                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-228-CV


TEXAS SPECIALTY TRAILERS, INC.;                              APPELLANTS
J. MARVIN WILLIAMS, JR.;
AND RICHARD KELLERMAN
D/B/A JK TRUCKING
                                       V.

JACKSON & SIMMEN DRILLING                                     APPELLEES
COMPANY AND LEXINGTON
INSURANCE COMPANY
                                   ------------

            FROM THE 271ST DISTRICT COURT OF JACK COUNTY

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

                        MEMORANDUM OPINION 1

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

     In eight issues, appellants Texas Specialty Trailers, Inc., J. Marvin

Williams, Jr., and Richard Kellerman d/b/a JK Trucking appeal a judgment

rendered on a jury verdict awarding appellee Jackson & Simmen Drilling




     1
         … See Tex. R. App. P. 47.4.
Company approximately $3.2 million in damages. We affirm in part, reverse

and render in part, and reverse and remand in part.

                                I.   Background

      In September 2005, Jackson & Simmen Drilling Company (J&S) owned

a drilling rig that was stored in Palo Pinto County. Because J&S had a contract

with an oil company to drill wells in Comanche County, J&S needed to

transport the rig to that county. J&S contacted companies that had hauled its

rig in the past, but none were available to haul the rig to Comanche County.

At the suggestion of one of the companies, Jerry Jackson, a J&S principal,

contacted Williams, a shareholder and manager for Texas Specialty Trailers, Inc.

(Texas Specialty), about hauling the rig.     After inspecting the rig, Williams

telephoned Jackson to inform him that Texas Specialty “could move” it and

offered to do the job for $7,000. Jackson accepted Texas Specialty’s offer.

Thereafter, Texas Specialty contracted with an independent contractor, Richard

Kellerman d/b/a JK Trucking (Kellerman), to drive the truck pulling the trailer on

which the rig was to be loaded.

      On September 22, 2005, Williams and Kellerman met with J&S

employees in Palo Pinto County to load the rig. While the rig was being loaded,

Williams and Kellerman determined that it would not sit safely on the trailer

because the rig was too wide for the trailer: when being positioned atop the

                                        2
trailer, the rig’s wheels would contact the trailer’s wheels. Someone from J&S

then offered Williams and Kellerman the use of pipe grates as a platform for the

rig’s tires so that they would not come into contact with the trailer. Williams

and Kellerman agreed to do this, and the rig was loaded using the pipe grates.

Williams then chained the rig to secure it to the trailer. Kellerman inspected the

load and satisfied himself that it was safe before driving out.

      Kellerman departed for Comanche County. Just outside of Strawn, in

Palo Pinto County, Texas, however, the trailer carrying the rig separated from

the vehicle hauling it. The rig rolled off the trailer and into a ditch where it fell

on its side. The rig was damaged. As a result, J&S was not able to drill the

wells in Comanche County.

      J&S sued Texas Specialty, Williams, and Kellerman in Jack County for

negligence, breach of contract, and violations of the Texas Deceptive Trade

Practices–Consumer Protection Act (DTPA).2 After a trial, the jury found Texas

Specialty, Williams, and Kellerman liable for negligence and found that Texas

Specialty and Williams violated the DTPA. The proportionate responsibility of

J&S and Jackson was not submitted to the jury.




      2
      … Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (Vernon 2002 & Supp.
2008).

                                         3
      Based on their negligence and DTPA-violation findings, the jury awarded

J&S $750,000 in repair or replacement damages, $2,475,000 in lost profits,

and $29,800 in other damages.        The trial court rendered judgment on the

verdict, awarding damages divided between Texas Specialty, Williams, and

Kellerman based on their percentages of responsibility as determined by the

jury. The judgment also awarded J&S prejudgment interest and $333,750 in

attorneys’ fees. This appeal followed.

                                   II.   Issues

      In eight issues, appellants complain on appeal that (1) the trial court erred

in denying the motion to transfer venue filed jointly by Texas Specialty and

Kellerman, (2) the evidence was insufficient to support the jury’s verdict on

J&S’s negligence and DTPA claims, (3) Williams should not be individually liable

for negligence, (4) the trial court erroneously refused to submit the

proportionate responsibility of J&S and Jackson to the jury, and (5) the trial

court erred in awarding prejudgment interest on damages to repair or replace

the rig and on lost profits.

