King
Zummo & Mitchell, L.L.P., Houston, Rick Foster,           conveyed half of his remaining half interest (i.e. a
Porter Rogers Dahlman & Gordon, San Antonio,              one-fourth interest) to Major William Warren
Mike A. Hatchell, Molly H. Hatchell, Hatchell             Chapman, who is the Chapman heirs' ancestor and
P.C., Tyler, Edward J. Schroeder, The Law Office          the source of the title they claim. Lewis died later
of Edward J. Schroeder, San Antonio, for petition-        that year. Hamilton Bee, his administrator, sold the
ers.                                                      Lewis interest in the Rincon back to King and
                                                          Chapman jointly for $1,575, for which King gave
John Blaise Gsanger, William R. Edwards, The Ed-          his individual promissory note. Bee executed a
wards Law Firm, L.L.P., Craig S. Smith, Law Of-           deed accordingly (the “Lewis deed”). At that point,
fice of Craig S. Smith, Michael G. Terry, Hartline        King and Chapman each owned a one-half undi-
Dacus Barger Dreyer & Kern, LLP, Donald B. Ed-            vided interest in the property, although the Lewis
wards, The Law Office of Donald B. Edwards, Cor-          deed was not recorded until 1904.
pus Christi, for respondent.
                                                          B. Cause No. 1279
                                                               Major Chapman died testate in 1859, leaving
Justice JEFFERSON delivered the opinion of the            his estate to his wife Helen. Twenty years later, in
Court.                                                    1879, she sued King in trespass to try title. The suit,
     Various heirs of Major William Warren Chap-          filed in the 25th district court of Nueces County,
man and his wife, Helen Chapman, seek title to an         Texas and bearing Cause No. 1279, sought an undi-
undivided one-half interest *746 in 15,449.4 acres        vided one-half interest in the Rincon as well as title




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118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




to a separate 240 acre property. Helen Chapman al-         both South Carolina and Texas by John Rankin, a
                                                                                                         FN2
leged that King, her co-tenant, had ejected her from       co-executor appointed by Mrs. Chapman.
the Rincon on January 1, 1877. Mrs. Chapman was            Rankin was substituted as plaintiff in Cause No.
represented by two law firms: M. Campbell &                1279, but none of the heirs was named in or made a
                                FN1
Givens and Lackey & Stayton.         By 1881, attor-       party to the case.
ney Robert Kleberg had joined the Lackey &
Stayton firm and participated in the representation                FN2. The other co-executor, Ellery
of Mrs. Chapman.                                                   Brayton, was married to Helen Chapman's
                                                                   daughter.
         FN1. In 1881, then Governor Oran Roberts
         appointed J.W. Stayton associate justice of           On April 7, 1883, four years after suit was filed
         this Court. Seven years later, Governor           and twenty-four years after Major Chapman's death,
         Lawrence Sullivan Ross promoted Stayton           the parties settled Cause No. 1279, and the trial
         to Chief Justice of this Court.                   court rendered judgment accordingly. The April 7,
                                                           1883 judgment recited:
     King, represented by F.E. Macmanus and Pat.
O'Doeharty, answered the suit and admitted that the          [The Chapman Estate] is entitled to recover one
Lewis estate had conveyed Lewis's interest in the            half of the land sued for by the plaintiff ... but
Rincon to King and Chapman jointly. King asser-              that in consideration of the moneyed judgment
ted, however, that he acquired title by reason of his        herein after set out and rendered in favor of the
exclusive, adverse possession of the Rincon from as          plaintiff and against the defendant Richard
early as 1857 and that Major Chapman did not pay             King—it is now here, by consent of all the parties
for his interest under either the deed between King          hereto,—ordered adjudged and decreed by the
and Chapman or the Lewis deed. King asserted that            Court—that all right title and interest of the said
Major Chapman verbally and, later, in a letter, sur-         estate of Helen B. Chapman deceased in and to
rendered his interest under both deeds to King in            said grant originally made to Juan Mindeola [sic]
forgiveness of his debt for the purchase price, but          be vested in Richard King the defendant herein,
that the letter was lost when the Union raided the           and that he be quieted in his possession of the
King Ranch during the Civil War. King alleged that           said tract of land described in plaintiff's peti-
he paid the Lewis estate for Chapman's interest,             tion.... And it is now here further ordered ad-
took exclusive possession of the Rincon, took vari-          judged and decreed that plaintiff do now have
ous actions to confirm his title, and “cultivated,           and recover from the defendant Richard King the
used and enjoyed” the land for the three, *747 five,         sum of Five Thousand Eight Hundred and Eleven
ten, and twenty-year statutory periods under the ad-         Dollars and Seventy Five Cents, $5,811.75 to be
verse possession statutes then in effect. See Act ap-        paid in four installments of one fourth (1/4) of
proved Feb. 5, 1841, 5th Cong., R.S., §§ 15–17,              said aggregate sum each said payments to be
1841 Repub. Tex. Laws 163, 167–68, reprinted in 2            made respectively at the expiration of Six (6)
H.P.N. GAMMEL, THE LAWS OF TEXAS                             months, Twelve (12) months, Eighteen (18)
1822–1897, at 627, 631–32 (Austin, Gammel Book               months and Twenty Four (24) months from this
Co. 1898).                                                   date on said aggregate sum at the rate of Ten (10)
                                                             per centum until paid and should any default be
     Helen, who by this time had moved to South              made on the payments of said installments and
Carolina, died in 1881 before the lawsuit con-               the interest thereon accrued if any there be, then
cluded. She left her two children a life estate in her       execution shall at once issue for the entire sum
interest in the Rincon, and the remainder interest to        remaining unpaid of said whole amount, and it is
her five grandchildren. Her will was probated in             further ordered that the defendant herein pay all




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  costs in this behalf expended for which execution                  The parties do not dispute the accuracy of
  may issue.                                                         the transcriptions.

      The judgment also awarded the Chapman estate          C. King and Kleberg
title to the 240 acre property. There was no appeal.             While Cause No. 1279 was pending, Kleberg's
                                                            law firm represented King in unrelated matters. In a
    Sixteen days after the case settled, Kleberg            July 24, 1881 letter to his parents, Robert Kleberg
wrote to Ellery Brayton, explaining the agreed              wrote that “[King] asked us to attend to his legal
judgment:                                                   business for him.” The Lackey Stayton & Kleberg
                                                            firm represented King in Sobrinos v. Chamberlain,
  That the suit of Helen B. Chapman v. Richard
                                                            76 Tex. 624, 13 S.W. 634 (1890), and Domingue
  King was disposed of at the last term of our dis-
                                                            Rotge v. Richard King. The Sobrinos case, filed in
  trict court which has just closed. John Rankin Ex-
                                                            September 1881, involved a claim against the ad-
  ecutor was made party plaintiff in the suit and
                                                            ministrator of the estate of Hiram Chamberlain by a
  judgment was rendered by consent of parties as
                                                            creditor of the estate. The creditor, Jose Sobrinos,
  follows, it was considered by the court that half
                                                            alleged that the administrator of the estate, Bland
  of the land sued for which was the half of 3 1/2
                                                            Chamberlain, inappropriately paid certain claims
  leagues could be recovered by the plaintiff which
                                                            made by King, who was a co-defendant. On March
  would be 3874 1/2 acres—also a tract of 240
                                                            17, 1882, Lackey Stayton & Kleberg made its first
  acres and in consideration of a moneyed judg-
                                                            appearance in the case, filing an answer on King's
  ment for $5,811.75 against the Defendant
                                                            behalf. Rotge v. King, filed in August 1881, in-
  Richard King—the title was vested to him to the
                                                            volved a dispute over ownership of cattle. Lackey,
  3874 1/2 acres, and the title to the 240 acres was
                                                            Stayton & Kleberg filed an answer on behalf of
  recovered in favor of the Estate of Helen B.
                                                            King in the Rotge case in March 1882. The parties
  Chapman thus *748 giving Judgment in favor of
                                                            do not contend that the subject matter of these two
  the Estate for $5,811.75....
                                                            cases related in any way to Cause No. 1279.
    Helen Chapman's son, William B. Chapman,
                                                                 In 1885, two years after entry of the consent
was dissatisfied. In a May 21, 1883 letter to
                                                            judgment in Cause No. 1279, Richard King died
Brayton, Chapman wrote:
                                                            testate. He left his properties to his wife, Henrietta
  I was opposed to allowing King to take judgment           King. Kleberg became the manager of the King
  for the property. We only get paid for this one           Ranch and, the following year, married Alice King,
  part (?) of it (1/4). For the other part, it is thought   Richard and Henrietta's daughter. In 1904, Kle-
  that my father paid nothing. It is equally pre-           berg's nephew recorded the Lewis deed.
  sumptive that neither did King.... I don't see why
                                                            D. THE KING RANCH, by Tom Lea (Little,
  we could not have secured our title ... if anyone
                                                            Brown 1957).
  had taken any interest in the matter. I don't think
                                                                 In 1951, the King Ranch commissioned artist
  anyone ever attempted to exercise (?) any evid-
                                                            and author Tom Lea to prepare an illustrated his-
  ence from [the administrator of the Lewis Estate].
  FN3                                                       tory of the Ranch to commemorate the centennial of
                                                            the Ranch's founding in 1853. The resulting two-
                                                            volume work, entitled The King Ranch, contains
         FN3. The parties provided transcriptions of        Lea's fictional account of a conversation in 1881
         some of the ancient, handwritten exhibits          between Robert Kleberg and Richard King in which
         in this case. The question marks presum-           King retained Kleberg's legal services for $5000 a
         ably were inserted by the transcriptionist.        year:




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    Before Kleberg dropped off to sleep, he heard a             In 1995, twenty plaintiffs, self-described as the
  knock.                                                   heirs or devisees of the Chapmans, sued some two
                                                           hundred eight parties, who are alleged to own in-
    He got up, lit a lamp and went to the door. It         terests in the Rincon. The Chapman heirs sought a
  swung open to reveal the impressive figure of            bill of review to set aside the 1883 judgment and
  Captain Richard King with his black hat and              asserted an alternative trespass to try title action to
  black beard, his black boots, his watch chain            regain possession as cotenants. They alleged a con-
  glinting yellow in the lamplight.                        spiracy between King and Kleberg, claiming that
                                                           the two “connived ... to advance the interests of
    Standing uncomfortably self-conscious in his
                                                           Richard King at the expense of the Estate of Helen
  night shirt, the young lawyer said, “Come in,
                                                           Chapman.” The Chapman heirs also alleged, based
  Captain King.”
                                                           on their status as cotenants, that “all oil and gas
    He came in and closed the door.                        leases ... made after entry of the consent or agreed
                                                           judgment [in Cause No. 1279] ... are now here rati-
    “Kleberg.”                                             fied by the said Plaintiffs, entitling Plaintiffs to re-
                                                           ceive from the present lessee or lessees their pro-
    “Yes, Captain King.”                                   portionate share of all bonuses, delay rentals, royal-
                                                           ties, and any other profits due to Plaintiffs....”
    “I'm looking for a good lawyer. How would a
  retainer of five thousand a year suit you?”                   King Ranch, joined by most of the other de-
                                                           fendants, answered and moved for summary judg-
   *749 Robert Kleberg gulped. “Why—when
                                                           ment under Rule 166a(c) and (i), TEX.R. CIV. P.
  would that start, sir?”                                  FN4
                                                                  The motions asserted that (1) there was no
    “Now.”                                                 evidence of King's extrinsic fraud or the Chapman
                                                           heirs' freedom from negligence, two elements es-
    Robert Kleberg gulped again.                           sential to the Chapman heirs' bill of review, (2) the
                                                           action was barred by limitations, (3) the 1883 judg-
  “Right now,” the captain said. “We will drive out        ment bound all parties and barred the trespass to try
  to the Santa Gertrudis.”                                 title claim, and (4) King Ranch proved title to the
                                                           property by adverse possession. The trial court
    LEA, THE KING RANCH 340 (Little, Brown                                      FN5
                                                           granted the motions.
1957).
                                                                    FN4. For ease of reference, the petitioners
E. Caller–Times Article.
                                                                    are referred to collectively as “King
     On August 23, 1992, the Corpus Christi
                                                                    Ranch.”
Caller–Times published an article entitled King and
Kleberg Fought Widow for her Half Share of King                     FN5. The Chapman heirs assert that, after
Ranch. The article, written by Ron George, con-                     granting King Ranch's summary judgment
tained the following quote attributed to Bruce                      motion, a subsequent order granting sum-
Cheeseman, a King Ranch archivist and historian:                    mary judgment to other defendants effect-
“Clearly, Kleberg was looking after the interest of                 ively “ungranted” the first motion, because
his in-state client versus the interests of his out-                the second order contained a “Mother Hub-
of-state client.”                                                   bard” clause. We reject this contention.
                                                                    There is no indication that the trial court
                    II
                                                                    intended to set aside the first order,
          The Chapman Heirs' Claims
                                                                    Lehmann v. Har–Con Corp., 39 S.W.3d




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         191, 205 (Tex.2001), and a later judgment         mitted them to submit written questions to Mc-
         does not automatically set aside an earlier       Mains in camera and allowed all parties to examine
         interlocutory judgment, Webb v. Jorns, 488        McMains in open court on matters for which asser-
         S.W.2d 407, 409 (Tex.1972).                       ted privileges were not at issue. The Chapman heirs
                                                           petitioned us for a writ of mandamus to prevent the
     The court of appeals reversed and remanded,           in camera examination from going forward or to
holding (1) there was evidence of extrinsic fraud in       permit them to cross-examine McMains during that
the 1883 judgment, (2) the same evidence “avoided          examination. We denied the petition. 45 Tex.
the four year statute of limitations for bills of re-      Sup.Ct. J. 227 (Dec. 17, 2001).
view” and “raise[d] a genuine issue of material fact
as to [the Chapmans'] trespass to try title action,”            [1] The trial court found that Coker's testimony
and (3) King Ranch's adverse possession claim              was not credible, that he never established an attor-
failed because King Ranch did not establish a repu-        ney-client relationship with McMains, and that he
diation of Mrs. Chapman's title as a matter of law.        had not disclosed confidential information to Mc-
41 S.W.3d 693, 704–07.                                     Mains. The court concluded that there was no valid
                                                           ground to strike the petitions because the Chapman
    We granted the petitions for review. 46 Tex.           heirs did not meet their burden to establish that Mc-
Sup.Ct. J. 394 (Jan. 16, 2003).                            Mains was disqualified from representing King
                                                           Ranch. Based on those findings, we lifted the abate-
                          III
                                                           ment order and denied the motion to strike. Five
             Attorney Disqualification
                                                           months later, in response to the petitions for review,
     Before turning to the issues raised in the peti-
                                                           the Chapman heirs complained that the trial court
tions for review, we address a preliminary*750
                                                           erred in conducting the in camera inspection and
matter. After King Ranch filed its petitions for re-
                                                           that the court reporter failed to transcribe the in
view, but before they were granted, the Chapman
                                                           camera hearing. The heirs now claim they are en-
heirs filed several emergency motions asking us to
                                                           titled to a second disqualification hearing because
strike King Ranch's petitions for review and remand
                                                           they are unable to review a transcript of the in cam-
the case for discovery on whether one of King
                                                           era examination. We note, however, that the Chap-
Ranch's attorneys, Russell McMains, should be dis-
                                                           man heirs' counsel attended the in camera examina-
qualified. The Chapman heirs alleged that family
                                                           tion, and the heirs do not contend that evidence
member Edward C. Coker revealed privileged in-
                                                           presented at the hearing supports their disqualifica-
formation to McMains in the course of a conversa-
                                                           tion claim. In any event, their challenges come too
tion discussing a possible appeal of the trial court's
                                                           late. We ruled on these issues when we denied both
judgment. We abated the petitions and granted the
                                                           the motion to strike and the petition for writ of
motion to remand on the disqualification issue and
                                                           mandamus. The Chapman heirs did not file a mo-
directed the trial court to issue findings of fact and
                                                           tion for rehearing or any other document seeking
conclusions of law. On remand, the trial court
                                                           review of our rulings until more than five months
scheduled a disqualification hearing.
                                                           after we issued them. We decline to revisit those is-
     In response to the Chapman heirs' objections to       sues.
testimony from McMains allegedly implicating the
                                                                                   IV
attorney-client privilege, the trial court ordered that
                                                           Standard of Review of No Evidence Motions for
only the Chapman heirs' counsel be present during
                                                                        Summary Judgment
an in camera examination of McMains. Although it
                                                              [2][3] Because King Ranch's summary judg-
denied the heirs' request to cross-examine McMains
                                                           ment motion was, in part, a no-evidence motion, we
during the in camera proceeding, the trial court per-




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consider the evidence in the light most favorable to       Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63
the non-movant. Wal–Mart Stores, Inc. v. Rodrig-           (Tex.1983) . More than a scintilla of evidence ex-
uez, 92 S.W.3d 502, 506 (Tex.2002); Johnson v.             ists when the evidence “rises to a level that would
Brewer & Pritchard, P.C., 73 S.W.3d 193, 208               enable reasonable and fair-minded people to differ
(Tex.2002). A no-evidence summary judgment is              in their conclusions.” Merrell Dow Pharms., 953
essentially a pretrial directed verdict, and we apply      S.W.2d at 711 .
the same legal sufficiency standard in reviewing a
no-evidence summary judgment as we apply in re-                With this standard in mind, we turn to the
viewing*751 a directed verdict. See, e.g., Valero          claims made and the evidence adduced in this case.
Mktg. & Supply Co. v. Kalama Int'l, 51 S.W.3d
                                                                                       V
345, 350 (Tex.App.-Houston [1st Dist.] 2001, no
                                                                                Bill of Review
pet.); Blackburn v. Columbia Med. Ctr. Of Arling-
                                                               As outlined above, this is not the first time that
ton Subsidiary, 58 S.W.3d 263, 270 (Tex.App.-Fort
                                                           Major Chapman's heirs have sued for title to the
Worth 2001, pet. denied); Mansfield v. C.F. Bent
                                                           Rincon. The 1883 judgment in Cause No. 1279 ad-
Tree Apartment, L.P., 37 S.W.3d 145, 149
                                                           judicated the claim over one hundred years ago. To
(Tex.App.-Austin 2001, no pet.); Espalin v. Chil-
                                                           succeed on their current claim to the Rincon, the
dren's Med. Ctr., 27 S.W.3d 675, 683
                                                           Chapman heirs must somehow avoid the 1883 judg-
(Tex.App.-Dallas 2000, no pet.); Barraza v. Eureka
                                                           ment quieting title in Richard King. The first claim
Co., 25 S.W.3d 225, 231 (Tex.App.-El Paso 2000,
                                                           they allege is a bill of review.
pet. denied); Moore v. K Mart Corp., 981 S.W.2d
266, 269 (Tex.App.-San Antonio 1998, pet. denied)               [8][9][10][11] A bill of review is an equitable
.                                                          proceeding to set aside a judgment that is not void
                                                           on the face of the record but is no longer appealable
     [4][5][6][7] Accordingly, we review the evid-
                                                           or subject to a motion for new trial. Baker v. Gold-
ence in the light most favorable to the non-movant,
                                                           smith, 582 S.W.2d 404, 406 (Tex.1979); Schwartz
disregarding all contrary evidence and inferences.
                                                           v. Jefferson, 520 S.W.2d 881, 889 (Tex.1975). A
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d
                                                           bill of review is proper where a party has exercised
706, 711 (Tex.1997). “A no evidence point will be
                                                           due diligence to prosecute all adequate legal remed-
sustained when (a) there is a complete absence of
                                                           ies against a former judgment, and at the time the
evidence of a vital fact, (b) the court is barred by
                                                           bill of review is filed, there remains no such ad-
rules of law or of evidence from giving weight to
                                                           equate legal remedy still available because, through
the only evidence offered to prove a vital fact, (c)
                                                           no fault of the bill's proponent, fraud, accident, or
the evidence offered to prove a vital fact is no more
                                                           mistake precludes presentation of a meritorious
than a mere scintilla, or (d) the evidence conclus-
                                                           claim or defense. Baker, 582 S.W.2d at 408. The
ively establishes the opposite of the vital fact.” Id.
                                                           grounds upon which a bill of review can be ob-
(citing Robert W. Calvert, “No Evidence” and
                                                           tained are narrow because the procedure conflicts
“Insufficient Evidence” Points of Error, 38 TEX.
                                                           with the fundamental policy that judgments must
L.REV. 361, 362–63 (1960)). Thus, a no-evidence
                                                           become final at some point. Alexander v. Haged-
summary judgment is improperly granted if the re-
                                                           orn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950);
spondent brings forth more than a scintilla of pro-
                                                           Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94,
bative evidence to raise a genuine issue of material
                                                           96 (1940) (noting that a bill of review requires
fact. TEX.R. CIV. P. 166a(i) ; Wal–Mart, 92
                                                           “something more than injustice”). Thus, a *752 bill
S.W.3d at 506. Less than a scintilla of evidence ex-
                                                           of review petitioner must ordinarily plead and
ists when the evidence is “so weak as to do no more
                                                           prove (1) a meritorious defense to the cause of ac-
than create a mere surmise or suspicion” of a fact.
                                                           tion alleged to support the judgment, (2) that the




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petitioner was prevented from making by the fraud,           her opponent's extrinsic fraud. Transworld, 722
accident or wrongful act of his or her opponent, and         S.W.2d at 408.
(3) the petitioner was not negligent. Alexander, 226
S.W.2d at 998.                                               B. Kleberg's representation of King
                                                                  [18] The court of appeals held that the Chap-
     King Ranch's summary judgment motion asser-             man heirs “produced more than a scintilla of pro-
ted that there was no evidence of Richard King's al-         bative evidence to raise a genuine issue of material
leged extrinsic fraud or the Chapman heirs' lack of          fact of extrinsic fraud.” 41 S.W.3d at 705. In so
negligence, two essential elements of the bill of re-        holding, the court of appeals relied on several cat-
view. Because the Chapman heirs would bear the               egories of evidence it found indicative of King's ex-
burden of proof on a bill of review at trial, they           trinsic fraud. The first such category involved Kle-
were required to raise a fact issue on each of these         berg's representation of King in the late 1800s.
elements. TEX.R. CIV. P. 166a(i).                            Within that category, the court of appeals cited sev-
                                                             eral pieces of evidence: an 1881 letter from Kleberg
A. Extrinsic Fraud.                                          to his parents, Kleberg's representation of King in
     [12][13][14][15] Fraud in relation to attacks on        March 1881 in the Sobrinos v. Chamberlain case,
final judgments is either extrinsic or intrinsic. Only       the fictional conversation in Tom Lea's two-volume
extrinsic fraud will support a bill of review. Tice v.       book, and the Cheeseman quote. We address each
City of Pasadena, 767 S.W.2d 700, 702 (Tex.1989).            item in turn.
Extrinsic fraud is fraud that denied a party the op-
portunity to fully litigate at trial all the rights or de-        As set forth above, the 1881 letter from Kle-
fenses that could have been asserted. Id. Intrinsic          berg to his parents states that King “asked us to at-
fraud, by contrast, relates to the merits of the issues      tend to his legal business for him.” The record con-
that were presented and presumably were or should            firms that Kleberg's firm represented King in two
have been settled in the former action. Id. Within           pieces of litigation unrelated to Cause No. 1279:
that term are included such matters as fraudulent in-        Rotge v. King and Sobrinos v. Chamberlain. But
struments, perjured testimony, or any matter which           simultaneous representation in unrelated matters is
was actually presented to and considered by the tri-         not evidence of a fraudulent conspiracy between
al court in rendering the judgment assailed. Id.             Kleberg and King. Such dual representation is per-
Such fraud will not support a bill of review, be-            missible under today's ethical rules and was not
cause each party must guard against adverse find-            prohibited in the 1880s. See TEX. DISCIPLINARY
ings on issues directly presented. Id.; Alexander,           R. PROF'L CONDUCT 1.06(b), *753 cmt. 11
226 S.W.2d at 998. Issues underlying the judgment            (noting that “there are circumstances in which a
attacked by a bill of review are intrinsic and thus          lawyer may act as advocate against a client, for a
have no probative value on the fraud necessary to a          lawyer is free to do so unless this Rule ... would be
bill of review. Tice, 767 S.W.2d at 702.                     violated”); Laybourne v. Bray & Shifflett, 190 S.W.
                                                             1159, 1162 (Tex.Civ.App.-Amarillo 1916, no writ)
    [16][17] Similarly, allegations of fraud or neg-         (The “rule prohibiting an attorney once retained by
ligence on the part of a party's attorney are insuffi-       a client from acting for the opposing party applies
cient to support a bill of review. Transworld Fin.           only in the case of conflicting interest”).
Servs. Corp. v. Briscoe, 722 S.W.2d 407, 408
(Tex.1987); Gracey v. West, 422 S.W.2d 913,                       The Chapman heirs allege that King paid Kle-
918–19 (Tex.1968). Thus, a bill of review petition-          berg a $5,000 retainer during the pendency of
er who alleges that the wrongful act of his or her at-       Cause No. 1279 but rely solely on Tom Lea's fanci-
torney caused an adverse judgment is not excused             ful account of a conversation between Kleberg and
from the necessity of pleading and proving his or            King to support the claim. Lea testified that he




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could not swear to the accuracy of the Kleberg/            parties thereto and their heirs. Act approved Feb. 5,
King conversation. Even if accurate, however, that         1841, 5th Cong., R.S. § 21, 1841 Repub. Tex. Laws
conversation would not be evidence of extrinsic            163, 169, reprinted in 2 H.P.N. GAMMEL, THE
fraud because the fact that Kleberg may have sim-          LAWS OF TEXAS 1822–1897, at 627, 633
ultaneously represented King and Chapman in unre-          (Austin, Gammel Book Co. 1898). As Justice
lated cases was neither unethical nor fraudulent.          Dorsey correctly noted, King's admission rendered
                                                           harmless the absence of the actual deed. 41 S.W.3d
     Finally, the Cheeseman quote provides no evid-        at 709–10 (Dorsey, J., dissenting). Although the tri-
ence of extrinsic fraud. Cheeseman denied making           al court subpoenaed the deed for trial, the case was
this statement to the reporter, but on review of a         settled and never tried. We cannot surmise that
summary judgment, we assume the quote is accur-            King would have been unable to produce the deed
ate. KPMG Peat Marwick v. Harrison County                  at trial. The Lewis deed and the circumstances of its
Housing Fin. Corp., 988 S.W.2d 746, 748                    recording do not provide evidence of King's alleged
(Tex.1999). Even if accurate, Cheeseman's state-           extrinsic fraud.
ment says nothing about King's actions or intent
and cannot support an inference that King commit-          D. The Powers Letter
ted extrinsic fraud. Instead, it is a historian's opin-         [20] As further evidence of King's extrinsic
ion—given over one hundred years after the trans-          fraud, the court of appeals points to a November 3,
action at issue—questioning Kleberg's actions. Kle-        1880 letter from Stephen Powers of the Powers &
berg's actions, even if fraudulent, will not support a     Wells law firm, in *754 which he advised Richard
bill of review. Transworld, 722 S.W.2d at 408. In          King to compromise Cause No. 1279 because “I
sum, none of the evidence of King and Kleberg's            don't see how you are to get over Mrs. Chapman's
                                                                                                        FN6
dealings supports an inference that King engaged in        title to the Santa Gertrudis interest.”            41
extrinsic fraud, because it does not provide “proof        S.W.3d at 705. The court held that this statement
of some deception practiced by [King], collateral to       “conflict[ed] with Kleberg's claim of inability to
the issues in the case, which prevent[ed] the peti-        prove [Chapman's] title” under the Lewis deed. Id.
tioner from fully presenting” claims or defenses in        Kleberg, however, did not make such a claim in the
the underlying action. Bakali v. Bakali, 830 S.W.2d        April 23, 1883 letter to Brayton to which the court
251, 255 (Tex.App.-Dallas 1992, no writ).                  of appeals refers. Instead, that letter accurately re-
                                                           counts the terms of the settlement as evidenced by
C. The Lewis deed                                          the consent judgment (i.e. that “half of the land
    [19] The court of appeals next focused on the          sued for” was “considered” as recovered by the es-
Lewis deed as evidence of the alleged extrinsic            tate). It does not identify which half was recovered,
fraud. The court observed that the deed, executed in       nor does it reveal Kleberg's thoughts on the matter.
1856, was later found in the possession of King and        In any event, the decision to settle cannot support
recorded by Kleberg's nephew in 1904. 41 S.W.3d            an inference that King committed extrinsic fraud.
at 704. The court then concluded that “without the         The fact of settlement establishes only that both
deed as the necessary proof of title, King's allega-       sides wanted to compromise. By going to trial, the
tions that Chapman wanted out of the land purchase         Chapman estate could have lost all. Settle-
and had not paid his share had the potential of bear-      ment—particularly a settlement like this one, that
ing more weight before the court in cause no.              awarded the Chapman estate $5,811.75 (over three
1279.” Id. We disagree. In Cause No. 1279, King            times what King and Chapman agreed to pay for
swore to both the existence and the contents of the        Lewis's one-half interest in the Rincon thirty years
Lewis deed. Moreover, under the recording statute,         earlier) and title to 240 acres of property—may
the unrecorded deed was valid and binding on the           have been the most prudent course. As Justice




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118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




Dorsey aptly noted, at the time of the consent judg-       relied on the absence of evidence that Rankin, co-
ment, both William and Helen Chapman were dead,            executor of Helen Chapman's estate, applied for or
and the heirs were litigating via long distance. 41        obtained probate court authority to settle Cause No.
S.W.3d at 710. We would be remiss in concluding            1279. 41 S.W.3d at 704. Even if Rankin was re-
that, under the circumstances of that litigation, this     quired to do so by statute, the absence of evidence
settlement tended to establish a conspiracy between        that he did does not impart a sinister motive. We
King and Kleberg that provided some evidence of            cannot infer from the absence of evidence in a cen-
King's extrinsic fraud.                                    tury-old probate court record that King caused
                                                           Rankin to act without court authority, or that King
         FN6. Neither Powers nor his firm entered          induced Kleberg to cause Rankin*755 to act
         an appearance on King's behalf in Cause           without authority. The probate court record appears
         No. 1279.                                         incomplete; for example, there is nothing indicating
                                                           that the estate was closed or its assets distributed.
E. Payment for the Rincon
                                                           In such cases, we apply a presumption, in the ab-
     [21] The court of appeals also focused on
                                                           sence of evidence, in favor of the judgment. Baker
whether Chapman paid King for the Rincon as
                                                           v. Coe, 20 Tex. 429, 436–37 (Tex.1857) (public
evidentiary support of King's alleged extrinsic
                                                           policy disfavors annulling titles even if the “records
fraud, holding that notations in William Chapman's
                                                           did not show a compliance with all the require-
account book provided some evidence that Chap-
                                                           ments of the law in respect to the disposition of the
man in fact paid King for his share of the land. 41
                                                           estates of deceased persons”). “Presumptions must
S.W.3d at 704. But the very question in Cause No.
                                                           be indulged in favor of such proceedings, especially
1279, put in issue by King's sworn answer, was
                                                           when they are ancient, and titles have been acquired
Chapman's alleged nonpayment. In that case, King's
                                                           and transmitted under them, or it would indeed be
wife filed interrogatory answers stating that she and
                                                           true that time, instead of healing, as it should, the
King received “not one cent” from Chapman, and
                                                           defects of these titles, would gradually undermine,
Helen Chapman's interrogatory answers stated that
                                                           and eventually destroy them.” Id. at 437. Accord-
she had no knowledge of King paying any money
                                                           ingly, the absence of evidence of probate court ap-
for the Rincon on behalf of her husband. The
                                                           proval will not support an inference that King com-
parties disagreed on this point, and they settled the
                                                           mitted extrinsic fraud.
matter with the 1883 Judgment. Thus, Chapman's
account book—which, in any event, has been con-                 [25] Instead, we conclude that “[t]ime, which
tinuously in the Chapman family's possession for           buries in obscurity all human transactions, has
over 100 years—goes to payment for the Rincon, a           achieved its accustomed effects upon this.” Prevost
point squarely at issue in Cause No. 1279 and              v. Gratz, 19 U.S. (6 Wheat.) 481, 495, 5 L.Ed. 311
                                                  FN7
therefore intrinsic to the judgment in that case.          (1821). In this case, the Chapman heirs have
                                                           cobbled together a series of interesting historical
         FN7. We note, too, that the record is
                                                           tidbits and Texas folklore in an effort to regain title
         devoid of evidence to support the court of
                                                           to one-half of the Rincon—an interest they claim is
         appeals' statement that the account book,
                                                           worth a substantial sum. Viewed separately, each of
         produced by the Chapmans in this litiga-
                                                           these tidbits fails to provide evidence of King's ex-
         tion, had not been produced in Cause No.
                                                           trinsic fraud, and aggregated, they fare no better.
         1279.
                                                           While anything more than a scintilla of evidence is
F. Probate Court Approval                                  legally sufficient to survive a no-evidence summary
    [22][23][24] Finally, as evidence of Richard           judgment motion, “some suspicion linked to other
King's alleged extrinsic fraud, the court of appeals       suspicion produces only more suspicion, which is




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118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




not the same as some evidence.” Browning–Ferris,           such joinder. On this point, King Ranch moved for
Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex.1993);             summary judgment on two separate grounds: (1)
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63               the judgment was valid without joinder of the
(Tex.1983) (“When the evidence offered to prove a          minor heirs in Cause No. 1279, and (2) even if the
vital fact is so weak as to do no more than create a       judgment were void due to the non-joinder, King
mere surmise or suspicion of its existence, the evid-      Ranch adversely possessed the property for a suffi-
ence is no more than a scintilla and, in legal effect,     cient time to acquire title. Without discussing this
is no evidence.”). The Chapman heirs' extrinsic            point, the court of appeals held that the evidence in
fraud claims are supported, in large part, by the ab-      the record supporting a bill of review also raised a
sence of evidence—the dearth of complete records           fact issue as to whether the 1883 judgment is void.
one hundred twelve years after judgment was                41 S.W.3d at 706. In addition, the court of appeals
entered, and the unavailability of any living witness      rejected the adverse possession claim, holding that
to testify to the events at issue. The heirs urge us to    repudiation was a fact issue. Id. at 707. We need
second guess, with benefit of hindsight, the wisdom        not decide whether the minor heirs were necessary
of settling ancient litigation. We decline to do so.       parties to Cause No. 1279, because we hold that
As we recognized in 1857, we must apply a pre-             King Ranch established adverse possession as a
sumption in favor of ancient judgments, particularly       matter of law.
those involving land titles, lest the passage of time
destroy them. Baker, 20 Tex. at 437. We cannot                 Adverse possession is “an actual and visible
conclude that conspiracy theories—fascinating but          appropriation of real property, commenced and
unsupported by evidence—may be used to upend a             continued under a claim of right that is inconsistent
one hundred twenty year old judgment quieting title        with and is hostile to the claim of another person.”
to the property. Because the Chapman heirs failed          TEX. CIV. PRAC. & REM.CODE § 16.021(1).
to produce even a scintilla of evidence of Richard         King Ranch moved for summary judgment on the
King's alleged extrinsic fraud, their bill of review       ten year and the two twenty-five year adverse pos-
       FN8                                                 session statutes. See TEX. CIV. PRAC. &
fails.
                                                           REM.CODE § 16.026 –.028. The first of those
         FN8. Because the Chapman heirs failed to          twenty-five year prescriptions provides:
         produce evidence of extrinsic fraud, we
         need not decide whether there was any               A person, regardless of whether the person is or
         evidence of the Chapman heirs' lack of              has been under a legal disability, must bring suit
         negligence.                                         not later than 25 years after the day the cause of
                                                             action accrues to recover real property held in
                           VI                                peaceable and adverse possession by another who
                Trespass to Try Title                        cultivates, uses or enjoys the property.
     [26] The Chapman heirs also filed an alternat-
ive trespass to try title action, a procedure by which         Id. § 16.027.
rival claims to title or right of possession may be
                                                                [27][28] The court of appeals correctly noted
adjudicated. Yoast v. Yoast, 649 S.W.2d 289, 292
                                                           that a co-tenant may not adversely possess against
(Tex.1983). In 1879, Helen Chapman alleged just
                                                           another co-tenant unless it clearly appears he has
such a claim in Cause No. 1279. To avoid its effect,
                                                           repudiated the title of his co-tenant and is holding
the Chapman heirs claim that the judgment is not
                                                           adversely to it, Todd v. Bruner, 365 S.W.2d 155,
binding on them because Texas law required Helen
                                                           156 (Tex.1963), but it also held that whether there
Chapman's heirs to be joined as parties in *756
                                                           has been a repudiation of a non-possessory co-
Cause 1279, and nothing in the record demonstrates
                                                           tenant's title is a question of fact. 41 S.W.3d at 707.




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118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




While we agree that repudiation is often a fact               ouster, the other parties claiming the whole of the
question, when the pertinent facts are undisputed,            land, to the exclusion of the plaintiff, it would, on
repudiation may be established as a matter of law.            general principles, as against a citizen not labor-
See Thedford v. Union Oil Co. of Cal., 3 S.W.3d               ing under a disability, operate as the commence-
609, 613–14 (Tex.App.-Dallas 1999, pet. denied).              ment of prescription in favor of all who held ad-
                                                              versely, under such decree; and possession under
    In Republic Production Co. v. Lee, 132 Tex.               it, accompanied with the circumstances enumer-
254, 121 S.W.2d 973, 977 (1938), we considered                ated in the statute, would ripen into a bar against
the circumstances under which repudiation may be              a joint owner thus disseized.
established between cotenants:
                                                                Id. at 181; see also McCook v. Amarada Petro-
  It is a rule of wide application that if two or more      leum      Corp.,     93    S.W.2d    482,    484
  tenants in common of a tract of land enter into a         (Tex.Civ.App.-Texarkana 1936, writ dism'd).
  partition of same, and set apart the whole to the
  exclusion of a non-participating cotenant, such                [29] In Cause No. 1279, Helen Chapman judi-
  act of partition, when followed by adverse pos-           cially admitted repudiation, alleging in her original
  session, even if wholly void as against the ex-           petition “[t]hat on the first day of January A.D.
  cluded cotenant, constitutes a complete and un-           1877 the Said Richard King entered upon said
  equivocal repudiation of the cotenancy relation-          premises and ejected ... petitioner therefrom.” Even
  ship. It is also well settled that such a partition,      if she had not admitted repudiation in her plead-
  even though there be no sufficient record thereof         ings, the judgment in Cause No. 1279 itselfwas a
  as will give notice to the excluded cotenant, may         “notorious act of ouster,” repudiating any claim of
  be proven as an act manifesting an intention on           title by Helen Chapman or her heirs by providing
  the part of the participating cotenant to oust the        that “it is now here, by consent of the parties
  other cotenant or repudiate the tenancy relation-         hereto, ordered, adjudged and decreed by the court,
  ship with him.                                            that all the right title and interest in the said grant
                                                            originally made to Juan Mindeola [sic] be vested in
     In Cryer v. Andrews, 11 Tex. 170, 180                  Richard King, the defendant here, and that he be
(Tex.1853), we faced a similar issue. In that case, a       quieted in his possession of the said tract of land
brother died intestate, survived by his siblings and        described in plaintiff's petition.” See Cryer, 11 Tex.
their descendants. Several of those siblings initiated      at 181. If—as the Chapman heirs contend—that
a partition action to quiet title to a piece of property    judgment was a nullity as to them, the statute con-
owned by their brother before his death. Mildred            tinued to run against the heirs notwithstanding their
Cryer, a sister who was also an heir, was not made          minority. TEX. CIV. PRAC. & REM.CODE §
a party to the partition action and was not awarded         16.027; see also Moody's Heirs v. Moeller, 72 Tex.
title *757 to any portion of the property. In 1839,         635, 10 S.W. 727, 728 (1889) (holding that pre-
the probate court divided the property among the            scriptive period continued against heirs seeking title
other heirs. Eight years later, Mildred sued for her        “notwithstanding any disability of coverture or
portion of the land. Her siblings plead adverse pos-        minority”). As a matter of law, repudiation oc-
session.                                                    curred not later than April 7, 1883, the date the
                                                            court entered judgment in Cause No. 1279.
    We recognized that the partition judgment was
binding only on those parties who were before the                [30] King Ranch also produced summary judg-
court. We also held, however, that                          ment evidence on the remaining elements of ad-
                                                            verse possession, establishing as a matter of law
  inasmuch as this partition was a notorious act of
                                                            that it has cultivated, used, and enjoyed the Rincon




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118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
(Cite as: 118 S.W.3d 742)




for over a hundred years. By holding that a fact is-         from improving his land in the first place.
sue existed as to whether King Ranch has adversely           Developments in the Law—Res Judicata, 65
possessed property it has used openly, notoriously,          HARV. L.REV.. 818, 827–28 (March 1952). This
and exclusively for over one hundred years, despite          case demonstrates the wisdom in protecting the
the undisputed facts of record, the court of appeals         stability of final judgments. Richard King and
ignored our precedent and frustrated the policy be-          William Chapman, along with every witness with
hind our adverse possession statutes. Republic Nat.          personal knowledge of the events at issue, have
Bank of Dallas v. Stetson, 390 S.W.2d 257, 262               long since expired. The paper trail of evidence,
(Tex.1965) ( “The policy behind statutes which per-          though surprisingly detailed, cannot turn specula-
mit adverse possession is the settlement and repose          tion about King's motives into evidence of his
of titles.”); Wilson v. Daggett, 88 Tex. 375, 31 S.W.        fraud. Assuming we had the ability, more than a
618, 619 (1895). Without such laws, “time, instead           century later, to ferret from history facts support-
of lending a helping hand to cure apparent defects           ing the Chapman heirs' claim, we must neverthe-
and remove opposing claims, will only be the                 less presume that, absent extrinsic fraud, the 1883
means and afford a ready opportunity of rendering            judgment settled the dispute, once and for all.
[titles] less secure against mistakes, frauds, and per-      Even if not settled by judgment, the King Ranch's
juries. The older the title the less secure it becomes       continued dominion over the Rincon, in a manner
against such attacks.” Howard v. Colquhoun, 28               obviously hostile to the heirs' claims, establishes
Tex. 134, 145 (1866). We hold that King Ranch sat-           adverse possession conclusively.
isfied the requirements of the statute and proved ad-
verse possession of the Rincon as a matter of *758             Accordingly, we reverse the court of appeals'
      FN9                                                  judgment and render judgment that the Chapman
law.
                                                           heirs take nothing.
         FN9. Because King Ranch, Inc. established
         adverse possession as a matter of law, the        Justice ENOCH and Justice O'NEILL did not parti-
         lessors of the minerals underlying the en-        cipate in the decision.
         tire King Ranch, were also entitled to sum-
                                                           Tex.,2003.
         mary judgment on the Chapman heirs' tres-
                                                           King Ranch, Inc. v. Chapman
         pass to try title claim, because the Chap-
                                                           118 S.W.3d 742, 46 Tex. Sup. Ct. J. 1093
         man heirs' purported ratification of any
         mineral lease was without effect.                 END OF DOCUMENT
                         VII
                     Conclusion
  [T]o permit multiple actions leaves an undesir-
  able uncertainty in the economic affairs of those
  subject to them. Thus, the social interest in pre-
  serving free marketability of property, recognized
  in recording and registration acts and in statutes
  of limitations, can be undermined by allowing re-
  peated litigation of the same title on various
  grounds existing at the time the first action is
  brought. It is also unjust to a party who may have
  made improvements on land in reliance on the
  first judgment; or worse, it may discourage him




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286 S.W.2d 190
(Cite as: 286 S.W.2d 190)




                                                            ence between value of the land immediately before
                                                            such trees were destroyed and value of such land
  Court of Civil Appeals of Texas, San Antonio.             immediately after their destruction.
        Benjamin D. LUCAS, Appellant,
                        v.                                  [3] Trespass 386        52
          J. H. MORRISON, Appellee.
                                                            386 Trespass
                    No. 12941.                                  386II Actions
                   Jan 11, 1956.                                   386II(D) Damages
                                                                       386k52 k. Cutting and Removal of Trees.
    Action to recover damages for trespass upon             Most Cited Cases
plaintiff's land and wrongful destruction of a tree              Where growing tree, wrongfully destroyed,
growing thereon. The County Court at Law No. 2,             though it had no market value when severed from
Bexar County, Charles W. Grace, J., rendered judg-          the land, was valuable to landowner as providing
ment on a verdict in favor of plaintiff, and defend-        the only shade for his dairy cattle, but such value
ant appealed. The Court of Civil Appeals, W. O.             was so small in proportion to value of land as a
Murray, C. J., held that award of $100 as nominal           whole that destruction of tree did not affect market
damages for trespasses upon plaintiff's land, all           value of the land, under exception to general rule of
committed during one afternoon, was excessive and           measure of damages, wrongdoer responsible for de-
should be reduced.                                          struction of such tree was liable to landowner for
                                                            intrinsic value of tree.
    Judgment amended in accordance with opinion
and, as amended, affirmed.                                  [4] Trespass 386        57

                  West Headnotes                            386 Trespass
                                                               386II Actions
[1] Woods and Forests 411          1
                                                                   386II(D) Damages
411 Woods and Forests                                                   386k57 k. Amount Awarded. Most Cited
   411k1 k. Nature of Property. Most Cited Cases            Cases
     Trees growing upon land are a part of the realty            In suit for wrongful destruction of tree which
unless they have a market value when severed from           had no market value when severed from the land
the land.                                                   but afforded the only shade for plaintiff's dairy
                                                            cattle, finding that intrinsic value of tree was $50
[2] Damages 115        112                                  was supported by the evidence, though plaintiff did
                                                            not testify as to such value in dollars and cents.
115 Damages
    115VI Measure of Damages                                [5] Damages 115         8
       115VI(B) Injuries to Property
          115k107 Injuries to Real Property                 115 Damages
                  115k112 k. Growing Crops, Grass,             115II Nominal Damages
Shrubbery, or Trees. Most Cited Cases                              115k8 k. Nature and Theory of Award. Most
     Ordinarily, the measure of damages for wrong-          Cited Cases
ful destruction of growing trees which have no mar-
                                                            Damages 115        14
ket value when severed from the land, is the differ-




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286 S.W.2d 190
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115 Damages                                                      [1][2] We overrule these contentions. It is
    115II Nominal Damages                                   quite true that trees growing upon land are a part of
          115k14 k. Amount of Nominal Damages.              the realty, unless they have a market value when
Most Cited Cases                                            detached from the land, and ordinarily the measure
     “Nominal damages” are damages in name only             of damages for the wrongful destruction of such
and should be awarded in some trivial amount, usu-          trees is the difference in the value of the land im-
ally $1.                                                    mediately before the trees were destroyed and im-
                                                            mediately after their destruction. Hooper v. Smith,
[6] Trespass 386       58                                   Tex.Civ.App., 53 S.W. 65; Galveston, H. & S. A.
                                                            Ry. Co. v. Warnecke, 43 Tex.Civ.App. 83, 95 S.W.
386 Trespass
                                                            600; Hidalgo County Water Control & Improve-
   386II Actions
                                                            ment Dist. No. 1 v. Gannaway, Tex.Civ.App., 13
       386II(D) Damages
                                                            S.W.2d 204.
               386k58 k. Inadequate and Excessive
Damages. Most Cited Cases                                        It was stipulated in this case that the hackberry
     Award of $100 as nominal damages for 20 dif-           tree had no market value when severed from the
ferent trespasses upon plaintiff's land, all commit-        land. The evidence shows that the market value of
ted during one afternoon in connection with moving          the land was the same before and after the destruc-
a school house, was excessive and should be re-             tion of the hackberry tree. So, if this measure of
duced to $20.                                               damages be followed, it is apparent that appellee
                                                            would not receive anything for the wrongful de-
*191 Rice, Waitz & Rice, San Antonio, for appel-
                                                            struction of his valuable shade tree.
lant.
                                                                 [3] Appellee testified that the hackberry tree
Moursund, Ball, Bergstrom & Barrow, San Anto-
                                                            was the only shade in the enclosure in which he
nio, for appellee.
                                                            kept his milk cows, that milk cows need shade and
                                                            fall off in their production when they do not have
W. O. MURRAY, Chief Justice.                                shade, and that forty cows could stand in the shade
     This is an appeal from a judgment of the               of this tree. A picture of the tree before it was cut
County Court at Law No. 2 of Bexar County, based            down is in the statement of facts. H. R. Hohenber-
upon a jury verdict allowing plaintiff, J. H. Morris-       ger, a witness for appellant, admitted that shade is
on, a recovery against defendant, Benjamin D. Lu-           valuable to dairy cattle to a certain extent. No
cas, of $50 as the intrinsic value of a hackberry           doubt this one hackberry tree is of small value
shade tree and a recovery of $100 as nominal dam-           when compared with the value of the entire tract of
ages for wrongful trespass of defendant upon the            land, and of such small value that its destruction
land of plaintiff. Benjamin D. Lucas has prosecuted         would not affect the market value of the entire
this appeal.                                                land. On the other hand, should appellant be per-
                                                            mitted to wrongfully enter upon the farm of ap-
     Appellant's first four points present the conten-      pellee and cut down a shade tree which was of
tion that the court erred in permitting a recovery of       value to him and not be required to pay any dam-
$50 for the hackberry tree, because the wrong               ages because its value in proportion to the value of
measure of damages was applied, and because there           the entire farm was of such insignificance as not to
was no evidence to support the finding of the jury          affect the market value of the land? We think
to the effect that the intrinsic value of the tree was      not. Here an exception should be made to the gen-
$50.                                                        eral rule of measure of damages with regard to de-




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286 S.W.2d 190
(Cite as: 286 S.W.2d 190)




struction of growing trees and appellee should be           286 S.W.2d 190
permitted to recover the intrinsic value of his shade
tree. Stephenville, N. & S. T. R. Co. v. Baker,             END OF DOCUMENT
Tex.Civ.App., 203 S.W. 385; Shell Pipe Line Cor-
poration v. Svrcek, Tex.Civ.App., 37 S.W.2d 297.

     [4] It is true that appellee did not testify as to
the intrinsic value of the shade tree, in dollars and
cents, and it is further apparent that had he done so
it would have been only an estimate. This the jury
could do as well as appellee. Appellee alleged the
tree was worth $100, the jury allowed $50. There is
no contention that the value allowed by the jury
was excessive in amount. The evidence was suffi-
cient to support the finding of the jury as to the
value of the tree.

     [5][6] Appellant next contends that the court
erred in allowing nominal damages in the sum of
$100. We are of the opinion that $100 is substantial
damages and not merely nominal damages. Nomin-
al damages is damages in name only. It should *192
be in some trivial amount and is usually in the sum
of $1. Appellee points out the fact that the evidence
would justify the conclusion that appellant and his
men committed as least twenty different trespasses
upon appellee's land and that only $5 per trespass
would not be excessive nominal damages. We can-
not agree. Whatever trespasses were committed oc-
curred in one afternoon in connection with the
moving of a school house. Conceding that there
were twenty separate trespasses committed, the
nominal damages should not have been more than
$1 per trespass and not exceeding $20 for all of the
trespasses.

     The judgment will be amended so as to allow
$20.00 as nominal damages and a total recovery of
$70 for both the value of the hackberry tree and
nominal damages, and as thus amended the judg-
ment is affirmed. The costs of this appeal are taxed
one-half against appellant and one-half against ap-
pellee.

Tex.Civ.App. 1956
Lucas v. Morrison




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953 S.W.2d 706, Prod.Liab.Rep. (CCH) P 15,015, 40 Tex. Sup. Ct. J. 846
(Cite as: 953 S.W.2d 706)




                                                                             West Headnotes

             Supreme Court of Texas.                       [1] Appeal and Error 30         930(3)
 MERRELL DOW PHARMACEUTICALS, INC.,
                    Petitioner,                            30 Appeal and Error
                         v.                                   30XVI Review
Ernest HAVNER and Marilyn Havner on Behalf of                     30XVI(G) Presumptions
 their minor child Kelly HAVNER, Respondents.                        30k930 Verdict
                                                                           30k930(3) k. Interrogatories and spe-
                  No. 95–1036.                             cial verdicts. Most Cited Cases
            Argued March 19, 1996.                              In determining whether there is no evidence of
             Decided July 9, 1997.                         probative force to support jury's finding, all record
    Order Overruling Rehearing Nov. 13, 1997.              evidence must be considered in light most favorable
                                                           to party in whose favor verdict has been rendered,
     Parents of child who suffered from limb reduc-        and every reasonable inference deducible from
tion birth defect brought products liability action        evidence is to be indulged in that party's favor.
against manufacturer of prescription drug
(Bendectin) ingested by mother during pregnancy.           [2] Appeal and Error 30         1001(3)
The 214th District Court, Nueces County, Mike
Westergren, J., entered judgment on jury verdict           30 Appeal and Error
awarding actual and exemplary damages to                       30XVI Review
plaintiffs, and manufacturer appealed. After panel                   30XVI(I) Questions of Fact, Verdicts, and
initially reversed and rendered judgment, rehearing        Findings
en banc was granted, and on rehearing, the Corpus                     30XVI(I)2 Verdicts
Christi Court of Appeals, 907 S.W.2d 535, affirmed                           30k1001 Sufficiency of Evidence in
as to actual damages, and reversed and rendered as         Support
to punitive damages. Application for writ of error                                30k1001(3) k. Total failure of
was granted, and the Supreme Court, Owen, J., held         proof. Most Cited Cases
that: (1) properly designed and executed epidemi-               No evidence point of error will be sustained
ological studies indicating that exposure more than        when (1) there is complete absence of evidence of a
doubled risk of injury may be part of evidence sup-        vital fact, (2) court is barred by rules of law or of
porting finding of causation in toxic tort case; but       evidence from giving weight to only evidence
(2) other factors must be considered, and plaintiff        offered to prove a vital fact, (3) evidence offered to
must in addition offer evidence excluding other            prove a vital fact is no more than a mere scintilla,
possible causes of disease with reasonable cer-            or (4) evidence conclusively establishes the oppos-
tainty; and (3) evidence was legally insufficient to       ite of the vital fact.
establish that child's defect was caused by exposure
                                                           [3] Appeal and Error 30         1001(3)
to drug..
                                                           30 Appeal and Error
    Court of Appeals reversed, and judgment
                                                              30XVI Review
rendered for defendant.
                                                                    30XVI(I) Questions of Fact, Verdicts, and
    Gonzalez, J., concurred and filed opinion.             Findings
                                                                     30XVI(I)2 Verdicts
    Spector, J., concurred and filed opinion.                            30k1001 Sufficiency of Evidence in




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953 S.W.2d 706, Prod.Liab.Rep. (CCH) P 15,015, 40 Tex. Sup. Ct. J. 846
(Cite as: 953 S.W.2d 706)




Support                                                    157 Evidence
                      30k1001(3) k. Total failure of          157XII Opinion Evidence
proof. Most Cited Cases                                          157XII(C) Competency of Experts
     “More than a scintilla” of evidence exists to                    157k546 k. Determination of question of
support jury finding, and no evidence point of error       competency. Most Cited Cases
will be denied, when evidence supporting finding,              While rule governing admission of expert testi-
as a whole, rises to level that would enable reason-       mony deals with admissibility of evidence, it offers
able and fair-minded people to differ in their con-        substantive guidelines in determining if expert testi-
clusions.                                                  mony is some evidence of probative value. Rules of
                                                           Civ.Evid., Rule 702.
[4] Appeal and Error 30        842(7)
                                                           [7] Evidence 157       555.2
30 Appeal and Error
   30XVI Review                                            157 Evidence
        30XVI(A) Scope, Standards, and Extent, in              157XII Opinion Evidence
General                                                           157XII(D) Examination of Experts
         30k838 Questions Considered                                 157k555 Basis of Opinion
            30k842 Review Dependent on Whether                                157k555.2 k. Necessity and suffi-
Questions Are of Law or of Fact                            ciency. Most Cited Cases
                 30k842(7) k. Review of evidence.               Factors that should be considered in looking
Most Cited Cases                                           beyond bare opinion of expert witness to determin-
                                                           ing whether expert's scientific testimony is of some
Evidence 157       570                                     probative value include (1) extent to which theory
                                                           has been or can be tested, (2) extent to which tech-
157 Evidence
                                                           nique relies upon subjective interpretation of ex-
   157XII Opinion Evidence
                                                           pert, (3) whether theory has been subjected to peer
      157XII(F) Effect of Opinion Evidence
                                                           review and publication, (4) technique's potential
          157k569 Testimony of Experts
                                                           rate of error, (5) whether underlying theory or tech-
                 157k570 k. In general. Most Cited
                                                           nique has been generally accepted as valid by relev-
Cases
                                                           ant scientific community, and (6) nonjudicial uses
    Expert's bare opinion testimony will not suffice
                                                           that have been made of theory or technique. Rules
to support factual finding, and substance of testi-
                                                           of Civ.Evid., Rule 702.
mony must be considered in reviewing legal suffi-
ciency of evidence.                                        [8] Evidence 157       555.2

[5] Evidence 157      546                                  157 Evidence
                                                              157XII Opinion Evidence
157 Evidence
                                                                  157XII(D) Examination of Experts
   157XII Opinion Evidence
                                                                      157k555 Basis of Opinion
      157XII(C) Competency of Experts
                                                                             157k555.2 k. Necessity and suffi-
           157k546 k. Determination of question of
                                                           ciency. Most Cited Cases
competency. Most Cited Cases
                                                                If foundational data underlying scientific opin-
    Testimony of expert is generally opinion testi-
                                                           ion testimony are unreliable, expert will not be per-
mony, and whether such testimony rises to level of
                                                           mitted to base opinion on that data, because any
evidence is determined under Rules of Evidence.
                                                           opinion drawn from that data is likewise unreliable.
[6] Evidence 157      546                                  Rules of Civ.Evid., Rule 702.




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953 S.W.2d 706, Prod.Liab.Rep. (CCH) P 15,015, 40 Tex. Sup. Ct. J. 846
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[9] Evidence 157       555.2                               Products Liability 313A        147

157 Evidence                                               313A Products Liability
   157XII Opinion Evidence                                    313AII Elements and Concepts
      157XII(D) Examination of Experts                           313Ak146 Proximate Cause
         157k555 Basis of Opinion                                   313Ak147 k. In general. Most Cited Cases
                 157k555.2 k. Necessity and suffi-            (Formerly 313Ak15)
ciency. Most Cited Cases
    Expert's scientific testimony is unreliable, even      Products Liability 313A        409
when underlying data are sound, if expert draws
                                                           313A Products Liability
conclusions from that data based on flawed meth-
                                                               313AIV Actions
odology. Rules of Civ.Evid., Rule 702.
                                                                  313AIV(D) Questions of Law or Fact
[10] Evidence 157       555.2                                        313Ak408 Proximate Cause
                                                                            313Ak409 k. In general. Most Cited
157 Evidence                                               Cases
    157XII Opinion Evidence                                    (Formerly 313Ak87.1)
       157XII(D) Examination of Experts                         Epidemiological studies indicating that expos-
          157k555 Basis of Opinion                         ure to a substance more than doubled risk of injury
                  157k555.2 k. Necessity and suffi-        may be part of evidence supporting causation in
ciency. Most Cited Cases                                   toxic tort case; however, other factors must be con-
     Flaw in expert witness' reasoning from data           sidered, and to raise fact issue on causation, and
may render reliance on scientific study unreason-          thus to survive legal sufficiency review, plaintiff
able, and render the inferences drawn therefrom du-        must show that he or she is similar to those in stud-
bious; under that circumstance, expert's scientific        ies, including proof of exposure to same substance,
testimony is unreliable and, legally, no evidence.         that exposure or dose levels were comparable to or
Rules of Civ.Evid., Rule 702.                              greater than those in studies, that exposure occurred
                                                           before injury, and that timing of onset of injury was
[11] Evidence 157       150                                consistent with that experienced by those in study,
                                                           and also must offer evidence excluding other pos-
157 Evidence
                                                           sible causes of disease with reasonable certainty.
    157IV Admissibility in General
       157IV(E) Competency                                 [13] Products Liability 313A         225
           157k150 k. Results of experiments. Most
Cited Cases                                                313A Products Liability
     Properly designed and executed epidemiologic-             313AIII Particular Products
al studies may be part of evidence supporting find-               313Ak223 Health Care and Medical Products
ing of causation in toxic tort case.                                     313Ak225 k. Drugs in general. Most
                                                           Cited Cases
[12] Evidence 157       150                                     (Formerly 313Ak83, 138k21 Drugs and Narcot-
                                                           ics)
157 Evidence
   157IV Admissibility in General                          Products Liability 313A        390
      157IV(E) Competency
          157k150 k. Results of experiments. Most          313A Products Liability
Cited Cases                                                   313AIV Actions
                                                                 313AIV(C) Evidence




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            313AIV(C)4 Weight and Sufficiency of            Products Liability 313A            390
Evidence
             313Ak389 Proximate Cause                       313A Products Liability
                313Ak390 k. In general. Most Cited             313AIV Actions
Cases                                                              313AIV(C) Evidence
     (Formerly 313Ak83, 138k21 Drugs and Narcot-                         313AIV(C)4 Weight and Sufficiency of
ics)                                                        Evidence
      Evidence was legally insufficient to establish                      313Ak389 Proximate Cause
that child's limb reduction birth defect was caused                          313Ak390 k. In general. Most Cited
by mother's in vitro ingestion of morning sickness          Cases
drug (Bendectin); isolated epidemiological study               (Formerly 313Ak82.1)
finding statistically significant association between            Particularly where direct experimentation has
exposure to drug and limb reduction defect was not          not been conducted, it is important that any conclu-
scientifically reliable, in vivo and in vitro animal        sions about causation in toxic tort case be reached
studies could not support conclusion of causation in        only after association is observed in epidemiologic-
humans, and testimony of physician that drug had            al studies among different groups and association
caused defect, which was based in part on testi-            continues to hold when effects of other variables
mony of other experts, was opinion rather than sci-         are taken into account.
ence.
                                                            [16] Evidence 157         596(1)
[14] Evidence 157         555.2
                                                            157 Evidence
157 Evidence                                                   157XIV Weight and Sufficiency
    157XII Opinion Evidence                                       157k596 Degree of Proof in General
       157XII(D) Examination of Experts                                 157k596(1) k. In general. Most Cited
           157k555 Basis of Opinion                         Cases
                   157k555.2 k. Necessity and suffi-
                                                            Products Liability 313A            381
ciency. Most Cited Cases
     Publication and other peer review is significant       313A Products Liability
indicia of reliability of scientific evidence when ex-         313AIV Actions
pert's testimony is in area in which peer review or                313AIV(C) Evidence
publication would not be uncommon, and while                             313AIV(C)4 Weight and Sufficiency of
publication is not prerequisite for scientific reliabil-    Evidence
ity in every case, courts must be especially skeptic-                          313Ak381 k. Standard of proof, in
al of scientific evidence that has not been published       general. Most Cited Cases
or subjected to peer review. Rules of Civ.Evid.,               (Formerly 313Ak82.1)
Rule 702.                                                        Legal system requires that claimants prove
                                                            their cases by a preponderance of the evidence, and
[15] Evidence 157         150
                                                            in keeping with that proposition, law should not be
157 Evidence                                                hasty to impose liability in toxic tort cases when
   157IV Admissibility in General                           scientifically reliable evidence is unavailable.
      157IV(E) Competency
                                                            [17] Products Liability 313A             390
          157k150 k. Results of experiments. Most
Cited Cases                                                 313A Products Liability
                                                               313AIV Actions




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       313AIV(C) Evidence                                  the British Commonwealth, Ireland, and Australia
            313AIV(C)4 Weight and Sufficiency of           and Lenotan in West Germany. The Bendectin Mar-
Evidence                                                   ilyn Havner ingested had two components:
             313Ak389 Proximate Cause                      doxylamine succinate, which is an antihistamine,
                313Ak390 k. In general. Most Cited         and pyridoxine hydrochloride, which is vitamin
Cases                                                      B–6. Prior to 1977, Bendectin had contained a third
    (Formerly 313Ak82.1)                                   component, dicylomine hydrochloride, which is an
     Testimony to the effect that substance “could”        anticholergenic. Approximately thirty million wo-
or “can” cause disease or disorder is not evidence         men took Bendectin in either the two- or three-
that in reasonable probability it does, as is required     ingredient form.
to support recovery in toxic tort case.
                                                                More than twenty years ago, questions were
*708 John L. Hill, Austin, Russell W. Miller, Dal-         raised about Bendectin and its possible association
las, James E. Essig, Kamela Bridges, Houston,              with birth defects. The FDA investigated the con-
Robert L. Dickson, Hall R. Marston, George E.              cerns, but failed to conclude that Bendectin in-
Berry, Santa Monica, CA, Gene M. Williams,                 creased the risk of birth defects. More than thirty
Beaumont, Rob L. Wiley, Steven Goode, Austin,              studies on Bendectin and birth defects have been
for Petitioner.                                            conducted and published in peer-reviewed scientific
                                                           and medical journals since questions were first
Guy H. Allison, Kevin W. Grillo, Corpus Christi,           raised. None of these studies concludes that chil-
Barry J. Nace, Washington, DC, Roberrt C. Hilliard         dren of women who took Bendectin during preg-
, Corpus Christi, Rebecca E. Hamilton, Rockwall,           nancy had an increased risk of limb reduction birth
John T. Flood, Corpus Christi, for Respondents.            defects. Some of these studies affirmatively con-
                                                           clude that there is no association between
OWEN, Justice, delivered the opinion of the Court          Bendectin and birth defects and that Bendectin is a
in which PHILLIPS, Chief Justice, and GONZA-               safe drug. Although FDA approval of Bendectin
LEZ, HECHT, CORNYN, ENOCH and ABBOTT,                      has never been revoked, Merrell Dow withdrew the
Justices, join.                                            drug from the market in 1983, a little over a year
     The issue in this case is whether there is any        after Kelly Havner was born.
evidence that the drug Bendectin caused Kelly
                                                                The Havners' suit is based on theories of negli-
Havner to be born with a birth defect. We hold that
                                                           gence, defective design, and defective marketing. It
the evidence offered is legally insufficient to estab-
                                                           is one of thousands brought against Merrell Dow
lish causation. Accordingly, we reverse the judg-
                                                           and its predecessors for the manufacture and distri-
ment of the court of appeals. 907 S.W.2d 535.
                                                           bution of Bendectin. In virtually all the Bendectin
                          I                                litigation, the central issue has been the scientific
     Kelly Havner was born with a limb reduction           reliability of the expert testimony offered to estab-
birth defect. The fingers on her right hand were not       lish causation. Merrell Dow challenged the Havn-
formed. Kelly's mother had taken the prescription          ers' causation evidence at several junctures in these
drug Bendectin in 1981 during her pregnancy to re-         proceedings. It filed a motion for summary judg-
lieve nausea and other symptoms associated with            ment, contending that there is no scientifically reli-
morning sickness. Bendectin was formulated by              able evidence that Bendectin causes limb reduction
Merrell Dow and its predecessors and marketed in           birth defects or that it caused Kelly Havner's birth
the United States from 1957 to 1983. It was sold in        defect. Before denying the motion, the trial court
other countries as well, but was called Debendox in        held a hearing at which the scientific*709 reliabil-




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ity of the Havners' summary judgment evidence               rehearing en banc, a divided court disagreed. It af-
was extensively aired.                                      firmed the trial court's award of actual damages, but
                                                            reversed and rendered the award of punitive dam-
     Just before trial, the scientific reliability of the   ages. Id. at 564. We granted Merrell Dow's applica-
Havners' evidence was again raised by Merrell Dow           tion for writ of error.
in motions in limine that sought to exclude the
testimony of certain of the Havners' experts and                 Merrell Dow challenges the legal sufficiency of
other causation evidence. One of these motions re-          the Havners' causation evidence and the admissibil-
quested that testimony about causation be excluded          ity of some of that evidence and further contends
until a prima facie case had been established that          that its due process rights under the United States
there was a statistically significant elevated risk         Constitution and its due course rights under the
that a child would be born with limb reduction birth        Texas Constitution were denied. Because of our
defects if the child's mother ingested Bendectin.           disposition of this case, we reach only the no evid-
Another motion sought to preclude the Havners'              ence point of error.
witnesses from relying on in vitro and in vivo anim-
al studies. Other motions sought to exclude entirely                                 II
the testimony of three of the Havners' causation                 All the expert witnesses on causation have ap-
witnesses. The issues were fully briefed, and after a       peared in other cases in which Bendectin was
lengthy hearing, the trial court denied each of the         claimed to have caused limb reduction birth de-
motions.                                                    fects. The Sixth Circuit commented that the
                                                            Bendectin suits are “variations on a theme, some-
     A bifurcated jury trial ensued. In the liability       what like an orchestra which travels to different
phase, the Havners called five experts on the causa-        music halls, substituting musicians from time to
tion question. Merrell Dow objected to the admis-           time but playing essentially the same repertoire.”
sion of some, but not all, of this evidence. Merrell        Turpin v. Merrell Dow Pharms., Inc., 959 F.2d
Dow also unsuccessfully moved for a directed ver-           1349, 1351 (6th Cir.1992).
dict on the issue of causation at the close of the
Havners' evidence. As can be seen from the record,               The federal courts have dealt extensively with
the question of scientific reliability was raised re-       Bendectin litigation. To date, no plaintiff has ulti-
peatedly.                                                   mately prevailed in federal court. The evidence in
                                                            those cases has been similar to that offered by the
     At the conclusion of the liability phase, the jury     Havners. The federal decisions have discussed the
found in favor of the Havners and awarded $3.75             substance of the evidence in detail, and often the
million. In the punitive damages stage, the jury            testimony under scrutiny included that of Drs.
awarded $30 million, but that amount was reduced            Palmer, Newman, Glasser, Gross, and Swan, the
by the trial court to $15 million pursuant to former        Havners' witnesses. These decisions are not binding
TEX. CIV. PRAC. & REM.CODE § 41.007. Mer-                   on our Court, but they do provide extensive consid-
rell Dow appealed.                                          eration of the scientific reliability of the causation
                                                            evidence.
     The panel of the court of appeals that originally
heard the case reversed and rendered judgment that              Some federal courts have concluded that the
the Havners take nothing, holding that the evidence         expert evidence of causation is legally insufficient.
of causation was legally insufficient. 907 S.W.2d at        See Elkins v. Richardson–Merrell, Inc., 8 F.3d 1068
548. The panel concluded that “[t]he Havners have           (6th Cir.1993); Turpin, 959 F.2d 1349; Brock v.
failed to bring forward anything more than suspi-           Merrell Dow Pharms., Inc., 874 F.2d 307 (5th Cir.),
cion on the essential element of causation.” Id. On         modified on reh'g, 884 F.2d 166 (5th Cir.1989);




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Richardson v. Richardson–Merrell, Inc., 857 F.2d           732 F.Supp. 744 (E.D.Mich.1990); Hagen v.
823 (D.C.Cir.1988); LeBlanc v. Merrell Dow                 Richardson–Merrell, Inc., 697 F.Supp. 334
Pharms., Inc., 932 F.Supp. 782 (E.D.La.1996); Hull         (N.D.Ill.1988); see also Lanzilotti v. Merrell Dow
v. Merrell Dow Pharms., Inc., 700 F.Supp. 28               Pharms., Inc., No. 82–0183, 1986 WL 7832
(S.D.Fla.1988); Monahan v. Merrell–National                (E.D.Pa. July 10, 1986) (denying motion for direc-
Labs., No. 83–3108–WD, 1987 WL 90269                       ted verdict).
(D.Mass. Dec.18, 1987).
                                                               Decisions in which Merrell Dow obtained a
     *710 Other federal courts have found the ex-          jury verdict in its favor include Wilson v. Merrell
pert evidence to be inadmissible. See Raynor v.            Dow Pharmaceuticals, Inc., 893 F.2d 1149 (10th
Merrell Pharms., Inc., 104 F.3d 1371                       Cir.1990), and In re Bendectin Litigation, 857 F.2d
(D.C.Cir.1997); Daubert v. Merrell Dow Pharms.,            290 (6th Cir.1988).
Inc., 43 F.3d 1311 (9th Cir.) (on remand), cert.
denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d                However, a state trial court recently entered
126 (1995); Ealy v. Richardson–Merrell, Inc., 897          judgment on a jury verdict against Merrell Dow
F.2d 1159 (D.C.Cir.1990); Lynch v. Mer-                    that included a finding of fraud. In a written opin-
rell–National Labs., 830 F.2d 1190 (1st Cir.1987);         ion, the court was highly critical of the evidence
DeLuca v. Merrell Dow Pharms., Inc., 791 F.Supp.           offered by Merrell Dow, concluding that there was
1042 (D.N.J.1992), aff'd, 6 F.3d 778 (3d Cir.1993);        ample evidence Merrell Dow had made misrepres-
Lee v. Richardson–Merrell, Inc., 772 F.Supp. 1027          entations to the FDA, including misrepresentations
(W.D.Tenn.1991), aff'd, 961 F.2d 1577 (6th                 about its animal studies on Bendectin. Blum v. Mer-
Cir.1992); Cadarian v. Merrell Dow Pharms., Inc.,          rell Dow Pharm., Inc., No. 1027 (Pa.Ct.C.P. Dec.
745 F.Supp. 409 (E.D.Mich.1989); Ambrosini v.              13, 1996) (appeal pending).
Richardson–Merrell, Inc., No. 86–278, 1989 WL
                                                               At least one state court has granted summary
298429 (D.D.C. June 30, 1989), aff'd, 946 F.2d
                                                           disposition for Merrell Dow on the basis that the
1563 (D.C.Cir.1991); Will v. Richardson–Merrell,
                                                           expert testimony of Drs. Newman, Palmer, and
Inc., 647 F.Supp. 544 (S.D.Ga.1986).
                                                           Swan was inadmissible. DePyper v. Navarro, No.
     One federal circuit court initially found the ex-     83–303467–NM, 1995 WL 788828 (Mich.Cir.Ct.
pert testimony admissible and reversed a summary           Nov.27, 1995) (holding plaintiffs' experts' testi-
judgment for Merrell Dow. DeLuca v. Merrell Dow            mony inadmissible under the Davis/Frye rule and
Pharms., Inc., 911 F.2d 941, 952–59 (3d Cir.1990).         rendering judgment for Merrell Dow).
However, on remand the trial court once again
                                                                The only appellate decision we have found,
found the evidence inadmissible and, after entering
                                                           state or federal, that has upheld a verdict in favor of
extensive findings of fact and conclusions of law,
                                                           a plaintiff in a Bendectin case is from the court of
granted summary judgment for Merrell Dow. The
                                                           appeals for the District of Columbia in Oxendine v.
Third Circuit affirmed that judgment with an un-
                                                           Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100
published opinion. DeLuca v. Merrell Dow
                                                           (D.C.1986) (reversing judgment notwithstanding
Pharms., Inc., 791 F.Supp. 1042 (D.N.J.1992),
                                                           the verdict and remanding for reinstatement of
aff'd, 6 F.3d 778 (3d Cir.1993).
                                                           compensatory damages and determination of punit-
    A few federal district courts have denied sum-         ive damages). However, the subsequent history of
mary judgment for Merrell Dow on the basis that            that case is somewhat extraordinary. Upon remand
the evidence raised a fact question. Longmore v.           to the trial court, instead of following the court of
Merrell Dow Pharms., Inc., 737 F.Supp. 1117                appeals' directive, the trial court granted Merrell
(D.Idaho 1990); In re Bendectin Prods. Liab. Litig.,       Dow's motion for new trial and vacated the judg-




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ment. Another appeal ensued, and the case was re-          Dow. Cf. United Blood Servs. v. Longoria, 938
manded with instructions that a judgment be                S.W.2d 29, 30–31 (Tex.1997); Broders v. Heise,
entered on the verdict. Oxendine v. Merrell Dow            924 S.W.2d 148, 151–54 (Tex.1996). Indeed, the
Pharmaceuticals, Inc., 563 A.2d 330, 331, 338              Havners' causation witnesses, including Dr. Palmer,
(D.C.1989). Judgment was entered. Yet another ap-          testified in a case that reached the United States Su-
peal was taken, but the appeal was dismissed for           preme Court, and that Court deemed their creden-
lack of finality because the question of punitive          tials “impressive.” Daubert v. Merrell Dow
damages remained to be tried. Merrell Dow                  Pharms., Inc., 509 U.S. 579, 583 & n. 2, 113 S.Ct.
Pharms., Inc. v. Oxendine, 593 A.2d 1023                   2786, 2792 & n. 2, 125 L.Ed.2d 469 (1993). The is-
(D.C.1991). Following remand, judgment was                 sue before us, as in most of the previously cited
entered, but Merrell Dow sought relief from the            Bendectin cases, is whether the Havners' evidence
judgment in light of post-trial developments includ-       is scientifically reliable and thus some evidence to
ing epidemiological studies that were not com-             support the judgment in their favor.
pleted at the time of trial. Merrell Dow also relied
on appellate decisions decided on the heels of the              [1][2][3] In determining whether there is no
first appellate*711 decision in Oxendine that had          evidence of probative force to support a jury's find-
concluded that there was no scientifically reliable        ing, all the record evidence must be considered in
evidence of causation in the Bendectin cases. The          the light most favorable to the party in whose favor
trial court declined to set aside the judgment. Mer-       the verdict has been rendered, and every reasonable
rell Dow Pharms., Inc. v. Oxendine, 649 A.2d 825,          inference deducible from the evidence is to be in-
827 (D.C.1994). The fourth appeal ensued, and the          dulged in that party's favor. Harbin v. Seale, 461
appellate court remanded the case to the trial court       S.W.2d 591, 592 (Tex.1970). A no evidence point
for a determination of whether Merrell Dow could           will be sustained when (a) there is a complete ab-
demonstrate “that the newly discovered evidence            sence of evidence of a vital fact, (b) the court is
‘would probably produce a different verdict if a           barred by rules of law or of evidence from giving
new trial were granted.’ ” Id. at 832. On remand,          weight to the only evidence offered to prove a vital
the trial court extensively reviewed the evidence,         fact, (c) the evidence offered to prove a vital fact is
including the testimony or affidavits of Drs. New-         no more than a mere scintilla, or (d) the evidence
man, Swan, Palmer, Gross, and Glasser, and gran-           conclusively establishes the opposite of the vital
ted relief from the verdict, rendering judgment for        fact. Robert W. Calvert, “ No Evidence” and
Merrell Dow. Oxendine v. Merrell Dow Pharms.,              “Insufficient Evidence” Points of Error, 38 TEX.
Inc.,    No.     82–1245,     1996     WL    680992        L.REV. 361, 362–63 (1960). More than a scintilla
(D.C.Super.Ct. Oct. 24, 1996) (appeal pending).            of evidence exists when the evidence supporting the
                                                           finding, as a whole, “ ‘rises to a level that would
     Thus, we are not the first court to wrestle with      enable reasonable and fair-minded people to differ
the issues presented by the Bendectin litigation.          in their conclusions.’ ” Burroughs Wellcome Co. v.
                                                           Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting
                        III                                Transportation Ins. Co. v. Moriel, 879 S.W.2d 10,
    As in most of the Bendectin cases, the central         25 (Tex.1994)).
issue before us is not whether the plaintiffs' wit-
nesses possessed adequate credentials, skills, or ex-          [4] Several of the Havners' experts testified that
perience to testify about causation. The only wit-         Bendectin can cause limb reduction birth defects.
ness whose qualifications have been challenged is          Dr. Palmer testified that, to a reasonable degree of
Dr. Palmer, whose experience in identifying the            medical certainty, Kelly Havner's birth defect was
cause of birth defects is questioned by Merrell            caused by the Bendectin her mother ingested during




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pregnancy. We have held, however, that an expert's         Pharms., Inc., 959 F.2d 1349, 1360 (6th Cir.1992)
bare opinion will not suffice. See Burroughs               (holding evidence legally insufficient in Bendectin
Wellcome, 907 S.W.2d at 499–500; Schaefer v.               case when no understandable scientific basis was
Texas Employers' Ins. Ass'n, 612 S.W.2d 199,               stated).
202–04 (Tex.1980). The substance of the testimony
must be considered. Burroughs Wellcome, 907                     It could be argued that looking beyond the
S.W.2d at 499–500; Schaefer, 612 S.W.2d at 202.            testimony to determine the reliability of scientific
                                                           evidence is incompatible with our no evidence
     In Schaefer, a workers' compensation case, the        standard of review. If a reviewing court is to con-
plaintiff suffered from atypical tuberculosis, some        sider the evidence in the light most favorable to the
strains of which were carried by fowl. An expert           verdict, the argument runs, a court should not look
testified that based on reasonable medical probabil-       beyond the expert's testimony to determine if it is
ity, the plaintiff's disease resulted from his employ-     reliable. But such an argument is too simplistic. It
ment as a plumber in which he was exposed to soil          reduces the no evidence standard of review to a
contaminated with the feces of birds. Schaefer, 612        meaningless exercise of looking to see only what
S.W.2d at 202. Nevertheless, this Court looked at          words appear in the transcript of the testimony, not
the testimony in its entirety, noting that to accept       whether there is in fact some evidence. We have re-
the expert's opinion as some evidence “simply be-          jected such an approach. See Schaefer, 612 S.W.2d
cause he used the magic words” would effectively           at 205; see also Burroughs Wellcome, 907 S.W.2d
remove the *712 jurisdiction of the appellate courts       at 499–500.
to determine the legal sufficiency of the evidence in
any case requiring expert testimony. Id. at 202–05.             [5][6] Justice Gonzalez, in writing for the
After considering the record in Schaefer, this Court       Court, gave rather colorful examples of unreliable
held that there was no evidence of causation be-           scientific evidence in E.I. du Pont de Nemours &
cause despite the “magic language” used, the expert        Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995),
testimony was not based on reasonable medical              when he said that even an expert with a degree
probability but instead relied on possibility, specu-      should not be able to testify that the world is flat,
lation, and surmise. Id. at 204–05.                        that the moon is made of green cheese, or that the
                                                           Earth is the center of the solar system. If for some
     Other courts have likewise recognized that it is      reason such testimony were admitted in a trial
not so simply because “an expert says it is so.” Vi-       without objection, would a reviewing court be ob-
terbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th             liged to accept it as some evidence? The answer is
Cir.1987). When the expert “br[ings] to court little       no. In concluding that this testimony is scientific-
more than his credentials and a subjective opinion,”       ally unreliable and therefore no evidence, however,
this is not evidence that would support a judgment.        a court necessarily looks beyond what the expert
Id. at 421–22. The Fifth Circuit in Viterbo affirmed       said. Reliability is determined by looking at numer-
a summary judgment and the exclusion of expert             ous factors including those set forth in Robinson
testimony that was unreliable, holding that “[i]f an       and Daubert. The testimony of an expert is gener-
opinion is fundamentally unsupported, then it offers       ally opinion testimony. Whether it rises to the level
no expert assistance to the jury.” Id. at 422; see         of evidence is determined under our rules of evid-
also Rosen v. Ciba–Geigy Corp., 78 F.3d 316, 319           ence, including Rule 702, which requires courts to
(7th Cir.) (“[A]n expert who supplies nothing but a        determine if the opinion testimony will assist the
                                                                                          FN1
bottom line supplies nothing of value to the judicial      jury in deciding a fact issue.       While Rule 702
process.”), cert. denied, 519 U.S. 819, 117 S.Ct. 73,      deals with the admissibility of evidence, it offers
136 L.Ed.2d 33 (1996); Turpin v. Merrell Dow               substantive guidelines in determining if the expert




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testimony is some evidence of probative value.             pert's averment that his or her testimony is based on
                                                           the type of data on which experts reasonably rely is
         FN1. Rule 702 provides:                           generally enough to survive a Federal Rule of Evid-
                                                           ence 703 inquiry. In re Paoli, 35 F.3d at 747–48.
           If scientific, technical, or other special-
                                                           The Third Circuit was persuaded by Judge Wein-
           ized knowledge will assist the trier of
                                                           stein's opinion in In re Agent Orange: “ ‘If the un-
           fact to understand the evidence or to de-
                                                           derlying data are so lacking in probative force and
           termine a fact in issue, a witness quali-
                                                           reliability that no reasonable expert could base an
           fied as an expert by knowledge, skill, ex-
                                                           opinion on them, an opinion which rests entirely
           perience, training, or education, may
                                                           upon them must be excluded.’ ” Id. at 748 (quoting
           testify in the form of an opinion or oth-
                                                           In re Agent Orange, 611 F.Supp. at 1245). If the
           erwise.
                                                           expert's scientific testimony is not reliable, it is not
           TEX.R. CIV. EVID. 702.                          evidence. The threshold determination of reliability
                                                           does not run afoul of our no evidence standard of
     Similarly, to say that the expert's testimony is      review.
some evidence under our standard of review simply
because the expert testified that the underlying                Indeed, the United States Supreme Court would
technique or methodology supporting his or her             agree that a determination of scientific reliability is
opinion is generally accepted by the scientific com-       appropriate in reviewing the legal sufficiency of
munity is putting the cart before the horse. As we         evidence. While admissibility rather than suffi-
said in Robinson, an expert's bald assurance of            ciency was the focus of the Supreme Court's de-
validity is not enough. 923 S.W.2d at 559 (quoting         cision in Daubert, that Court explained that when
Daubert v. Merrell Dow Pharms., Inc., 43 F.3d              “wholesale exclusion” is inappropriate and the
1311, 1316 (9th Cir.) (on remand) (holding that ex-        evidence is admitted, a review of its sufficiency is
pert's assertion of validity is not enough; there must     not foreclosed:
be objective, independent validation of the expert's
                                                             [I]n the event the trial court concludes that the
methodology), cert. denied, 516 U.S. 869, 116 S.Ct.
                                                             scintilla of evidence presented supporting a posi-
189, 133 L.Ed.2d 126 (1995)).
                                                             tion is insufficient to allow a reasonable juror to
     *713 The view that courts should not look bey-          conclude that the position more likely than not is
ond an averment by the expert that the data under-           true, the court remains free to direct a judgment
lying his or her opinion are the type of data on             ... and likewise to grant summary judgment.
which experts reasonably rely has likewise been re-
                                                               509 U.S. at 595, 113 S.Ct. at 2798.
jected by other courts. The underlying data should
be independently evaluated in determining if the                The Court cited two Bendectin decisions in
opinion itself is reliable. See, e.g., In re Paoli R.R.    support of this statement, Turpin, 959 F.2d 1349,
Yard PCB Litig., 35 F.3d 717, 747–48 (3d                   and Brock v. Merrell Dow Pharmaceuticals, Inc.,
Cir.1994); Richardson v. Richardson–Merrell, Inc.,         874 F.2d 307 (5th Cir.), modified on reh'g, 884
857 F.2d 823, 829 (D.C.Cir.1988); In re Agent Or-          F.2d 166 (5th Cir.1989). In Turpin, the Sixth Cir-
ange Liab. Litig., 611 F.Supp. 1223, 1245                  cuit held that the scientific evidence, viewed in the
(E.D.N.Y.1985), aff'd, 818 F.2d 187 (2d Cir.1987).         light most favorable to the plaintiffs, was not suffi-
In the wake of the Supreme Court's decision in             cient to allow a jury to find that it was more prob-
Daubert, the Third Circuit overruled its prior hold-       able than not that the defendant caused the injury.
ing in DeLuca v. Merrell Dow Pharmaceuticals,              Turpin, 959 F.2d at 1350. In Brock, the Fifth Cir-
Inc., 911 F.2d 941, 952 (3d Cir.1990), that an ex-         cuit reversed a judgment entered on a jury verdict