      We must address the sufficiency of the evidence issues and Williams’s

individual liability before determining the other issues.3



      3
      … See Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675,
677 (Tex. 1999) (holding that courts of appeals must consider issues that may

                                         4
                       III.   Sufficiency of the Evidence

A.    Standard of Review

      We may sustain a legal sufficiency challenge only when: (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact; (3) the evidence offered to prove a vital fact is no more

than a mere scintilla; or (4) the evidence establishes conclusively the opposite

of a vital fact.4 In determining whether there is legally sufficient evidence to

support the finding under review, we must consider evidence favorable to the

finding if a reasonable factfinder could and disregard evidence contrary to the

finding unless a reasonable factfinder could not.5

      Anything more than a scintilla of evidence is legally sufficient to support

the finding.6 When the evidence offered to prove a vital fact is so weak as to

do no more than create a mere surmise or suspicion of its existence, the




result in rendition before considering issues that could result only in remand).
      4
      … Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998), cert. denied, 526 U.S. 1040 (1999).
      5
      … Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.
2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
      6
      … Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.
1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).

                                        5
evidence is no more than a scintilla and, in legal effect, is no evidence. 7 More

than a scintilla of evidence exists if the evidence furnishes some reasonable

basis for differing conclusions by reasonable minds about the existence of a

vital fact.8

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and

weighing all of the evidence in the record pertinent to that finding, we

determine that the evidence supporting the finding is so weak, or so contrary

to the overwhelming weight of all the evidence, that the answer should be set

aside and a new trial ordered.9

B.    Negligence

      In their seventh issue, appellants assert that the evidence is legally and

factually insufficient to show that their failure to properly load, secure, and

chain the rig proximately caused damage to the rig because J&S failed to

present evidence of the amount of deceleration force exerted on the rig during



      7
          … Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
      8
       … Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262
(Tex. 2002).
      9
       … Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on
reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate,
150 Tex. 662, 244 S.W.2d 660, 661 (1951).

                                       6
the accident. According to appellants, without evidence quantifying the force

of deceleration, there is no evidence of cause-in-fact because the force of

deceleration may have been so great that the rig would have left the trailer even

if the rig had been properly loaded and secured.

      Proximate cause, as an element of a negligence claim, entails both cause-

in-fact and foreseeability. 10 The test for cause-in-fact, or “but for” causation,

is whether the negligent act or omission was a substantial factor in bringing

about the injury and whether the injury would have occurred without the act or

omission.11     Although cause-in-fact can be established by circumstantial

evidence, it cannot be established by mere conjecture, guess, or speculation.12

      At trial, Williams agreed that Texas Specialty is responsible and would

“take responsibility” for the damage to the rig. In addition, Anita Kerezman, a

vehicle operations and safety specialist, testified that Texas Specialty and

Kellerman caused damage to the rig by failing to properly secure the rig, to

block the rig as federal and state regulations required, and to load the rig so as

to properly distribute its weight across the trailer. Kerezman further opined


      10
       … Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477
(Tex. 1995).
      11
      … IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 799 (Tex. 2004).
      12
           … Excel Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex. 2002).

                                        7
that, had the load been properly secured and blocked, the rig would not have

rolled off the trailer regardless of any other equipment failures.         When

questioned about the alleged failure of the pipe grates that were used to

support the rig above the trailer’s wheels, Kerezman testified that this “doesn’t

matter” with respect to the accident’s causation because “if the load is properly

secured and blocked, even if there is a failure in some part of the load, it’s not

going to compromise the integrity of the entire load and we don’t lose this rig.”

      Kerezman testified that, under applicable federal regulations, appellants

were required to use cargo securement devices and systems capable of

withstanding a 0.8g deceleration in the forward direction.13 She conferred with

a   mechanical   engineer/accident   reconstructionist   and,   after   examining

photographs and the materials, concluded that the accident produced no

mechanism operating on the load that could have exceeded 0.8g in forward

deceleration. Therefore, according to Kerezman, had appellants complied with

regulations and properly secured and blocked the load, the chains would have

held and the rig would not have left the trailer.




      13
       … See 49 C.F.R. § 393.102(a) (2008). 0.8g signifies the force exerted
by eighty percent of the weight of the load.

                                        8
      We hold that Kerezman’s testimony constitutes both legally and factually

sufficient evidence to support a finding of proximate cause.14 Accordingly, we

overrule appellants’ seventh issue.

C.    DTPA

      In their second issue, appellants assert that the evidence is legally and

factually insufficient to support the jury’s findings on J&S’s DTPA claims, 1 5

based in part on the testimony by Jackson that Williams made two separate

statements: (1) that Texas Specialty “could move” the rig; and (2) that the rig

“would ride.” Appellants argue that both of Williams’s statements were merely

statements of the parties’ contract and, therefore, not deceptive acts. They

further contend that the statement that the rig “would ride” is merely an

expression of opinion.