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because the evidence of causation was legally in-           evidence of causation in asbestos case legally suffi-
sufficient. Brock, 874 F.2d at 315; see also Raynor         cient and reversing trial court's judgment notwith-
v. Merrell Pharms. Inc., 104 F.3d 1371, 1376                standing the verdict); Gruca v. Alpha Therapeutic
(D.C.Cir.1997) (affirming judgment notwithstand-            Corp., 51 F.3d 638, 643 (7th Cir.1995) (holding
ing the verdict and noting that even if expert testi-       that trial court abdicated its responsibility by refus-
mony were admissible under Daubert, it was                  ing to rule on admissibility and by instructing a ver-
“unlikely” that a jury could reasonably find it suffi-      dict for the defendant in a blood bank case; assum-
cient to show causation).                                   ing admissibility of the evidence, it would be leg-
                                                            ally sufficient). But see Joiner v. General Elec. Co.,
     As already discussed, a number of other de-            78 F.3d 524, 534 (11th Cir.1996) (Birch, J., concur-
cisions in the Bendectin litigation have held that the      ring) (stating that the sufficiency and weight of
causation evidence was legally insufficient, some-          evidence are beyond the scope of a Daubert analys-
times setting aside a jury verdict and in other cases       is), cert. granted, 520 U.S. 1114, 117 S.Ct. 1243,
granting summary judgment or a directed verdict.            137 L.Ed.2d 325 (1997).
See supra at 709. The decision in Richard-
son–Merrell said in no uncertain terms that the trial           [7] In Robinson, we set forth some of the
court did not err in granting judgment notwithstand-        factors that courts should consider in looking bey-
ing the verdict because “[w]hether an expert's opin-        ond the bare opinion of the expert. Those factors in-
ion has an adequate basis” is an issue “falling with-       clude:
in the province of the court.” 857 F.2d at 833.
                                                              (1) the extent to which the theory has been or can
     There are many decisions outside the                     be tested;
Bendectin litigation that have examined the reliabil-
ity of scientific evidence in a review of the legal           (2) the extent to which the technique relies upon
sufficiency of the evidence. See, e.g., Conde v.              the subjective interpretation of the expert;
Velsicol Chem. Corp., 24 F.3d 809, 813 (6th
                                                              (3) whether the theory has been subjected to peer
Cir.1994) (stating that even if evidence is admiss-
                                                              review and publication;
ible under Daubert, it can still be legally insuffi-
cient    to    withstand     summary        judgment);        (4) the technique's potential rate of error;
Wade–Greaux v. Whitehall Labs., Inc., 874 F.Supp.
1441, 1485–86 (D.Vi.) (granting summary judg-                 (5) whether the underlying theory or technique
ment in toxic tort case when evidence of causation            has been generally accepted as valid by the relev-
was insufficient to sustain a jury verdict), aff'd, 46        ant scientific community; and
F.3d 1120 (3d Cir.1994); see also *714Vadala v.
Teledyne Indus., Inc., 44 F.3d 36, 39 (1st Cir.1995)          (6) the non-judicial uses that have been made of
(noting that even if expert testimony about cause of          the theory or technique.
plane crash were admitted, it would not be suffi-
                                                                See Robinson, 923 S.W.2d at 557. The issue in
cient to permit a jury to find in plaintiffs' favor); In
                                                            Robinson was admissibility of evidence, but as we
re Paoli, 35 F.3d at 750 n. 21 (“[I]f the scintilla of
                                                            have explained the same factors may be applied in a
evidence presented is insufficient to allow a reason-
                                                            no evidence review of scientific evidence.
able juror to conclude that the position more likely
than not is true, the court remains free to direct a            [8][9][10] If the foundational data underlying
judgment ... [or] to grant summary judgment.”); cf.         opinion testimony are unreliable, an expert will not
In re Joint Eastern & Southern Dist. Asbestos Lit-          be permitted to base an opinion on that data be-
ig., 52 F.3d 1124, 1131–37 (2d Cir.1995) (finding           cause any opinion drawn from that data is likewise




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unreliable. Further, an expert's testimony is unreli-      or condition, and there will be objective criteria by
able even when the underlying data are sound if the        which it can be determined with reasonable cer-
expert draws conclusions from that data based on           tainty that a particular individual's injury was
flawed methodology. A flaw in the expert's reason-         caused by exposure to a given substance. However,
ing from the data may render reliance on a study           in many toxic tort cases, direct experimentation
unreasonable and render the inferences drawn               cannot be done, and there will be no reliable evid-
therefrom dubious. Under that circumstance, the            ence of specific causation.
expert's scientific testimony is unreliable and, leg-
ally, no evidence.                                              In the absence of direct, scientifically reliable
                                                           proof of causation, claimants may attempt to
    We next consider some of the difficult issues          demonstrate that exposure to the substance at issue
surrounding proof of causation in a toxic tort case        increases the risk of their particular injury. The
such as this.                                              finder of fact is asked to infer that because the risk
                                                           is demonstrably greater in the general population
                           IV                              due to exposure to the substance, the claimant's in-
     The Havners do not contend that all limb re-          jury was more likely than not caused by that sub-
duction birth defects are caused by Bendectin or           stance. Such a theory concedes that science cannot
that Bendectin always causes limb reduction birth          tell us what caused a particular plaintiff's injury. It
defects even when taken at the critical time of limb       is based on a policy determination that when the in-
development. Experts for the Havners and Merrell           cidence of a disease or injury is sufficiently elev-
Dow agreed that some limb reduction defects are            ated due to exposure to a substance, someone who
genetic. These experts also agreed that the cause of       was exposed to that substance and exhibits the dis-
a large percentage of limb reduction birth defects is      ease or injury can raise a fact question on causation.
unknown. Given these undisputed facts, what must           See generally Daubert v. Merrell Dow Pharms.,
a plaintiff establish to raise a fact issue on whether     Inc., 43 F.3d 1311, 1320 n. 13 (9th Cir.) (on re-
Bendectin caused an individual's birth defect? The         mand), cert. denied, 516 U.S. 869, 116 S.Ct. 189,
question of causation in cases like this one has en-       133 L.Ed.2d 126 (1995). The Havners rely to a con-
gendered considerable debate. Courts that have ad-         siderable extent on epidemiological studies for
dressed the issue have not always agreed, and com-         proof of general causation. Accordingly, we con-
mentators have expressed widely divergent views            sider the use of epidemiological studies and the
on the quantum and quality of evidence necessary           “more likely than not” burden of proof.
to sustain a recovery.
                                                                                     A
     Sometimes, causation in toxic tort cases is dis-           Epidemiological studies examine existing pop-
cussed in terms of general and specific causation.         ulations to attempt to determine if there is an asso-
See, e.g., Raynor v. Merrell Pharms., Inc., 104 F.3d       ciation between a disease or condition and a factor
1371, 1376 (D.C.Cir.1997); Joseph Sanders, From            suspected of causing that disease or condition. See,
Science to Evidence: The Testimony on Causation            e.g., Bert Black & David E. Lilienfeld, Epidemiolo-
in the Bendectin Cases, 46 STAN. L.REV.. 1, 14             gic Proof in Toxic Tort Litigation, 52 FORDHAM
(1993). General causation is whether a substance is        L.REV. 732, 750 (1984). However, witnesses for
capable of causing a particular injury or condition        the Havners and commentators in this area uni-
in the general population, while specific causation        formly acknowledge that epidemiological studies
is whether a substance caused a particular individu-       cannot establish that a given individual contracted a
al's injury. In some cases, controlled scientific ex-      disease or condition due to exposure to a particular
periments*715 can be carried out to determine if a         drug or agent. See, e.g., Michael Dore, A Comment-
substance is capable of causing a particular injury




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ary on the Use of Epidemiological Evidence in              of the veterans' afflictions,” id. at 1263.
Demonstrating Cause–In–Fact, 7 HARV. ENVTL.
L. REVV. 429, 431–35 (1983); Steve Gold, Causa-                 *716 Other courts have likewise found that the
tion in Toxic Torts: Burdens of Proof, Standards of        requirement of a more than 50% probability means
Persuasion, and Statistical Evidence, 96 YALE L.J.         that epidemiological evidence must show that the
376, 380 (1986). Dr. Glasser, a witness for the            risk of an injury or condition in the exposed popu-
Havners, gave as an example a study designed to            lation was more than double the risk in the unex-
see if a given drug causes rashes. Even though a           posed or control population. See, e.g., Daubert, 43
study may show that ten people who took the drug           F.3d at 1320 (requiring Bendectin plaintiffs to show
exhibited a rash, while rashes appeared on only            that mothers' ingestion of the drug more than
three people who did not take the drug, Dr. Glasser        doubled the likelihood of birth defects); DeLuca v.
explained that the study cannot tell us which of the       Merrell Dow Pharms., Inc., 911 F.2d 941, 958 (3d
exposed ten got the rash because of the drug. We           Cir.1990) (requiring that Bendectin plaintiffs estab-
know that things other than the drug cause rashes.         lish relative risk of limb reduction defects arising
                                                           from epidemiological data of at least 2.0, which
     Recognizing that epidemiological studies can-         equates to more than a doubling of the risk); Hall v.
not establish the actual cause of an individual's in-      Baxter Healthcare Corp., 947 F.Supp. 1387, 1403
jury or condition, a difficult question for the courts     (D.Or.1996) (requiring breast-implant plaintiffs to
is how a plaintiff faced with this conundrum can           demonstrate that exposure to breast implants more
raise a fact issue on causation and meet the “more         than doubled the risk of their alleged injuries,
likely than not” burden of proof. Generally, more          which, in epidemiological terms, requires a relative
recent decisions have been willing to recognize that       risk of more than 2.0); Manko v. United States, 636
epidemiological studies showing an increased risk          F.Supp. 1419, 1434 (W.D.Mo.1986) (stating that a
may support a recovery. Judge Weinstein, whose             relative risk of 2.0 in an epidemiological study
decision in the Agent Orange litigation has been           means that the disease more likely than not was
widely discussed and followed, has observed that           caused by the event), aff'd in relevant part, 830
courts have been divided between the “strong” and          F.2d 831 (8th Cir.1987); Marder v. G.D. Searle &
“weak” versions of the preponderance rule. In re           Co., 630 F.Supp. 1087, 1092 (D.Md.1986) (stating
“Agent Orange” Prod. Liab. Litig., 611 F.Supp.             that in IUD litigation, a showing of causation by a
1223, 1261 (E.D.N.Y.1985) (citing David Rosen-             preponderance of the evidence, in epidemiological
berg, The Causal Connection in Mass Exposure               terms, requires a relative risk of at least 2.0), aff'd,
Cases: A “Public Law” Vision of the Tort System,           814 F.2d 655 (4th Cir.1987); Cook v. United States,
97 HARV. L.REV.. 851, 857 (1984)). The “strong”            545 F.Supp. 306, 308 (N.D.Cal.1982) (stating that
version requires a plaintiff to offer both epidemi-        in vaccine case, when relative risk is greater than
ological evidence that the probability of causation        2.0, there is a greater than 50% chance that the in-
exceeds fifty percent in the exposed population and        jury was caused by the vaccine).
“particularistic” proof that the substance harmed
the individual. The “weak” version allows verdicts              Some courts have reached a contrary conclu-
to be based solely on statistical evidence. Rosen-         sion, holding that epidemiological evidence show-
berg, supra, 97 HARV. L. REVV. at 857–58. Judge            ing something less than a doubling of the risk may
Weinstein concluded that the plaintiffs in Agent Or-       support a jury's finding of causation. In In re Joint
ange were required to offer evidence that causation        Eastern & Southern District Asbestos Litigation, 52
was “more than 50 percent probable,” 611 F.Supp.           F.3d 1124, 1134 (2d Cir.1995), the Second Circuit
at 1262, and that the plaintiffs' experts were re-         observed that the district court cited no authority
quired to “rule out the myriad other possible causes       for the “bold” assertion that standardized mortality




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ratios of 1.5 are statistically insignificant and can-      tion: The Legacy of Agent Orange and Bendectin
not be relied upon by a jury. The circuit court held        Litigation, 86 NW. U.L.REV. 643, 691 (1992)
that it was far preferable to instruct the jury on stat-    (concluding that in the absence of other informa-
istical significance and to let the jury decide wheth-      tion, a doubling of the risk would be inadequate to
er studies over the 1.0 mark have any significance.         support a plaintiff's verdict, but advocating that a
Id.; see also Allen v. United States, 588 F.Supp.           lower risk might be sufficient if other risk factors
247, 418–19 (D.Utah 1984) (explicitly rejecting the         could be eliminated); Melissa Moore Thompson,
greater than 50% standard of causation in connec-           *717Causal Inference in Epidemiology: Implica-
tion with statistical evidence), rev'd on other             tions for Toxic Tort Litigation, 71 N.C. L.REV.
grounds, 816 F.2d 1417 (10th Cir.1987); Grassis v.          247, 253, 289 (1992) (arguing that a strong associ-
Johns–Manville Corp., 248 N.J.Super. 446, 591               ation requires a risk ratio greater than or equal to
A.2d 671, 674–76 (App.Div.1991) (holding that tri-          8.0, although moderate association of 3.0 to 8.0
al court erred in precluding opinion testimony              could suffice if coupled with other factors).
based on epidemiological studies showing relative
risks of less than 2.0).                                         Some commentators have been particularly
                                                            critical of attempts by the courts to meld the more
     The “doubling of the risk” issue in toxic tort         than 50% probability requirement with the relative
cases has provided fertile ground for the scholarly         risks found in epidemiological studies in determin-
plow. Those who advocate that something short of            ing if the studies were admissible or were some
a doubling of the risk is adequate to support liabil-       evidence that would support an award for the
ity or who advocate that some type of proportionate         claimant. But there is disagreement on how epi-
liability should be imposed include Daniel A.               demiological studies should be used. Some com-
Farber, Toxic Causation, 71 MINN. L.REV. 1219,              mentators contend that the more than 50% probabil-
1237–51 (1987); Gold, supra, 96 YALE L.J. at                ity requirement is too stringent, while others argue
395–401; Khristine L. Hall & Ellen K. Silbergeld,           that epidemiological studies have no relation to the
Reappraising Epidemiology: A Response to Mr.                legal requirement of “more likely than not.” Com-
Dore, 7 HARV. ENVTL. L.REV.. 441, 445–46                    pare Gold, supra, 96 YALE L.J. at 395–97
(1983); Rosenberg, supra, 97 HARV. L.REV.. at               (advocating a relaxed threshold of proof), with Di-
859–60; see also 2 AMERICAN LAW INST., EN-                  ana B. Petitti, Reference Guide on Epidemiology,
TERPRISE RESPONSIBILITY FOR PERSONAL                        36 JURIMETRICS J. 159, 167–68 (1996) (finding
INJURY 369–75 (1991) (discussing toxic tort cases           no support in textbooks of epidemiology or from
and suggesting that proportionate compensation to           empirical studies for the proposition that when at-
all with the disease or disorder should be based on         tributable risk exceeds 50% an agent is more likely
the attributable fractions of causation); D.H. Kaye,        than not to be the cause of the plaintiff's disease),
Apples and Oranges: Confidence Coefficients and             and Thompson, supra, 71 N.C. L.REV. at 264–65
the Burden of Persuasion, 73 CORNELL L.REV.                 (asserting that the use of statistical association to
54, 71–73 (1987).                                           satisfy a more likely than not standard is
                                                            “misguided”). See also Carl F. Cranor et al., Judi-
     On the other end of the spectrum is Michael            cial Boundary Drawing and the Need for Con-
Dore, who asserts that epidemiological studies can-         text–Sensitive Science in Toxic Torts after Daubert
not, standing alone, establish causation. See Dore,         v. Merrell Dow Pharmaceuticals, Inc., 16 VA. EN-
A Commentary on the Use of Epidemiological Evid-            VTL. L.J. 1, 37–40 (1996) (arguing that epidemi-
ence, supra, 7 HARV. ENVTL. L. REVV. at 434;                ological evidence should not be excluded simply
see also Michael D. Green, Expert Witnesses and             because it reveals a relative risk less than 2.0, un-
Sufficiency of Evidence in Toxic Substances Litiga-         less there is no other supporting evidence); Kaye,




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supra, 73 CORNELL L.REV. at 69 (arguing that it             ence relating to general causation, as we discuss be-
is fallacious to reason that “if the data are more          low, but it illustrates the thinking behind the doub-
probable under one hypothesis than another, then            ling of the risk requirement. For another viewpoint
the former hypothesis is more likely to be true than        in this same vein, see ROBERT P. CHARROW &
the latter”); James Robins & Sander Greenland, The          DAVID E. BERNSTEIN, WASHINGTON LEGAL
Probability of Causation Under a Stochastic Model           FOUNDATION, SCIENTIFIC EVIDENCE IN
for Individual Risk, 45 BIOMETRICS 1125, 1131               THE COURTROOM: ADMISSIBILITY AND
(1989) (concluding that proportional liability              STATISTICAL            SIGNIFICANCE             AFTER
schemes cannot be based on epidemiological data             DAUBERT 28–34 (1994), who advocate that there
alone).                                                     is a mathematically demonstrable relationship
                                                            between relative risk and the more likely than not
                           B                                standard. They contend that a relative risk of
     [11][12] Although we recognize that there is           slightly more than 2.0 will rarely, if ever, satisfy
not a precise fit between science and legal burdens         the legal causation *718 standard. From a mathem-
of proof, we are persuaded that properly designed           atical perspective, the probability of general causa-
and executed epidemiological studies may be part            tion changes as the level of statistical significance
of the evidence supporting causation in a toxic tort        changes. Id. at 29–31. A relative risk of 2.2 may be
case and that there is a rational basis for relating the    sufficient to show more than a 50% probability at
requirement that there be more than a “doubling of          the 0.05 level (5 chances out of 100 that result oc-
the risk” to our no evidence standard of review and         curred by chance), but not at the 0.10 level (10
to the more likely than not burden of proof. See            chances out of 100). With calculations that we do
generally DeLuca v. Merrell Dow Pharms., Inc.,              not attempt to set out here, these commentators of-
911 F.2d 941, 958–59 (3d Cir.1990); Black & Lili-           fer an example in which a relative risk ratio of 2.75
enfeld, supra, 52 FORDHAM L.REV. at 767; see                results in a probability of general causation of about
also Daubert, 43 F.3d at 1321; Cook, 545 F.Supp.            52% with a statistical significance of 0.05, but only
at 308.                                                     about a 43% probability of general causation with a
                                                            statistical significance of 0.10. Id. at 31–32.
     Assume that a condition naturally occurs in six
out of 1,000 people even when they are not exposed               We recognize, as does the federal Reference
to a certain drug. If studies of people who did take        Manual on Scientific Evidence, that a disease or
the drug show that nine out of 1,000 contracted the         condition either is or is not caused by exposure to a
disease, it is still more likely than not that causes       suspected agent and that frequency data, such as the
other than the drug were responsible for any given          incidence of adverse effects in the general popula-
occurrence of the disease since it occurs in six out        tion when exposed, cannot indicate the actual cause
of 1,000 individuals anyway. Six of the nine incid-         of a given individual's disease or condition. See
ences would be statistically attributable to causes         Linda A. Bailey et al., Reference Guide on Epi-
other than the drug, and therefore, it is not more          demiology, in FEDERAL JUDICIAL CENTER,
probable that the drug caused any one incidence of          REFERENCE MANUAL ON SCIENTIFIC EVID-
disease. This would only amount to evidence that            ENCE 169 (1994). But the law must balance the
the drug could have caused the disease. However, if         need to compensate those who have been injured by
more than twelve out of 1,000 who take the drug             the wrongful actions of another with the concept
contract the disease, then it may be statistically          deeply imbedded in our jurisprudence that a de-
more likely than not that a given individual's dis-         fendant cannot be found liable for an injury unless
ease was caused by the drug.                                the preponderance of the evidence supports cause in
                                                            fact. The use of scientifically reliable epidemiolo-
    This is an oversimplification of statistical evid-




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gical studies and the requirement of more than a                         eases, Percival Pott could reach the cor-
doubling of the risk strikes a balance between the                       rect conclusion because of the enormous
needs of our legal system and the limits of science.                     increase of scrotal cancer in the chimney
                                                                         sweeps.”
     We do not hold, however, that a relative risk of
more than 2.0 is a litmus test or that a single epi-                     2. Consistency. “Next on my list of fea-
demiological test is legally sufficient evidence of                      tures to be specifically considered I
causation. Other factors must be considered. As                          would place the consistency of associ-
already noted, epidemiological studies only show                         ation. Has it been repeatedly observed
an association. There may in fact be no causal rela-                     by different persons, in different places,
tionship even if the relative risk is high. For ex-                      circumstances and times?”
ample, studies have found that there is an associ-
ation between silicone breast implants and reduced                       3. Specificity. “If ... the association is
rates of breast cancer. This does not necessarily                        limited to specific workers and to partic-
mean that breast implants caused the reduced rate                        ular sites and types of disease and there
of breast cancer. See David E. Bernstein, The Ad-                        is no association between the work and
missibility of Scientific Evidence After Daubert v.                      other modes of dying, then clearly that is
Merrell Dow Pharmaceuticals, Inc., 15 CARDOZO                            a strong argument in favor of causation.”
L.REV. 2139, 2167 (1994) (citing H. Berkel et al.,
                                                                         4. Temporality. “Which is the cart and
Breast Augmentation: A Risk Factor for Breast
                                                                         which the horse?”
Cancer?, 326 NEW ENG. J. MED.. 1649 (1992)).
Likewise, even if a particular study reports a low                       5. Biological gradient. “Fifthly, if the as-
relative risk, there may in fact be a causal relation-                   sociation is one which can reveal a bio-
ship. The strong consensus among epidemiologists                         logical gradient, or dose-response curve,
is that conclusions about causation should not be                        then we should look most carefully for
drawn, if at all, until a number of criteria have been                   such evidence.... The clear-dose re-
considered. One set of criteria widely used by epi-                      sponse curve admits of a simple explana-
demiologists was published by Sir Austin Bradford                        tion and obviously puts the case in a
               FN2
Hill in 1965.       Another set of criteria*719 used                     clearer light.”
by epidemiologists in studying disease is the
                                  FN3
Henle–Koch–Evans Postulates.            Although epi-                    6. Plausibility. “It would be helpful if the
demiologists do not consider it necessary that all                       causation we suspect is biologically
these criteria be met before drawing inferences                          plausible. But this is a feature I am con-
about causation, they are part of sound methodo-                         vinced we cannot demand. What is bio-
logy generally accepted by the current scientific                        logically plausible depends on the biolo-
community.                                                               gical knowledge of the day.”

         FN2. The Bradford Hill criteria are sum-                        7. Coherence. “The cause-and-effect in-
         marized as follows:                                             terpretation of our data should not seri-
                                                                         ously conflict with the generally known
           1. Strength of association. “First upon                       facts of the natural history and biology
           my list I would put the strength of asso-                     of the disease.”
           ciation. To take a very old example, by
           comparing the occupations of patients                         8. Experiment. “Occasionally it is pos-
           with scrotal cancer with the occupations                      sible to appeal to experimental ... evid-
           of patients presenting with other dis-                        ence.... Here the strongest support for




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           the causation hypothesis may be re-             only that epidemiological studies “are subject to
           vealed.”                                        many biases and therefore present formidable prob-
                                                           lems in design and execution and even greater
           9. Analogy. “In some circumstances it           problems in interpretation.” Marcia Angell, The In-
           would be fair to judge by analogy. With         terpretation of Epidemiologic Studies, 323 NEW
           the effects of thalidomide and rubella be-      ENG. J. MED.. 823, 824 (1996).
           fore us we would surely be ready to ac-
           cept slighter but similar evidence with              We also note that some of the literature indic-
           another drug or another viral disease in        ates that epidemiologists consider a relative risk of
           pregnancy.”                                     less than three to indicate a weak association. See
                                                           Thompson, supra, 71 N.C. L.REV. at 252 (citing
           Bernstein, supra, 15 CARDOZO L.REV.             Ernest L. Wynder, Guidelines to the Epidemiology
           at 2167–68 (quoting Austin Bradford             of Weak Associations, 16 PREVENTIVE MED.
           Hill, The Environment and Disease: As-          139, 139 (1987)). The executive editor of the New
           sociation or Causation?, 58 PROC.               England Journal of Medicine, Marcia Angell, has
           ROYAL SOC'Y MED. 295, 299 (1965));              stated that “[a]s a general rule of thumb, we are
           see also Thompson, supra, 71 N.C.               looking for a relative risk of three or more [before
           L.REV. at 268–74.                               accepting a paper for publication], particularly if it
                                                           is biologically implausible or if it's a brand-new
        FN3. See, e.g., Black & Lilienfeld, supra,
                                                           finding.” Gary Taubes, Epidemiology Faces Its
        52 FORDHAM L.REV. at 762–63; Chris-
                                                           Limits, SCIENCE, July 14, 1995, at 168. Similarly,
        topher L. Callahan, Establishment of Caus-
                                                           Robert Temple, the director of drug evaluation at
        ation in Toxic Tort Litigation, 23 ARIZ.
                                                           the FDA, has said that “[m]y basic rule is if the rel-
        ST. L.J. 605, 626 (1991); Michael Dore, A
                                                           ative risk isn't at least three or four, forget it.” Id.
        Proposed Standard For Evaluating the Use
                                                           We hasten to point out that these statements are
        of Epidemiological Evidence in Toxic Tort
                                                           contained in what is more akin to the popular press,
        and other Personal Injury Cases, 28
                                                           not peer-reviewed scientific journals, and the con-
        HOW. L.J. 677, 691 (1985); see also
                                                           text of those statements is not altogether clear. We
        Bailey et al., Reference Guide on Epidemi-
                                                           draw no conclusions from any of the foregoing art-
        ology, in REFERENCE MANUAL ON
                                                           icles other than to point out that there are a number
        SCIENTIFIC EVIDENCE, supra, at
                                                           of reasons why reliance on a relative risk of 2.0 as a
        160–64.
                                                           bright-line boundary would not be in accordance
     Sound methodology also requires that the              with sound scientific methodology in some cases.
design and execution of epidemiological studies be         Careful exploration and explication of what is reli-
examined. For example, bias can dramatically af-           able scientific methodology in a given context is
fect the scientific reliability of an epidemiological      necessary.
study. See, e.g., Bailey et al., Reference Guide on
                                                                                      D
Epidemiology, in REFERENCE MANUAL ON
                                                                A few courts that have embraced the more-
SCIENTIFIC EVIDENCE, supra, at 138–43;
                                                           than-double-the-risk standard have indicated in
Thompson, supra, 71 N.C. L.REV. at 259–61. Bias
                                                           dicta that in some instances, epidemiological stud-
can result from confounding factors, selection bias,
                                                           ies with relative risks of less than 2.0 might suffice
and information bias. Thompson, supra, 71 N.C.
                                                           if there were other evidence of causation. See, e.g.,
L.REV. at 260. We will not undertake an extended
                                                           Daubert, 43 F.3d at 1321 n. 16; Hall, 947 F.Supp.
discussion of the many ways in which bias may
                                                           at 1398, 1404. We need not decide in this case
cause results of a study to be misleading. We note




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whether epidemiological evidence with a relative           cause it is not scientifically reliable. As Bernstein
risk less than 2.0, coupled with other credible and        points out, physicians following scientific methodo-
reliable evidence, may be legally sufficient to sup-       logy would not examine a patient or several pa-
port causation. We emphasize, however, that evid-          tients in uncontrolled settings to determine whether
ence of causation from whatever source must be             a particular drug has favorable effects, nor would
scientifically reliable. Post hoc, speculative testi-      they rely on case reports to determine whether a
mony will not suffice.                                     substance is harmful. See Bernstein, supra, 15
                                                           CARDOZO L.REV. at 2148–49; see also Rosen-
      A physician, even a treating physician, or other     berg, supra, 97 HARV. L.REV.. at 870 (arguing
expert who has seen a skewed data sample, such as          that anecdotal or particularized evidence accom-
one of a few infants who has a birth defect, is not in     plishes no more than a false appearance of direct
a position to infer causation. The scientific com-         and actual knowledge of a causal relationship). Ex-
munity would not accept as methodologically sound          pert testimony that is not scientifically reliable can-
*720 a “study” by such an expert reporting that the        not be used to shore up epidemiological studies that
ingestion of a particular drug by the mother caused        fail to indicate more than a doubling of the risk.
the birth defect. Similarly, an expert's assertion that
a physical examination confirmed causation should                                    E
not be accepted at face value. In O'Conner v. Com-              To raise a fact issue on causation and thus to
monwealth Edison Co., 13 F.3d 1090 (7th Cir.1994)          survive legal sufficiency review, a claimant must
, a treating physician testified that he knew what ra-     do more than simply introduce into evidence epi-
diation-induced cataracts looked like because they         demiological studies that show a substantially elev-
are clinically describable and definable and “cannot       ated risk. A claimant must show that he or she is
be mistaken for anything else.” Id. at 1106. Never-        similar to those in the studies. This would include
theless, his opinion that exposure to radiation            proof that the injured person was exposed to the
caused the plaintiff's cataracts was found to be in-       same substance, that the exposure or dose levels
admissible because it had no scientific basis. The         were comparable to or greater than those in the
literature on which the expert relied did not support      studies, that the exposure occurred before the onset
his assertion that radiation-induced cataracts could       of injury, and that the timing of the onset of injury
be diagnosed by visual examination. Id. at                 was consistent with that experienced by those in the
1106–07. For a good discussion of the evils of             study. See generally Thompson, supra, 71 N.C.
“evidence” of this nature, see Bernstein, supra, 15        L.REV. at 286–88. Further, if there are other plaus-
CARDOZO L.REV. at 2148–49. Further, as we dis-             ible causes of the injury or condition that could be
cuss in Part VI(A), an expert cannot dissect a study,      negated, the plaintiff must offer evidence excluding
picking and choosing data, or “reanalyze” the data         those causes with reasonable certainty. See gener-
to derive a higher relative risk if this process does      ally E.I. du Pont de Nemours & Co. v. Robinson,
not comport with sound scientific methodology.             923 S.W.2d 549, 559 (Tex.1995) (finding that the
                                                           failure of the expert to rule out other causes of the
     The FDA has promulgated regulations that de-          damage rendered his opinion little more than specu-
tail the requirements for clinical investigations of       lation); Parker v. Employers Mut. Liab. Ins. Co.,
the safety and effectiveness of drugs. 21 C.F.R. §         440 S.W.2d 43, 47 (Tex.1969) (holding that a cause
314.126 (1996). These regulations state that               becomes “probable” only when “in the absence of
“[i]solated case reports, random experience, and re-       other reasonable causal explanations it becomes
ports lacking the details which permit scientific          more likely than not that the injury was a result”).
evaluation will not be considered.” Id. § 314.126(e)
. Courts should likewise reject such evidence be-              In sum, we emphasize that courts must make a




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determination of reliability from all the evidence.        identifies individuals with a disease and a suitable
Courts should allow a party, plaintiff or defendant,       control group of people without the disease and
to present the best available evidence, assuming it        then looks back to examine postulated causes of the
passes muster under Robinson, and only then                disease. See Bailey et al., Reference Guide on Epi-
should a court determine from a totality of the evid-      demiology, in REFERENCE MANUAL ON SCI-
ence, considering all factors affecting the reliability    ENTIFIC EVIDENCE, supra, at 136–38, 172. An-
of particular studies, whether there is legally suffi-     other type of epidemiological study is a cohort
cient evidence to support a judgment.                      study, or incidence study, which is a prospective
                                                           study that identifies groups and observes them over
     Finally, we are cognizant that science is con-        time to see if one group is more likely to develop
stantly reevaluating conclusions and theories and          disease. Id. at 134–36, 173.
that over time, not only scientific knowledge but
scientific methodology in a particular field may                An “odds ratio” can be calculated for a case-
evolve. We have strived to make our observations           control study. Id. at 175. For example, an odds ratio
and holdings in light of current, generally accepted       could be used to show the odds that ingestion of a
scientific *721 methodology. However, courts               drug is associated with a particular disease. The
should not foreclose the possibility that advances in      odds ratio compares the odds of having the disease
science may require reevaluation of what is “good          when exposed to the drug versus when not exposed.
science” in future cases.                                  If the ratio is 2.67, the odds are that a person ex-
                                                           posed to the drug is 2.67 times more likely to de-
                            V                              velop the disease under study.
     Certain conventions are used in conducting sci-
entific studies, and statistics are used to evaluate            Similarly, the “relative risk” that a person who
the reliability of scientific endeavors and to determ-     took a drug will develop a particular disease can be
ine what the results tell us. In this opinion, we con-     determined in a cohort study. Id. at 173, 176. The
sider some of the basic concepts currently used in         relative risk is calculated by comparing the incid-
scientific studies and statistical analyses and how        ence of disease in the exposed population with the
those concepts mesh with our legal sufficiency             incidence of the disease in the control population. If
standard of review. For an extended discussion of          the relative risk is 1.0, the risk in exposed individu-
statistical methodology and its use in epidemiolo-         als is the same as unexposed individuals. If the rel-
gical studies, see DeLuca v. Merrell Dow Pharma-           ative risk is greater than 1.0, the risk in exposed in-
ceuticals, Inc., 911 F.2d 941, 945–48 (3d Cir.1990).       dividuals is greater than in those not exposed. If the
See also Turpin v. Merrell Dow Pharms., Inc., 959          relative risk is less than 1.0, the risk in exposed in-
F.2d 1349, 1353 n. 1 (6th Cir.1992); Bailey et al.,        dividuals is less than in those not exposed. For the
Reference Guide on Epidemiology, in REFER-                 result to indicate a doubling of the risk, the relative
ENCE MANUAL ON SCIENTIFIC EVIDENCE,                        risk must be greater than 2.0. See id. at 147–48.
supra, at 138–43, 171–78. We do not attempt to
discuss all the multifaceted aspects of the scientific          Perhaps the most useful measure is the attribut-
method and statistics, but focus on the principles         able proportion of risk, which is the statistical
that shed light on the particular facts and issues in      measure of a factor's relationship to a disease in the
this case.                                                 population. It represents the “proportion of the dis-
                                                           ease among exposed individuals that is associated
                         A                                 with the exposure.” Id. at 149. In other words, it re-
    One way to study populations is by a retro-            flects the percentage of the disease or injury that
spective case-control or case-comparison epidemi-          could be prevented by eliminating exposure to the
ological study. For example, this type of study            substance. For a more detailed discussion of the




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calculation and use of the attributable proportion of      telling us how significant the results of a study may
risk, see id. at 149–50; Black & Lilienfeld, supra,        be.
52 FORDHAM L.REV. at 760–61. See also
Thompson, supra, 71 N.C. L.REV. at 252–56.                                              B
                                                                The first step in understanding significance
     The numeric value of an odds ratio is at least        testing is to understand how research is often con-
equal to the relative risk, but the odds ratio often       ducted. A researcher tests hypotheses and does so
overstates the relative risk, especially if the occur-     by testing whether the data support a particular hy-
rence of the event is not rare. For an example of the      pothesis. The starting point is the null hypothesis,
difference between the mathematical calculation of         which assumes that there is no difference or no ef-
the odds ratio and the relative risk, see BARBARA          fect. If you were studying the effects of Bendectin,
HAZARD MUNRO & ELLIS BATTEN PAGE,                          for example, the null hypothesis would be that it
STATISTICAL METHODS FOR HEALTH CARE                        has no effect. The researcher tries to find evidence
RESEARCH 233–35 (2d ed. 1993). In the example              against the hypothesis. See DAVID S. MOORE &
given by Munro and Page, the odds ratio was 3.91,          GEORGE P. MCCABE, INTRODUCTION TO
while the relative risk was only 3.0 based on the          THE PRACTICE OF STATISTICS 449 (2d ed.
same set of data. See also Bailey et al., Reference        1993); MUNRO & PAGE, supra, at 54. The state-
Guide on Epidemiology, in REFERENCE MANU-                  ment that the researcher suspects may be true is
AL ON SCIENTIFIC EVIDENCE, supra, at 149;                  stated as the alternative hypothesis. If a significant
Thompson, supra, 71 N.C. L.REV. at 250 n. 22.              difference is found, the null hypothesis is rejected.
                                                           If a significant difference is not found, the null hy-
     *722 The relative risk may be expressed algeb-        pothesis is accepted. MUNRO & PAGE, supra, at
raically as:                                               54. This concept is important because it is the basis
                                                           of the statistical test. Id.
  RR = I ÷ I
        e c
                                                                 A study may contain error in deciding to reject
      where RR is the relative risk, I is the incid-
                                        e                  or accept a hypothesis, and this error can be one of
ence of the disease in the exposed population, and I
                                                           two types. Id.; MOORE & MCCABE, supra, at
  is the incidence of disease in the control popula-
c                                                          482–87. A Type I error occurs when the null hypo-
tion. A sample calculation is as follows:
                                                           thesis is true but has been rejected, and a Type II
   · the incidence of the disease in exposed individu-
                                                           error occurs when the null hypothesis is false but
   als (I ) is 30 cases per 100 persons, or 0.3
         e                                                 has been accepted. MUNRO & PAGE, supra, at 55.
  · the incidence of the disease in the unexposed in-      An example of the two types of error given by
  dividuals (I ) is 10 cases per 100 persons, or 0.1       Munro and Page is a comparison of two groups of
              c                                            people who have been taught statistics by different
  · the relative risk is the incidence in the exposed      methods. Id. Group A scored significantly higher
  group (0.3) divided by the incidence in the unex-        than Group B on a test of their knowledge of statist-
  posed group (0.1), which equals 3.0                      ics. The null hypothesis is that there is no differ-
                                                           ence between the teaching methods, but because the
     Using this hypothetical, can we conclude that         study indicated there was a difference, the null hy-
people who are exposed are three times more likely         pothesis was rejected. Suppose, however, that
to contract disease than those who are not? Not ne-        Group A was composed of people with higher math
cessarily. The result in any given study or compar-        ability and that in actuality the teaching method did
ison may not be representative of the entire popula-       not matter at all. The rejection of the null hypothes-
tion. The result may have occurred by chance. The          is is a Type I error. Id.
discipline of statistics has determined means of




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     The probability of making a Type I error can be        al. In the genetic defects example, it is preferable to
decreased by changing the level of significance,            treat children even if they may not have the disease,
that is, the probability that the results occurred by       but in the teaching method example, it is not prefer-
chance. Id. If the level of significance had been five      able to teach children at considerable cost if it has
in one hundred (0.05), there is only a five in one          no effect.
hundred chance that the result occurred by chance
alone. If the level of significance is one in one hun-           A confidence level can be used in epidemiolo-
dred (0.01), there is only a one in one hundred             gical studies to establish the boundaries of the relat-
chance that the result occurred by chance alone.            ive risk. These boundaries are known as the confid-
However, as the significance level is made more             ence interval. See id. at 59–63; see also David H.
stringent (e.g., from 0.05 to 0.01), it will be more        Kaye & David A. Freedman, Reference Guide on
difficult to find a significant result. Id. Altering the    Statistics, in REFERENCE MANUAL ON SCI-
significance level in this manner also increases the        ENTIFIC EVIDENCE, supra, at 376–77, 396;
risk of a Type II error, which is accepting a false         MOORE & MCCABE, supra, at 432–37. The con-
null hypothesis. Id. To avoid Type II errors, the           fidence interval tells us if the results of a given
level of significance can be lowered, for example,          study are statistically significant at a particular con-
to ten in one hundred (0.1). Id.                            fidence level. See MOORE & MCCABE, supra, at
                                                            432–33. A confidence interval shows a “range of
     Different levels of significance may be appro-         values within which the results of a study sample
priate for different types of studies depending on          would be likely to fall if the study were repeated
how much risk one is willing to accept that the con-        numerous times.” Bailey et al., Reference Guide on
clusion reached is wrong. Again, to take examples           Epidemiology, in REFERENCE MANUAL ON
offered by Munro and Page, assume that a test for a         SCIENTIFIC EVIDENCE, supra, at 173. If, based
particular genetic defect exists and that if the defect     on a confidence level of 95%, a study showed a rel-
is *723 diagnosed at an early stage, a child with the       ative risk of 2.3 and had a confidence interval of
defect can be successfully treated. If the genetic de-      1.3 to 3.8, we would say that, if the study were re-
fect is not diagnosed in time, the child's develop-         peated, it would produce a relative risk between 1.3
ment will be severely impaired. If a child is mis-          and 3.8 in 95% of the repetitions. However, if the
takenly diagnosed as having the defect and treated,         interval includes the number 1.0, the study is not
there are no harmful effects. Most would agree that         statistically significant or, said another way, is in-
it would be preferable to make a Type I error rather        conclusive. This is because the confidence interval
than a Type II error under these circumstances. Id.         includes relative risk values that are both less than
A Type II error would be failing to diagnose a child        and greater than the null hypothesis (1.0), leaving
that had the genetic defect.                                the researcher with results that suggest both that the
                                                            null hypothesis should be accepted and that it
     Contrast that hypothetical with one in which a         should be rejected. See, e.g., Turpin, 959 F.2d at
federal study is conducted to determine whether a           1353 n. 1; Brock v. Merrell Dow Pharms., Inc., 874
particular method of teaching underprivileged chil-         F.2d 307, 312 (5th Cir.), as modified on reh'g, 884
dren increases their success in school. Id. The cost        F.2d 166 (5th Cir.1989); Bailey et al., Reference
of implementing this teaching method in a nation-           Guide on Epidemiology, in REFERENCE MANU-
wide program would be very great. A Type I error            AL ON SCIENTIFIC EVIDENCE, supra, at 173.
would be to conclude that the program had an effect         This concept was explained to the jury in this case
when it did not. Id. The significance level for this        by Dr. Glasser, one of the Havners' witnesses.
project would probably be higher than the one used          Thus, a study may produce a relative risk of 2.3,
to screen for genetic defects in the other hypothetic-      meaning the risk is 2.3 times greater based on the




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data, but at a confidence level of 95%, the confid-        HOW. L.J. at 693–95. But cf. DeLuca, 911 F.2d at
ence interval has boundaries of 0.8 and 3.2. The           948 (discussing statistics expert Kenneth Rothman's
results are therefore insignificant at the 95% level.      view that the predominate choice of a 95% confid-
If the researcher is willing to accept a greater risk      ence level is an arbitrarily selected convention of
of error and lowers the confidence level to 90%, the       his discipline); Longmore v. Merrell Dow Pharms.,
results may be statistically significant at that lower     Inc., 737 F.Supp. 1117, 1119–20 (D.Idaho 1990)
level because the range does not include the num-          (concluding that the scientific standard for determ-
ber 1.0. See generally Bailey et al., Reference            ining causation is much stricter than the standard
Guide on Epidemiology, in REFERENCE MANU-                  employed by the court and that confidence levels of
AL ON SCIENTIFIC EVIDENCE, supra, at                       95%, 90%, or even 80% should not be required).
151–55. “[T]he narrower the confidence interval,
the greater the confidence in the relative risk estim-          We think it unwise to depart from the methodo-
ate found in the study.” Id. at 173.                       logy that is at present generally accepted among
                                                           epidemiologists. See generally Bert Black, The Su-
     The generally accepted significance level or          preme Court's View of Science: Has Daubert Exor-
confidence level in epidemiological studies is 95%,        cised the Certainty Demon?, 15 CARDOZO
meaning that if the study were repeated numerous           L.REV. 2129, 2135 (1994) (stating that “ ‘[a]lmost
times, the confidence interval would indicate the          all thoughtful scientists would agree ... that [a signi-
range of relative risk values that would result 95%        ficance level of five percent] is a reasonable general
of the time. See DeLuca v. Merrell Dow Pharms.,            standard’ ” (quoting Amicus Curiae Brief of Pro-
Inc., 791 F.Supp. 1042, 1046 (D.N.J.1992), aff'd, 6        fessor Alvan R. Feinstein in Support of Respondent
F.3d 778 (3d Cir.1993); Bailey et al., Reference           at 16, Daubert v. Merrell Dow Pharms., Inc., 509
Guide on Epidemiology, in REFERENCE MANU-                  U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)
AL ON SCIENTIFIC EVIDENCE, supra, at 153;                  (No. 92–102))). Accordingly, we should not widen
Dore, A Proposed Standard, supra note 3, 28                the boundaries at which courts will acknowledge a
HOW. L.J. at 693; Thompson, supra, 71 N.C.                 statistically significant association beyond the 95%
L.REV. at 256. Virtually all the published, peer-          level to 90% or lower values.
reviewed studies on Bendectin have *724 a confid-
ence level of at least 95%. Although one of the                 It must be reiterated that even if a statistically
Havners' witnesses, Dr. Swan, advocated the use of         significant association is found, that association
a 90% confidence level (10 in 100 chance of error),        does not equate to causation. Although there may
she and other of the Havners' witnesses conceded           appear to be an increased risk associated with an
that 95% is the generally accepted level.                  activity or condition, this does not mean the rela-
                                                           tionship is causal. As the original panel of the court
     Another of the Havners' witnesses, Dr. Glasser,       of appeals observed in this case, there is a demon-
explained that in any scientific application, the con-     strable association between summertime and death
fidence interval is kept very high. He testified that      by drowning, but summertime does not cause
you “don't ever see [confidence intervals of 50% or        drowning. 907 S.W.2d at 544 n. 8.
60%] in a scientific study because that means we're
going to miss it a lot of times and [scientists] are           There are many other factors to consider in
not willing to take that risk.” One commentator ad-        evaluating the reliability of a scientific study in-
vocates that the confidence level for admissibility        cluding, but certainly not limited to, the sample size
of epidemiological studies should be higher than           of the study, the power of the study, confounding
the generally accepted 95% and should be 99%. See          variables, and whether there was selection bias.
Dore, A Proposed Standard, supra note 3, 28                These factors are not central to a resolution of this
                                                           appeal, and we do no more than acknowledge that




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determining scientific reliability can have many fa-       more than doubling of the risk), cert denied, 516
cets.                                                      U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995).
                                                           None of the other studies identified by Glasser
                         VI                                showed a doubling of the risk. The McCredie study
     Armed with some of the basic principles em-           had a relative risk of 1.1 and a confidence interval
ployed by the scientific community in conducting           of 0.8 to 1.5. The data in the Eskanzi study that
studies, we turn to an examination of the evidence         considered limb reduction birth defects resulted in a
in this case measured against the Robinson factors.        relative risk of 4.18, but the confidence interval was
See E.I. du Pont de Nemours & Co. v. Robinson,             0.48 to 36.3, a very large interval that included 1.0.
923 S.W.2d 549, 557 (Tex.1995). The evidence re-           Dr. Glasser agreed that results with a confidence in-
lied upon by the Havners' experts falls into four cat-     terval that included 1.0 or a lower number would be
egories: (1) epidemiological studies; (2) in vivo an-      inconclusive and statistically insignificant.
imal studies; (3) in vitro animal studies; and (4) a
chemical structure analysis of doxylamine succin-               Dr. Glasser did, however, reanalzye some data,
ate, the antihistamine component of Bendectin. We          called the Jick data, that had been included in a re-
consider each in turn.                                     port to the FDA. Glasser isolated information on
                                                           women who had filled two or more prescriptions of
                          A                                Bendectin and who were not exposed to spermicide,
     [13] Dr. J. Howard Glasser, an associate pro-         which resulted in a relative risk of 13.0 of limb re-
fessor at the University of Texas School of Public         duction birth defects. However, the confidence
Health at the Texas Medical Center in Houston, is          level he used was 90%. Further, there is no testi-
an epidemiologist with a Ph.D. in experimental stat-       mony or other evidence regarding the confidence
istics and a Master of Science of Bio–Statistics. He       interval. The confidence interval may or may not
gave the jury an overview of statistics. As noted          have contained 1.0.
earlier, he explained that statistics are used to de-
termine if there is a significant association between           The Havners also point to a memorandum pre-
two events or occurrences, but cautioned that a stat-      pared within the FDA that was identified by Dr.
istical association is not the same thing as causa-        Glasser. The document indicates that the relative
tion.                                                      risk of limb defects when Bendectin is given within
                                                           the first three lunar months of pregnancy is 2.13.
     Glasser identified a number of epidemiological        The only conclusion drawn by Dr. Glasser from this
studies from which he concluded that it was more           memorandum is that, taken in conjunction with the
likely than not that there is an *725 association          other articles he had discussed, there is an
between Bendectin and birth defects, even though           “importance of time” and an “importance of expos-
the authors of those studies did not find such an as-      ure with the highest relative risk coming when the
sociation. One study was done by Cordero and had           exposure period one to three lunar months is coun-
a relative risk of 1.18 and a confidence interval of       ted.” The memo itself was not introduced into evid-
0.65 to 2.13. However, the relative risk would need        ence, and there is no evidence of the confidence
to exceed 2.0, and the confidence interval could not       level at which the relative risk of 2.13 was found or
include 1.0, for the results to indicate more than a       of the confidence interval. The confidence interval
doubling of the risk and a statistically significant       may or may not have contained 1.0.
association between Bendectin and limb reduction
birth defects. See supra Part V; see also Daubert v.            Finally, Glasser testified about published stud-
Merrell Dow Pharms., Inc., 43 F.3d 1311, 1320              ies on Bendectin that did show statistically signific-
(9th Cir.) (on remand) (noting that more likely than       ant results, but they dealt with birth defects other
not standard requires, in terms of statistical proof, a    than limb reduction defects. These studies cannot of




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course support a finding that Bendectin causes limb        posed to two or more Bendectin prescriptions were
reduction defects. Further, later studies of these         considered, without regard to exposure to spermi-
other types of birth defects did not bear out an asso-     cide, the relative risk was 13 with a confidence in-
ciation with Bendectin.                                    terval from 3 to 53. She did not reveal the confid-
                                                           ence level used in obtaining these results, and there
     The other expert witness for the Havners who          is no evidence of the confidence level in the record.
testified about epidemiological studies was Dr.
Shanna Swan. She has a doctorate in statistics and              The other reanalysis by Dr. Swan was of data
is the Chief of the Reproductive Epidemiological           in the Cordero study, which was based on informa-
Program for the state of California. She also              tion collected by the Center for Disease Control in
teaches epidemiology at the University of Califor-         Atlanta. An abstract she prepared regarding this
nia at Berkeley.                                           data was published in the Journal for the Society of
                                                           Epidemiological Research in 1983 or 1984 and
      Dr. Swan conceded that none of the published         states that the original Cordero study found the
epidemiological studies found an association               odds ratio for limb reduction birth defects to be 1.2.
between Bendectin and limb reduction defects. She          Swan concluded, however, that when a different
identified a number of these studies and confirmed         control group is selected, the relative risk estimates
that the confidence intervals in each of them in-          are affected. Swan's abstract stated that, “under cer-
cluded 1.0. However, Dr. Swan testified about these        tain assumptions,” which are not identified, “the
studies at some length and criticized the methodo-         odds ratio for limb reduction defects” are “a highly
logy. Then, relying on these same studies, she             significant” 2.8. There is no explanation in the ab-
opined that Bendectin more probably than not is as-        stract or in Dr. Swan's testimony of the significance
sociated with limb reduction birth defects. Swan           level used to obtain the 2.8 result. The result may
considered the findings of these studies in the ag-        well be statistically inconclusive at a 95% confid-
gregate and testified that the results fall along a        ence level. We simply do not know from this re-
curve in which the “weight of the curve” was in the        cord. Without knowing the significance level or the
direction of an increased risk. Yet, she also said         confidence interval, there is no scientifically reli-
that these studies were consistent with a relative         able basis for saying that the 2.8 result is an indica-
risk that was between 0.7 and 1.8. That is not a           tion of anything. Further, her choice of the control
doubling of the risk. It may support her opinion that      group could have skewed the results. Although her
it is more probable than not that there is an associ-      abstract does not identify what control group she
ation between Bendectin and limb reduction de-             used, Swan testified at trial that she chose births of
fects, but the magnitude of the association she            Downs Syndrome babies. Swan's reanalysis using
gleaned from these studies is not more than 2.0,           Downs Syndrome babies as the control group was
based on her own testimony.                                considered in Lynch and in Richardson–Merrell,
                                                           and those courts likewise found it insufficient. See
     Dr. Swan also performed a reanalysis of data
                                                           Lynch v. Merrell–National Labs., 830 F.2d 1190,
from at least two studies. One reanalysis was of raw
                                                           1195 (1st Cir.1987), aff'd, 857 F.2d 823
unpublished data underlying *726 the Jick study of
                                                           (D.C.Cir.1988); Richardson v. Richardson–Merrell,
limb reduction birth defects, the same data about
                                                           Inc., 649 F.Supp. 799, 802 n. 10 (D.D.C.1986),
which Dr. Glasser testified. Dr. Swan derived a rel-
                                                           aff'd, 857 F.2d 823 (D.C.Cir.1988).
ative risk estimate of 2.2 for women exposed to
Bendectin during the first trimester. She also testi-          In addition to the statistical shortcomings of the
fied that the relative risk for women who were ex-         Havners' epidemiological evidence, another strike
posed to Bendectin but not exposed to spermicide           against its reliability is that it has never been pub-
was 8.8 and finally, that if women who were ex-




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lished or otherwise subjected to peer review, with         methodology will be detected.” Daubert v. Merrell
the exception of Dr. Swan's abstract, which she ac-        Dow Pharms., Inc., 509 U.S. 579, 593, 113 S.Ct.
knowledges is not the equivalent of a published pa-        2786, 2797, 125 L.Ed.2d 469 (1993). One legal
per. Dr. Swan has published a number of papers in          commentator has suggested that the ultimate test of
scientific journals, including a study that concluded      the integrity of an expert witness in the scientific
Bendectin is not associated with cardiac birth de-         arena is “her readiness to publish and be damned.”
fects. Although she has been testifying in Bendectin       Daubert, 43 F.3d at 1318 (quoting PETER W.
limb reduction birth defect cases for many years,          HUBER, GALILEO'S REVENGE: JUNK SCI-
Dr. Swan has never attempted to publish her opin-          ENCE IN THE COURTROOM 209 (1991)). Fur-
ions or conclusions about Bendectin and limb re-           ther, “the examination of a scientific study by a
duction defects. Similarly, studies by Dr. Glasser         cadre of lawyers is not the same as its examination
have been published in refereed journals, but none         by others trained in the field of science or medi-
of his 32 to 33 publications mentions Bendectin or         cine.” Richardson v. Richardson–Merrell, Inc., 857
limb reduction birth defects.                              F.2d 823, 831 n. 55 (D.C.Cir.1988) (quoting Perry
                                                           v. United States, 755 F.2d 888, 892 (11th Cir.1985)
     As already discussed, there are over thirty pub-      ).
lished, peer-reviewed epidemiological studies on
the relationship between Bendectin and birth de-                We do not hold that publication is a prerequis-
fects. None of the findings offered by the Havners'        ite for scientific reliability in every case, but courts
five experts in this case have been published, stud-       must be “especially skeptical” of scientific evid-
ied, or replicated by the relevant scientific com-         ence that has not been published or subjected to
munity. As Judge Kozinski has said, “the only re-          peer review. Brock v. Merrell Dow Pharms., Inc.,
view the plaintiffs' experts' work has received has        874 F.2d 307, 313 (5th Cir.), as modified on reh'g,
been by judges and juries, and the only place their        884 F.2d 166 (5th Cir.1989); see also Bert Black et
theories and studies have been published is in the         al., Science and the Law in the Wake of Daubert: A
pages of federal and state reporters.” Daubert, 43         New Search for Scientific Knowledge, 72 TEX.
F.3d at 1318 (commenting on the same five wit-             L.REV. 715, 778 (1994). Publication and peer re-
nesses called by the Havners). A related factor that       view allow an opportunity for the relevant scientific
should be considered is whether the study was pre-         community to comment on findings and conclu-
pared only for litigation. Has the study been used or      sions and to attempt to replicate the reported results
relied upon outside the courtroom? Is the methodo-         using different populations and different study
logy recognized in the scientific community? Has           designs.
the litigation spawned its own “community” that is
not part of the purely scientific community? The               [15] The need for the replication of results was
opinions to which the Havners' witnesses testified         acknowledged by the Havners' witnesses.
have never been offered outside the confines of a          Moreover, it must be borne in mind that the discip-
courthouse.                                                line of epidemiology studies associations, not
                                                           “causation” per se. Particularly where, as here, dir-
     [14] Publication and other peer review is a sig-      ect experimentation has not been conducted, it is
nificant indicia of the reliability of scientific evid-    important that any conclusions about causation be
ence when the expert's testimony is in an area in          reached only after an association is observed in
which peer review or publication would not be un-          studies among different groups and that the associ-
common. Publication in *727 reputable, established         ation continues to hold when the effects of other
scientific journals and other forms of peer review         variables are taken into account. See, e.g., MOORE
“increases the likelihood that substantive flaws in        & MCCABE, supra, at 202.




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     As we have already observed, an isolated study             The argument is sometimes made that waiting
finding a statistically significant association            until an association found in one study is confirmed
between Bendectin and limb reduction defects               by others will mean that early claimants will be
would not be legally sufficient evidence of causa-         denied a recovery. See, e.g., Green, supra, *72886
tion. The Havners' witnesses conceded that when a          NW. U.L.REV. at 680–81; Wendy E. Wagner,
number of studies have been done, it would not be          Trans–Science in Torts, 96 YALE L.J. 428, 428–29
good practice to pick out one to support a conclu-         (1986). A related argument is that history tells us
sion. As the federal Reference Manual on Scientific        that the scientific community has been slow at
Evidence points out, “[m]ost researchers are conser-       times to accept valid research and its results. While
vative when it comes to assessing causal relation-         these observations are true, history also tells us that
ships, often calling for stronger evidence and more        valid and reliable research and theories are gener-
research before a conclusion of causation is               ally accepted quickly within the scientific com-
drawn.” Bailey et al., Reference Guide on Epidemi-         munity when sufficient explanation is provided and
ology, in REFERENCE MANUAL ON SCIENTIF-                    empirical data are adequate. See Black et al., supra,
IC EVIDENCE, supra, at 157. For example, Dr.               72 TEX. L. REV. at 779–82 (discussing Galileo,
Swan explained that initially, some studies showed         Pasteur, DNA, and continental drift).
a statistically significant association between
Bendectin and the birth defect pyloric stenosis.                [16] Others have argued that liability should
However, subsequent, much larger studies did not           not be allocated only on the basis of reliable proof
bear out that association, and in fact, Swan herself       of fault because legal rules should have the goals of
has published studies that failed to find an associ-       “risk spreading, deterrence, allocating costs to the
ation between Bendectin and this type of birth de-         cheapest cost-avoider, and encouraging socially
fect.                                                      favored activities,” and because “ ‘consumers of
                                                           American justice want people compensated.’ ”
     Accordingly, if scientific methodology is fol-        Rochelle Cooper Dreyfuss, Is Science a Special
lowed, a single study would not be viewed as indic-        Case? The Admissibility of Scientific Evidence
ating that it is “more probable than not” that an as-      After Daubert v. Merrell Dow, 73 TEX. L.REV.
sociation exists. See, e.g., Richardson v. Richard-        1779, 1795–96 (1995) (quoting Kenneth R. Fein-
son–Merrell, Inc., 649 F.Supp. 799, 802 n. 10              berg, Civil Litigation in the Twentieth–First Cen-
(D.D.C.1986) (noting that no single study would be         tury: A Panel Discussion, 59 BROOK. L.REV..
sufficient to exonerate or to implicate Bendectin          1199, 1206 (1993)). It has been contended that
with certainty and that studies become “conclusive”        “[f]or some cases that very well may mean creating
only in the aggregate), aff'd, 857 F.2d 823                a compensatory mechanism even in the absence of
(D.C.Cir.1988). In affirming the district court in         clear scientific proof of cause and effect” and that
Richardson–Merrell, the District of Columbia Cir-          “[d]eferring to scientific judgments about fault only
cuit recognized that the plaintiffs' expert had recal-     obscures the core policy questions that are ad-
culated epidemiological data and had obtained a            dressed by the laws that the court is applying.” Id.
statistically significant result. See Richardson, 857      We expressly reject these views. Our legal system
F.2d at 831. The court nevertheless held this was          requires that claimants prove their cases by a pre-
not evidence that would support a verdict. Id.             ponderance of the evidence. In keeping with this
Courts should not embrace inferences that good sci-        sound proposition at the heart of our jurisprudence,
ence would not draw. But cf. Lynch, 830 F.2d at            the law should not be hasty to impose liability when
1194 (asserting that a new study coming to a differ-       scientifically reliable evidence is unavailable. As
ent conclusion and challenging the consensus               Judge Posner has said, “[l]aw lags science; it does
would be admissible).                                      not lead it.” Rosen v. Ciba–Geigy Corp., 78 F.3d




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316, 319 (7th Cir.), cert. denied, 519 U.S. 819, 117       information, including epidemiological data, animal
S.Ct. 73, 136 L.Ed.2d 33 (1996).                           data, biological plausibility, and in vitro studies.
                                                           Dr. Swan confirmed that these are the relevant
                           B                               sources of information in determining teratogeni-
     The Havners relied on in vivo animal studies to       city. See also Brent, Comment on Comments on
support the conclusion that Bendectin causes limb          “Teratogen Update: Bendectin,” *729 TERATO-
reduction birth defects in humans. This evidence           LOGY 31:429–30 (1985) (stating process for de-
was presented by Dr. Adrian Gross, a veterinarian          termining if a substance is a teratogen: (1) consist-
and a veterinary pathologist who had worked at the         ent, reproducible findings in human epidemiologic-
FDA from 1964 to 1979, served as the Chief of the          al studies; (2) development of an animal model; (3)
Toxicology Branch at the Environmental Protection          embryo toxicity that is dose related; and (4) consist-
Agency from 1979 to 1980, and thereafter was a             ency with basic, recognized concepts of embry-
Senior Science Advisor at the EPA. Dr. Gross con-          ology and fetal development). Thus, scientific
firmed that the FDA and EPA consider animal stud-          methodology would not rely on animal studies,
ies in assessing the potential human response to           standing alone, as conclusive evidence that a sub-
drugs or pesticides. He testified that what will af-       stance is a teratogen in humans. See Raynor v. Mer-
fect an animal is likely to affect humans in the same      rell Pharms., Inc., 104 F.3d 1371, 1375
way and that the only reason animal studies are            (D.C.Cir.1997) (noting that the only way to test
done is to predict if the drug at issue will have an       whether data from nonhuman studies can be extra-
adverse effect on humans.                                  polated to humans would be to conduct human ex-
                                                           periments or to use epidemiological data); Elkins v.
     Dr. Gross reviewed a number of animal studies
                                                           Richardson–Merrell, Inc., 8 F.3d 1068, 1071 (6th
that had been conducted on Bendectin. He de-
                                                           Cir.1993) (holding that expert opinion indicating a
scribed studies on rabbits exposed to Bendectin in
                                                           basis of support in animal studies is admissible but
which he saw “a lot of malformed kits.” Gross testi-
                                                           is simply inadequate to permit a jury to conclude
fied about another study of rabbits that he found
                                                           that Bendectin more probably than not causes limb
statistically significant. He opined that the probabil-
                                                           defects); Lynch, 830 F.2d at 1194 (asserting that in
ity that the malformations in this study occurred by
                                                           vivo and in vitro animal studies singly or in com-
chance were six in 10,000. With respect to another
                                                           bination do not have the capability of proving caus-
animal study on rabbits, he stated that the probabil-
                                                           ation in human beings in the absence of any con-
ity that the drug was harmless was less than one per
                                                           firming epidemiological data); see also Brock, 874
1,000,000. He listed studies on monkeys, rats, and
                                                           F.2d at 313 (recognizing that animal studies are of
mice showing “highly significant deleterious harm-
                                                           very limited usefulness when confronted with ques-
ful effects as far as birth defects are concerned.”
                                                           tions of toxicity); Allen v. Pennsylvania Eng'g
Based on these animal studies, Dr. Gross was of the
                                                           Corp., 102 F.3d 194, 197 (5th Cir.1996) (quoting
opinion that Bendectin was teratogenic in humans,
                                                           and following Brock in toxic tort case).
which means that it causes birth defects. However,
he conceded that the dosage levels at which                     We further note that with respect to the in vivo
Bendectin became associated with birth defects in          studies about which Dr. Gross testified, their reliab-
rats was at 100 milligrams per kilogram per day,           ility as predictors of the effect of Bendectin in hu-
which would be the equivalent of a daily dosage of         mans is questionable because of the dosage levels.
1200 tablets for a woman weighing 132 pounds.              Dr. Gross offered no explanation of how the very
                                                           high dosages could be extrapolated to humans. Oth-
    The Havners assert in their briefing before this
                                                           er courts have rejected animal studies that relied on
Court that the accepted technique for determining if
                                                           high dosage levels as evidence of causation in hu-
a substance is a teratogen in humans is to look at all




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mans. See, e.g., Turpin v. Merrell Dow Pharms.,            stance “could” or “can” cause a disease or disorder
Inc., 959 F.2d 1349 (6th Cir.1992) (reasoning that         is not evidence that in reasonable probability it
to eliminate drugs toxic to embryos at high dosage         does. See, e.g., Parker v. Employers Mut. Liab. Ins.
levels would eliminate most drugs and many useful          Co., 440 S.W.2d 43, 47 (Tex.1969); Bowles v.
chemicals on which modern society depends heav-            Bourdon, 148 Tex. 1, 219 S.W.2d 779, 785 (1949).
ily) (citing James Wilson, Current Status of Terato-       Newman testified, however, that based on the Has-
logy, in HANDBOOK OF TERATOLOGY 60                         sell/Horigan and other animal studies, he concluded
(1977)). Gross also failed to explain why the pub-         with a reasonable degree of medical certainty that
lished studies from which he extracted his data had        doxylamine succinate is a teratogen for cartilage
concluded Bendectin was not harmful.                       development and *730 that doxylamine succinate is
                                                           a teratogen in humans. He also testified that he had
     The in vivo studies identified in this case can-      reviewed the records surrounding Marilyn Havner's
not support the jury's verdict.                            pregnancy and that to a reasonable certainty, she
                                                           was not exposed to any teratogen other than
     Dr. Stuart Allen Newman also relied on animal
                                                           Bendectin.
studies to support his opinion that Bendectin is a te-
ratogen in humans. Dr. Newman holds a doctorate                 The in vitro studies are similar to the cell bio-
in chemical physics and is a professor at New York         logy data at issue in Allen v. Pennsylvania Engin-
Medical College. He has published over fifty art-          eering, 102 F.3d at 198. The fact that Bendectin
icles, although none contain the opinions or conclu-       may have an adverse effect on limb bud cells is
sions to which he testified in this case.                  “the beginning, not the end of the scientific inquiry
                                                           and proves nothing about causation without other
     The studies Newman reviewed were in vitro
                                                           scientific evidence.” Id.; see also Richardson, 857
studies, which are based on tests conducted on cells
                                                           F.2d at 830 (“Positive results from in vitro studies
in a test tube or petri dish. Doxylamine succinate
                                                           may provide a clue signaling the need for further
was placed directly on the limb bud cells of animals
                                                           research, but alone do not provide a satisfactory
including chickens and mice. The development of
                                                           basis for opining about causation in the human con-
cartilage was affected. Newman acknowledged that
                                                           text.”); Bailey et al., Reference Guide on Epidemi-
in these studies, the researchers who had conducted
                                                           ology, in REFERENCE MANUAL ON SCIENTIF-
them concluded only that doxylamine succinate was
                                                           IC EVIDENCE, supra, at 130–31 (noting that the
potentially capable of inducing genetic damage and
                                                           problem with in vitro studies is extrapolating the
that it should be tested on other systems. But New-
                                                           findings “from tissues in laboratories to whole hu-
man testified that if you find an effect that prevails
                                                           man beings”).
across a number of different species, “you can be
awfully sure that the same thing will prevail in hu-           Logical support for Dr. Newman's opinions
mans.”                                                     was also lacking. A number of substances, such as
                                                           vitamin C, have been shown to damage animal cells
     [17] Newman opined that Kelly Havner's de-
                                                           when placed directly on tissue. Dr. Newman
fect was due to loss of portions of the skeleton that
                                                           offered no explanation of how he made the logical
could with scientific certainty have been caused by
                                                           leap from the in vitro studies on animal tissue to his
a teratogen that affected the embryo. Similarly, he
                                                           conclusion that Bendectin causes birth defects in
testified that the findings of one study, the Hassell/
                                                           humans. Dr. Newman's testimony is not evidence of
Horigan Study, indicated to him that doxylamine
                                                           causation.
succinate can interfere with chondrogenesis, which
is the process of certain cells turning into cartilage.                             D
We note that testimony to the effect that a sub-               Of the five witnesses who testified on the ques-




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tion of causation, the only witness who opined that         served that Dr. Palmer's conclusions so overstated
Bendectin was the cause of Kelly Havner's birth de-         their predicate that it could not legitimately form
fect, as opposed to birth defects in general, was Dr.       the basis for a jury verdict. Id. We agree with that
John Davis Palmer. Dr. Palmer is a licensed medic-          observation based on the record in this case.
al doctor and holds a doctorate in pharmacology.
He is a professor at the University of Arizona Col-             ******
lege of Medicine and the acting head of its Pharma-
                                                                There is no scientifically reliable evidence to
cology Department. His opinion was based in part
                                                            support the verdict in this case. Accordingly, we re-
on the testimony of the Havners' other witnesses.
                                                            verse the judgment of the court of appeals in part
     Dr. Palmer testified that there is a critical peri-    and render judgment for Merrell Dow.
od during gestation when the limbs of a fetus are
                                                            BAKER, J., not sitting.
forming. Marilyn Havner took Bendectin some-
                                                            *731 GONZALEZ, Justice, concurring.
where between the 32nd and 42nd day of gestation,
                                                                 I join the Court's opinion and judgment. I write
depending on how the date of conception is calcu-
                                                            separately to reiterate that the guidelines we estab-
lated, which was within the period for the develop-
                                                            lished in E.I. du Pont de Nemours & Co. v. Robin-
ment of Kelly Havner's hand and arm. Palmer ex-
                                                            son, 923 S.W.2d 549 (Tex.1995), are not limited to
plained that the molecular structure of doxylamine
                                                            expert testimony based on a novel scientific theory.
succinate, one of the two components of Bendectin,
permits it to cross the placenta from the mother's               In Robinson, we held that Texas Rule of Evid-
body and reach the fetus. Based on this fact and on         ence 702 requires the proponent of scientific expert
in vitro animal studies, intact animal studies, and         testimony to show that the testimony is both relev-
epidemiological information, he concluded that              ant and reliable. Robinson, 923 S.W.2d at 556. In
doxylamine succinate is a teratogen in humans. Re-          doing so, we followed the lead of the United States
lying on this same information and on information           Supreme Court and the Texas Court of Criminal
concerning Kelly Havner, including the date her             Appeals and adopted a list of non-exclusive factors
mother ingested Bendectin, Dr. Palmer concluded             for determining whether such testimony is admiss-
that to a reasonable degree of medical certainty,                 FN1
                                                            ible.     See id. at 554–57 (citing Daubert v. Mer-
Bendectin caused the birth defect seen in Kelly             rell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
Havner's hand.                                              S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kelly v. State,
                                                            824 S.W.2d 568 (Tex.Crim.App.1992)). Here, the
     However, Dr. Palmer's testimony is based on
                                                            Court applies the Robinson criteria to Merrell
epidemiological studies that conclude just the op-
                                                            Dow's legal sufficiency challenge and concludes
posite. To the extent that he relied on the opinions
                                                            that the Havners' expert testimony is no evidence of
of Drs. Swan, Glasser, Newman, or Gross, there is
                                                            causation. 953 S.W.2d 706. I agree with this ap-
no scientifically reliable evidence to support their
                                                            proach. But I am concerned that some litigants may
opinions, as we have seen. Palmer identified no
                                                            misread Robinson to apply only to novel scientific
other study or body of knowledge that would sup-
                                                            evidence because of my later writings applying it to
port his opinion, other than the chemical structure
                                                            “junk science” cases. See S.V. v. R.V., 933 S.W.2d
of doxylamine succinate and a study done on anti-
                                                            1, 26 (Tex.1996) (Gonzalez, J., concurring); Bur-
histamines, not Bendectin. The Sixth Circuit cap-
                                                            roughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500
tured the essence of Dr. Palmer's testimony when it
                                                            (Tex.1995) (Gonzalez, J., concurring).
said, “no understandable scientific basis is stated.
Personal opinion, not science, is testifying here.”                 FN1. These factors are:
Turpin, 959 F.2d at 1360. That court further ob-




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953 S.W.2d 706, Prod.Liab.Rep. (CCH) P 15,015, 40 Tex. Sup. Ct. J. 846
(Cite as: 953 S.W.2d 706)




           (1) the extent to which the theory has            sidered “novel” are daunting enough to reject ap-
           been or can be tested;                            plication of a dual standard. Moreover, we ob-
                                                             serve that the factors and criteria set forth in
           (2) the extent to which the technique re-         Kelly as bearing upon the reliability of proffered
           lies upon the subjective interpretation of        scientific evidence are adequate measure for as-
           the expert;                                       suring that “novel” scientific evidence which is
                                                             “junk science” is excluded. These factors
           (3) whether the theory has been subjec-
                                                             “address the soundness of the underlying scientif-
           ted to peer review and/or publication;
                                                             ic theory and technique.” Jordan v. State, 928
           (4) the technique's potential rate of error;      S.W.2d 550, 554 (Tex.Crim.App.1996)....

           (5) whether the underlying theory or                 Hartman v. State, 946 S.W.2d 60, 63
           technique has been generally accepted as        (Tex.Crim.App.1997). This analysis applies equally
           valid by the relevant scientific com-           to Robinson. As I have said before, we intended
           munity; and                                     Robinson to “provide the exclusive standard for
                                                           evaluating the reliability of expert testimony about
           (6) the non-judicial uses which have            anything characterized as science.” S.V. v. R.V., 933
           been made of that theory or technique.          S.W.2d at 42 (Gonzalez, J., concurring on rehear-
                                                           ing). We did not intend to free from Robinson 's
           E.I. du Pont de Nemours & Co. v. Robin-         grasp what might be considered routine science.
           son, 923 S.W.2d 549, 557 (Tex.1995)
           (citation and footnote omitted).                     The Havners attempted to prove causation
                                                           primarily through expert testimony based on epi-
    Recently, the Court of Criminal Appeals ad-            demiological and animal studies. These foundations
dressed a similar attack on Kelly, that court's equi-      are by no means novel. By applying the Robinson
valent of Robinson. In rejecting this argument, the        factors to Merrell Dow's no-evidence challenge, the
court stated:                                              Court implicitly holds that Robinson applies to sci-
                                                           entific expert testimony across the board. The trial
     Nowhere in Kelly did we limit the two-pronged
                                                           *732 court must only determine whether the evid-
  standard to novel scientific evidence. The [United
                                                           ence is relevant and reliable. See Robinson, 923
  States] Supreme Court in Daubert directly ad-
                                                           S.W.2d at 556. It need not decide whether the evid-
  dressed the issue in a footnote, stating
                                                           ence is also novel.
  “[a]lthough the Frye decision itself focused ex-
                                                           SPECTOR, Justice, concurring.
  clusively on ‘novel’ scientific techniques, we do
                                                                The Court today fails to heed its own warning
  not read the requirements of Rule 702 to apply
                                                           that “the examination of a scientific study by a
  specifically or exclusively to unconventional
                                                           cadre of lawyers is not the same as its examination
  evidence.” Daubert, 509 U.S. at 593 n. 11, 113
                                                           by others trained in the field of science or medi-
  S.Ct. at 2796 n. 11. The Supreme Court noted
                                                           cine.” 953 S.W.2d at 727 (internal citations omit-
  that “under the Rules, the trial judge must ensure
                                                           ted). I agree that the Havners' expert witness testi-
  that any and all scientific testimony or evidence
                                                           mony is not legally sufficient evidence of causa-
  admitted is not only relevant, but reliable.” Id. at
                                                           tion. However, as a judge, and not a scientist, I am
  589, 113 S.Ct. at 2795 (emphasis added). We
                                                           uncomfortable with the majority's ambitious sci-
  likewise see no value in having a different stand-
                                                           entific analysis and its unnecessarily expansive ap-
  ard of admissibility for novel scientific evidence.
                                                           plication of the Daubert standard. The majority's
  The problems presented in determining whether
                                                           opinion, replete with dicta, gives courts no practical
  or not a particular type of evidence would be con-




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guidance outside the context of Bendectin litiga-            the respect due this Court and the legal system
tion. Accordingly, I concur only in the judgment of          we took an oath to serve.
the Court.
                                                                In re Maloney, 949 S.W.2d 385, 388
        ON MOTION FOR REHEARING                            (Tex.App.—San Antonio 1997, no writ) (en banc)
                     ORDER                                 (per curiam); see also Johnson v. Johnson, 948
    The motion for rehearing filed on behalf of the        S.W.2d 835, 840–41 (Tex.App.—San Antonio
                                                                                   FN1
Havners is overruled. However, the tenor of that           1997, writ requested)        (sanctioning counsel for
motion requires that we address the conduct of Re-         disparaging remarks about the trial court and for-
spondents' counsel.                                        warding the court of appeals' opinion to the Office
                                                           of General Counsel, concluding that a substantial
     This is not the first time in this case that the      question had been raised about counsel's honesty,
Havners' counsel have engaged in less than exem-           trustworthiness, or fitness as a lawyer).
plary conduct. Following the decision of the origin-
al panel of the court of appeals, which had reversed                FN1. An application for writ of error is
the judgment of the trial court and rendered judg-                  pending in this Court, and we express no
ment that the Havners take nothing, Robert C. Hil-                  opinion on the merits of that appeal.
liard filed two briefs with the court of appeals
which that court, sitting en banc, found to be                  Courts possess inherent power to discipline an
“insulting, disrespectful, and unprofessional.” Mer-       attorney's behavior. “ ‘Courts of justice are univer-
rell Dow Pharmaceuticals, Inc. v. Havner, 907              sally acknowledged to be vested, by their very cre-
S.W.2d 565, 566 (Tex.App.—Corpus Christi 1994)             ation, with power to impose silence, respect, and
(en banc) (per curiam). The court of appeals further       decorum, in their presence.’ ” Chambers v. NASCO,
concluded that the briefs “evidence[d] a violation         Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d
of the Texas Disciplinary Rules of Professional            27 (1991) (further observing that a federal court has
Conduct that raises a substantial question as to the       the power to control admission to its bar and to dis-
lawyer's honesty, trustworthiness, or fitness.” Id.        cipline attorneys who appear before it) (quoting An-
The court of appeals accordingly forwarded copies          derson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821)
of those briefs to the Office of General Counsel of        ); see also Public Util. Comm'n v. Cofer, 754
the State Bar of Texas pursuant to Texas Code of           S.W.2d 121, 124 (Tex.1988); Johnson, 948 S.W.2d
Judicial Conduct, Canon 3(D)(2). Id.                       at 840–41.

     In assessing the appropriate response to the               The Disciplinary Rules governing the conduct
motion for rehearing that has now been filed by            of a lawyer provide:
Hilliard and his co-counsel in this Court, we agree
                                                               *733 A lawyer should demonstrate respect for
with another of our courts of appeals who recently
                                                             the legal system and for those who serve it, in-
found it necessary to address attacks on the integ-
                                                             cluding judges, other lawyers and public offi-
rity of that court:
                                                             cials. While it is a lawyer's duty, when necessary,
     A distinction must be drawn between respectful          to challenge the rectitude of official action, it is
  advocacy and judicial denigration. Although the            also a lawyer's duty to uphold legal process.
  former is entitled to a protected voice, the latter
                                                               TEX. DISCIPLINARY R. PROF'L CONDUCT
  can only be condoned at the expense of the pub-
                                                           preamble ¶ 4, reprinted in TEX. GOV'T CODE, tit.
  lic's confidence in the judicial process. Even were
                                                           2, subtit. G app. A (Vernon Supp.1997) (TEX.
  this court willing to tolerate the personal insult
                                                           STATE BAR R. art. X, § 9).
  levied by [counsel], we are obligated to maintain




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953 S.W.2d 706, Prod.Liab.Rep. (CCH) P 15,015, 40 Tex. Sup. Ct. J. 846
(Cite as: 953 S.W.2d 706)




     Rule 8.02(a) of the Disciplinary Rules specific-      November, 1997.
ally states:
                                                           BAKER, J., not sitting.
     A lawyer shall not make a statement that the
  lawyer knows to be false or with reckless disreg-        Tex.,1997.
  ard as to its truth or falsity concerning the quali-     Merrell Dow Pharmaceuticals, Inc. v. Havner
  fications or integrity of a judge, adjudicatory offi-    953 S.W.2d 706, Prod.Liab.Rep. (CCH) P 15,015,
  cial or public legal officer, or of a candidate for      40 Tex. Sup. Ct. J. 846
  election or appointment to judicial or legal office.
                                                           END OF DOCUMENT
    Id. Rule 8.02(a).

    The Legislature has also provided a mechanism
for courts to sanction counsel who file pleadings
presented for an improper purpose or to harass.
TEX. CIV. PRAC. & REM.CODE §§ 10.001 —
10.005. In addition, one of the lawyers for the
Havners, Barry Nace, is a non-resident attorney.
His appearance in Texas courts is subject to the
Rules Governing Admission to the Bar, including
Rule XIX.

     The specific portions of the “Respondents' Mo-
tion for Rehearing” filed in this Court that raise
particular concerns are the “Statement of the Case
for Rehearing” (pages 1–5), the “Brief of the Argu-
ment” (pages 8, 14, and 16), and the “Prayer for
Relief” (pages 19–20). Counsel for Respondents
Robert C. Hilliard of the firm of Hilliard & Muñoz,
Barry J. Nace of the firm of Paulson, Nace, Nor-
wind & Sellinger, and Rebecca E. Hamilton of the
firm of White, White & Hamilton, P.C., are hereby
afforded the opportunity to respond as to why the
Court should not

  1) refer each of them to the appropriate disciplin-
  ary authorities;

  2) prohibit attorney Nace from practicing in
  Texas courts; and

  3) impose monetary penalties as sanctions.

    Any response must be filed in this Court by
5:00 p.m., Monday, November 24, 1997.

    Done at the City of Austin, this 13th day of




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772 S.W.2d 442, 8 UCC Rep.Serv.2d 991
(Cite as: 772 S.W.2d 442)




                                                          for breach of implied warranty of merchantability.
                                                          V.T.C.A., Bus. & C. § 2.314(b)(3).
           Supreme Court of Texas.
      PLAS–TEX, INC. et al., Petitioners,                 [2] Sales 343     272
                    v.
   U.S. STEEL CORPORATION, Respondent.                    343 Sales
                                                              343VI Warranties
                  No. C–7728.                                      343k265 Implied Warranty of Quality, Fit-
                 April 19, 1989.                          ness, or Condition
         Rehearing Denied May 17, 1989.                               343k272 k. Merchantability. Most Cited
                                                          Cases
     Buyer of resins used in manufacture of fiber-             In context of implied warranty of merchantabil-
glass swimming pools brought action against resin         ity case, word “defect” means condition of goods
manufacturer and seller to recover for breach of          that renders them unfit for ordinary purposes for
warranty and violation of Deceptive Trade Prac-           which they are used because of lack of something
tices Act. The 14th District Court, Dallas County,        necessary for adequacy. V.T.C.A., Bus. & C. §
John McClellan Marshall, J., entered judgment in          2.314(b)(3).
favor of buyer against manufacturer and take-
nothing judgment for buyer against seller. Manu-          [3] Sales 343     441(3)
facturer appealed. The Dallas Court of Appeals,
Fifth Supreme Judicial District, 751 S.W.2d 628,          343 Sales
reversed and remanded. On appeal, the Supreme                343VIII Remedies of Buyer
Court, Cook, J., held that: (1) proof of defect in                 343VIII(D) Actions and Counterclaims for
goods was required in implied warranty of mer-            Breach of Warranty
chantability case; (2) seller was not entitled to in-               343k438 Evidence
demnity for attorney's fees under Deceptive Trade                      343k441 Weight and Sufficiency
Practices Act as finding of manufacturer's liability                        343k441(3) k. Breach of Warranty.
had been reversed on appeal; and (3) unappealed-          Most Cited Cases
from take-nothing judgment against seller was final           Plaintiff in implied warranty of merchantability
as to that issue, and remand for new trial of entire      case does not have to use direct or expert opinion
case was thus improper.                                   evidence to show that goods were defective at time
                                                          they left manufacturer's or seller's possession and
   Affirmed in part, reversed in part, and re-            can instead meet burden by using circumstantial
manded.                                                   evidence. V.T.C.A., Bus. & C. § 2.314(b)(3).

                  West Headnotes                          [4] Appeal and Error 30        989

[1] Sales 343      371                                    30 Appeal and Error
                                                             30XVI Review
343 Sales                                                          30XVI(I) Questions of Fact, Verdicts, and
   343VII Remedies of Seller                              Findings
      343VII(F) Actions for Damages                                 30XVI(I)1 In General
            343k371 k. Conditions Precedent. Most                     30k988 Extent of Review
Cited Cases                                                                30k989 k. In General. Most Cited
    Proof of defect in goods is required in action        Cases




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772 S.W.2d 442, 8 UCC Rep.Serv.2d 991
(Cite as: 772 S.W.2d 442)




    In factual sufficiency review, appellate court is     of judgment against manufacturer was thus improp-
to consider all evidence in record, including any         er.
evidence contrary to judgment.
                                                          *442 Roger D. Higgins and Robert A. Michael,
[5] Indemnity 208       72                                Thompson, Coe, Cousins & Irons, Dallas, for peti-
                                                          tioner.
208 Indemnity
   208III Indemnification by Operation of Law             Larry Hallman & Joann N. Wilkins, Burford & Ry-
       208k63 Particular Cases and Issues                 burn, Judy Norris and Frank Finn, Thompson &
             208k72 k. Successive Sellers; Products       Knight, Dallas, for respondent.
Liability. Most Cited Cases
   (Formerly 208k13.5)
                                                          *443 COOK, Justice.
    Seller was not entitled to indemnity from man-
                                                               This is a breach of implied warranty of mer-
ufacturer for attorney's fees in buyer's action under
                                                          chantability case that was brought by Fiberex, Inc.
Deceptive Trade Practices Act where trial court's
                                                          against U.S. Steel Corporation and Plas–Tex, Inc.
finding of manufacturer's liability was reversed on
                                                          The court of appeals reversed the judgment of the
appeal. V.T.C.A., Bus. & C. § 17.555.
                                                          trial court and remanded the cause for a new trial
[6] Appeal and Error 30        1173(2)                    after concluding that the evidence was factually in-
                                                          sufficient to support jury findings of a breach of
30 Appeal and Error                                       warranty and causation against U.S. Steel. 751
    30XVII Determination and Disposition of Cause         S.W.2d 628 (Tex.App.1988). We modify the judg-
       30XVII(D) Reversal                                 ment of the court of appeals and remand the cause
           30k1173 Reversal as to One or More Co-         to the trial court for a new trial.
parties
                30k1173(2) k. Reversal as to Parties           Fiberex is a manufacturer of fiberglass swim-
Not Appealing. Most Cited Cases                           ming pools. During 1980 and 1981 Fiberex pur-
     General rule that, when one party appeals from       chased polyester resins used in the manufacture of
judgment then reversal as to that party will not jus-     these pools from Plas–Tex, a resin distributor. Most
tify reversal as to other nonappealing parties, does      of the resins purchased by Fiberex in 1980 and
not apply when rights of appealing and nonappeal-         1981 were manufactured by U.S. Steel. Beginning
ing parties are so interwoven or dependent on each        in the latter part of 1980 some of the pools manu-
                                                                                                   FN1
other as to require reversal of entire judgment.          factured by Fiberex began delaminating.       By the
                                                          spring of 1981 approximately thirty-four pools had
[7] Appeal and Error 30        1173(2)                    delaminated. Fiberex kept no records as to which
                                                          types of resins were used in the manufacture of the
30 Appeal and Error                                       pools that delaminated.
    30XVII Determination and Disposition of Cause
       30XVII(D) Reversal                                         FN1. Delamination is the separation of lay-
           30k1173 Reversal as to One or More Co-                 ers of fiberglass caused by the failure of
parties                                                           the layers of fiberglass to bond together.
                30k1173(2) k. Reversal as to Parties
Not Appealing. Most Cited Cases                               Fiberex then brought suit against U.S. Steel
     Take-nothing judgment against seller that was        and Plas–Tex, claiming that the resins manufac-
not appealed by buyer was final, and remand of en-        tured by U.S. Steel and sold by Plas–Tex caused the
tire case against seller and manufacturer on reversal     delamination in the swimming pools Fiberex built
                                                          using these resins. Plas–Tex asserted a cross-claim




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(Cite as: 772 S.W.2d 442)




against U.S. Steel for indemnity. The trial court          (5th Cir. Unit A Mar.1981) (applying Texas law).
rendered judgment in favor of Fiberex against U.S.         But see Bernard v. Dresser Indus., 691 S.W.2d 734,
Steel, holding it liable for breach of implied war-        738 (Tex.App.—Beaumont 1985, writ ref'd n.r.e.)
                                                                                           FN2
ranty of merchantability and for violations of the         (no proof of defect required).       The overwhelm-
Texas Deceptive Trade Practices–Consumer Protec-           ing*444 majority of jurisdictions also requires
                                                                               FN3
tion Act (DTPA), Tex.Bus. & Com.Code Ann. §§               proof of a defect.       We likewise hold that proof
17.41–.63 (Vernon 1987). With regard to Plas–Tex,          of a defect is required in an action for breach of im-
the trial court rendered judgment that Fiberex take        plied warranty of merchantability under section
                                                                         FN4
nothing. The trial court also rendered judgment that       2.314(b)(3).
U.S. Steel indemnify Plas–Tex for its attorney's
fees.                                                               FN2. Fiberex also argues that Conann
                                                                    Constructors, Inc. v. Muller, 618 S.W.2d
     U.S. Steel appealed and the court of appeals re-               564 (Tex.Civ.App.—Austin 1981, writ
versed the judgment of the trial court and remanded                 ref'd n.r.e.), supports its position that proof
the entire cause for a new trial. Fiberex and                       of a defect is not required in an implied
Plas–Tex each filed an application for writ of error.               warranty       of    merchantability      case.
Fiberex contends that the court of appeals erred in                 However, Conann is based on implied war-
requiring proof of a defect in the goods in an im-                  ranty of fitness for a particular purpose,
plied warranty of merchantability claim and also                    618 S.W.2d 566–67; see Tex.Bus. &
erred in its factual sufficiency analysis. Plas–Tex                 Com.Code Ann. § 2.315 (Tex.U.C.C.)
contends that the court of appeals erred in reversing               (Vernon 1968), and is thus not applicable
its award of indemnity for attorney's fees and in re-               to the instant case, see generally 1 J. White
manding the entire cause for a new trial.                           & R. Summers, Uniform Commercial Code
                                                                    § 9–10, at 481–82 (3d ed. 1988). In an ac-
                             I.                                     tion based on implied warranty of fitness
     [1] Fiberex argues that the court of appeals                   for a particular purpose, proof of a defect
erred in holding that goods must be defective be-                   is not required. See id. at 482 & n. 3.
fore recovery will be allowed under an implied
warranty of merchantability theory. Tex.Bus. &                      FN3. See R. Anderson, Uniform Commer-
Com.Code Ann. § 2.314(b)(3) (Tex.U.C.C.)                            cial Code § 2–314:56, at 162 & n. 16
(Vernon 1968) (“Goods to be merchantable must be                    (1983); W. Hawkland, Uniform Commer-
at least such as are fit for the ordinary purposes for              cial Code Series § 2–314:05, at 143 n. .5
which such goods are used.”). Fiberex contends that                 (Supp.1988); see also B. Clark & C.
it need not show a defect in the goods, but instead it              Smith, The Law of Product Warranties ¶
need only show that the goods were not merchant-                    5.01[2][a][ii] (1984 & Supp.1987) (“For a
able, i.e., not fit for the ordinary purposes for which             product to flunk the merchantability test, it
the goods are used.                                                 must contain an inherent defect.... If the
                                                                    goods contain no inherent defect, there can
    The majority of the courts of appeals that have                 be no breach of the implied warranty of
considered this issue have concluded that proof of a                merchantability under Section 2–314.”);
defect is required. Fitzgerald v. Caterpillar Tractor               W. Powers, Texas Products Liability Law
Co., 683 S.W.2d 162, 163–64 (Tex.App.—Fort                          § 2.044 (1989) (“To recover for a breach
Worth 1985, writ ref'd n.r.e.); Ford Motor Co. v.                   of an implied warranty of merchantability,
Tidwell, 563 S.W.2d 831, 835 (Tex.Civ.App.—El                       the buyer must also prove that the goods
Paso 1978, writ ref'd n.r.e.); see also Clark v.                    were defective when they were sold.”); G.
DeLaval Separator Corp., 639 F.2d 1320, 1326




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(Cite as: 772 S.W.2d 442)




       Wallach, The Law of Sales Under the Uni-                    able if they fail to at least: pass without
       form Commercial Code ¶ 11.08[2] (1981)                      objection in the trade under the contract
       (“[T]he warranty of merchantability has                     description, id. § 2.314(b)(2); run, within
       been breached so long as the product fail-                  the variations permitted by the agree-
       ure is caused by some flaw in the goods                     ment, of even kind, quality, and quantity
       themselves.”).                                              within each unit and among all units in-
                                                                   volved, id. § 2.314(b)(4); be adequately
       FN4. The jury charge used in this cause on                  contained, packaged, and labeled as the
       the implied warranty of merchantability                     agreement may require, id. § 2.314(b)(5)
       claim was a pattern jury charge. See 3                      ; or conform to the promises or affirma-
       State Bar of Texas, Texas Pattern Jury                      tions of fact made on the container or la-
       Charges PJC 71.07 (1982). The holding in                    bel, if any, id. § 2.314(b)(6). If any of
       this cause will require a change in PJC                     these requirements are not met, then the
       71.07. Question one of PJC 71.07 should                     goods will not be merchantable. Id. §
       be amended to read as follows:                              2.314(b); see W. Powers, Texas
                                                                   Products Liability Law § 2.043 (1989).
         QUESTION 1
                                                             [2] The defect in an implied warranty of mer-
         Was the reactor heater supplied by the
                                                        chantability case is not the same as the defect in a
         ABC Company unfit for the ordinary
                                                        strict products liability case. In the context of an
         purposes for which such heaters are used
                                                        implied warranty of merchantability case the word
         because of a defect ?
                                                        “defect” means a condition of the goods that
         Answer: _________________                      renders them unfit for the ordinary purposes for
                                                        which they are used because of a lack of something
         “Defect” means a condition of the goods        necessary for adequacy. In the area of strict
         that renders them unfit for the ordinary       products liability, however, the word “defect”
         purposes for which they are used be-           means a condition of the product that renders it un-
         cause of a lack of something necessary         reasonably dangerous. See 3 State Bar of Texas,
         for adequacy.                                  Texas Pattern Jury Charges PJC 71.01 (1982).
                                                        Practitioners—as well as the courts—should exer-
         If you have answered Question 1 “Yes,”         cise care to see that these terms are used precisely.
         and only in that event, then answer
         Question 2.                                        [3] A plaintiff in an implied warranty of mer-
                                                        chantability case has the burden of proving that the
         With the italicized modifications, ques-       goods were defective at the time they left the manu-
         tion one of PJC 71.07 accurately reflects      facturer's or seller's possession. He must show that
         the court's holding in this cause.             the goods were unfit for the ordinary purposes for
                                                        which they are used because of a lack of something
         PJC 71.07 is only applicable when the
                                                        necessary for adequacy, i.e., because of a defect. A
         implied warranty of merchantability case
                                                        plaintiff does not, however, have to use direct or
         is being tried under a section 2.314(b)(3)
                                                        expert opinion evidence to show that the goods had
         breach since there are other possible
                                                        a defect; he can instead meet his burden by using
         tests for merchantability listed under
                                                        circumstantial evidence. See Ford Motor Co. v.
         section 2.314(b)(1)–(2), (4)–(6) of the
                                                        Tidwell, 563 S.W.2d at 835. To make a prima facie
         Texas Business and Commerce Code.
                                                        showing of a defect based solely on circumstantial
         For example, goods are not merchant-




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evidence, Fiberex must present evidence that it                                       II.
                                        FN5
handled and applied the resin properly.      Evid-              [4] Further, Fiberex argues that the court of ap-
ence of proper use of the goods together *445 with         peals erred in applying its factual sufficiency ana-
a malfunction may be sufficient evidence of a de-          lysis in reviewing the jury findings regarding the
fect.                                                      presence of a defect in the goods and causation be-
                                                           cause it failed to detail the evidence and state why
         FN5. In a case where the plaintiff relies         the evidence was factually insufficient, as required
         solely on circumstantial evidence to estab-       by this court in Pool v. Ford Motor Co., 715
         lish a defect, the plaintiff must present         S.W.2d 629, 635 (Tex.1986). Fiberex contends that
         evidence of proper use of the goods to            the court of appeals looked only to the evidence
         make a prima facie showing of the defect.         contrary to the verdict and substituted its judgment
         In cases where the plaintiff relies on direct     for that of the jury. We disagree.
         evidence—as opposed to relying solely on
         circumstantial evidence—to establish a de-             The court of appeals correctly recognized that
         fect, the plaintiff need not present evidence     in its factual sufficiency review it was to consider
         of proper use of the goods.                       all of the evidence in the record, including any
                                                                                               FN7
                                                           evidence contrary to the judgment.       751 S.W.2d
     The only Texas case stating that it is not neces-     at 631 (citing Burnett v. Motyka, 610 S.W.2d 735,
sary to show a defect in the goods to recover under        736 (Tex.1980)). The court of appeals then went on
a breach of implied warranty of merchantability            to do just that, consider both the evidence support-
theory is Bernard v. Dresser Industries, 691               ing and contrary to the judgment. After doing so,
S.W.2d 734, 738 (Tex.App.—Beaumont 1985, writ              the court of appeals concluded that the evidence
ref'd n.r.e.). Even in Dresser, however, the court         was factually insufficient to support jury findings
concluded that circumstantial evidence and reason-         regarding the presence of a defect in the goods and
able inferences showed that the gauge in question          causation. 751 S.W.2d at 634, 637. The court of ap-
was in fact defective, id. at 738, thereby making          peals adequately detailed the evidence and stated
this statement dictum. The evidence in Dresser             the reasons why the evidence was factually insuffi-
showed that the gauge was in the same condition as         cient, thus satisfying the dictates of this court set
it was when it left the possession of the manufac-         forth in Pool, 715 S.W.2d at 635.
turer and that the gauge had been properly handled
and used. Id. at 735–38. There was no evidence that                 FN7. In its opinion the court of appeals
anything else caused the malfunction of the gauge.                  also said that “an insufficient evidence
This made any explanation other than the existence                  point requires only consideration of the
of a defect unlikely. We disapprove Dresser to the                  evidence tending to support a fact....” 751
                                           FN6
extent it conflicts with the instant case.                          S.W.2d at 631 n. 2. This statement should
                                                                    be disregarded as it conflicts with previous
         FN6. The court of appeals distinguished                    holdings of this court requiring a review of
         Dresser solely because it involved person-                 all evidence, including evidence contrary
         al injuries whereas the instant case only in-              to the judgment, in a factual sufficiency re-
         volved economic damages. 751 S.W.2d at                     view. E.g., Burnett v. Motyka, 610 S.W.2d
         632 n. 3. We disagree with this reasoning                  735, 736 (Tex.1980); In re King's Estate,
         that two different tests should be used in                 150 Tex. 662, 664–65, 244 S.W.2d 660,
         an implied warranty of merchantability                     661 (1951).
         claim depending on whether personal in-
         jury or economic loss is involved.                                         III.
                                                               [5] In its application Plas–Tex complains that




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the court of appeals erred in reversing the judgment        nature of or set the standard for obtaining the stat-
in its favor against U.S. Steel for indemnity for at-       utory rights to contribution and indemnity. See W.
torney's fees under the DTPA. Plas–Tex contends             Dorsaneo & C. Alder, Contribution and Indemnity,
that it is entitled to indemnity for attorney's fees un-    in 4 Texas Torts and Remedies § 102.06[2] (J.
der section 17.55A of the Texas Business and Com-           Edgar & J. Sales eds. 1989). Considering the cir-
merce Code even though the judgment rendering               cumstances under which the section was added and
U.S. Steel liable under the DTPA was reversed by            its lack of guidelines, it appears this section was in-
                          FN8
the court of appeals.          Deceptive Trade Prac-        tended to incorporate existing principles of contri-
tices– *446 Consumer Protection Act—Definitions,            bution and indemnity law into DTPA cases. See id.
Relief, Defenses, Legislative Intent, ch. 216, § 7,
1977 Tex.Gen.Laws 600, 604, repealed by Act of                   We considered an issue related to the one in the
May 25, 1987, ch. 167, § 5.02(6), 1987                      instant case in Swafford v. View–Caps Water Sup-
Tex.Gen.Laws 1338, 1361. We disagree.                       ply Corp., 617 S.W.2d 674 (Tex.1981). In that case
                                                            the indemnitor, View–Caps, was found to be liable
         FN8. In 1987 section 17.55A was re-                to the plaintiff, but the indemnitees, Swafford and
         numbered, without change, as section               Baker, were absolved of liability. Id. at 675. The in-
         17.555 of the Texas Business and Com-              demnitees sought attorney's fees under section
         merce Code. That section reads as follows:         17.55A. Id. We said:

           A person against whom an action has                  The only question before this Court is whether
           been brought under this subchapter may             Swafford and Baker are entitled to indemnity
           seek contribution or indemnity from one            from View–Caps for their attorney fees under
           who, under the statute law or at common            Section 17.55A of the DTPA. We hold that Swaf-
           law, may have liability for the damaging           ford and Baker are entitled to recover attorney's
           event of which the consumer complains.             fees under the express provisions of the statute....
           A person seeking indemnity as provided             The jury found that View–Caps was liable for the
           by this section may recover all sums that          event complained of by Purcell. The statute ex-
           he is required to pay as result of the ac-         pressly authorizes indemnity for attorney's fees in
           tion, his attorney's fees reasonable in re-        this situation.
           lation to the amount of work performed
           in maintaining his action for indemnity,              Id. (emphasis added). We specifically noted
           and his costs.                                   that the indemnitor was found liable before con-
                                                            cluding that recovery was proper. Id.
           Tex.Bus. & Com.Code Ann. § 17.555
           (Vernon 1987).                                        In the instant case, however, the indemnitor,
                                                            U.S. Steel, has not been found liable for the event
     Section 17.55A was added to the DTPA as part           complained of by the plaintiff since the trial court's
of the 1977 amendments. The section was added in            finding of liability was reversed by the court of ap-
response to Volkswagen of America, Inc. v. Licht,           peals. There is no right of indemnity against a de-
544 S.W.2d 442, 447 (Tex.Civ.App.—El Paso                   fendant who is not liable to the plaintiff. See Hunter
1976, no writ), in which the court of civil appeals         v. Fort Worth Capital Corp., 620 S.W.2d 547, 553
held that the right of indemnity was not available          (Tex.1981); Brown & Root, Inc. v. Rust Eng'g, 679
under the DTPA. See Debate on Tex.S.B. 664 in               S.W.2d 576, 578 (Tex.App.—Texarkana 1984, writ
Senate Hum. Res. Comm., 65th Leg. 2 (Mar. 14,               ref'd n.r.e.). As a result, Plas–Tex's award of indem-
1977) (transcript available from Texas Senate Staff         nity for attorney's fees was properly reversed by the
Services Office). The statute does not describe the         court of appeals.




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                         IV.                                ment of the court of appeals which remanded Fiber-
    [6][7] Plas–Tex also argues that the court of           ex's claim against Plas–Tex; since there was no ap-
appeals erred in remanding Fiberex's claim against          peal of the trial court's judgment that Fiberex take
Plas–Tex for a new trial. Plas–Tex contends that            nothing against Plas–Tex, that part of the trial
since Fiberex did not appeal the trial court's judg-        court's judgment is final. In all other respects the
ment that it take nothing, the judgment is final as to      judgment of the court of appeals is affirmed.
that issue and remand is therefore improper. We             Plas–Tex is a party to the trial on remand solely for
agree.                                                      the determination of its cross-claim against U.S.
                                                            Steel for indemnity for attorney's fees.
      Generally, when one party appeals from a judg-
ment, a reversal as to that party will not justify a re-    Tex.,1989.
versal as to other nonappealing parties. Turner,            Plas-Tex, Inc. v. U.S. Steel Corp.
Collie & Braden, Inc. v. Brookhollow, Inc., 642             772 S.W.2d 442, 8 UCC Rep.Serv.2d 991
S.W.2d 160, 166 (Tex.1982). This rule does not ap-
ply, however, when the rights of the appealing and          END OF DOCUMENT
nonappealing parties are so interwoven or depend-
ent on each other as to require a reversal of the en-
tire judgment. Id.

     Although the underlying conduct of the defend-
ants that gave rise to this action may have been in-
terwoven, the rights of the parties at this point are
very distinct. There are three claims involved here:
Fiberex's claim against Plas–Tex; Fiberex's claim
against U.S. Steel; and Plas–Tex's cross-claim
against U.S. Steel for indemnity. Fiberex's claim
against Plas–Tex was resolved by a trial court judg-
ment that Fiberex take nothing, which was not ap-
pealed; Plas–Tex therefore has no judgment against
it and a new trial on this issue would be of no bene-
fit. See Jackson v. Fontaine's Clinics, Inc., 499
S.W.2d 87, 92 (Tex.1973); see also *447George v.
Vick, 686 S.W.2d 99, 100 (Tex.1984). Fiberex's
claim against U.S. Steel must be tried again for the
reasons stated above.

     The remaining claim is Plas–Tex's cross-claim
against U.S. Steel. Plas–Tex must be made a party
to the case on remand for the sole purpose of de-
termining whether it is entitled to indemnity for its
attorney's fees. If U.S. Steel is found liable to
Fiberex, then Plas–Tex can request to be indemni-
fied for its attorney's fees.

                       V.
    Accordingly, we reverse that part of the judg-




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675 S.W.2d 503
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                                                                In suit for permanent damage to land, measure
                                                            of damages is difference in market value of land
              Supreme Court of Texas.                       immediately before and immediately after trespass.
           I. David PORRAS, Petitioner,
                       v.                                   [2] Evidence 157      474(18)
             A. B. CRAIG, Respondent.
                                                            157 Evidence
                   No. C–2809.                                  157XII Opinion Evidence
                  July 11, 1984.                                   157XII(A) Conclusions and Opinions of Wit-
         Rehearing Denied Sept. 19, 1984.                   nesses in General
                                                                         157k474 Special Knowledge as to Sub-
     Owner brought action against neighboring               ject-Matter
landowner for title and damages to approximately                            157k474(18) k. Value of Real Prop-
two acres of land. The District Court No. 77, Free-         erty. Most Cited Cases
stone County, Bournias, J., awarded the owner title              In suit for permanent damage to land, proper
to the land, $7,000 in actual damages and $50,000           way of proving difference in market value of land
in exemplary damages against the neighboring                immediately before and immediately after trespass
landowner. Neighboring landowner appealed. The              is opinion testimony and owner of property can
Waco Court of Civil Appeals, Tenth Supreme Judi-            testify to its market value, even if he could not
cial District, 665 S.W.2d 167, affirmed. Neighbor-          qualify to testify about value of like property be-
ing landowner brought error. The Supreme Court,             longing to someone else.
Spears, J., held that: (1) the owner's testimony con-
cerning the reduction in value of his land concerned        [3] Evidence 157      474(16)
personal value, not market value, and, therefore,
there was no evidence to support the award of actu-         157 Evidence
al damages, and (2) because there was no evidence               157XII Opinion Evidence
in support of the award of actual damages, the                     157XII(A) Conclusions and Opinions of Wit-
award of exemplary damages could not stand.                 nesses in General
                                                                         157k474 Special Knowledge as to Sub-
    Judgment of Court of Appeals reversed and               ject-Matter
cause remanded to trial court.                                                157k474(16) k. Value in General.
                                                            Most Cited Cases
    Wallace, J., dissented with opinion in which                 In order for property owner to qualify as wit-
Kilgarlin, J., joined.                                      ness to damages to his property, his testimony must
                                                            show that it refers to market value, rather than in-
                  West Headnotes
                                                            trinsic or some other value of property.
[1] Damages 115        110
                                                            [4] Evidence 157      568(4)
115 Damages
                                                            157 Evidence
   115VI Measure of Damages
                                                               157XII Opinion Evidence
       115VI(B) Injuries to Property
                                                                  157XII(F) Effect of Opinion Evidence
          115k107 Injuries to Real Property
                                                                     157k568 Opinions of Witnesses in Gener-
             115k110 k. Permanent and Continuing
                                                            al
Injuries. Most Cited Cases
                                                                             157k568(4) k. Value. Most Cited




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675 S.W.2d 503
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Cases                                                       [7] Trespass 386      56
    Where landowner's testimony concerning re-
duction in value of his land as result of trespass af-      386 Trespass
firmatively showed that he referred to personal                386II Actions
value rather than market value, that testimony was                386II(D) Damages
no evidence of market value and award of actual                          386k56 k. Exemplary Damages. Most
damages could not stand.                                    Cited Cases
                                                                 Although there was some evidence that neigh-
[5] Trial 388      105(2)                                   boring landowner acted in heedless and reckless
                                                            disregard of owner's rights in bulldozing part of
388 Trial                                                   owner's property, absent a sustainable award of ac-
   388IV Reception of Evidence                              tual damages, exemplary damages could not be
       388IV(C) Objections, Motions to Strike Out,          awarded in trespass case.
and Exceptions
             388k105 Effect of Failure to Object or         [8] Trespass 386      45(5)
Except
               388k105(2) k. Nature of Evidence in          386 Trespass
General. Most Cited Cases                                      386II Actions
    Although neighboring landowner did not object                 386II(C) Evidence
to owner's testimony concerning reduction in value                    386k45 Admissibility
of his property on ground that owner referred to                            386k45(5) k. Damages. Most Cited
personal value rather than market value, that failure       Cases
was immaterial in that irrelevant evidence could not            Evidence that a number of trees, some as much
support judgment awarding actual damages.                   as four feet in diameter, were cut down by neigh-
                                                            boring landowner when he bulldozed a portion of
[6] Evidence 157       474(20)                              owner's property was admissible with regard to
                                                            value of land before and after trespass.
157 Evidence
    157XII Opinion Evidence                                 [9] Trespass 386      50
       157XII(A) Conclusions and Opinions of Wit-
nesses in General                                           386 Trespass
            157k474 Special Knowledge as to Sub-               386II Actions
ject-Matter                                                       386II(D) Damages
               157k474(20) k. Damages. Most Cited                      386k50 k. Entry on and Injuries to Real
Cases                                                       Property. Most Cited Cases
     Although owner's testimony referring to per-               If a defendant's cutting down shade or orna-
sonal value with respect to damages caused by               mental trees on owner's property does not reduce
neighboring landowner's bulldozing of part of own-          market value of property, courts are authorized to
er's property did go to prove heedless and reckless         award damages for intrinsic value of trees.
disregard on neighboring landowner's part, that
                                                            [10] Appeal and Error 30       1177(7)
testimony also showed that owner was not testify-
ing about market value and, therefore, fact that            30 Appeal and Error
evidence was relevant on issue of exemplary dam-               30XVII Determination and Disposition of Cause
ages did not limit its lack of relevance on issue of             30XVII(D) Reversal
actual damages.                                                     30k1177 Necessity of New Trial
                                                                           30k1177(7) k. Failure to Introduce




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Sufficient Evidence to Authorize Recovery or Es-            County. In 1982, petitioner Porras purchased ap-
tablish Defense. Most Cited Cases                           proximately 2,600 acres adjacent to Craig's land for
     Owner, who presented no evidence of reduc-             use as a ranch. Porras had his tract surveyed, bull-
tion in market value of property which would sup-           dozed everything that the survey showed to be his
port award of actual damages against neighboring            property, including an existing fence and two acres
landowner for bulldozing portion of owner's prop-           on Craig's side of that fence, and built a new fence
erty, was entitled to new trial to attempt to prove         on the survey line. In so doing, Porras cut down a
reduction in market value of his land, or, if he could      number of large trees, some as much as four feet in
not, to attempt to prove damages for intrinsic value        diameter. Porras never contacted Craig before
of trees which were lost as result of bulldozing.           clearing the land.
Vernon's Ann.Texas Rules Civ.Proc., Rule 505.
                                                                 Craig filed suit for title and damages to the
[11] Appeal and Error 30         761                        land on his side of the old fence. The jury found
                                                            that Craig had title to the land in question by virtue
30 Appeal and Error                                         of adverse possession; that finding is not in dispute
   30XII Briefs                                             here. The primary complaint is that there is no evid-
       30k761 k. Points and Arguments. Most Cited           ence to support the award of actual damages to the
Cases                                                       land.
     Where neighboring landowner brought error
only with respect to actual and exemplary damage                 [1][2] In a suit for permanent damage to land,
awards in action against him for title and damages          (which the parties agree this suit is), the measure of
to approximately two acres of land, he did not pre-         damages is the difference in the market value of the
serve for review any error relating to award of at-         land immediately before and immediately after the
torney fees to owner who brought action and, there-         trespass. Cummer-Graham Co. v. Maddox, 155
fore, owner was entitled to attorney fees awarded           Tex. 284, 285 S.W.2d 932 (1956). The proper way
by trial court.                                             of proving this difference in value is opinion testi-
                                                            mony. State v. Carpenter, 126 Tex. 604, 89 S.W.2d
*504 Haynes & Boone, William R. Allensworth,                194 (1936); 2 R. Ray, Texas Law of Evidence Civil
David C. Mattka and Barbara E. McElroy, Dallas,             and Criminal § 1422 (3d ed 1980). Opinion testi-
A.D. Henderson, Palestine, for petitioner.                  mony concerning these damages is subject to the
                                                            same requirements as any other opinion evidence,
Martin & Thomas, Holloway Martin and Michael
                                                            with one exception: the owner of the property can
Thomas, Mexia, for respondent.
                                                            testify to its market value, even if he could not
                                                            qualify to testify about the value of like property
SPEARS, Justice.                                            belonging to someone else. State v. Berger, 430
    This is a suit for title and damages to approx-         S.W.2d 557 (Tex.Civ.App.—Waco 1968, writ ref'd
imately two acres in Freestone County. Based on             n.r.e.).
jury findings, the trial court awarded respondent
A.B. Craig, the plaintiff below, title to the land,              [3] Even an owner's testimony, however, is
$7,000 in actual damages, and $50,000 in exem-              subject to some restrictions. In *505 order for a
plary damages against defendant and petitioner,             property owner to qualify as a witness to the dam-
David Porras. The court of appeals affirmed. 665            ages to his property, his testimony must show that it
S.W.2d 167. We reverse the judgment of the court            refers to market, rather than intrinsic or some other
of appeals and remand the cause to the trial court.         value of the property. This requirement is usually
                                                            met by asking the witness if he is familiar with the
    Craig is the owner of 24 acres in Freestone             market value of his property. Moody v. Castleberry,




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151 S.W.2d 960 (Tex.Civ.App.—Texarkana 1941,                  burned in under my trees and if my wife had been
no writ); Krenek v. South Texas Electric Cooperat-            there by herself she couldn't have got away.
ive, Inc., 502 S.W.2d 605 (Tex.Civ.App.—Corpus
Christi 1973, no writ).                                          We hold that this testimony is no evidence of
                                                            market value. We should not be understood as re-
     [4] At trial, two witnesses testified concerning       treating from the general rule that an owner is qual-
the reduction in market value of the land. Porras's         ified to testify about the market value of his prop-
expert witness testified that in his opinion the value      erty. Moreover, this is not just a case in which the
of the land had been enhanced by the clearing oper-         lawyer failed to ask his client if he was familiar
ation. On the other hand, plaintiff Craig testified         with the market value of the property. Instead, in
that he had been damaged $20,000. His testimony             this case the owner's testimony affirmatively
was as follows:                                             showed that he referred to personal rather than mar-
                                                            ket value. See Stinson v. Cravens, Dargan & Co.,
  Q. Mr. Craig, what in your opinion was the value          579 S.W.2d 298 (Tex.Civ.App.—Dallas 1979, no
  of the property immediately before the fencing,           writ). Mr. Craig was qualified to give an opinion of
  the bulldozing of the old fence, and the clearing         the market value of his land; he simply failed to do
  operations of the Defendant, I. David Porras?             so.

  A. About Thirty-five thousand dollars.                         [5][6] Craig points out to this court that Porras
                                                            did not object to the introduction of this testimony
  Q. What in your opinion was the value of the
                                                            on the ground that it referred to personal rather than
  property immediately after the bulldozing opera-
                                                            market value. Although Porras did not so object,
  tions, the fencing and clearing of the property in
                                                            the failure is immaterial. Irrelevant evidence, even
  question by Mr. I. David Porras?
                                                            when admitted without objection, will not support a
  A. About fifteen.                                         judgment. Aetna Insurance Co. v. Klein, 160 Tex.
                                                            61, 325 S.W.2d 376 (1959). Craig also argues that
  Q. Now there is a difference there of twenty thou-        the testimony set out above was relevant on the is-
  sand dollars, is that correct?                            sue of exemplary damages, not actual. It is true that
                                                            the testimony did go to prove heedless and reckless
  A. Yes, sir.                                              disregard on Porras's part. At the same time,
                                                            however, the testimony also showed that Craig was
  Q. I want you to tell the jury your reasons for the
                                                            not testifying about market value. The fact that the
  difference of twenty thousand dollars and how
                                                            evidence was helpful to Craig in one regard does
  you arrived at it.
                                                            not limit its relevance in another adverse to him.
  A. Well I bought this land to build a retirement
                                                                 [7] Because we have held that there was no
  home on and I am fifty-seven and my wife is
                                                            evidence of actual damages, the award of exem-
  fifty-six and she's not—she's crippled so she
                                                            plary damages must also fall. There was some evid-
  wants to get out in the country, too. And we
                                                            ence that Porras acted in heedless and reckless dis-
  bought that for that reason and now we are afraid
                                                            regard of Craig's rights, and the jury so found.
  to build out there. And the reason we're afraid is
                                                            However, absent a sustainable award of actual dam-
  because of the exotic animals that will be put
                                                            ages, exemplary damages cannot be awarded in a
  next to us. Also they patrol the fence with guns.
                                                            trespass case. Giraud v. Moore, 86 Tex. 675, 26
  A sign on their fence they'll shoot if you go
                                                            S.W. 945 (1894); *506 Phillips v. Wertz, 546
  across that fence. And about a month ago there
                                                            S.W.2d 902 (Tex.Civ.App.—Dallas 1977, writ ref'd
  was a fire started on the grass on my property and
                                                            n.r.e.).




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     [8] Having held that Craig produced no evid-           Porras has not contested the adverse possession
ence of the reduction in market value of his prop-          findings, we do not remand to retry the title issues.
erty, we reverse the judgment of the court of ap-
peals. We must now determine the proper disposi-            WALLACE, J., filed dissenting opinion in which
tion of the case. There was substantial evidence at         KILGARLIN, J., joined.
trial that Craig was injured by Porras's activities.
                                                            WALLACE, Justice, dissenting.
For instance, it was shown that a number of trees,
                                                                 I respectfully dissent. The court's opinion is
some as much as four feet in diameter, were cut
                                                            based upon its interpretation of Craig's testimony as
down. This evidence was properly admitted. Evid-
                                                            to the difference in the value of his land before and
ence of any fact that may reasonably affect the
                                                            after the trespass by Porras. The fatal error in the
value of the land can be introduced into evidence.
                                                            opinion lies in placing undue emphasis on that por-
Spindar v. Lo-Vaca Gathering Co., 529 S.W.2d 63
                                                            tion of Craig's testimony which is favorable to Por-
(Tex.1975). However, there was no evidence of a
                                                            ras and ignoring another portion of his testimony
reduction in market value. Porras's expert witness
                                                            which supports the trial court's judgment. The omit-
testified that, although it would be prohibitively ex-
                                                            ted testimony of Craig, the owner of the land in
pensive to replace the destroyed trees, the market
                                                            question, was:
value of the land had actually been increased.
                                                              Q: (Porras' attorney). Now you're telling the jury
     [9][10] In this situation, some courts have ap-
                                                              that the two acres have been damaged twenty
plied a conditional measure of damages, one con-
                                                              thousand dollars worth or is worth twenty thou-
tingent on a showing of no reduction in market
                                                              sand dollars. Is that what you're telling them?
value. If a defendant's cutting down shade or orna-
mental trees does not reduce the market value of the          A: (Craig) I'm telling them what I thought the
property, courts are authorized to award damages              land was valued before it was tore up and after it
for the intrinsic value of the trees. Although this           was tore up.
court has never addressed the intrinsic value rule, a
number of courts of appeals have adopted it. See
Miloszar v. Gonzalez, 619 S.W.2d 283                          Q. Okay. So what you're saying is that particular
(Tex.Civ.App.—Corpus Christi 1981, no writ);                  two acres is worth approximately twenty thou-
Hamilton      v.     Fant,     422     S.W.2d    495          sand dollars?
(Tex.Civ.App.—Austin 1967, no writ); Moran Cor-
                                                              A. It is to me.
poration     v.    Murray,      381    S.W.2d    324
(Tex.Civ.App.—Texarkana 1964, no writ); Lucas v.                 As stated in the court's opinion, if the owner of
Morrison, 286 S.W.2d 190 (Tex.Civ.App.—San                  real property has an opinion, he may testify as to
Antonio 1956, no writ). We think the rule is a              the value of property owned by him. State v. Ber-
sound one. Because the record shows evidence that           ger, 430 S.W.2d 557, 559 (Tex.Civ.App.—Waco
might have allowed Craig to recover under a differ-         1968, writ ref'd n.r.e.). The jury returned a verdict
ent theory, in the interest of justice we remand the        of $7,000 damages to Craig's property. We must
cause for a new trial. Tex.R.Civ.P. 505; Benoit v.          sustain that verdict if there is any evidence to sup-
Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951);                port it. Glover v. Texas General Indemnity Co., 619
Morrison v. Farmer, 147 Tex. 122, 213 S.W.2d 813            S.W.2d 400 (Tex.1981). I would hold that the
(1948). If, on retrial, Craig can show that the mar-        above testimony of Craig is some evidence to sup-
ket value of his land was reduced, he can recover           port the jury's verdict.
under that theory; if not, he can attempt to prove
damages by the intrinsic value measure. Because                 *507 The court's opinion holds that Craig's




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testimony is no evidence of the value of the land           Tex.,1984.
because the magic word “market” did not precede             Porras v. Craig
the word “value” in the questions propounded to             675 S.W.2d 503
Craig and in his answers. When the testimony con-
cerning value is considered in its entirety one is          END OF DOCUMENT
lead to the obvious conclusion that the values being
discussed are market values. Porras contends that
Craig was testifying as to intrinsic value to him, not
to market value. Porras emphasizes the last re-
sponse of Craig's which was: “It is to me.” Contrary
to Porras' contention, the obvious meaning of that
sentence was that Craig was testifying as to his
opinion of the value and not to anybody elses.

     The opinion of the court refuses to distinguish
betwen the testimony of Mr. Craig as to exemplary
damages and as to actual damages. When testifying
as to exemplary damages he referred to the setting
of fires by Porras' employees and permitting them
to invade Craig's property; posting notices on the
fence that anyone crossing it would be shot; and the
reckless disregard by Porras of the rights of not
only Craig but other owners whose property abutted
that of Porras. I would hold that the testimony of
Craig quoted above is some evidence of the market
value of the property which was damaged by Por-
ras. Since there is some evidence to support the
jury's verdict we should affirm that verdict.

    I would affirm the judgment of the court of ap-
peals and of the trial court.

KILGARLIN, J., joins in this dissenting opinion.
 ON MOTION FOR REHEARINGPER CURIAM.
     [11] Craig asks the court to clarify whether he
is entitled to the attorney's fees awarded by the trial
court. Since Porras only asked this court for relief
from the actual and exemplary damage awards, he
has not preserved any error relating to the award of
attorney's fees. Consequently, Craig is entitled to
the $11,040.00 awarded as attorney's fees. The only
issues on remand are those relating to actual and
exemplary damages for the trespass.

    The motion for rehearing is overruled.




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397 S.W.3d 184, 56 Tex. Sup. Ct. J. 470
(Cite as: 397 S.W.3d 184)




                                                          28 Animals
                                                              28k43 Injuring or Killing Animals in General
            Supreme Court of Texas.                              28k44 k. Civil liability. Most Cited Cases
        Carla STRICKLAND, Petitioner,                          Where a dog's market value is unascertainable,
                       v.                                 the correct measure of damages for loss of dog is
   Kathryn and Jeremy MEDLEN, Respondents.                the dog's special or pecuniary value, in other words
                                                          its actual value: the economic value derived from
                   No. 12–0047.
                                                          its usefulness and services, not value drawn from
                   April 5, 2013.
                                                          companionship or other non-commercial considera-
Background: Dog owners brought action against             tions.
employee of animal shelter, alleging that employee
                                                          *185 Alison M. Rowe, John Hill Cayce Jr., Mallory
negligently euthanized dog, and seeking non-
                                                          Ann Beagles, Paul Boudloche, for Petitioner.
economic damages for loss of companionship. The
County Court at Law No. 1, Tarrant County, Don            Randall E. Turner, Sondrea King, Susan Bleil, for
Pierson, J., dismissed action. Owners appealed. The       Respondent.
Fort Worth Court of Appeals, 353 S.W.3d 576, re-
versed and remanded. Shelter employee petitioned
for review.                                               Justice WILLETT delivered the opinion of the
                                                                 FN*
                                                          Court.
Holding: The Supreme Court, Willett, J., held that
dog owners could not recover non-economic dam-                    FN* CHIEF JUSTICE JEFFERSON joins
ages for loss of companionship.                                   all but footnote 58 and Part II–C of this
                                                                  opinion. JUSTICE JOHNSON joins all but
    Reversed.                                                     Part II–C.

                  West Headnotes                          Beauty without Vanity, Strength without Insolence,
                                                           Courage without Ferocity, And all the Virtues of
[1] Animals 28       44                                                                     FN1
                                                                     Man without his Vices

28 Animals                                                        FN1. Lord Byron, Inscription on the
    28k43 Injuring or Killing Animals in General                  Monument of a Newfoundland Dog, in 7
       28k44 k. Civil liability. Most Cited Cases                 THE WORKS OF LORD BYRON: WITH
     Owners of dog that had been negligently euth-                HIS LETTERS AND JOURNALS, AND
anized at animal shelter were not entitled to recover             HIS LIFE 292–93 n. 2 (Thomas Moore ed.,
non-economic damages for loss of companionship;                   1832).
dog was personal property, loss of companionship
was a component of loss of consortium, a type of               Texans love their dogs. Throughout the Lone
damages available only for a few especially close         Star State, canine companions are treated—and
family relationships, and rule allowing recovery for      treasured—not as mere personal property but as be-
intrinsic value for loss of cherished heirlooms could     loved friends and confidants, even family members.
not be extended to allow recovery for loss of a pet.      Given the richness that companion animals add to
                                                          our everyday lives, losing “man's best friend” is un-
[2] Animals 28       44                                   doubtedly sorrowful. Even the gruffest among us
                                                                                                          FN2
                                                          tears up (every time) at the end of Old Yeller.




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397 S.W.3d 184, 56 Tex. Sup. Ct. J. 470
(Cite as: 397 S.W.3d 184)




         FN2. OLD YELLER (Walt Disney 1957).               several pet-welfare organizations (who understand
                                                           the deep emotional bonds between people and their
     This case concerns the types of damages avail-        animals): Pets are property in the eyes of the law,
able for the loss of a family pet. If a cherished dog      and we decline to permit non-economic damages
is negligently killed, can a dollar value be placed on     rooted solely in an owner's subjective feelings.
a heartsick owner's heartfelt affection? More poin-        True, a beloved companion dog is *186 not a fun-
tedly, may a bereaved dog owner recover emotion-           gible, inanimate object like, say, a toaster. The term
based damages for the loss? In 1891, we effectively        “property” is not a pejorative but a legal descriptor,
said no, announcing a “true rule” that categorized         and its use should not be misconstrued as discount-
                               FN3
dogs as personal property,           thus disallowing      ing the emotional attachment that pet owners un-
non-economic damages. In 2011, however, a court            deniably feel. Nevertheless, under established legal
                     FN4
of appeals said yes,       effectively creating a nov-     doctrine, recovery in pet-death cases is, barring le-
el—and expansive—tort claim: loss of companion-            gislative reclassification, limited to loss of value,
ship for the wrongful death of a pet.                      not loss of relationship.

         FN3. Heiligmann v. Rose, 81 Tex. 222, 16              We reverse the court of appeals' judgment and
         S.W. 931, 932 (1891).                             render judgment in favor of the Petitioner.

         FN4. Medlen v. Strickland, 353 S.W.3d                    I. Factual and Procedural Background
         576, 581 (Tex.App.–Fort Worth 2011).                    In June 2009, Avery, a mixed-breed dog owned
                                                           by Kathryn and Jeremy Medlen, escaped the fam-
     In today's case, involving a family dog that was
                                                           ily's backyard and was promptly picked up by Fort
accidentally euthanized, we must decide whether to
                                                           Worth animal control. Jeremy went to retrieve
adhere to our restrictive, 122–year–old precedent
                                                           Avery but lacked enough money to pay the required
classifying pets as property for tort-law purposes,
                                                           fees. The shelter hung a “hold for owner” tag on
or to instead recognize a new common-law loss-
                                                           Avery's cage to alert employees that the Medlens
of-companionship claim that allows noneconomic
                                                           were coming for Avery and ensure he was not euth-
damages rooted solely in emotional attachment, a
                                                           anized. Despite the tag, shelter worker Carla Strick-
remedy the common law has denied those who suf-
                                                           land mistakenly placed Avery on the euthanasia
fer the wrongful death of a spouse, parent, or child,
FN5                                              FN6       list, and he was put to sleep.
      and is available in Texas only by statute.
                                                                Jeremy and his two children learned of Avery's
         FN5. See Russell v. Ingersoll–Rand Co.,
                                                           fate a few days later when they returned to retrieve
         841 S.W.2d 343, 345 (Tex.1992)
                                                           him. Devastated, the Medlens sued Strickland for
         (“common law rule” was that “no cause of
                                                           causing Avery's death and sought “sentimental or
         action [could] be brought for the death of
                                                           intrinsic value” damages since Avery had little or
         another person”).
                                                           no market value and “[could not] be replaced.”
         FN6. TEX. CIV. PRAC. & REM.CODE §                 Strickland specially excepted, contending such
         71.002.                                           damages are unrecoverable in pet-death cases. The
                                                           trial court directed the Medlens to amend their
    We acknowledge the grief of those whose com-           pleadings to “state a claim for damages recognized
panions are negligently killed. Relational attach-         at law.” The Medlens amended their petition to
ment is unquestionable. But it is also uncompens-          drop the words “sentimental value” but realleged
able. We reaffirm our long-settled rule, which             damages for Avery's “intrinsic value.” Strickland
tracks the overwhelming weight of authority na-            specially excepted on the same basis, and the trial
tionally, plus the bulk of amicus curiae briefs from       court, sure that Texas law barred such damages,




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dismissed the suit with prejudice.                                  FN10. Id. at 580 (quoting Heiligmann, 16
                                                                    S.W. at 932).
     The court of appeals reversed, becoming the
first Texas court to hold that a dog owner may re-                  FN11. Id.
cover intangible loss-of-companionship damages in
the form of intrinsic or sentimental-value property                 FN12. Id.
damages. Addressing our 1891 decision in Heilig-
               FN7                                                  FN13. Id.
mann v. Rose,        which pegged dog-loss damages
to market value or a value ascertained from the                     FN14. Id. at 580–81.
dog's “usefulness and services,” the court of ap-
peals stated, “Texas law has changed greatly since                  FN15. Id. at 580.
1891” and “sentimental damages may now be re-
                                                 FN8                FN16. Id. at 581.
covered for ... all types of personal property.”
Specifically, the court said our more recent, non-
                                                                 This appeal followed, posing a single, yet sig-
dog property cases “explicitly held that where per-
                                                            nificant, issue: whether emotional-injury damages
sonal property has little or no market value, and its
                                                            are recoverable for the negligent destruction of a
main value is in sentiment, damages may be awar-                 FN17
                                                            dog.
ded based on this intrinsic or sentimental value.”
FN9
      The court of appeals pivoted, too, on our ex-                 FN17. Though no one disputes that Strick-
pression in Heiligmann that the dogs “were of a                     land was acting within the scope of her
                                FN10
special value to the owner,”          and took from                 governmental employment, she did not
this phrase that special value “may be derived from                 move for dismissal under section
the attachment that an owner feels for his pet.”                    101.106(f) of the Texas Tort Claims Act,
FN11
       Emphasizing these iron truths—that “[d]ogs                   TEX. CIV. PRAC. & REM.CODE §
                                                FN12
are unconditionally devoted to their owners”                        101.106(f), to which she would have been
and owners, reciprocally, have a deep attachment                    entitled, Franka v. Velasquez, 332 S.W.3d
                                 FN13
“to their beloved family pets”         —the court of                367 (Tex.2011), as the Medlens concede.
appeals declared*187 “the special value of ‘man's                   Instead, she sought dismissal based on her
                                   FN14
best friend’ should be protected.”       Thus, given                special exceptions, which the trial court
“the special position pets hold in their family, we                 sustained.    Dismissal      under    section
see no reason why existing law should not be inter-                 101.106(f) is not automatic; Strickland was
preted to allow recovery in the loss of a pet at least              required to file a motion. Univ. of Tex. Sw.
to the same extent as any other personal property.”                 Med. Ctr. at Dallas v. Estate of Arancibia,
FN15
       Reinstating the Medlens' claim, the court of                 324 S.W.3d 544, 551 (Tex.2010); see also
appeals concluded: “Because an owner may be                         Univ. of Tex. Health Sci. Ctr. at San Anto-
awarded damages based on the sentimental value of                   nio v. Bailey, 332 S.W.3d 395, 401
lost personal property, and because dogs are per-                   (Tex.2011)       (“Substitution    of     the
sonal property, the trial court erred in dismissing                 [governmental body] as the defendant was
                                         FN16
the Medlens' action against Strickland.”                            not automatic; [plaintiff] was required to
                                                                    file a motion.”). At the court of appeals,
         FN7. 16 S.W. 931.
                                                                    Strickland raised a cross-point urging dis-
         FN8. 353 S.W.3d at 576–80.                                 missal on immunity grounds under section
                                                                    101.106(f). 353 S.W.3d at 581. She re-
         FN9. Id. at 578.                                           quested that if the court of appeals rein-
                                                                    stated the Medlens' action, it should re-




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        mand the case to the trial court where she                ship Statistics, supra note 19.
        would file the required motion to dismiss.
        Id. The courts of appeals, however, went            • A study found that 70% of pet owners thought
                                                                                             FN22
        straight to the merits and declined to reach        of their pets as family members.
        Strickland's jurisdictional issue, reasoning
                                                                  FN22. William C. Root, “ Man's Best
        that it was remanding anyway by sustain-
                                                                  Friend”: Property or Family Member? An
        ing the Medlens' sole issue on appeal. Id.
                                                                  Examination of the Legal Classification of
        This appeal followed. As Strickland has
                                                                  Companion Animals and its Impact on
        not satisfied section 101.106(f)'s prerequis-
                                                                  Damages Recoverable for Their Wrongful
        ites for dismissal, we proceed to the only
                                                                  Death or Injury, 47 VILL. L.REV.. 423,
        issue before us, the merits: whether emo-
                                                                  436 (2002).
        tion-based damages are recoverable.
                                                            • 45% of dog owners take their pets on *188 va-
                   II. Discussion                                   FN23
                                              FN18          cation.
     America is home to 308 million humans
                       FN19
and 377 million pets.        In fact, “American pets              FN23. Id. at 423.
now outnumber American children by more than
               FN20
four to one.”        In a nation where roughly 62%          • Over 50% of pet owners say they would rather
of households own a pet—with about 78 million               be stranded on a deserted island with a dog or cat
                                                                               FN24
dogs and 86 million cats (and 160 million fish)             than with a human.
FN21
       —it is unsurprising that many animal owners
view their pets not as mere personal property but as              FN24. Id.
full-fledged family members, and treat them as
                                                            • 50% of pet owners report being “very likely” to
such:
                                                            put their own lives in danger to save their pets,
        FN18. State and County Quick Facts, U.S.            and 33% are “somewhat likely” to risk their lives.
                                                            FN25
        CENSUS BUREAU (Mar. 14, 2013, 11:17
        AM), http:// quick facts. census. gov/ qfd/
                                                                  FN25. Id.
        states/ 00000. html (listing the 2010 U.S.
        population as almost 309 million).                  • In 2012, Americans spent roughly $53 billion
                                                                           FN26
                                                            on their pets.
        FN19. Pet Industry Market Size & Owner-
        ship Statistics, AM. PET PRODS. ASS'N, ,                  FN26. Pet Industry Market Size & Owner-
        http:// www. american pet products. org/                  ship Statistics, supra note 19.
        press_ industrytrends. asp (last visited Apr.
        3, 2013).                                              The human-animal bond is indeed powerful. As
                                                          the Medlens' second amended petition states: “The
        FN20. JONATHAN V. LAST, WHAT TO                   entire Medlen family was devastated by the loss of
        EXPECT WHEN NO ONE'S EXPECT-                      Avery, who was like a family member to them.”
        ING: AMERICA'S COMING DEMO-                       Countless Texas families share this pets-as-family
        GRAPHIC DISASTER 2 (2013) (noting                 view, but Texas law, for a century-plus, has labeled
        that as birth rates plummet in Amer-              them as “property” for purposes of tort-law recov-
        ica—the so-called “baby bust” genera-             ery.
        tion—pet ownership soars).
                                                          A. Our Precedent Limits Damages in Dog–Death
        FN21. Pet Industry Market Size & Owner-            Tort Cases to “Market Value, If the Dog Has




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397 S.W.3d 184, 56 Tex. Sup. Ct. J. 470
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  Any,” or “Special or Pecuniary Value” Linked                    The Medlens insist that Heiligmann does not
      to the Dog's “Usefulness and Services”                 limit recovery to an amount based solely on the
  1. Our 1891 Heiligmann Decision Ties “Special              dog's economic usefulness and services. Rather,
  Value” to a Dog's Economic Attributes, Not Sub-            when the Court mentioned certain dogs lacking
        jective or Emotional Considerations                  market value but having “a special value to the
     [1] Our analysis begins with Heiligmann v.              owner,” we meant something far broader and dis-
      FN27
Rose,        our 1891 case upholding $75 in dam-             tinct from the dogs' commercial attributes. Simil-
ages for the poisoning of three “well trained” New-          arly, argue the Medlens, when the Court in Heilig-
foundland dogs. Heiligmann articulated some key              mann noted a *189 dog's “special or pecuniary
valuation principles for animal cases. First, we clas-       value to the owner,” the word “or” indicates two
sified dogs as personal property for damages pur-            distinct categories of non-market value dogs—those
poses, not as something giving rise to personal-in-          with a special value to the owner, and those with a
               FN28
jury damages.         Second, we declared a “true            pecuniary value to the owner. We disagree.
rule” for damages that flags two elements: (1)
                                        FN29                      Given its ordinary, contextual meaning, Heilig-
“market value, if the dog has any,”            or (2)
“some special or pecuniary value to the owner, that          mann tied the recovery of “special or pecuniary
                                                                                                             FN32
may be ascertained by reference to the usefulness            value” to the dogs' “usefulness and services”
                          FN30                               —their economic value, not their sentimental value.
and services of the dog.”
                                                             While we referenced evidence “showing the useful-
         FN27. 16 S.W. 931.                                  ness and services of the dogs, and that they were of
                                                                                            FN33
                                                             a special value to the owner,”        the next condi-
         FN28. Id. at 932.                                   tional sentence pegs the jury's valuation decision to
                                                             the dogs' economic attributes: “If the jury from the
         FN29. Id.
                                                             evidence should be satisfied that the dogs were ser-
                                                                                                    FN34
         FN30. Id.                                           viceable and useful to the owner....”        The de-
                                                             cision never references, even by implication, any
     In Heiligmann, the dogs “were of fine breed,            evidence regarding companionship or owner affec-
and well trained,” with one using different barks to         tion.
signal whether an approaching person was a man,
woman, or child. While the owner could sell each                     FN32. Id.
dog for $5, they had no market value beyond that,
                                                                     FN33. Id.
but the Court upheld damages of $25 each:
                                                                     FN34. Id.
  There is no evidence in this case that the dogs
  had a market value, but the evidence is ample                   Thus, a dog's “special or pecuniary value”
  showing the usefulness and services of the dogs,           refers not to the dog-human bond but to the dollars-
  and that they were of special value to the owner.          and-cents value traceable to the dog's usefulness
  If the jury from the evidence should be satisfied          and services. Such value is economic value, not
  that the dogs were serviceable and useful to the           emotional value based on affection, attachment, or
  owner, they could infer their value when the               companionship. In short, Heiligmann's use of the
  owner, by evidence, fixes some amount upon                 word “special” does not authorize “special dam-
                                 FN31
  which they could form a basis.                             ages” and does not refer generically to a dog's abil-
                                                             ity to combat loneliness, ease depression, or
         FN31. Id.                                           provide security. The valuation criteria is not emo-
                                                             tional and subjective; rather it is commercial and




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objective.                                                       While they rely chiefly on Brown, the Medlens
                                                            also cite our decisions in Porras *190 and Likes,
  2. Our Post–Heiligmann Cases Do Not Relax the             but neither offers much pertinent guidance here. In
   No Emotional–Injury Damages Rule for Anim-               Porras, a landowner sued someone for clearing sev-
                   al–Death Cases                                                           FN41
                                                            eral large trees from his land.        The landowner
     Alternatively, the Medlens assert that three           testified about what the land meant to him and his
post- Heiligmann decisions— City of Tyler v. Likes,         wife, not in market terms but in personal terms.
FN35                    FN36                                FN42
       Porras v. Craig,      and Brown v. Frontier                  We recognized that the landowner had been
               FN37
Theatres, Inc.        —viewed collectively, entitle         injured by the destruction of trees, even though the
property owners to seek intrinsic or sentimental-           property's overall market value may have actually
value damages for certain destroyed property that                         FN43
                                                            increased.          We remanded for a new trial to
lacks market value or “special or pecuniary” value.         determine the “intrinsic value” of the felled
Because dogs are considered property under Texas            trees—that is, its ornamental (aesthetic) value and
law, they should be treated no differently, argue the                                  FN44
                                                            its utility (shade) value.      That assessment con-
Medlens. Accordingly, Avery's intrinsic value to            cerning real property is not rooted in an owner's
them, including companionship, is recoverable. We           subjective emotions, as here. While Porras permit-
decline to stretch our post- Heiligmann decisions           ted recovery of the “intrinsic value” of the trees, the
this far.                                                   plaintiff did not seek, nor did the Court discuss, the
                                                            trees' sentimental value. Here, the Medlens have
        FN35. 962 S.W.2d 489 (Tex.1997).
                                                            suffered lost companionship and are seeking, as a
        FN36. 675 S.W.2d 503 (Tex.1984).                    form of “intrinsic value” property damages, recov-
                                                            ery for Avery's role as a cherished family member.
        FN37. 369 S.W.2d 299 (Tex.1963).                    The court of appeals read too much into Porras,
                                                            which did not import sentimental considerations in-
     Our decision a half-century ago in Brown in-           to measuring “intrinsic value.” And we decline to
volved irreplaceable family heirlooms such as a             expand Porras's notion of “intrinsic value” to anim-
wedding veil, pistol, jewelry, hand-made bed-               al cases, specifically to include the subjective value
spreads and other items going back several genera-          a dog owner places on his pet's companionship, par-
tions—in other words, family keepsakes that “have           ticularly when Porras itself excluded such subject-
                                   FN38
their primary value in sentiment.”        Such one-         ive notions.
of-a-kind memorabilia have a “special value ... to
their owner,” and damages may factor in “the feel-                   FN41. 675 S.W.2d at 504.
                                         FN39
ings of the owner for such property.”          Not-
ably, on the same day we decided Brown fifty years                   FN42. Id. at 505.
ago, we reaffirmed in another case the default dam-
                                                                     FN43. Id. at 506.
ages rule for destroyed non-heirloom property lack-
ing market or replacement value: “the actual worth                   FN44. See id.
or value of the articles to the owner ... excluding
                                             FN40
any fanciful or sentimental considerations.”                     Likes is likewise uninstructive. In Likes, the
                                                            plaintiff alleged that a municipality negligently
        FN38. Id. at 304–05.                                flooded her house and destroyed “many personal ir-
                                                                                 FN45
                                                            replaceable items.”        The principal issue was
        FN39. Id. at 305.
                                                            whether mental-anguish damages are recoverable
        FN40. Crisp v. Sec. Nat'l Ins. Co., 369             for the negligent destruction of personal property.
        S.W.2d 326, 328 (Tex.1963).                         We answered no, though we acknowledged Brown's




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397 S.W.3d 184, 56 Tex. Sup. Ct. J. 470
(Cite as: 397 S.W.3d 184)




sentimental-value rule for property of which the           al-injury damage, not property damage. It is a com-
“greater value is in sentiment and not in the market       ponent of loss of consortium, including the loss of
        FN46
place.”         Again, mental anguish is a form of         “love, affection, protection, emotional support, ser-
                                                                                                           FN47
personal-injury damage, unrecoverable in an ordin-         vices, companionship, care, and society.”
ary property-damage case. The Medlens' emotion-            Loss-of-consortium damages are available only for
                                                                                                           FN48
based claim is, like the mental-anguish claim in           a few especially close family relationships,
Likes, based wholly on negligent damage to person-         and to allow them in lost pet cases would be incon-
al property. But Likes bars personal-injury-type           sistent with these limitations. Therefore, like courts
                                                                                                           FN49
damages in a case alleging negligent property dam-         in the overwhelming majority of other states,
                                                                                                      FN50
age. In short, neither Porras nor Likes provides the       the Restatement of the Law of Torts,              and
Medlens much support. Distilled down, the pivotal          *192 the other Texas courts of appeals that have
                                                                                      FN51
question today is straightforward: whether to ex-          considered this question,         we reject emotion-
tend Brown's special rules for family heirlooms to         based liability and prohibit recovery for loss of the
negligently destroyed pets.                                human-animal bond.

         FN45. 962 S.W.2d at 493.                                   FN47. Reagan v. Vaughn, 804 S.W.2d 463,
                                                                    467 (Tex.1990).
         FN46. Id. at 497 (quoting Brown, 369
         S.W.2d at 304–05).                                         FN48. See, e.g., Roberts v. Williamson,
                                                                    111 S.W.3d 113, 118 (Tex.2003); Ford
     Heiligmann remains our lone case directly on                   Motor Co. v. Miles, 967 S.W.2d 377,
point, and after a century-plus we are loathe to dis-               383–84 (Tex.1998); Reagan, 804 S.W.2d
turb it. An owner's fondness for a one-of-a-kind,                   at 467.
family heirloom is sentimental, existing at the time
a keepsake is acquired and based not on the item's                  FN49. See Mitchell v. Heinrichs, 27 P.3d
attributes but rather on the nostalgia it evokes, but               309, 312–14 (Alaska 2001); Kaufman v.
an owner's attachment to a beloved pet is more: It is               Langhofer, 223 Ariz. 249, 222 P.3d 272,
emotional, formed over time and based on the pet's                  278–79 (Ct.App.2009); McMahon v.
specific attributes, namely the rich companionship                  Craig, 176 Cal.App.4th 1502, 97
it provides. Pets afford here-and-now bene-                         Cal.Rptr.3d 555, 566–68 (2009); Myers v.
fits—company, recreation, protection, etc.—unlike                   City of Hartford, 84 Conn.App. 395, 853
a passed-down heirloom kept around chiefly to                       A.2d 621, 626 (2004); Naples v. Miller,
commemorate past events or passed family mem-                       2009 WL 1163504, at *2–4 (Del.Super.Ct.
bers. We agree with the amicus brief submitted by                   Apr. 30, 2009), aff'd, 992 A.2d 1237
the American Kennel Club (joined by several other                   (Del.2010); Kennedy v. Byas, 867 So.2d
pet-welfare groups): “While no two pets are alike,                  1195, 1198 (Fla.Dist.Ct.App.2004); Gill v.
the emotional attachments a person establishes with                 Brown, 107 Idaho 1137, 695 P.2d 1276,
each pet cannot be shoehorned *191 into keepsake-                   1277 (Ct.App.1985); Jankoski v. Preiser
like sentimentality for litigation purposes.” Finally,              Animal Hosp., Ltd., 157 Ill.App.3d 818,
as explained below, permitting sentiment-based                      110 Ill.Dec. 53, 510 N.E.2d 1084, 1087
damages for destroyed heirloom property portends                    (1987); Lachenman v. Stice, 838 N.E.2d
nothing resembling the vast public-policy impact of                 451, 461 (Ind.Ct.App.2005); Nichols v.
allowing such damages in animal-tort cases.                         Sukaro Kennels, 555 N.W.2d 689, 691
                                                                    (Iowa 1996); Ammon v. Welty, 113 S.W.3d
   Loss of companionship, the gravamen of the                       185, 187–88 (Ky.Ct.App.2002); Kling v.
Medlens' claim, is fundamentally a form of person-                  U.S. Fire Ins. Co., 146 So.2d 635, 642




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        (La.Ct.App.1962), overruled in part by                    FN50. RESTATEMENT (THIRD) OF
        Holland v. Buckley, 305 So.2d 113, 114                    TORTS: LIAB. FOR PHYSICAL & EMO-
        (La.1974); Krasnecky v. Meffen, 56                        TIONAL HARM § 47 cmt. m
        Mass.App.Ct. 418, 777 N.E.2d 1286,                        (2012)(emphasis in original):
        1289–90 (2002); Koester v. VCA Animal
        Hosp., 244 Mich.App. 173, 624 N.W.2d                        Recovery for emotional harm resulting
        209, 211 (2000); Fackler v. Genetzky, 257                   from negligently caused harm to person-
        Neb. 130, 595 N.W.2d 884, 891–92 (1999)                     al property is not permitted under this
        ; Harabes v. Barkery, Inc., 348 N.J.Super.                  Section. Emotional harm due to harm to
        366, 791 A.2d 1142, 1145–46 (2001); Wil-                    personal property is insufficiently fre-
        cox v. Butt's Drug Stores, Inc., 38 N.M.                    quent or significant to justify a tort rem-
        502, 35 P.2d 978, 979 (1934); DeJoy v.                      edy. While pets are often quite different
        Niagara Mohawk Power Corp., 13 A.D.3d                       from other chattels in terms of emotional
        1108, 786 N.Y.S.2d 873, 873 (2004)                          attachment, an actor who negligently in-
        (mem.); Shera v. N.C. State Univ. Veterin-                  jures another's pet is not liable for emo-
        ary Teaching Hosp., 723 S.E.2d 352,                         tional harm suffered by the pet's owner.
        357–58 (N.C.Ct.App.2012); Pacher v. In-                     This rule against liability for emotional
        visible Fence of Dayton, 154 Ohio App.3d                    harm secondary to injury to a pet limits
        744, 798 N.E.2d 1121, 1125–26 (2003);                       the liability of veterinarians in the event
        Oberschlake v. Veterinary Assocs. Animal                    of malpractice and serves to make veter-
        Hosp., 151 Ohio App.3d 741, 785 N.E.2d                      inary services more readily available for
        811, 812–15 (2003); Lockett v. Hill, 182                    pets. Although harm to pets (and chattels
        Or.App. 377, 51 P.3d 5, 7–8 (2002);                         with sentimental value) can cause real
        Daughen v. Fox, 372 Pa.Super. 405, 539                      and serious emotional harm in some
        A.2d 858, 864–65 (1988); Rowbotham v.                       cases, lines—arbitrary at times—that
        Maher, 658 A.2d 912, 912–13 (R.I.1995);                     limit recovery for emotional harm are
        Scheele v. Dustin, 188 Vt. 36, 998 A.2d                     necessary. Indeed, injury to a close per-
        697, 700–04 (2010); Goodby v. Vetpharm,                     sonal friend may cause serious emotional
        Inc., 186 Vt. 63, 974 A.2d 1269, 1273–74                    harm, but that harm is similarly not re-
        (2009); Kondaurov v. Kerdasha, 271 Va.                      coverable under this Chapter. However,
        646, 629 S.E.2d 181, 187 (2006); Sherman                    recovery for intentionally inflicted emo-
        v. Kissinger, 146 Wash.App. 855, 195 P.3d                   tional harm is not barred when the de-
        539, 548, 549 n. 9 (2008); Carbasho v.                      fendant's method of inflicting harm is by
        Musulin, 217 W.Va. 359, 618 S.E.2d 368,                     means of causing harm to property, in-
        370–71 (2005); Rabideau v. City of Ra-                      cluding an animal. See § 46, Comment
        cine, 243 Wis.2d 486, 627 N.W.2d 795,                       d.
        798–99, 801–02 (2001). But see Knowles
                                                                  FN51. In the 122 years since Heiligmann,
        Animal Hosp., Inc. v. Wills, 360 So.2d 37,
                                                                  five Texas courts of appeals have decided
        38 (Fla.Dist.Ct.App.1978) (per curiam);
                                                                  dog-death cases, and all but one (the court
        Barrios v. Safeway Ins. Co., 97 So.3d
                                                                  of appeals in this case) have concluded that
        1019, 1022–24 (La.Ct.App.2012); Corso v.
                                                                  Texas law prohibits non-economic dam-
        Crawford Dog & Cat Hosp., Inc., 97
                                                                  ages. See Petco Animal Supplies, Inc. v.
        Misc.2d 530, 530–31, 415 N.Y.S.2d 182
                                                                  Schuster,       144        S.W.3d       554
        (Civ.Cit.1979).
                                                                  (Tex.App.–Austin 2004, no pet.); Zeid v.




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         Pearce, 953 S.W.2d 368 (Tex.App.–El                        FN57. Id. The Texas rule falls squarely
         Paso 1997, no writ); Bueckner v. Hamel,                    within the national mainstream, which cuts
         886 S.W.2d 368 (Tex.App.–Houston [1st                      overwhelmingly against sentimental-dam-
         Dist.] 1994, writ denied); Young's Bus                     ages recovery. As noted earlier, most other
         Lines, Inc. v. Redmon, 43 S.W.2d 266                       states likewise do not allow pet owners to
         (Tex.Civ.App.–Beaumont 1931, no writ).                     recover emotional-injury damages. See
                                                                    supra note 49. “Fair market value” remains
     We do not dispute that dogs are a special form                 the predominant measure of damages na-
of personal property. That is precisely why Texas                   tionally. Some courts, though, have adop-
law forbids animal cruelty generally (both civilly                  ted an “actual value” approach when mar-
FN52                  FN53
       and criminally       ), and bans dog fighting                ket value for the animal (1) is nonexistent,
FN54
       and unlawful restraints of dogs specifically                 (2) cannot be ascertained, or (3) is not a
FN55
        —because animals, though property, are                      true measure of its worth. See, e.g.,
unique. Most dogs have a simple job description:                    Mitchell, 27 P.3d at 313–14; Jankoski, 110
provide devoted companionship. We have no need                      Ill.Dec. 53, 510 N.E.2d at 1087; Brousseau
to overrule Brown's narrow heirloom exception                       v. Rosenthal, 110 Misc.2d 1054, 443
today; neither do we broaden it to pet-death cases                  N.Y.S.2d 285, 286 (Civ.Ct.1980); Shera,
and enshrine an expansive new rule that allows re-                  723 S.E.2d at 357–58; Sokolovic v.
covery for what a canine companion meant to its                     Hamilton, 195 Ohio App.3d 406, 960
owner. The Medlens find it odd that Texas law                       N.E.2d 510, 513 (2011); McDonald v.
would permit sentimental damages for loss of an                     Ohio State Univ. Veterinary Hosp., 67
heirloom but not an Airedale. Strickland would find                 Ohio Misc.2d 40, 42–43, 644 N.E.2d 750
it odd if Texas law permitted damages for loss of a                 (1994). Other jurisdictions have permitted
Saint Bernard but not for a brother Bernard. The                    punitive damages where the wrongdoer in-
law is no stranger to incongruity, and we need not                  jured or killed an animal with malice. See
jettison Brown in order to refuse to extend it to cat-              CAL. CIV.CODE § 3340 (West 2012);
egories of property beyond heirlooms.                               Martinez v. Robledo, 210 Cal.App.4th 384,
                                                                    147 Cal.Rptr.3d 921, 926 (2012); Plotnik
         FN52. TEX. HEALTH & SAFETY CODE
                                                                    v. Meihaus, 208 Cal.App.4th 1590, 146
         §§ 821.021–.026.
                                                                    Cal.Rptr.3d 585, 600 (2012); Bruister v.
         FN53. TEX. PENAL CODE § 42.09–.092.                        Haney, 233 Miss. 527, 102 So.2d 806, 807
                                                                    (1958).
         FN54. Id. § 42.10.
                                                                *193 We recognize that the benefit of most
         FN55. TEX. HEALTH & SAFETY CODE                   family dogs like Avery is not financial but relation-
         §§ 821.076–.081.                                  al, and springs entirely from the pet's closeness
                                                           with its human companions. Measuring the worth
     [2] The “true rule” in Texas remains this:            of a beloved pet is unquestionably an emotional de-
Where a dog's market value is unascertainable, the         termination—what the animal means to you and
correct damages measure is the dog's “special or           your family—but measuring a pet's value is a legal
pecuniary value” (that is, its actual value)—the eco-      determination. We are focused on the latter, and as
nomic value derived from its “usefulness and ser-          a matter of law an owner's affection for a dog (or
        FN56
vices,”       not value drawn from companionship           ferret, or parakeet, or tarantula) is not compensable.
                                           FN57            FN58
or other non-commercial considerations.

         FN56. Heiligmann, 16 S.W. at 932.




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         FN58. While actual value cannot include                    court of appeals' decision follows Heilig-
         the owner's “feelings,” unlike Brown's nar-                mann and tracks prevailing law. The law
         row exception for one-of-a-kind heirlooms,                 professors say Heiligmann divided person-
         369 S.W.2d at 305, it can include a range                  al property into three categories, “based on
         of other factors: purchase price, reasonable               where the greatest value of the property
         replacement costs (including investments                   lies”—(1) personal property with market
         such as immunizations, neutering, train-                   value, (2) personal property with use
         ing), breeding potential (if any), special                 value, and (3) personal property that has
         training, any particular economic utility,                 sentiment as its primary value—“and cre-
         veterinary expenses related to the negligent               ated a different damages test for each.”
         injury, and so on. See Mitchell, 27 P.3d at                This case, they contend, falls neatly within
         313–14; see also Heiligmann, 16 S.W. at                    category three in light of our post- Heilig-
         932 (taking into account breed and special                 mann cases that allow intrinsic value when
         training in determining damages); Nichols,                 market or pecuniary valuations are out of
         555 N.W.2d at 692 (“In determining the                     place.
         measure of damages for injuries to a dog,
         factors include its market value, which                    FN60. Supporting Strickland (and thus op-
         may be based on purchase price, relatively                 posing emotional-injury damages) are the
         long life of breed, its training, usefulness               Texas Municipal League, the Texas City
         and desirable traits.” (quoting 4 AM.JUR.                  Attorneys Association, and the City of Ar-
         2d Animals § 162 (1964))). Emotional at-                   lington, Texas (collectively “Municipal
         tachment, however, is not a component of                   Amici”); the American Kennel Club, Cat
         actual value.                                              Fanciers' Association, Animal Health Insti-
                                                                    tute, American Veterinary Medical Associ-
  B. Compelling Pet Welfare and Social–Policy                       ation, National Animal Interest Alliance,
    Reasons Counsel Against Permitting Emo-                         American Pet Products Association, and
    tion–Based Damages in Dog–Death Cases                           Pet Industry Joint Advisory Council
    This is a significant case not only for pet own-                (collectively “AKC”); the Texas Veterin-
ers but also, as several animal-welfare groups un-                  ary Medical Association (TVMA); the
derscore, for pets themselves. Appreciating this                    Texas Civil Justice League (TCJL); and
case's significant implications, numerous animal-                   the Property Casualty Insurers Association
advocacy organizations have submitted amicus                        of America, American Insurance Associ-
curiae briefs. And while there is no unanimous                      ation, and National Association of Mutual
“pro-pet” position—organizations committed to an-                   Insurance      Companies      (collectively
                                                  FN59
imal well-being are arrayed on both sides                           “Insurer Amici”).
—the vast majority of pet-friendly groups oppose
the Medlens' request for emotion-based damages,                       The Municipal Amici argue the court of
FN60                                                                  appeals' ruling essentially allows
       lest greater liability raise *194 the cost of pet
ownership and ultimately cause companion animals                      “wrongful death” damages for dogs that
more harm than good.                                                  are barred for human beings. Also, such
                                                                      damages would irrationally expose to
         FN59. Supporting the Medlens (and thus                       unrestricted damages municipalities,
         favoring emotional-injury damages) are the                   veterinarians, and other service pro-
         Texas Dog Commission (TDC) and a                             viders who must make difficult, on-
         group of law professors. The TDC says the                    the-fly decisions in the field. The AKC




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           warns that allowing such liability will         asserting its members would have no choice but to
           necessarily increase the costs of pet           practice defensive medicine “to safeguard against
           “health care, pet products, and other pet       potential claims of malpractice.” The unfortunate
           services.” The TVMA says allowing               outcome, they contend, would be higher prices for
           emotion-based damages may actually              veterinary care, thus fewer owners bringing in their
           harm pets “by driving up the basic costs        pets for needed treatment. Families, particularly
           of pet ownership,” and that litigation and      lower-income families, will avoid preventive care
           insurance costs will cause veterinarians        for their pets, not seek needed care for ill or injured
           to boost prices to offset the threat of         pets, and be more apt to euthanize a pet. The Texas
           noneconomic damages. The TCJL con-              Municipal League and other government associ-
           tends such damages offend well-settled          ations worry about police officers and animal-ser-
           law, put Texas jurisprudence far outside        vice employees being second-guessed for split-
           the mainstream, and force a radical             second decisions they must make in the field when
           policy change better left to the Legis-         they encounter loose and potentially dangerous an-
           lature. The Insurer Amici assert that al-       imals. Not all dogs are good-natured, they warn,
           lowing subjective, emotional-injury             and government workers must be free to take swift
           damages for harmed personal property            action to protect citizens rather than worrying about
           will skew “the underwriting of risk, the        lawsuits that, even if successfully defended, drain
           setting of rates, and the payment of            finite taxpayer resources. Various insurance groups
           claims.” This abrupt imbalance, they ar-        caution that expanded damages would spike the
           gue, will impact not only veterinary in-        cost of insurance across the board, not just for
           surance, but insurance more generally,          veterinarians but also for homeowners and auto-
           particularly homeowner's and auto-              mobile drivers, “inflat[ing] the value of property
           mobile coverage.                                loss far above that which insurance contracts have
                                                           been written to cover with serious consequences for
     Several animal-welfare groups—organizations           the affordability and availability of insurance in
that understand the intense grief and despair occa-        Texas.”
sioned by a pet's death—insist that relational-injury
damages would adversely impact pet welfare. For                 The opposing amici, including the Texas Dog
example, the American Kennel Club, joined by the           Commission and eleven Texas law professors, em-
Cat Fanciers' Association and other pro-animal             phasize that the court of appeals' judgment is con-
nonprofits, worry that “pet litigation will become a       sistent with our post- Heiligmann property-valu-
cottage industry,” exposing veterinarians, shelter         ation precedent, which they contend allows for sen-
and kennel workers, animal-rescue workers, even            timental-value damages for the loss of a dog. On
dog sitters, to increased liability: “Litigation would     this heirloom point, the Medlens pose a unique hy-
arise when pets are injured in car accidents, police       pothetical, asserting they could seek sentimental
actions, veterinary visits, shelter incidents, protec-     damages if a taxidermied Avery had been negli-
tion of livestock and pet-on-pet aggression, to name       gently destroyed. If property is property, and if they
a few.” As risks and costs rise, there would be few-       could seek sentimental value for a stuffed Avery
er free clinics for spaying and neutering, fewer           destroyed long after death, why can't they recover
shelters taking in animals, fewer services like walk-      for a euthanized Avery destroyed while alive? For
ing and boarding, and fewer people adopting pets,          the reasons stated above and below, we are unper-
leaving more animals abandoned and ultimately put          suaded.
down. The Texas Veterinary Medical Association
sounds alarms of “vast unintended consequences,”               A decade ago we explained: “When recogniz-




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ing a new cause of action and the accompanying                 Moreover, they seek damages they plainly
expansion of duty, we must *195 perform                   could not seek if other close relatives (or friends)
something akin to a cost-benefit analysis to assure       were negligently killed: siblings, step-children,
                                                FN61                                                 FN65
that this expansion of liability is justified.”           grandparents, dear friends, and others.          Our
On this score, the pet-welfare amici make a forceful      cases reject loss-of-consortium recovery for such
case. While recognizing that dogs are treasured           losses. Losing one's pet, even one considered fam-
companions whose deaths generate tremendous sor-          ily, should not invite damages unavailable if an ac-
row, we are persuaded that allowing loss-                 tual human family member were lost. Put differ-
of-companionship suits raises wide-reaching pub-          ently, the Medlens seek emotion-based damages for
lic-policy implications that legislators are better       the death of “man's best friend” when the law
suited to calibrate. Our carefulness is augmented by      denies such damages for the death of a human best
two legal-policy concerns: (1) the anomaly of elev-       friend. For all their noble and praiseworthy qualit-
ating “man's best friend” over multiple valuable hu-      ies, dogs are not human beings, and the Texas com-
man relationships; and (2) the open-ended nature of       mon-law tort system should not prioritize human-
such liability.                                           animal relationships over intimate human-human
                                                          relationships, particularly familial ones. Analogous
        FN61. Roberts, 111 S.W.3d at 118.                 would be anomalous.

     The court of appeals' decision works a peculiar               FN65. See Miles, 967 S.W.2d at 382–84
result, effectively allowing “wrongful death” dam-                 (refusing to allow loss-of-consortium re-
ages for pets. Loss of companionship is a compon-                  covery by siblings and step-parents).
                           FN62
ent of loss of consortium        —a form of person-
al-injury damage, not property damage—and                      It would also invite seemingly arbitrary judicial
something we have “narrowly cabined” to two               line-drawing. Certainly, if we anointed a common-
building-block human relationships: husband-wife          law claim for loss of pet companionship, we could
FN63                     FN64
       and parent-child.       The Medlens request        prescribe limits, but the issue is not whether the
something remarkable: that pet owners have the            Court can draw lines, but whether it should. After
same legal footing as those who lose a spouse, par-       all, people form genuine bonds with a menagerie of
ent, or child.                                            animals, so which “beloved family pets” (the court
                                                                                   FN66
                                                          of appeals' description       ) would merit such pre-
        FN62. See Reagan, 804 S.W.2d at 467.              ferred treatment? Domesticated dogs and cats only
                                                                                        FN67
                                                          (as in a Tennessee statute           )? Furry, but not
        FN63. Whittlesey v. Miller, 572 S.W.2d
                                                          finned or feathered? What about goldfish? Pythons?
        665, 667 (Tex.1978).
                                                          Cockatiels? There seems to be no cogent stopping
        FN64. Cavnar v. Quality Control Parking,          point, at least none that doesn't resemble judicial le-
        Inc., 696 S.W.2d 549, 551 (Tex.1985)              gislation.
        (allowing a child to recover loss-
                                                                   FN66. 353 S.W.3d at 580.
        of-companionship damages when a parent
        dies), overruled in part on other grounds                  FN67. TENN.CODE ANN. § 44–17–403
        by Johnson & Higgins of Tex., Inc. v. Ken-                 (2012).
        neco Energy, Inc., 962 S.W.2d 507, 533
        (Tex.1998); Sanchez v. Schindler, 651                 Similarly, while statutory damage caps exist in
        S.W.2d 249, 252–53 (Tex.1983) (allowing           various types of cases involving people, the court
        a parent to recover such damages when a           of appeals' decision leaves matters wholly uncon-
        child dies).                                      fined. Such broad, unstructured liability would in-




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vite peculiar results. Under Heiligmann, for *196           after hearing testimony and weighing arguments,
example, if a Westminster best-of-breed champion            craft meticulous, product-of-compromise legisla-
with a $20,000 market value is negligently des-             tion that allows non-economic damages to a con-
troyed, that would be its owner's top-end recovery.         trollable and predictable degree.
But if a 15–year–old frail dog with no market value
dies, the owner could sue for unlimited emotional-in-            We also draw counsel from the history of
jury damages. We could impose damages limits,               Texas common law, which, though it has allowed
but such fine-tuning is more a legislative function         sentimental damages for the loss of an heirloom,
than a judicial one. The Medlens and amici urge a           has not done so for the loss of a person, instead de-
damages model based on a pet's primary value, but           ferring to the Legislature. One explanation is that
that, too, invites gamesmanship. The owner of a             with heirlooms, the value is sentimental; with
well-trained dog with legitimate market or pecuni-          people, the value is emotional. The reason the com-
ary value, like a service animal, would be better off       mon law historically declined to create a wrongful-
saying his beloved pet was a “worthless mutt” (to           death action is not because the common law is in-
avoid a less-rewarding recovery under Heiligmann),          capable of setting reasonable parameters, or be-
yet a lovable, part-of-the-family mutt that the own-        cause such parameters are impossible or necessarily
er adored with all his heart (to maximize sentiment-        capricious. Rather it is because such parameters are
al damages under Brown ). Our tort system cannot            most optimally informed by policy- and value-laden
countenance liability so imprecise, unbounded, and          judgments the Legislature is best equipped to make.
manipulable.                                                The difficulties of measuring damages for the loss
                                                            of human life and identifying the beneficiaries en-
  C. The Legislature Is Best Equipped to Weigh              titled to recover were deemed by the common law
     and Initiate Broad Changes to Social and               too great. Because the judiciary was an imperfect
 Civil–Justice Policy, Including Whether to Lib-            decider, courts decided legislatures should decide.
  eralize Damages Recovery in Pet–Death Cases               And our Legislature did so, authorizing a statutory
     The Medlens seek a sweeping alteration of              wrongful-death action for reasons it was better
                                                                              FN68
Texas tort-law principles, upending a century-plus          suited to gauge.         Having historically declined
of settled rights, duties, and responsibilities. The ju-    to *197 recognize a common-law action for the loss
diciary, however, while well suited to adjudicate in-       of a human, the common law should not, for mostly
dividual disputes, is an imperfect forum to examine         the same reasons, recognize one for the loss of a
the myriad policy trade-offs at stake here. Ques-           pet.
tions abound: who can sue, who can be sued, for
what missteps, for what types of damages, for how                   FN68. See TEX. CIV. PRAC. &
much money? And what of the societal ripple ef-                     REM.CODE §§ 71.001 –.011 (current ver-
fects on veterinarians, animal-medicine manufac-                    sion of the Texas wrongful-death statute).
turers, homeowners and drivers seeking insurance,
                                                                 Our precedent on the legal valuation of com-
pet owners, pet caretakers, and ultimately pets
                                                            panion animals has endured for 122 years, and
themselves? Animal-death suits portend fundament-
                                                            while we decline today to expand the damages
al changes to our civil-justice system, not incre-
                                                            available to bereaved pet owners, we understand
mental adjustments on a case-by-case basis. They
                                                            the strength of the human-animal bond. Few Texans
require detailed findings and eligibility criteria,
                                                            consider their pets throw-away commodities. Per-
which in turn require the careful balancing of a
                                                            haps the Legislature will enact a more generous
range of views from a range of perspectives,
                                                            valuation formula for family pets. Valuation derives
something best left to our 181–member Legislature.
                                                            fundamentally from values, and elected legislators
If lawmakers wish, they can hold hearings and then,
                                                            may favor scrapping the “property” label and re-




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                                                                                                          Page 14
397 S.W.3d 184, 56 Tex. Sup. Ct. J. 470
(Cite as: 397 S.W.3d 184)




classifying companion pets as something more el-                 As a matter of Texas common law, emotion-
evated. The Legislature has passed a wrongful-              based damages are unrecoverable, but whether to
death statute for humans; it has not (yet) for anim-        permit such liability statutorily is a quintessential
als. Given the competing public-policy considera-           legislative judgment. Societal attitudes inexorably
tions, we believe if there is to be expanded recovery       change, and shifting public views may persuade the
in pet-death cases, it, too, should be confronted le-       Legislature to extend wrongful-death actions to
gislatively, not judicially.                                pets. Amid competing policy interests, including
                                                            the inherent subjectivity (and inflatability) of emo-
     In 2000, Tennessee enacted legislation author-         tion-based damages, lawmakers are best positioned
izing non-economic damages, up to $5,000, when              to decide if such a potentially costly expansion of
someone negligently or intentionally kills a com-           tort law is in the State's best interest, and if so, to
                 FN69                   FN70
panion animal.         The T–Bo Law            (named       structure an appropriate remedy.
                                                 FN71
for the senate sponsor's beloved Shih Tzu)
narrowly defines “pet” as a domesticated dog or                              III. Conclusion
cat, limits recovery to “the deceased pet's owner or        To his dog, every man is Napoleon; hence the con-
                                                                                                FN75
caretaker,” and immunizes veterinarians and animal                    stant popularity of dogs.
                                    FN72
shelters from negligence liability.        The Mary-
land Legislature has likewise limited damages in                     FN75. Aldous Huxley, as quoted in
pet cases, restricting damages to fair market value                  ROBERT ANDREWS, THE CONCISE
plus the necessary costs of veterinary care, not to                  COLUMBIA DICTIONARY OF QUOTA-
                     FN73                                            TIONS 83 (1990).
exceed $7,500 total.        An Illinois statute allows
non-economic damages, but it, too, tries to narrow
                                                                 It is an inconvenient, yet inescapable, truth:
them, allowing emotional-distress recovery only in                                                         FN76
                                                            “Tort law ... cannot remedy every wrong.”
cases of aggravated cruelty or torture or when an
                                                            Lines, seemingly arbitrary, are required. No one
animal is injured or killed in bad faith when seized
                 FN74                                       disputes that a family *198 dog—“in life the
or impounded.            That is, it forbids non-                             FN77
                                                            firmest friend”          —is a treasured companion.
economic damages for acts of ordinary negligence.
                                                            But it is also personal property, and the law draws
         FN69. TENN.CODE ANN. § 44–17–403                   sensible, policy-based distinctions between types of
         (2012).                                            property. The majority rule throughout most of
                                                            America—including Texas since 1891—leavens
         FN70. 2000 Tenn. Pub. Acts Ch. 762.                warm-heartedness with sober-mindedness, applying
                                                            a rational rule rather than an emotional one. For the
         FN71. See Susan Cover, Maine Bill Would            reasons discussed above, we decline to (1) jettison
         Raise Status of Pets That Are Killed,              our 122–year–old precedent classifying dogs as or-
         PORTLAND PRESS HERALD (Feb. 15,                    dinary property, and (2) permit noneconomic dam-
         2013), http:// www. press herald. com/             ages rooted in relational attachment.
         politics/ bill- would- raise- status- of- pets-
         that- are- killed_ 2013– 02– 16. html.                      FN76. Roberts, 111 S.W.3d at 118.

         FN72. TENN.CODE ANN. § 44–17–403.                           FN77. Lord Byron, supra note 1, at 293.

         FN73. MD.CODE ANN., CTS. & JUD.                         Under Texas common law, the human-animal
         PROC. § 11–110 (2012).                             bond, while undeniable, is uncompensable, no mat-
                                                            ter how it is conceived in litigation—as a measure
         FN74. 510 ILL. COMP. STAT. ANN.N.                  of property damages (including “intrinsic value” or
         70/16.3 (West 2013).




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                                                                                      Page 15
397 S.W.3d 184, 56 Tex. Sup. Ct. J. 470
(Cite as: 397 S.W.3d 184)




“special value ... derived from the attachment that
                             FN78
an owner feels for his pet”       ), as a personal-in-
jury claim for loss of companionship or emotional
distress, or any other theory. The packaging or la-
beling matters not: Recovery rooted in a pet own-
er's feelings is prohibited. We understand that limit-
ing recovery to market (or actual) value seems in-
commensurate with the emotional harm suffered,
but pet-death actions compensating for such harm,
while they can certainly be legislated, are not
something Texas common law should enshrine.

         FN78. 353 S.W.3d at 580.

    We reverse the court of appeals' judgment and
render judgment in favor of Strickland.

Tex.,2013.
Strickland v. Medlen
397 S.W.3d 184, 56 Tex. Sup. Ct. J. 470

END OF DOCUMENT




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                                                                                                        Page 1
366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




                                                              30XVI Review
                                                                 30XVI(H) Discretion of Lower Court
              Supreme Court of Texas.                                30k969 k. Conduct of trial or hearing in
  Venkateswarlu THOTA, M.D. and North Texas               general. Most Cited Cases
           Cardiology Center, Petitioners,                     Supreme Court reviews a trial court's decision
                         v.                               to submit or refuse a particular instruction under an
Margaret YOUNG, individually, and as Represent-           abuse of discretion standard of review.
ative of the Estate of William R. Young, Respond-
                        ent.                              [2] Trial 388      182

                  No. 09–0079.                            388 Trial
              Argued Nov. 10, 2011.                          388VII Instructions to Jury
              Decided May 11, 2012.                                 388VII(A) Province of Court and Jury in
                                                          General
Background: On behalf of herself and her de-                          388k182 k. Authority to instruct jury in
ceased husband's estate, widow brought medical            general. Most Cited Cases
malpractice action against physician and cardiology
center after husband died following complications         Trial 388       215
from internal bleeding caused by cardiac catheteriz-
ation. Following jury trial, the 30th District Court,     388 Trial
Wichita County, Robert P. Brotherton, J., entered            388VII Instructions to Jury
judgment for defendants. Widow appealed. The                     388VII(B) Necessity and Subject–Matter
Court of Appeals, 271 S.W.3d 822,Terrie Living-                      388k215 k. Submission to jury for special
ston, J., reversed and remanded. Physician sought         findings. Most Cited Cases
review which was granted.                                      The trial court has considerable discretion to
                                                          determine proper jury instructions; if an instruction
Holdings: The Supreme Court, Green, J., held that:        might aid the jury in answering the issues presented
(1) presumed harm analysis did not apply to a             to them, or if there is any support in the evidence
broad-form       submission    in    a    single-the-     for an instruction, the instruction is proper.
ory-of-liability case; disapproving of Block v. Mora
, 314 S.W.3d 440;                                         [3] Trial 388      232(1)
(2) any error associated with the inclusion of a jury
                                                          388 Trial
question regarding patient's negligence was harm-
                                                             388VII Instructions to Jury
less; and
                                                                388VII(C) Form, Requisites, and Sufficiency
(3) any error in the trial court's submission of the
                                                                    388k231 Sufficiency as to Subject-Matter
new and independent cause instruction was harm-
                                                                       388k232 In General
less.
                                                                              388k232(1) k. In general. Most
    Reversed and remanded.                                Cited Cases

                  West Headnotes                          Trial 388       238

[1] Appeal and Error 30        969                        388 Trial
                                                             388VII Instructions to Jury
30 Appeal and Error                                             388VII(C) Form, Requisites, and Sufficiency




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




          388k231 Sufficiency as to Subject-Matter          Court of Grounds of Review
             388k238 k. Matters of law. Most Cited                30V(B) Objections and Motions, and Rulings
Cases                                                       Thereon
                                                                     30k231 Necessity of Specific Objection
Trial 388       250                                                      30k231(9) k. Instructions. Most Cited
                                                            Cases
388 Trial
   388VII Instructions to Jury                              Appeal and Error 30        242(1)
          388VII(D) Applicability to Pleadings and
Evidence                                                    30 Appeal and Error
             388k249 Application of Instructions to               30V Presentation and Reservation in Lower
Case                                                        Court of Grounds of Review
                  388k250 k. In general. Most Cited                30V(B) Objections and Motions, and Rulings
Cases                                                       Thereon
     A jury instruction is proper if it: (1) assists the               30k242 Necessity of Ruling on Objection
jury, (2) accurately states the law, and (3) finds          or Motion
support in the pleadings and evidence.                                     30k242(1) k. In general. Most Cited
                                                            Cases
[4] Appeal and Error 30          1064.1(1)                      The procedural requirements for determining
                                                            whether a party has preserved error in the jury
30 Appeal and Error
                                                            charge are explained by one basic test: whether the
   30XVI Review
                                                            party made the trial court aware of the complaint,
       30XVI(J) Harmless Error
                                                            timely and plainly, and obtained a ruling. Rules
          30XVI(J)18 Instructions
                                                            App.Proc., Rule 33.1; Vernon's Ann.Texas Rules
             30k1064 Prejudicial Effect
                                                            Civ.Proc., Rule 274.
                30k1064.1 In General
                         30k1064.1(1) k. In general.        [6] Appeal and Error 30       230
Most Cited Cases
     Jury charge error is generally considered harm-        30 Appeal and Error
ful as required for reversal of a judgment if it                 30V Presentation and Reservation in Lower
relates to a contested, critical issue. Rules               Court of Grounds of Review
App.Proc., Rules 44.1(a), 61.1.                                   30V(B) Objections and Motions, and Rulings
                                                            Thereon
[5] Appeal and Error 30          230                                  30k230 k. Necessity of timely objection.
                                                            Most Cited Cases
30 Appeal and Error
     30V Presentation and Reservation in Lower              Appeal and Error 30        231(9)
Court of Grounds of Review
      30V(B) Objections and Motions, and Rulings            30 Appeal and Error
Thereon                                                           30V Presentation and Reservation in Lower
          30k230 k. Necessity of timely objection.          Court of Grounds of Review
Most Cited Cases                                                   30V(B) Objections and Motions, and Rulings
                                                            Thereon
Appeal and Error 30          231(9)                                  30k231 Necessity of Specific Objection
                                                                         30k231(9) k. Instructions. Most Cited
30 Appeal and Error
                                                            Cases
     30V Presentation and Reservation in Lower




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                                                                                                           Page 3
366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




    Under Supreme Court's preservation rules, a            [8] Appeal and Error 30         1031(6)
timely objection plainly informing the court that a
specific element should not be included in a broad-        30 Appeal and Error
form question because there is no evidence to sup-             30XVI Review
port its submission preserves the error for appellate             30XVI(J) Harmless Error
review. Rules App.Proc., Rule 33.1; Vernon's                         30XVI(J)1 In General
Ann.Texas Rules Civ.Proc., Rule 274.                                       30k1031 Presumption as to Effect of
                                                           Error
[7] Appeal and Error 30         230                                            30k1031(6) k. Instructions. Most
                                                           Cited Cases
30 Appeal and Error                                             Presumed harm analysis, for when jury ques-
     30V Presentation and Reservation in Lower             tion incorporated multiple theories of liability, of
Court of Grounds of Review                                 which at least one was invalid, or when it com-
      30V(B) Objections and Motions, and Rulings           mingled damage elements that were unsupported by
Thereon                                                    legally sufficient evidence, did not apply to a
          30k230 k. Necessity of timely objection.         broad-form       submission     in    a    single-the-
Most Cited Cases                                           ory-of-liability case in action by patient's widow
                                                           against physician and cardiology center for medical
Appeal and Error 30         231(9)
                                                           malpractice, even if negligence charge included
30 Appeal and Error                                        both an improper defensive theory of contributory
      30V Presentation and Reservation in Lower            negligence and an improper inferential rebuttal in-
Court of Grounds of Review                                 struction, where charge provided two separate
       30V(B) Objections and Motions, and Rulings          blanks for the jury to answer the single-the-
Thereon                                                    ory-of-liability question, the only theory of liability
          30k231 Necessity of Specific Objection           asserted against physician was negligence, and the
               30k231(9) k. Instructions. Most Cited       jury's findings on that theory were clear that physi-
Cases                                                      cian was not negligent; disapproving of Block v.
     Specific and timely no-evidence objection to          Mora, 314 S.W.3d 440. Rules App.Proc., Rule
jury charge question on patient's contributory negli-      33.1; Vernon's Ann.Texas Rules Civ.Proc., Rule
gence and specific objection to the disputed instruc-      274.
tion on new and independent cause was sufficient
                                                           [9] Appeal and Error 30         1031(6)
to place the trial court on notice that patient's wid-
ow believed the evidence did not support an inclu-         30 Appeal and Error
sion of patient's contributory negligence or instruc-         30XVI Review
tion on new and independent cause, and, thus, issue              30XVI(J) Harmless Error
was preserved for appeal, although widow did not                     30XVI(J)1 In General
cite or specifically reference Casteel, a case which                      30k1031 Presumption as to Effect of
held that, when a single broad-form liability ques-        Error
tion erroneously commingled valid and invalid liab-                            30k1031(6) k. Instructions. Most
ility theories and the appellant's objection was           Cited Cases
timely and specific, the error was harmful when it             While appellate courts may presume harm
could not be determined whether the improperly             when meaningful appellate review is precluded be-
submitted theories formed the sole basis for the           cause the submitted charge mixes valid and invalid
jury's finding. Rules App.Proc., Rule 33.1; Ver-           theories of liability or commingles improper dam-
non's Ann.Texas Rules Civ.Proc., Rule 274.                 age elements, the courts do not presume harm be-




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                                                                                                         Page 4
366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




cause of improper inferential rebuttal instructions        submit only those questions, instructions, and
on defensive theories.                                     definitions raised by the pleadings and the evid-
                                                           ence. Vernon's Ann.Texas Rules Civ.Proc., Rule
[10] Appeal and Error 30         1064.1(8)                 278.

30 Appeal and Error                                        [12] Appeal and Error 30        969
   30XVI Review
      30XVI(J) Harmless Error                              30 Appeal and Error
          30XVI(J)18 Instructions                              30XVI Review
              30k1064 Prejudicial Effect                          30XVI(H) Discretion of Lower Court
                 30k1064.1 In General                                  30k969 k. Conduct of trial or hearing in
                    30k1064.1(2) Particular Cases          general. Most Cited Cases
                        30k1064.1(8) k. Negligence              When a trial court abuses its discretion by in-
and torts in general. Most Cited Cases                     cluding erroneous charge questions or instructions
     Any error in negligence charge including both         in a single-theory-of-liability case, Supreme Court's
an improper defensive theory of contributory negli-        traditional harmless error analysis applies and the
gence and an improper inferential rebuttal instruc-        entire record should be reviewed to determine
tion may be harmless when jury questions are sub-          whether the charge errors probably caused the
mitted in a manner that allows the appellate court to      rendition of an improper judgment. Rules
determine that the jury's verdict was actually based       App.Proc., Rule 61.1(a).
on a valid liability theory. Vernon's Ann.Texas
Rules Civ.Proc., Rules 277, 278.                           [13] Appeal and Error 30        1062.1

[11] Trial 388       252(1)                                30 Appeal and Error
                                                              30XVI Review
388 Trial                                                        30XVI(J) Harmless Error
   388VII Instructions to Jury                                            30XVI(J)17 Submission of Issues or
          388VII(D) Applicability to Pleadings and         Questions to Jury
Evidence                                                                    30k1062.1 k. In general. Most Cited
            388k249 Application of Instructions to         Cases
Case                                                           When jury charge questions are submitted in a
             388k252 Facts and Evidence                    manner that allows the appellate court to determine
                    388k252(1) k. In general. Most         whether the verdict was actually based on a valid
Cited Cases                                                theory of liability, the error may be harmless.

Trial 388        350.1                                     [14] Appeal and Error 30        1062.1

388 Trial                                                  30 Appeal and Error
   388IX Verdict                                              30XVI Review
        388IX(B) Special Interrogatories and Find-               30XVI(J) Harmless Error
ings                                                                     30XVI(J)17 Submission of Issues or
          388k350 Questions to Be Submitted                Questions to Jury
               388k350.1 k. In general. Most Cited                        30k1062.1 k. In general. Most Cited
Cases                                                      Cases
     Regardless of whether a granulated or broad-              Any error associated with the inclusion of a
form charge is submitted, the trial court's duty is to     jury question regarding patient's negligence was




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                                                                                                        Page 5
366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




harmless in action by patient's widow against phys-          30XVI Review
ician and cardiology center for medical malpractice,             30XVI(G) Presumptions
where physician could only have been negligent in                    30k930 Verdict
causing the tear in patient's artery, but the jury                        30k930(1) k. In general. Most Cited
failed to find that he was negligent, and clarifying      Cases
instructions made it clear that jury could answer              In circumstances where a reasonable jury could
question regarding whether physician or patient           resolve conflicting evidence either way, Supreme
were negligent in any of the following combina-           Court presumes the jury did so in favor of the pre-
tions: (1) “Yes” to both physician and patient, (2)       vailing party.
“No” to both, or (3) “Yes” to one and “No” to the
other, the choice the jury ultimately made. Rules         [18] Appeal and Error 30        1064.1(8)
App.Proc., Rule 61.1(a).
                                                          30 Appeal and Error
[15] Appeal and Error 30        1062.5                       30XVI Review
                                                                 30XVI(J) Harmless Error
30 Appeal and Error                                                  30XVI(J)18 Instructions
   30XVI Review                                                         30k1064 Prejudicial Effect
      30XVI(J) Harmless Error                                              30k1064.1 In General
               30XVI(J)17 Submission of Issues or                             30k1064.1(2) Particular Cases
Questions to Jury                                                                  30k1064.1(8) k. Negligence
              30k1062.5 k. Immaterial issues. Most        and torts in general. Most Cited Cases
Cited Cases                                                    Any error in the trial court's submission of the
    When the answer to a jury question cannot alter       new and independent cause instruction was harm-
the effect of the verdict, the reviewing court con-       less in action by patient's widow against physician
siders that question immaterial. Rules App.Proc.,         and cardiology center for malpractice, where re-
Rule 61.1(a).                                             view of the entire record provided no clear indica-
                                                          tion that the new and independent cause instruction,
[16] Health 198H       823(1)                             if erroneous, probably caused the rendition of an
                                                          improper verdict. Rules App.Proc., Rule 61.1(a).
198H Health
     198HV Malpractice, Negligence, or Breach of          *680 Diana L. Faust, R. Brent Cooper, Cooper &
Duty                                                      Scully P.C., Dallas, J. Wade Birdwell, D. Michael
       198HV(G) Actions and Proceedings                   Wallach, Jennifer M. Andrews, Wallach & An-
          198Hk815 Evidence                               drews P.C., Fort Worth, Marc Maraman Tittlebaum,
                 198Hk823 Weight and Sufficiency,         Richard Clark Harrist, Cooper & Scully P.C., Mat-
Particular Cases                                          thew Christopher Kawalek, Sodal Security Admin-
                   198Hk823(1) k. In general. Most        istration, Michelle E. Robberson, Cooper & Scully,
Cited Cases                                               P.C., Dallas, for Venkateswarlu Thota, M.D.
     Fact that defendant-physician in medical mal-
practice action testified on his own behalf did not       Doug Perrin, Jerry Mark Perrin, The Perrin Law
negate the weight that the jury could give to his         Firm, Dallas, for Margaret Young.
testimony.

[17] Appeal and Error 30        930(1)                    Justice GREEN delivered the opinion of the Court.
                                                               We have held that reversible error is presumed
30 Appeal and Error                                       when a broad-form question submitted to the jury




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




incorporates multiple theories of liability and one            Later that evening, Ronnie experienced abdom-
or more of those theories is invalid, Crown Life Ins.     inal pain. Ultimately, Ronnie's condition worsened,
Co. v. Casteel, 22 S.W.3d 378, 388 (Tex.2000), or         and he fell from his reclining chair around 11:30
when the broad-form question commingles damage            p.m. Margaret called 911, and Ronnie returned by
elements that are unsupported by legally sufficient       ambulance to the hospital's emergency room at ap-
evidence, Harris Cnty. v. Smith, 96 S.W.3d 230,           proximately 1:15 a.m. Dr. Thota's partner, Siriam
233–34 (Tex.2002). We have not, however, ad-              Sudarshan, M.D., saw Ronnie in the emergency
dressed whether that presumed harm analysis ap-           room. An abdominal CT scan showed bleeding
plies to a broad-form submission in a single-the-         from the puncture site—where the needle and cath-
ory-of-liability case when the negligence charge in-      eter were inserted during the catheterization pro-
cludes both an improper defensive theory of con-          cedure—at Ronnie's right external iliac artery, as
tributory negligence and an improper inferential re-      well as a large hematoma. Because of those results,
buttal instruction. For the reasons explained below,      Dr. Sudarshan consulted Olyn Walker, M.D., a vas-
we hold that it does not, and that meaningful appel-      cular surgeon in Wichita Falls, concerning Ronnie's
late review is provided through a traditional harm        condition. Soon thereafter, Dr. Walker performed
analysis. Inasmuch as the court of appeals ruled          an emergency surgery to repair a tear in Ronnie's
otherwise, we reverse its judgment and remand the         right external iliac artery, allegedly caused by the
case to that court for further consideration consist-     catheterization procedure. During the emergency
ent with this opinion.                                    surgery, Dr. Walker discovered a large hematoma
                                                          from severe bleeding in Ronnie's peritoneal cavity.
                   I. Background                          After repairing the tear in the iliac artery and drain-
     William R. Young (Ronnie) died of leukemia           ing the retroperitoneal hematoma, the emergency
on March 10, 2005, at the age of *681 fifty-seven.        care providers placed Ronnie on a ventilator.
Prior to his death, Ronnie suffered from several
physical ailments, including a rare blood disorder             Ronnie remained on the ventilator for several
called polycythemia vera, coronary artery disease,        months and required additional procedures to treat
hypertension, and angina. In late 2001, Ronnie vis-       injuries resulting from the severe bleed. Ronnie
ited Venkateswarlu Thota, M.D., a cardiologist at         suffered acute renal failure that required dialysis,
the North Texas Cardiology Center (NTCC), com-            had multiple blood transfusions, underwent a splen-
plaining of chest pains. After medications failed,        ectomy, and had his gallbladder removed because it
Dr. Thota recommended that Ronnie undergo a               had turned gangrenous as a result of ischemia—the
coronary angiography—a test using dye and x-rays          lack of blood supply—caused from the bleed. Ron-
to observe how blood flows through the heart—to           nie ultimately lost his vision in one eye and
evaluate Ronnie's heart condition. Dr. Thota per-         suffered numerous strokes and blood clots, all al-
formed the cardiac catheterization procedure              legedly as a result of the catheterization. Later,
—insertion and threading of a thin tube into the          Ronnie was transferred from the Wichita Falls hos-
coronary arteries, through which dye is released in-      pital to Baylor University Medical Center in Dallas
to the bloodstream—on the morning of March 4,             to receive treatment for various other ailments.
2002, at the United Regional Health Care System in        After several months of additional treatment, Ron-
Wichita Falls, Texas. Ronnie was released from the        nie was released from the hospital in August 2002.
hospital at approximately 2:30 p.m. that afternoon        Nearly three years after the catheterization proced-
and given routine instructions to call if he experi-      ure, Ronnie died of leukemia, which had developed
enced any problems. Ronnie's wife, Margaret,              as a complication of his prolonged struggle with
drove him home after the catheterization procedure.       polycythemia vera.




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




       A. The Medical–Malpractice Lawsuit                  Ronnie's injury to be the extensive bleed. Accord-
     Following Ronnie's death, Margaret brought            ingly, Dr. Thota alleged that Ronnie was negligent
this suit both individually and on behalf of Ronnie's      in failing to return to the hospital at the first sign of
estate (collectively, Young) against Dr. Thota and         pain, which would have substantially alleviated
                                 FN1
NTCC (collectively, Dr. Thota).       Young alleged        Ronnie's resulting health problems. Dr. Thota
that *682 Dr. Thota was negligent by: (1) failing to       averred that the negligence, if any, resulted from
obtain Ronnie's complete medical history; (2) fail-        the concurrent actions of both parties, which made
ing to heed Ronnie's underlying medical conditions,        this a contributory negligence issue rather than a
which may have exacerbated his risk of potential           mitigation-of-damages issue.
complications; (3) failing to properly locate Ron-
nie's femoral artery during the catheterization pro-            At the charge conference, Young objected to
cedure and lacerating his right iliac artery instead;      the inclusion of the definitions of negligence, ordin-
(4) failing to discover the iliac artery tear before       ary care, and proximate cause in reference to Ron-
discharging Ronnie from the hospital; and (5) fail-        nie, arguing that contributory negligence was not
ing to diagnose and treat the artery tear. Young           supported by the evidence and that any delay on
sought damages for Ronnie's pain and suffering and         Ronnie's part in seeking medical treatment was a
mental anguish, medical expenses, physical disfig-         mitigation-of-damages issue. The trial court over-
urement, and lost earnings. Additionally, Young            ruled Young's objection and included a question on
sought damages for Margaret's loss of consortium           Ronnie's contributory negligence in the charge. Ad-
and loss of household services.                            ditionally, the trial court overruled Young's objec-
                                                           tions to the inclusion of instructions on new and in-
         FN1. Young alleged that NTCC was liable           dependent cause and unavoidable accident. Neither
         for Ronnie's injuries on the basis of re-         party advised the trial court that the charge might
         spondeat superior.                                contain a Casteel problem, which arises when a
                                                           broad-form charge mixes valid and invalid theories
    In his answer, Dr. Thota generally denied all of       of liability, making it impossible for the appellate
Young's claims and, alternatively, claimed that            courts to determine if the jury answered the liability
Ronnie's injuries were the result of an unavoidable        question based on an invalid theory, nor did either
accident, a new and independent cause, or pre-             party request separate submissions for the negli-
existing or subsequent medical conditions. Dr.             gence of Dr. Thota and Young. See Casteel, 22
Thota's answer also contended that Ronnie's injur-         S.W.3d at 388–89. Instead, Young's objections res-
ies were partially the result of Ronnie's own negli-       ted on the argument that there was no evidence to
gence and included a counterclaim against Young            support the inclusion of the disputed jury charge
for contribution due to Young's alleged failure to         items in the broad-form question.
mitigate his damages.
                                                                The charge included one broad-form submis-
    The case proceeded to a week-long jury trial.          sion as to the single theory of liabil-
At the charge conference, both parties raised sever-       ity—negligence—and additional questions regard-
al objections and argued over the proper questions         ing apportionment and calculation of damages.
and instructions that the trial court should submit to     Question 1 addressed both parties' liability and
the jury. Young's theory of liability rested on the        stated:
claim that Dr. Thota breached the standard of care
by puncturing Ronnie's iliac artery instead of the             Did the negligence, if any, of those named be-
femoral artery, resulting in the extensive bleeding          low, proximately cause the injury in question, if
and concomitant injuries that Ronnie suffered. In            any?
contrast, Dr. Thota's theory of the case considered




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




    *683 “Negligence,” when used with respect to              “Ordinary care,” when used with respect to the
  the conduct of Venkat Thota, M.D., means failure          conduct of [Ronnie] Young means that degree of
  to use ordinary care, that is, failing to do that         care that a person of ordinary prudence would use
  which a cardiologist of ordinary prudence would           under the same or similar circumstances.
  have done under the same or similar circum-
  stances or doing that which a cardiologist of or-            “Proximate cause,” when used with respect to
  dinary prudence would not have done under the             the conduct of [Ronnie] Young means that cause
  same or similar circumstances.                            which, in a natural and continuous sequence, pro-
                                                            duces an event, and without which cause such
    “Ordinary care,” when used with respect to the          event would not have occurred. In order to be a
  conduct of Venkat Thota, M.D., means that de-             proximate cause, the act or omission complained
  gree of care that a cardiologist of ordinary              of must be such that a person using ordinary care
  prudence would use under the same or similar              would have foreseen that the event, or some sim-
  circumstances.                                            ilar event, might reasonably result therefrom.
                                                            There may be more than one proximate cause of
    “Proximate Cause,” when used with respect to            an event.
  the conduct of Venkat Thota, M.D., means that
  cause which, in a natural and continuous se-                An injury may be an “unavoidable accident,”
  quence unbroken by any new and independent                that is, an event not proximately caused by the
  cause, produces an event, and without which               negligence of any party to it.
  cause such event would not have occurred. In or-
  der to be a proximate cause, the act or omission            Answer “Yes” or “No”.
  complained of must be such that a cardiologist
                                                              Venkat Thota, M.D.: ____
  using ordinary care would have foreseen that the
  event, or some similar event, might reasonably              [Ronnie] Young: ____
  result therefrom. There may be more than one
  proximate cause of an event.                                If you have answered “Yes” to Question 1 for
                                                            both of those named in Question 1, then answer
     “New and independent cause,” when used with            Question 2. Otherwise do not answer Question 2.
  respect to the conduct of Venkat Thota, M.D.,
  means the act or omission of a separate and inde-           If you have answered “Yes” to Question 1 only
  pendent agency, not reasonably foreseeable by a           as to Mr. Young, then do not answer Questions 2,
  cardiologist exercising ordinary care, that des-          3, or 4.
  troys the causal connection, if any, between the
  act or omission inquired about and the injury in            If you have answered “Yes” to Question 1 only
  question and thereby becomes the immediate                as to Dr. Thota, then answer Questions 3 and 4.
  cause of such injury.
                                                              Question 2 conditionally asked about Dr.
    “Negligence,” when used with respect to the           Thota's and Ronnie's comparative negligence, and
  conduct of [Ronnie] Young means failure to use          Questions 3 and 4 concerned the amount of dam-
  ordinary care, that is, failing to do that which a      ages owed for Ronnie's and Margaret's injuries.
  person of ordinary prudence would have done un-
                                                              *684 The jury answered Question 1 with a
  der the same or similar circumstances or doing
                                                          “No” as to Dr. Thota's negligence and a “Yes” as to
  that which a person of ordinary prudence would
                                                          Ronnie's negligence. On July 18, 2005, the trial
  not have done under the same or similar circum-
                                                          court entered final judgment that Young take noth-
  stances.




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
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ing. Young filed a motion for new trial, arguing           ate damages “arises from an injured party's duty to
that the trial court had erred in overruling Young's       act reasonably in reducing his damages.” Id. (citing
objections to the jury charge and that the jury's          Hygeia Dairy Co. v. Gonzalez, 994 S.W.2d 220,
findings were against the great weight and prepon-         226 (Tex.App.-San Antonio 1999, no pet.)). Be-
derance of the evidence or based on insufficient           cause it found that Dr. Thota's theory pointed only
evidence. The trial court denied Young's motion for        to Young's “subsequent negligence that might have
new trial, and Young timely appealed.                      increased his damages as opposed to Dr. Thota's
                                                           original negligence,” the court concluded “that
         B. Appellate Court Proceedings                    Ronnie's negligence, if any, only increased the
     On appeal, Young raised the same issues               damages he suffered after the catheterization or
presented in the motion for new trial. Specifically,       tear, as opposed to causing the ‘injury,’ ‘accident,’
Young challenged the trial court's judgment for the        or ‘occurrence’ itself.” Id.
following reasons: (1) the jury's finding of no negli-
gence as to Dr. Thota was against the great weight              The appellate court then considered whether
and preponderance of the evidence and was mani-            the disputed inferential rebuttal instructions on new
festly unjust and/or the opposite answer was con-          and independent cause and unavoidable accident
clusively proven as a matter of law; (2) the evid-         were proper. Id. at 836–39. Finding that Dr. Thota
ence was insufficient to support the jury's findings       presented some evidence that the tear in Ronnie's
as to Ronnie's contributory negligence, and the trial      artery could have been a natural result of Ronnie's
court erred by overruling Young's objection to the         then-existing illnesses or an unexpected cata-
inclusion of contributory negligence in the jury           strophe, the court of appeals held that the trial court
charge; and (3) the trial court erred in overruling        did not abuse its discretion in submitting the un-
                                                                                           FN2
Young's objections and submitting jury instructions        avoidable accident instruction.       Id. at 837. *685
on unavoidable accident and new and independent            The court concluded that Ronnie's massive bleed
cause.                                                     and resulting injuries were foreseeable risks in the
                                                           catheterization procedure and held that the trial
     The court of appeals held that the trial court's      court abused its discretion by submitting the new
inclusion of the question on Ronnie's contributory         and independent cause instruction in connection
negligence and the new and independent cause in-           with Dr. Thota's negligence. Id. at 838.
struction in the jury charge was an abuse of discre-
tion and constituted harmful error; accordingly, it                 FN2. In this Court, the parties do not con-
reversed the trial court's judgment and remanded                    test the court of appeals' holding as to the
the case for a new trial. 271 S.W.3d 822, 841                       unavoidable accident instruction. There-
(Tex.App.-Fort Worth 2008, pet. granted). The ap-                   fore, our opinion focuses solely on the dis-
pellate court found that the “injury in question” was               puted charge issues concerning the inclu-
the tear in Ronnie's iliac artery and, contrary to Dr.              sion of Ronnie's contributory negligence
Thota's arguments, not the extensive bleed. Id. at                  and the instruction on new and independ-
834–35. The court of appeals compared the parties'                  ent cause.
theories of liability and concluded that Dr. Thota's
premise for Ronnie's contributory negligence was                After holding that the trial court erred in sub-
“based upon Ronnie's alleged negligence occurring          mitting the question of Ronnie's contributory negli-
after the tear, not Ronnie's negligence in causing         gence and the new and independent cause instruc-
the tear.” Id. at 833. The court recognized that con-      tion as to Dr. Thota, the court of appeals considered
tributory negligence must have a causal connection         which level of harm analysis applied. Id. at 839.
with the original accident, while a failure to mitig-      The court, sua sponte, held that Young's objections
                                                           to these specific aspects of the charge invoked




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




Casteel's presumed harm analysis because the im-                   injuries, and he claimed that the trial court
properly submitted broad-form question com-                        erred in submitting his negligence to the
mingled valid and invalid theories of liability. Id. at            jury. Id. On appeal, the court of appeals
                                             FN3
836 (citing Casteel, 22 S.W.3d at 388–89).        The              held that it was error to submit the invalid
court acknowledged our opinion in Bed, Bath &                      theory of the plaintiff's contributory negli-
Beyond, Inc. v. Urista, 211 S.W.3d 753 (Tex.2006),                 gence to the jury. Id. at 450. Like the court
which held that Casteel's presumed harm analysis                   of appeals in Thota, the Block court held
does not apply to broad-form questions based on a                  that because “the trial court submitted two
single theory of liability that are submitted with im-             competing theories of liability within one
proper inferential rebuttal instructions, id. at 757,              broad-form liability question that asked
but distinguished Young's situation because “the                   whether the negligence of the two parties
jury was not only given an erroneous defensive in-                 involved in the accident caused the
struction on new and independent cause that bene-                  plaintiff's injuries,” it could not “determine
fitted only Dr. Thota but also an erroneous jury                   whether the jury truly found that [the de-
question on liability—Ronnie's contributory negli-                 fendant] was not negligent in causing the
gence—a theory not supported by the evidence.”                     accident or [that the plaintiff] was solely
271 S.W.3d at 839. Concluding that Casteel's pre-                  negligent in causing his injuries (both of
sumed harm analysis applied, the court of appeals                  which findings would be against the great
reasoned:                                                          weight and preponderance of the evid-
                                                                   ence).” Id. The court cited to Casteel's pre-
         FN3. As mentioned by Young's counsel at                   sumed harm analysis, but held, under the
         oral argument, at least one other appellate               traditional harmless error analysis that the
         court has followed this approach and held                 charge error “likely caused the rendition of
         that a broad-form charge that includes sep-               an improper judgment.” Id.; see
         arate blanks for multiple parties' fault, un-             TEX.R.APP. P. 44.1.
         der a single theory of liability, presents a
         Casteel issue. See Block v. Mora, 314               We simply cannot determine, on this evidence,
         S.W.3d 440, 450 (Tex.App.-Amarillo                  whether the jury properly found Dr. Thota not
         2009, pet. dism'd by agr.). In Block, Ques-         negligent, properly found that his negligence was
         tion 1 of the jury charge asked: “Did the           excused based upon the unavoidable accident in-
         negligence, if any, of those named below            struction, or improperly found that his negligence
         proximately cause the injuries, if any, to          was excused based upon the new and independent
         [the plaintiff]?” Id. at 444. Question 1 in-        cause instruction alone or combined with its im-
         cluded two separate answer blanks next to           proper finding of Ronnie's negligence.
         the names of the plaintiff and the defend-          Id. Specifically, the court held that the charge
         ant. Id. The jury answered “Yes” to the             commingled Dr. Thota's improper theory of liab-
         plaintiff's negligence and “No” to the de-          ility (the extensive bleeding) with Young's proper
         fendant's negligence. Id. On appeal, the            theory of liability (the torn artery) and, con-
         plaintiff complained that the evidence sup-         sequently, prevented *686 the appellate court
         ported judgment in his favor because the            “from being able to determine whether the jury's
         defendant's negligence was established as a         finding of no liability as to Dr. Thota was a find-
         matter of law. Id. The plaintiff also alleged       ing of no negligence on his part, an erroneous
         that there was no evidence of his contribut-        finding of contributory negligence on Ronnie's
         ory negligence nor any evidence that he             part, or an erroneous finding of new and inde-
         had proximately caused the accident or his          pendent cause.” Id. at 841. The court concluded:




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  “Because these instructions likely caused rendi-        harm analysis applies because the submitted jury
  tion of an improper judgment or, at least, preven-      charge was based on one valid and one invalid the-
  ted [Young] from properly presenting her case on        ory of liability, which obviously confused the jury
  appeal, we conclude that such error was harm-           to such a degree that an appellate court cannot de-
  ful.” Id.                                               termine whether the jury based its decision on the
                                                          valid or invalid theory. Young claims that direct
         C. Dr. Thota's Petition for Review               mention of Casteel to the trial court was not re-
     Dr. Thota petitioned our Court for review, and       quired to preserve the Casteel error, and Young's
we granted his petition on rehearing. 54                  timely and specific no-evidence objections to the
Tex.Sup.Ct.J. 682 (Mar. 18, 2011). Dr. Thota ar-          charge errors were sufficient to inform the trial
gues that the court of appeals erred in holding that      court of the Casteel problem. Alternatively, Young
the trial court's inclusion of Ronnie's contributory      claims that the trial court's judgment must be re-
negligence and the inferential rebuttal instruction       versed even under the traditional harmless error
constituted an abuse of discretion. Dr. Thota claims      analysis.
that even if there were error in the jury charge, it
was harmless, and Casteel's presumed harm analys-                          II. Harm Analysis
is does not apply. Furthermore, Dr. Thota claims               Assuming, but not deciding, that it was error
that the court of appeals improperly reversed the         for the trial court to submit the question on Ron-
trial court's judgment based on unassigned error be-      nie's contributory negligence and the instruction on
cause Young neither raised a Casteel issue before         new and independent cause, we consider whether
the court of appeals nor made a timely or specific        these charge issues constituted harmful error. See,
objection before the trial court to assert that the       e.g., TEX.R.APP. P. 61.1; Urista, 211 S.W.3d at
submission of Young's contributory negligence or          756. We first address whether the court of appeals
the inferential rebuttal instruction would improp-        correctly applied Casteel's presumed harm analysis
erly commingle valid and invalid theories of liabil-      to the contested jury charge. We hold that it did not.
ity and, therefore, prevent the appellate court from      For reasons stated below, we further hold that even
conducting a meaningful appellate review. Finally,        if the submission of the contested charge issues
Dr. Thota claims that the appellate court misapplied      were an abuse of *687 discretion, a review of the
our holding in Elbaor v. Smith, 845 S.W.2d 240            entire record provides no clear indication that the
(Tex.1992), by holding that the trial court abused        contested charge issues probably caused the rendi-
its discretion by submitting a question on Ronnie's       tion of an improper judgment and, therefore, we
contributory negligence instead of an instruction on      must conclude that the trial court's submission was
Ronnie's duty to mitigate his damages.                    harmless. See TEX.R.APP. P. 44.1(a), 61.1(a).

     Young counters that the trial court's submission                        A. General Law
of Ronnie's contributory negligence and the infer-             [1][2][3][4] “We review a trial court's decision
ential rebuttal instruction on new and independent        to submit or refuse a particular instruction under an
cause was an abuse of discretion. According to            abuse of discretion standard of review.” In re
Young, the court of appeals correctly interpreted         V.L.K., 24 S.W.3d 338, 341 (Tex.2000). The trial
Elbaor because Ronnie could not have been negli-          court has considerable discretion to determine prop-
gent in causing the tear to his iliac artery and any      er jury instructions, and “[i]f an instruction might
fault on Ronnie's part should have been submitted         aid the jury in answering the issues presented to
only through an instruction on Ronnie's failure to        them, or if there is any support in the evidence for
mitigate his damages. See Elbaor, 845 S.W.2d at           an instruction, the instruction is proper.” La.-Pac.
244–45. Young asserts that Casteel's presumed             Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.1998)




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. “An instruction is proper if it (1) assists the jury,    charge. Id. We then considered whether the charge
(2) accurately states the law, and (3) finds support       error was harmful. Id. Because the single broad-
in the pleadings and evidence.” Columbia Rio               form charge mixed valid and invalid theories of li-
Grande Healthcare, L.P. v. Hawley, 284 S.W.3d              ability, we held that the charge error constituted
851, 855–56 (Tex.2009). An appellate court will            harmful error, explaining:
not reverse a judgment for a charge error unless
that error was harmful because it “probably caused           It is fundamental to our system of justice that
the rendition of an improper judgment” or                    parties have the right to be judged by a jury prop-
“probably prevented the petitioner from properly             erly instructed in the law. Yet, when a jury bases
presenting the case to the appellate courts.” TEX.           a finding of liability on a single broad-form ques-
                                                  FN4        tion that commingles invalid theories of liability
R. APP. P. 61.1; see TEX.R.APP. P. 44.1(a).
“Charge error is generally considered harmful if it          with valid theories, the appellate court is often
relates to a contested, critical issue.” Hawley, 284         unable to determine the effect of this error. The
S.W.3d at 856; see also Quantum Chem. Corp. v.               best the court can do is determine that some evid-
Toennies, 47 S.W.3d 473, 480 (Tex.2001) (“An im-             ence could have supported the jury's conclusion
proper instruction is especially likely to cause an          on a legally valid theory. To hold this error harm-
unfair trial when the trial is contested and the evid-       less would allow a defendant to be held liable
ence sharply conflicting....”)                               without a judicial determination that a factfinder
                                                             actually found that the defendant should be held
         FN4. Rule 61.1 is the Supreme Court ver-            liable on proper, legal grounds.
         sion of the harmful error rule. See
         TEX.R.APP. P. 61.1. Similarly, the appel-              *688 Id. at 388. Therefore, we held: “When a
         late court provision, Rule 44.1(a), states:       single broad-form liability question erroneously
                                                           commingles valid and invalid liability theories and
           No judgment may be reversed on appeal           the appellant's objection is timely and specific, the
           on the ground that the trial court made         error is harmful when it cannot be determined
           an error of law unless the court of ap-         whether the improperly submitted theories formed
           peals concludes that the error com-             the sole basis for the jury's finding.” Id. at 389.
           plained of: (1) probably caused the
           rendition of an improper judgment; or                Following Casteel, we have clarified the extent
           (2) probably prevented the appellant            of its presumed harm analysis on several occasions.
           from properly presenting the case to the        See Urista, 211 S.W.3d 753; Romero v. KPH Con-
           court of appeals.                               solidation, Inc., 166 S.W.3d 212 (Tex.2005); Har-
                                                           ris Cnty., 96 S.W.3d 230. In Harris County, we ex-
           TEX.R.APP. P. 44.1(a).                          tended Casteel's presumed harm analysis to a
                                                           broad-form question that commingled valid and in-
             B. Casteel and Its Progeny                    valid elements of damages for which there was no
     Casteel involved a dispute between an insur-          evidence. 96 S.W.3d at 233–34. In Romero, we ap-
ance agent and the insurer. 22 S.W.3d at 381. In           plied Casteel's presumed harm analysis to a single
Casteel, the trial court submitted a single broad-         broad-form proportionate responsibility question
form question on the issue of the insurer's liability      that included a factually-unsupported malicious cre-
to the agent, which included thirteen independent          dentialing claim. 166 S.W.3d at 227–28 (noting that
grounds for liability. Id. at 387. We determined that      “unless the appellate court is ‘reasonably certain
five of the thirteen independent grounds for liability     that the jury was not significantly influenced by is-
did not apply and held that the trial court erred by       sues erroneously submitted to it,’ the error is re-
submitting the invalid grounds for liability in the        versible” (citations omitted)). Later, in Urista, we




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declined to extend Casteel's presumed harm analys-         471, 473 (Tex.1995) (“Error in the jury charge is
is to the trial court's submission of an erroneous in-     reversible only if, in the light of the entire record, it
ferential rebuttal instruction. 211 S.W.3d at              was reasonably calculated to and probably did
756–57. In Urista, we explained:                           cause the rendition of an improper judgment.”).
                                                           After reviewing the entire record, we concluded in
     We specifically limited our holdings in Casteel       Urista that there was some evidence the plaintiff
  and Harris County to submission of a broad-form          failed to meet his burden of proof and therefore
  question incorporating multiple theories of liabil-      held that the unavoidable accident instruction did
  ity or multiple damage elements. We have never           not probably cause the *689 jury to render an im-
  extended a presumed harm rule to instructions on         proper verdict. 211 S.W.3d at 758–59.
  defensive theories such as unavoidable accident,
  and we decline to do so now.... When, as here,                Notwithstanding Casteel's presumed harm ana-
  the broad-form questions submitted a single liab-        lysis in situations that erroneously commingle valid
  ility theory (negligence) to the jury, Casteel's         and invalid theories of liability, we have repeatedly
  multiple-liability-theory analysis does not apply.       reaffirmed our longstanding, fundamental commit-
  Moreover, when a defensive theory is submitted           ment to broad-form submission. See, e.g., Harris
  through an inferential rebuttal instruction,             Cnty., 96 S.W.3d at 235–36. We first expressed our
  Casteel's solution of departing from broad-form          preference for broad-form practice in 1973 and,
  submission and instead employing granulated              after issuing multiple opinions in which we suppor-
  submission cannot apply. Unlike alternate theor-         ted broad-form submission, we modified Rule 277
  ies of liability and damage elements, inferential        of the Texas Rules of Civil Procedure in 1988 to
  rebuttal issues cannot be submitted in the jury          more expressly mandate the use of broad-form sub-
  charge as separate questions and instead must be         mission. See id.; see also Lemos v. Montez, 680
  presented through jury instructions. Therefore, al-      S.W.2d 798, 801 (Tex.1984) (explaining our pro-
  though harm can be presumed when meaningful              gression from separate, granulated charge issues to
  appellate review is precluded because valid and          the broad-form charge). See generally William G.
  invalid liability theories or damage elements are        “Bud” Arnot, III & David Fowler Johnson, Current
  commingled, we are not persuaded that harm               Trends in Texas Charge Practice: Preservation of
  must likewise be presumed when proper jury               Error and Broad–Form Use, 38 ST. MARY'S L.J.
  questions are submitted along with improper in-          371, 416–40 (2007) (providing a more detailed his-
  ferential rebuttal instructions.                         tory of Texas jury charge practice); William L.
                                                           Davis, Tools of Submission: The Weakening
    Id. (citations omitted). Cf. Hawley, 284 S.W.3d        Broad–Form “Mandate” in Texas and the Roles of
at 865 (applying Rule 61.1(b) in a non- Casteel            Jury and Judge, 24 REV. LITIG. 57 (2005) (same).
context where the trial court omitted the defendant's      Since 1988, Rule 277 has stated, in pertinent part:
proposed instruction in a single-theory-of-liability       “In all jury cases the court shall, whenever feasible,
case, thereby allowing the jury to potentially find        submit the cause upon broad-form questions.”
the defendant liable on an invalid basis). Because         TEX.R. CIV. P. 277. Casteel and its progeny de-
we held that Casteel's presumed harm analysis did          note situations where broad-form submission may
not apply to the inferential rebuttal question in          be unfeasible. See, e.g., Casteel, 22 S.W.3d at 389.
Urista, we applied the traditional harmless error          But “whenever feasible,” broad-form submission
analysis, which considers whether the instruction          should be the norm. See TEX.R. CIV. P. 277; Har-
“probably caused the rendition of an improper judg-        ris Cnty., 96 S.W.3d at 235–36; see also Tex. Dep't
ment.” 211 S.W.3d at 757; see TEX.R.APP. P.                of Human Servs. v. E.B., 802 S.W.2d 647, 649
61.1(a); see also Reinhart v. Young, 906 S.W.2d            (Tex.1990) (interpreting “whenever feasible” to




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mandate broad-form submission “in any or every             waived the right to invoke Casteel and the court of
instance in which it is capable of being accom-            appeals improperly reversed the trial court on unas-
plished”).                                                 signed error. In essence, Dr. Thota argues that be-
                                                           cause Young did not cite Casteel or specifically ob-
              C. Preservation of Error                     ject to the form of the charge question, Young
     [5] We first address Dr. Thota's argument that        waived any benefit of the presumed harm analysis.
the court of appeals improperly reversed the judg-
ment of the trial court based on unassigned and un-             Contrary to Dr. Thota's narrow and technical
preserved error. Our procedural rules govern the           interpretation of our preservation of error require-
preservation requirements for raising a jury charge        ments, we have never held that a no-evidence ob-
complaint on appeal and require the complaining            jection in this context is insufficient to preserve a
party to make an objection before the trial court.         broad-form complaint on appeal. See, e.g., Romero,
TEX.R. CIV. P. 274; TEX.R.APP. P. 33.1. Rule               166 S.W.3d at 229; Harris Cnty., 96 S.W.3d at 236;
274 requires that an objecting party “must point out       Casteel, 22 S.W.3d at 387, 389. Moreover, we have
distinctly the objectionable matter and the grounds        long favored a common sense application of our
of the objection,” and states that “[a]ny complaint        procedural rules that serves the purpose of the
as to a question, definition, or instruction, on ac-       rules, rather than a technical application that rigidly
count of any defect, omission, or fault in pleading,       promotes form over substance. See Alaniz v. Jones
is waived unless specifically included in the objec-       & Neuse, Inc., 907 S.W.2d 450, 451–52 (Tex.1995)
tions.” TEX.R. CIV. P. 274. Additionally, to pre-          (per curiam) (citing Payne, 838 S.W.2d at 241)
serve error for appellate review, the rules generally      (“While Payne does not revise the requirements of
require the complaining party to (1) make a timely         the rules of procedure regarding the jury charge, it
objection to the trial court that “state[s] the grounds    does mandate that those requirements be applied in
for the ruling that the complaining party [seeks]          a common sense manner to serve the purposes of
from the trial court with sufficient specificity to        the rules, rather than in a technical manner which
make the trial court aware of the complaint, unless        defeats them.”).
the specific grounds were apparent from the con-
text,” and (2) obtain a ruling. TEX.R.APP. P. 33.1.             In addition, Dr. Thota's reliance on our opin-
As we stated twenty years ago, the procedural re-          ions in In re A.V., 113 S.W.3d 355, 362 (Tex.2003),
quirements for determining whether a party has pre-        and In re B.L.D., 113 S.W.3d 340, 349–50
served error in the jury charge are explained by one       (Tex.2003), to support his contention that Young
basic test: “whether the party made the trial court        failed to preserve any complaint regarding the
aware of the complaint, timely and plainly, and ob-        charge's broad-form submission is misplaced. Al-
tained a ruling.” State Dep't of Highways v. Payne,        though in those cases we did hold that complaints
838 S.W.2d 235, 241 (Tex.1992).                            of harmful charge error were not preserved, those
                                                           cases are distinguishable from this case because in
     Although Young made a timely and specific             both A.V. and B.L.D., the complaining party raised
objection at the charge conference to the inclusion        no objections to items included in the broad-form
of the question on Ronnie's contributory negligence        charge. See A.V., 113 S.W.3d at 357; B.L.D., 113
and the instruction on new and independent cause,          S.W.3d at 349. Moreover, the charge complaint at
Dr. Thota argues that because Young failed to spe-         issue in those parental-rights-termination cases was
cifically state that these charge issues *690 raised a     that separate statutory grounds for terminating the
Casteel problem or notify either the trial or appel-       parents' parental rights should not have been sub-
late court that the charge would prevent Young             mitted within a single broad-form question. See
from obtaining meaningful appellate review, Young          A.V., 113 S.W.3d at 357; B.L.D., 113 S.W.3d at




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




349. The basis for the parents' complaints was not        support its submission, therefore preserves the error
that the charge should not include the termination        for appellate review.” 96 S.W.3d at 236 (emphasis
grounds at all, but that it was error for the trial       added). Again in A.V. and B.L.D., we quoted that
court to submit them in a broad-form question. See        statement from Harris County and held that without
A.V., 113 S.W.3d at 357; B.L.D., 113 S.W.3d at            some objection to the charge, claiming the submit-
349. In those circumstances, it was necessary for         ted theory had no evidentiary support, or an objec-
the complaining party to make a specific objection        tion to the form of the charge, any complaint of
to the form of the charge to put the trial court on       charge error was not preserved for review by the
notice of the alleged error and afford the court an       court of appeals. See A.V., 113 S.W.3d at 362–63;
opportunity to correct the error. See A.V., 113           B.L.D., 113 S.W.3d at 349–50. In contrast to A.V.
S.W.3d at 363 (holding that the parent failed to pre-     and B.L.D., Young made a specific and timely no-
serve the issue for appellate review because he did       evidence objection to the charge question on Ron-
not make “a specific objection to the charge to put       nie's contributory negligence and also specifically
[the] trial court on notice to submit a granulated        objected to the disputed instruction on new and in-
question to the jury”); B.L.D., 113 S.W.3d at 349;        dependent cause. In addition to Young's timely and
TEX. R. APP. P. 33.1. Cf. Keetch v. Kroger Co.,           specific objections at the charge conference, Young
845 S.W.2d 262, 267 (Tex.1992) (stating that              submitted a proposed charge to the trial court,
“[e]rror in the charge must be preserved by dis-          which omitted any inclusion of Ronnie's contribut-
tinctly designating the error and the grounds for the     ory negligence and the new and independent cause
objection” and holding that error was not preserved       instruction and presented the charge according to
when the complaint of the trial court's failure to        Young's theory of the case. This was sufficient to
submit in broad form was first raised in this Court).     place the trial court on notice that Young believed
In this case, a separate objection to the form of the     the evidence did not support an inclusion of Ron-
charge question was not necessary to inform the tri-      nie's contributory negligence or instruction on new
al court of Young's complaint—that the inclusion of       and independent cause, and our procedural rules re-
Ronnie's contributory negligence and the instruc-         quire nothing more.
tion on new and independent cause should not be
submitted to the jury. A granulated submission                 By making timely and specific objections that
would have cured the alleged charge defect in A.V.        there was no evidence to support the disputed items
and B.L.D., but here, even if the trial court submit-     submitted in the broad-form charge and raising
ted the issue of Ronnie's contributory*691 negli-         these issues for the court of appeals to consider,
gence in a separate question, this would not have         Young properly preserved these issues for appellate
cured Young's no-evidence objection.                      review; Young did not have to cite or reference
                                                          Casteel specifically to preserve the right for the ap-
     [6][7] In every case in which we have con-           pellate court to apply the presumed harm analysis,
sidered Casteel's presumed harm analysis, includ-         if applicable, to the disputed charge issues. See,
ing Casteel itself, we have emphasized the need for       e.g., Harris Cnty., 96 S.W.3d at 236; Casteel, 22
the complaining party to make a timely and specific       S.W.3d at 387–88, 390. Cf. Pat Baker Co., Inc. v.
objection to preserve complaints of error in broad-       Wilson, 971 S.W.2d 447, 450 (Tex.1998) (per curi-
form submission. See, e.g., Casteel, 22 S.W.3d at         am) (“It is axiomatic that an appellate court cannot
387–89; Romero, 166 S.W.3d at 229. As we stated           reverse a trial court's judgment absent properly as-
in Harris County, under our preservation rules: “A        signed error.”). With the charge issues properly
timely objection, plainly informing the court that a      preserved and contested on appeal, an appellate
specific element ... should not be included in a          court reviews the basis of the complaints and re-
broad-form question because there is no evidence to       verses only if the alleged charge errors were harm-




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




ful. TEX.R.APP. P. 44.1(a), 61.1. Because Young             be limited to Urista's traditional harm analysis
properly preserved error as to the disputed charge          when trying to determine the impact of the im-
issues, we must consider whether the appellate              properly submitted instruction on new and inde-
court properly applied the correct harm analysis.           pendent cause when combined with the improp-
See Urista, 211 S.W.3d at 757.                              erly submitted question of Ronnie's contributory
                                                            negligence. We simply cannot determine, on this
       D. Application of Harm Analysis Law                  evidence, whether the jury properly found Dr.
     [8] Young alleges, and the court of appeals            Thota not negligent, properly found that his neg-
agreed, that the trial court erred by submitting a          ligence was excused based upon the unavoidable
jury question on Dr. Thota's theory of the                  accident instruction, or improperly found that his
case—Ronnie's contributory negligence. Even if              negligence was excused based upon the new and
Young is correct, Casteel's presumed harm analysis          independent cause instruction alone or combined
does not apply because the separate answer blanks           with its improper finding of Ronnie's negligence.
allow us to determine whether the jury found Dr.
Thota negligent. Unlike Casteel, which involved                271 S.W.3d at 839. And in response to the dis-
thirteen independent grounds for liability with one       sent, the majority added:
answer blank for the defendant's liability, here, the       It is the combination of these two incorrect theor-
charge provided two separate blanks for the jury to         ies that prevents us from being able to determine
answer the single-theory-of-*692 liability question.        whether the jury's finding of no liability as to Dr.
See Casteel, 22 S.W.3d at 387. The charge mirrors           Thota was a finding of no negligence on his part,
the Texas Pattern Jury Charges's longstanding use           an erroneous finding of contributory negligence
of separate blanks when multiple parties' negli-            on Ronnie's part, or an erroneous finding of new
gence are in issue. See Comm. On Pattern Jury               and independent cause.
Charges, State Bar of Tex., Texas Pattern Jury
Charges: General Negligence & Intentional Per-                Importantly, we are not trying to extend
sonal Torts PJC 4.1 (2010). The only theory of liab-        Casteel's presumed harm analysis to defensive
ility asserted against Dr. Thota was negligence, and        theories; we are applying it to a single broad-
the jury's findings on that theory are clear: Dr.           form question that erroneously includes two dif-
Thota was not negligent. We hold that this charge           ferent theories of liability. This error is only ex-
question simply does not raise a Casteel issue, and         acerbated by the erroneous defensive instruction
the court of appeals erred in applying Casteel's pre-       of new and independent cause.
sumed harm analysis.
                                                              Id. at 841.
     Additionally, we hold that the new and inde-
                                                               [9] We disagree with the court of appeals' in-
pendent cause instruction fails to present a Casteel
                                                          terpretation of our holding in Urista and hold that,
situation. See Urista, 211 S.W.3d at 756–57. In
                                                          even assuming the new and independent cause in-
concluding that the new and independent cause in-
                                                          struction in this charge constituted error, it does not
struction constituted harmful error, the appellate
                                                          raise a Casteel issue. Like Urista, this case involves
court reasoned:
                                                          a single liability theory—negligence—so Casteel's
     Here, however, the jury was not only given an        multiple-liability-theory analysis does not apply.
  erroneous defensive instruction on new and inde-        See 211 S.W.3d at 756–57. Moreover, as we noted
  pendent cause that benefitted only Dr. Thota but        in Urista, “when a defensive theory is submitted
  also an erroneous jury question on liabil-              through an inferential rebuttal instruction, Casteel's
  ity—Ronnie's contributory negligence—a theory           solution of departing from broad-form submission
  not supported by the evidence. So, we should not        and instead employing granulated submission can-




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




not apply.” Id. at 757. Inferential rebuttal issues are    instructions, and definitions raised by the pleadings
distinct from theories of liability and damage ele-        and the evidence.” Harris Cnty., 96 S.W.3d at 236;
ments because they “cannot be submitted in the             see TEX.R. CIV. P. 278; Elbaor, 845 S.W.2d at
jury charge as separate questions and instead must         243.
be presented through jury instructions.” Id. Like the
inferential rebuttal instruction on unavoidable acci-           [12] While Casteel's presumed harm analysis is
dent in Urista, the new and independent cause in-          necessary in instances where the appellate court
struction “was given in reference to the causation         cannot determine “whether the improperly submit-
element *693 of the plaintiff's negligence claim.”         ted theories formed the sole basis for the jury's
Id. at 756–57. While appellate courts may presume          finding” because the broad-form question mixed
harm when meaningful appellate review is pre-              valid and invalid theories of liability, Casteel, 22
cluded because the submitted charge mixes valid            S.W.3d at 389, or when the broad-form question
and invalid theories of liability or commingles im-        commingled damage elements that are unsupported
proper damage elements, the courts do not presume          by legally sufficient evidence, Harris Cnty., 96
harm because of improper inferential rebuttal in-          S.W.3d at 235, an improper inferential rebuttal in-
structions on defensive theories. See id. at 757.          struction and improper defensive theory of contrib-
Therefore, assuming without deciding that the sub-         utory negligence presented in a broad-form ques-
mission of the new and independent cause instruc-          tion with separate answer blanks in a single-the-
tion was an abuse of discretion, we hold that this         ory-of-liability case does not prevent the harmed
charge error does not present a Casteel problem.           party from obtaining meaningful appellate review.
                                                           When a trial court abuses its discretion by including
     [10][11] Even if the inclusion of a jury ques-        erroneous charge questions or instructions in a
tion regarding a party's contributory negligence and       single-theory-of-liability case, our traditional harm-
an inferential rebuttal instruction were erroneous in      less error analysis applies and the appellate courts
a single-theory-of-liability case, the combination of      should review the entire record to determine wheth-
these errors would not automatically trigger a situ-       er the charge errors probably caused the rendition
ation where the appellate court must presume the           of an improper judgment. See TEX.R.APP. P. 44.1,
error was harmful. If presumed harm analysis were          61.1; Urista, 211 S.W.3d at 757.
required, then our fundamental commitment to sub-
mitting broad-form questions, whenever feasible,                Because we hold that Casteel's presumed harm
would routinely be discarded for separate, granu-          analysis does not apply, we next consider whether,
lated submissions to the jury. See TEX.R. CIV. P.          applying traditional harmless error analysis, the al-
277; Harris Cnty., 96 S.W.3d at 235–36. Moreover,          leged charge errors constitute reversible error. See
even in multiple-theory-of-liability cases like            TEX.R.APP. P. 61.1(a); Urista, 211 S.W.3d at 757.
Casteel, the presumed harm analysis is not auto-           We address Young's objections to the inclusion of
matic. See Casteel, 22 S.W.3d at 389–90; Romero,           Ronnie's contributory negligence and the instruc-
166 S.W.3d at 227–28. As we stated in Casteel,             tion of new and independent cause in turn.
“when questions are submitted in a manner that al-
                                                                      1. Contributory Negligence
lows the appellate court to determine that the jury's
                                                               [13][14] When charge questions are submitted
verdict was actually based on a valid liability the-
                                                           in a manner that allows the appellate court to de-
ory, the error may be harmless.” 22 S.W.3d at 389
                                                           termine whether the *694 verdict was actually
(citing City of Brownsville v. Alvarado, 897 S.W.2d
                                                           based on a valid theory of liability, the error may be
750, 752 (Tex.1995)). And regardless of whether “a
                                                           harmless. Casteel, 22 S.W.3d at 389; see also Al-
granulated or broad-form charge is submitted, the
                                                           varado, 897 S.W.2d at 752 (“Submission of an im-
trial court's duty is to submit only those questions,
                                                           proper jury question can be harmless error if the




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




jury's answers to other questions render the improp-       if it were error for the trial court to submit a ques-
er question immaterial.”); Boatland of Hous., Inc. v.      tion as to the deceased plaintiff's negligence, that
Bailey, 609 S.W.2d 743, 750 (Tex.1980) (holding            question was immaterial because of the jury's find-
that the potentially erroneous submission of defens-       ing of “No” as to the defendant's liability for negli-
ive theories was harmless error because the jury           gence. Id. Like Alvarado, any error in submitting
found for the defendant on independent grounds             the question of Ronnie's contributory negligence to
and the complaining party failed to show how it            the jury was harmless and rendered immaterial in
probably resulted in an improper verdict). Young's         light of the jury's finding of no negligence as to Dr.
argument that the inclusion of Ronnie's contribut-         Thota. Once the jury answered “No” to whether any
ory negligence was harmful error fails for several         negligence of Dr. Thota proximately caused Ron-
reasons. First, Dr. Thota could only have been neg-        nie's injury, Dr. Thota was exonerated, and neither
ligent in causing the tear in Ronnie's artery, and the     a “Yes” nor a “No” answer as to Ronnie's contribut-
jury failed to find that he was. The jury's finding as     ory negligence could alter the verdict. See id.
to Dr. Thota's non-negligence is entirely separate
from its finding as to Ronnie's negligence. Perhaps                  2. New and Independent Cause
the jury was confused about whether to find Ronnie              Assuming without deciding that the new and
negligent and, despite the unavoidable accident in-        independent cause instruction was improper, a re-
struction, believed that they had to find someone          view of the record does not indicate that it probably
negligent. Either way, any error associated with the       caused the rendition of an improper judgment. See
inclusion of a jury question regarding Ronnie's neg-       TEX.R.APP. P. 61.1(a); Urista, 211 S.W.3d at 757;
ligence was harmless.                                      Reinhart, 906 S.W.2d at 473. At trial, Dr. Thota
                                                           testified on his own behalf, and Neill Doherty III,
     Moreover, when determining whether harm oc-           M.D. testified as Young's expert witness. The evid-
curred, we consider the entire charge. See, e.g., Tex.     ence from the medical records and Dr. Thota's testi-
Emp'rs Ins. Assoc. v. McKay, 146 Tex. 569, 210             mony indicated that good hemostasis was most
S.W.2d 147, 149 (1948). Here, the clarifying in-           likely obtained, which would mean that Ronnie was
structions at the end of Question 1 made it clear          in a stable condition by the time he was released
that the jury could answer in any of the following         from the hospital. Even Young's own medical ex-
combinations: (1) “Yes” to both Dr. Thota and              pert, Dr. Doherty, admitted on cross-examination
Ronnie; (2) “No” to both; or (3) “Yes” to one and          *695 that there was a 99% chance that Ronnie was
“No” to the other—the choice the jury ultimately           not bleeding when he was released after the cathet-
made. The charge's definition of proximate cause           erization procedure and that, based on the totality
also clearly informed the jury that “[t]here may be        of the medical records, there was no objective evid-
more than one proximate cause of an event.” In             ence that Ronnie was bleeding or experiencing any
light of the entire charge and the separate answer         complications at the time he was discharged from
blanks for Dr. Thota and Ronnie, it is evident that        the hospital. Both Dr. Thota and Dr. Doherty testi-
the jury was well aware that its findings as to Dr.        fied that if there had been an improper puncture in
Thota's and Ronnie's negligence were separate and          the iliac artery preventing hemostasis, Ronnie
that there could be more than one proximate cause          would likely have developed signs of bleeding be-
of an event.                                               fore his discharge. Dr. Doherty also testified that
                                                           the cardiac catheterization was a reasonable proced-
     [15] When the answer to a jury question cannot        ure, given Ronnie's condition, and that the medical
alter the effect of the verdict, the reviewing court       records did not indicate Dr. Thota had incorrectly
considers that question immaterial. See Alvarado,          performed the procedure.
897 S.W.2d at 752. In Alvarado, we held that even




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                                                                                                        Page 19
366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




     Both parties' experts based their opinions, in             [16][17] Like many medical malpractice cases,
part, on their interpretations of the doctors' reports     this record contains conflicting expert opinions.
from the emergency surgery the night of Ronnie's           The fact that Dr. Thota testified on his own behalf
catheterization procedure. The report by Dr. Thota's       does not negate the weight that the jury could give
partner, Dr. Sudharshan, noted that Ronnie had a           to his testimony. See City of Keller v. Wilson, 168
“puncture site just about the inguinal ligament” and       S.W.3d 802, 827 (Tex.2005) (holding that the prop-
that a CT scan “apparently revealed bleeding from          er test for legal-sufficiency review must “credit fa-
[the] external iliac artery puncture site.” Based on       vorable evidence if reasonable jurors could, and
Dr. Sudharshan's assessment, Dr. Walker performed          disregard contrary evidence unless reasonable jur-
the emergency surgery, and Dr. Walker's report             ors could not”); see also Wilson v. Scott, 412
noted that he repaired a “high tear” in Ronnie's           S.W.2d 299, 303 (Tex.1967) (noting that the de-
right external iliac artery. Neither Dr. Sudharshan        fendant physician's own testimony can establish the
nor Dr. Walker testified at trial.                         standard of care). “Jurors are the sole judges of the
                                                           credibility of the witnesses and the weight to give
     At trial, Dr. Thota's and Dr. Doherty's testi-        their testimony.” City of Keller, 168 S.W.3d at 819.
mony about Ronnie's medical reports conflicted.            Because of the conflicting testimony *696 of Dr.
Dr. Doherty testified that the standard of care for        Doherty and Dr. Thota, and because both testifying
cardiac catheterization was to insert a needle and         experts agreed that Ronnie was likely not bleeding
catheter into the right femoral artery below the in-       upon his discharge from the hospital, the jury could
guinal ligament. In Dr. Doherty's opinion, Dr.             have reasonably believed Dr. Thota's opinions and
Thota punctured Ronnie's artery at the wrong loca-         discounted Dr. Doherty's opinions. In circum-
tion, above the inguinal ligament and into the right       stances where a reasonable jury could resolve con-
external iliac artery. Dr. Doherty's opinion was           flicting evidence either way, we presume the jury
based on Dr. Walker's report, the CT scan men-             did so in favor of the prevailing party. See id. at
tioned on Dr. Sudharshan's report, and the bleed in        821.
Ronnie's retroperitoneal cavity, which could occur
when the puncture is too high, rather than the more            [18] Based on the conflicting evidence, the jury
visible femoral bleed that would occur if the punc-        could have reasonably concluded that Dr. Thota did
ture is in the femoral artery. In contrast, Dr. Thota      not breach the standard of care without reaching the
claimed at trial that he did not breach the standard       issue of proximate cause. In that case, the jury
of care during Ronnie's catheterization procedure.         would not have relied on the new and independent
He testified that he had no problems inserting the         cause instruction because it pertains only to the
catheter and that he believed he entered the artery        proximate cause element. See Hawley, 284 S.W.3d
at the appropriate location. Dr. Thota stated that Dr.     at 856 (“New and independent cause is a compon-
Sudharshan's finding that the puncture site was at         ent of the proximate cause issue.”). Thus, the re-
“about the inguinal ligament,” would indicate that         cord supports the jury's finding of no negligence as
the puncture site was correct. He further testified        to Dr. Thota. Accordingly, our review of the entire
that Dr. Walker's report was ambiguous as to what          record provides no clear indication that the new and
he repaired and how far above or below the inguin-         independent cause instruction, if erroneous, prob-
al ligament the bleed originated. Also, Dr. Thota          ably caused the rendition of an improper verdict.
testified that a retroperitoneal bleed can occur with      We therefore conclude that any error in the trial
a femoral artery stick as well as an iliac artery stick    court's submission of the new and independent
and that, based on his review of the medical records       cause instruction was harmless. See Urista, 211
and his own knowledge of the procedure, he met             S.W.3d at 759.
the standard of care.




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366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671
(Cite as: 366 S.W.3d 678)




                    III. Conclusion
     In sum, we hold that Young's timely and spe-
cific no-evidence objections were sufficient to pre-
serve the disputed charge issues for appellate re-
view. Because the trial court submitted a broad-
form question on a single theory of liability that in-
cluded separate answer blanks for Dr. Thota's and
Ronnie's negligence, we hold that the court of ap-
peals misapplied Casteel and its presumed harm
          FN5
analysis.       Even assuming the trial court abused
its discretion by including a question as to Ronnie's
contributory negligence and an instruction on new
and independent cause, for the reasons explained
above, we hold that these alleged charge errors
were harmless and did not probably cause the
rendition of an improper judgment. Because
Casteel's presumed harm analysis does not apply
and any error in the disputed charge issues was
harmless, we need not address Dr. Thota's remain-
ing issues. Accordingly, we reverse the court of ap-
peals' judgment and, without addressing whether
the trial court erred by submitting the question as to
Ronnie's contributory negligence or the instruction
on new and independent cause, we remand the case
to the court of appeals to consider Young's remain-
ing issues.

         FN5. To the extent that it conflicts with
         this opinion, we expressly disapprove the
         appellate court's opinion in Block v. Mora,
         314 S.W.3d 440 (Tex.App.-Amarillo 2009,
         pet. dism'd by agr.).


Tex.,2012.
Thota v. Young
366 S.W.3d 678, 55 Tex. Sup. Ct. J. 671

END OF DOCUMENT




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                                                                                                          Page 1
102 S.W.3d 706, 46 Tex. Sup. Ct. J. 530
(Cite as: 102 S.W.3d 706)




                                                           30 Appeal and Error
                                                               30XVI Review
            Supreme Court of Texas.                                 30XVI(I) Questions of Fact, Verdicts, and
     WAL–MART STORES, INC., Petitioner,                    Findings
                     v.                                              30XVI(I)2 Verdicts
       Brian Lynn MILLER, Respondent.                                      30k1001 Sufficiency of Evidence in
                                                           Support
                   No. 01–1148.
                                                                                30k1001(3) k. Total Failure of
                  March 27, 2003.
                                                           Proof. Most Cited Cases
     Licensee who was injured in fall on stairs at              In reviewing a “no evidence” point, appellate
store brought premises defect claim against store          court must view the evidence in a light that tends to
operator. Following jury verdict for licensee, the         support the finding of disputed fact and disregard
206th District Court, Hidalgo County, Rose Guerra          all evidence and inferences to the contrary.
Reyna, J., granted operator's motion for judgment
                                                           [3] Appeal and Error 30         863
notwithstanding the verdict (JNOV). Licensee ap-
pealed, and the Corpus Christi Court of Appeals re-        30 Appeal and Error
versed, 54 S.W.3d 481. On petition for review, the            30XVI Review
Supreme Court held that, as matter of law, licensee                 30XVI(A) Scope, Standards, and Extent, in
had actual knowledge of stairway's dangerous con-          General
dition, precluding operator's liability for licensee's                 30k862 Extent of Review Dependent on
injuries.                                                  Nature of Decision Appealed from
                                                                             30k863 k. In General. Most Cited
   Judgment of Court of Appeals reversed; judg-
                                                           Cases
ment rendered.
                                                                If more than a scintilla of evidence supports the
                  West Headnotes                           jury's findings, the jury's verdict and not the trial
                                                           court's judgment notwithstanding the verdict
[1] Appeal and Error 30         863                        (JNOV) must be upheld.

30 Appeal and Error                                        [4] Negligence 272       1040(3)
   30XVI Review
        30XVI(A) Scope, Standards, and Extent, in          272 Negligence
General                                                       272XVII Premises Liability
            30k862 Extent of Review Dependent on                 272XVII(C) Standard of Care
Nature of Decision Appealed from                                     272k1034 Status of Entrant
                  30k863 k. In General. Most Cited                       272k1040 Licensees
Cases                                                                         272k1040(3) k. Care Required in
    A trial court's decision to grant a judgment not-      General. Most Cited Cases
withstanding the verdict should be affirmed if there           If the licensee has the same knowledge about
is no evidence to support one or more of the jury          the dangerous condition as the licensor, then no
findings on issues necessary to liability.                 duty to the licensee exists. Restatement (Second) of
                                                           Torts § 342.
[2] Appeal and Error 30         1001(3)
                                                           [5] Negligence 272       1110(2)




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102 S.W.3d 706, 46 Tex. Sup. Ct. J. 530
(Cite as: 102 S.W.3d 706)




272 Negligence                                              notwithstanding the verdict. Accordingly, we re-
   272XVII Premises Liability                               verse the court of appeals' judgment and render
       272XVII(D) Breach of Duty                            judgment for Wal–Mart.
          272k1100 Buildings and Structures
             272k1110 Steps, Stairs and Ramps                    Wal–Mart hired a plumbing company to install
                272k1110(2) k. Substances and Ob-           an eyewash machine in the mechanics bay of a
jects. Most Cited Cases                                     Wal–Mart store. Brian Miller, an employee of the
                                                            plumbing company, went to the Wal–Mart store
Negligence 272       1289                                   with a co-worker to show him where to install the
                                                            machine. A Wal–Mart employee escorted Miller
272 Negligence                                              and his co-worker to the door leading to a store-
    272XVII Premises Liability                              room. In the storeroom, there was a stairway lead-
         272XVII(L) Defenses and Mitigating Cir-            ing to the water lines and shut-off valve.
cumstances
          272k1281 Plaintiff's Conduct or Fault                  After entering the storeroom, Miller noticed
              272k1289 k. Buildings and Structures.         that Wal–Mart employees in the stockroom were
Most Cited Cases                                            unloading boxes from trucks and placing the boxes
     Licensee who fell at store while descending            on the stairs. *708 Miller led his co-worker up the
slippery stairway had actual knowledge of stair-            stairs, and on the way up, Miller noticed the stairs
way's dangerous condition, thus precluding his re-          were “kind of slippery or slick” and that boxes were
covery against store on a premises defect claim,            stacked along both sides of the stairway's middle
where licensee noticed as he climbed stairs that            section. Neither Miller nor his co-worker used the
some of them were “slippery or slick” and also no-          stairway's handrail while ascending the stairs.
ticed that stacked boxes on the side obstructed his
access to handrail, and co-worker warned licensee                After looking at the water lines and shut-off
about slippery stairway as co-worker led the way            valve, Miller and his co-worker walked down the
back down. Restatement (Second) of Torts § 342.             stairs. Miller's co-worker, who walked in front,
                                                            warned Miller “to be careful of the stairs because
*707 Kevin D. Jewell,Magenheim Bateman & Hel-               they were kind of slippery.” Miller testified that he
fand, P.L.L.C., Houston, Douglas W. Alexander,              held onto the stairway's one handrail, but, about
Scott Douglass & McConnico, Austin, for Petition-           halfway down the stairs, Miller released the hand-
er.                                                         rail to walk around the boxes stacked along the
                                                            side. Miller's foot then caught on one of the boxes,
Randall P. Crane, San Benito, for Respondent.               and he slipped on a step and fell. Miller's co-worker
                                                            did not see the fall; he only turned to see Miller on
PER CURIAM.                                                 the ground when a box hit the back of his legs.
     In this premises liability case, we must decide
                                                                Miller sued Wal–Mart under a premises defect
whether there is some evidence to support the jury's
                                                            theory. His petition alleges that Wal–Mart failed to
finding that the licensee, Bryan Miller, lacked actu-
                                                            make the stairway safe and failed to warn Miller
al knowledge about the dangerous condition. Be-
                                                            about the dangerous condition—specifically, a slip-
cause we conclude no evidence supports a finding
                                                            pery stairway with boxes stacked on it. The instruc-
that Miller lacked actual knowledge, we hold that
                                                            tions submitted to the jury, a licensee-licensor
Wal–Mart did not have a duty to warn or make safe
                                                            premises liability charge, provided:
the dangerous condition, and thus, the trial court
correctly granted Wal–Mart's motion for judgment              With respect to conditions of the premises,




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  WAL–MART STORES, INC., was negligent if-                         courts of appeals to consider a case en
                                                                   banc if the circumstances require and the
  a. The condition posed an unreasonable risk of                   court votes to do so. TEX.R.APP. P.
  harm; and                                                        41.1(a); 41.2(c)

  b. WAL–MART STORES, INC., had actual                         Before this Court, Wal–Mart contends that the
  knowledge of the danger; and                            evidence conclusively shows Miller had actual
                                                          knowledge of the stairway's dangerous condition.
  c. BRIAN LYNN MILLER did not have actual
                                                          Thus, according to Wal–Mart, the trial court cor-
  knowledge of the danger; and
                                                          rectly granted the judgment notwithstanding the
  d. WAL–MART STORES, INC., failed to ad-                 verdict. In response, Miller argues that, even
  equately warn BRIAN LYNN MILLER of the                  though he knew about the wet steps and boxes
  condition; and                                          stacked on the stairway's sides, he did not know the
                                                          danger these conditions *709 presented. Moreover,
  e. WAL–MART STORES, INC., failed to make                Miller asserts that his not noticing the stairs were
  the condition reasonable [sic] safe.                    slippery until he was at least half way up the stairs,
                                                          and his not noticing that the boxes blocked his ac-
    The jury found Wal–Mart 70% negligent and             cess to the stairway's handrail until he began to go
Miller 30% negligent and awarded Miller damages           down the stairs, precludes a determination that he
and pre-judgment interest. The trial court granted        “appreciated the gravity of the harm threatened by
Wal–Mart's motion for judgment notwithstanding            the stairs' dangerous condition.” We disagree with
the verdict, which asserted, among other things,          Miller and conclude that, as a matter of law, Miller
that Miller's actual knowledge of the dangerous           had actual knowledge about the stairway's danger-
condition precluded his recovery.                         ous condition.

    Miller appealed and argued that the trial court            [1][2][3] A trial court's decision to grant a
erred in granting a judgment notwithstanding the          judgment notwithstanding the verdict should be af-
verdict because evidence supported each element of        firmed if there is no evidence to support one or
his premises defect claim. A divided court of ap-         more of the jury findings on issues necessary to li-
peals, sitting en banc, held that there was some          ability. Mancorp, Inc. v. Culpepper, 802 S.W.2d
evidence that Miller lacked knowledge of the dan-         226, 227 (Tex.1990). In reviewing a “no evidence”
gerous condition and reversed the trial court's judg-     point, we must view the evidence in a light that
ment notwithstanding the verdict. Miller v. Wal-          tends to support the finding of disputed fact and
Mart, 54 S.W.3d 481, at 485 (Tex.App.-Corpus              disregard all evidence and inferences to the con-
                FN1
Christie 2001).                                           trary. Bradford v. Vento, 48 S.W.3d 749, 754
                                                          (Tex.2001). If more than a scintilla of evidence
        FN1. Wal–Mart contends that the court of
                                                          supports the jury's findings, the jury's verdict and
        appeals lacked authority to decide this case
                                                          not the trial court's judgment must be upheld. Man-
        en banc, because (1) Wal–Mart argued the
                                                          corp, Inc., 802 S.W.2d at 228.
        appeal before a panel only, (2) the court of
        appeals failed to notify Wal–Mart about               [4] This Court has explained the circumstances
        the en banc consideration, and (3)                under which a licensor owes a duty to a licensee for
        Wal–Mart had no opportunity to argue be-          an alleged premises defect:
        fore the entire court. While we recognize
        that en banc consideration is generally dis-        It is well settled in this State that if the person in-
        favored, our appellate rules authorize              jured was on the premises as a licensee, the duty




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  that the proprietor or licensor owed him was not         peals held that a reasonable inference from this
  to injure him by willful, wanton or gross negli-         “ambiguous evidence” is “that Miller did not com-
  gence.... An exception to the general rule is that       prehend the fact that the stairway was
  when the licensor has knowledge of a dangerous           ‘unreasonably’ dangerous *710 until the moment he
  condition, and the licensee does not, a duty is          fell....” Id. at 484–85.
  owed on the part of the licensor to either warn the
  licensee or to make the condition reasonably safe.            But the court of appeals' inference is unreason-
                                                           able in light of Miller's undisputed testimony that,
     State v. Tennison, 509 S.W.2d 560, 562                before he ascended the stairs, Miller noticed boxes
(Tex.1974) (citations omitted). Accordingly, to es-        “stacked along the sides” of the stairway's middle
tablish liability for a premises defect, a licensee        section. Moreover, as he ascended the stairs, he no-
must prove, among other things, that the licensee          ticed some of the stairs were “slippery or slick.”
did not actually know about the alleged dangerous          And, as Miller descended the stairs, he noticed the
condition. See, e.g., State v. Williams, 940 S.W.2d        boxes obstructed his access to the handrail. He re-
583, 584 (Tex.1996); State Dep't of Highways &             cognized all these factors—the very factors he al-
Pub. Transp. v. Payne, 838 S.W.2d 235, 237                 leges created a dangerous condition—before he fell
(Tex.1992) (citing Tennison, 509 S.W.2d at 562;            on the stairs.
RESTATEMENT (SECOND) OF TORTSSSSS §
342). If the licensee has the same knowledge about              The corroborating testimony of his co-worker
the dangerous condition as the licensor, then no           further supports that Miller knew about the stair-
duty to the licensee exists. Tennison, 509 S.W.2d at       way's dangerous condition; the co-worker similarly
562; see also Williams, 940 S.W.2d at 584; Payne,          noticed the boxes stacked on the stairs before they
838 S.W.2d at 237.                                         went up, and he warned Miller about the slippery
                                                           stairway when he led the way down. Thus, the un-
     For example, in Lower Neches Valley Auth. v.          controverted evidence demonstrates that, prior to
Murphy, this Court held that “[a] licensee is not en-      his fall, Miller perceived and thus had actual know-
titled to expect that the possessor [of land] will         ledge of the dangerous condition. Because Miller
warn him of conditions that are perceptible to him,        had actual knowledge of the alleged dangerous con-
or the existence of which can be inferred from facts       dition, Wal–Mart was relieved of any duty to warn
within his present or past knowledge.” 536 S.W.2d          or make safe the dangerous condition. See Murphy,
561, 564 (Tex.1976). In other words, a licensor            536 S.W.2d at 563 (“[The plaintiff licensee] had the
owes no duty to a licensee so long as the evidence         same knowledge of this [dangerous] condition that
conclusively establishes the licensee perceived the        [the Authority] could have had....”); Tennison, 509
alleged dangerous condition. See id. at 564.               S.W.2d at 562 (“[W]hen the licensor has know-
                                                           ledge of a dangerous condition, and the licensee
     [5] Here, Miller alleges the combination of the       does not, a duty is owed on the part of the licensor
slippery steps and the boxes on the stairs blocking        to either warn the licensee or to make the condition
his path and access to the handrail caused him to          reasonably safe.”).
fall. In determining if there is some evidence of
Miller's actual knowledge about the dangerous con-             Because no evidence exists to support the jury's
dition to support the jury's finding, the court of ap-     finding that Miller did not know about the danger-
peals relied on Miller's testimony that he did not         ous condition, the trial court correctly rendered a
notice the stairway was slippery until he was              judgment notwithstanding the verdict. Accordingly,
halfway up the stairs, and he did not notice the           we grant Wal–Mart's petition, and without hearing
boxes blocked the handrail until he was going down         oral argument, reverse the court of appeals' judg-
the stairs. 54 S.W.3d at 484. Then, the court of ap-       ment, and render judgment for Wal–Mart. See




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                                                                                     Page 5
102 S.W.3d 706, 46 Tex. Sup. Ct. J. 530
(Cite as: 102 S.W.3d 706)




TEX.R.APP. P. 59.1.

Tex.,2003.
Wal-Mart Stores, Inc. v. Miller
102 S.W.3d 706, 46 Tex. Sup. Ct. J. 530

END OF DOCUMENT




                          © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