      14
          … Appellants challenge Kerezman’s qualifications, as well as the
reliability of her testimony, contending that it is “bare opinion without any
foundation or expertise.” None of these objections, however, were raised at
trial. They are, therefore, waived. See Tex. R. App. P. 33.1; see also City of
San Antonio v. Pollock, 284 S.W.3d 809, 816–17 (Tex. 2009).
      15
        … The court submitted three separate DTPA violations to the jury:
“[r]epresenting that services had or would have characteristics that they did not
have”; “[r]epresenting that services are or will be of a particular quality if they
were of another”; and “[r]epresenting that an agreement confers or involves
rights that it did not have or involve.” See Tex. Bus. & Com. Code Ann. §
17.46(b)(5), (7), (12). The jury found that Texas Specialty and Williams
committed all three violations.

                                        9
      The mere failure to perform a term of a contract is not a DTPA violation.16

To distinguish between deceptive acts and a breach of contract, courts analyze

whether there was some representation made “outside the contract.” 17 If a

defendant’s representation was only that its performance would be of a certain

quality, it is not a DTPA violation and breach of contract would be the only

action available.18    Whether the facts, once ascertained, constitute a

misrepresentation under the DTPA is a question of law.19

      Williams’s statement that Texas Specialty “could move” the rig was not

merely a statement of its contract with J&S. It was not a representation that

Texas Specialty would fulfill its contractual obligation to haul the rig or that its

performance in hauling the rig would be of a certain quality.          Rather, the

statement was a representation that Texas Specialty had the expertise and




      16
       … Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 13–15 (Tex. 1996);
Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731, 742–43 (Tex. App.—Fort
Worth 2005, no pet.).
      17
      … See Cont’l Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380,
389–90 (Tex. App.—Texarkana 2003, pet. denied).
      18
       … See Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568, 577
(Tex. App.—Texarkana 1997, no writ).
      19
           … Head, 159 S.W.3d at 743.

                                        10
ability to move the rig, which the evidence shows was false,20 that was made

prior to the formation of J&S’s contract with Texas Specialty. As a matter of

law, the statement that Texas Specialty “could move” the rig was, therefore,

outside the parties’ contract and a deceptive act.21

      Appellants argue that J&S no longer could rely to its detriment upon

Williams’s statement after Williams subsequently stated “we cannot haul it”

while attempting to load the rig. However, the record shows this statement

was made in reference to a lack of available equipment on hand, not to Texas

Specialty’s ability to move the rig as it had represented. After Williams made

the statement, he and Kellerman loaded the rig with the use of borrowed pipe




      20
        … At the time Williams made the representation that Texas Specialty
“could move” the rig, the record shows Texas Specialty’s primary business was
not hauling large equipment or drilling rigs but buying and selling trailers.
Instead of apprising J&S of this fact, Texas Specialty examined the rig,
measured it, and represented that it had the equipment and expertise to move
the rig. The record, however, demonstrates that Texas Specialty did not
accurately measure the rig, did not have adequate equipment, and could not
load and move the rig because it lacked the required experience and equipment
to do so safely.
      21
        … See, e.g., Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671–72
(Tex. 1990) (holding that misrepresentation that the purchaser of a motorcycle
dealership would “be able to buy parts and vehicles as [the former owner] had
been buying” was actionable under DTPA section 17.46(b)(12) when the
“dealership” conveyance did not in fact include the ability to purchase more
vehicles from the motorcycle manufacturer).

                                      11
grates as a type of platform for the rig’s wheels and attempted to haul it to

Comanche County, as agreed.

      Because the evidence is sufficient to support the jury’s DTPA finding that

the misrepresentation that Texas Specialty “could move” the rig was a

deceptive act, we overrule appellants’ second issue.22

                 IV.   Williams’s Individual Liability for Negligence

      In their sixth issue, appellants assert that Williams cannot be personally

liable for negligence because he had no duty in his individual capacity to J&S.

The existence of a duty is a question of law.23 “A corporate officer or agent

can be liable to others . . . for his or her own negligence. However, individual

liability arises only when the officer or agent owes an independent duty of

reasonable care to the injured party apart from the employer’s duty.” 24

      J&S concedes that “the individuals participating in loading and securing

the rig” owed no duty to J&S. Moreover, J&S does not contest that Williams’s

acts relating to the loading and hauling of the rig were done in his capacity as



      22
        … Because the “could move” statement alone will support the DTPA
verdict, we need not reach the parties’ arguments concerning whether
Williams’s statement that the rig “would ride” would support those findings.
See Tex. R. App. P. 47.1.
      23
           … Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005).
      24
           … Leitch, 935 S.W.2d at 117 (emphasis added).

                                         12
a corporate officer or that he was performing duties belonging to Texas

Specialty. Accordingly, we conclude that Williams owed no duty and cannot

be personally liable for negligence. 25 We sustain appellants’ sixth issue.26

       Having considered all of appellants’ rendition points, we now turn to the

venue, proportionate responsibility, and prejudgment interest issues.

                                    V.    Venue

       In their first issue, appellants contend that the trial court erred in denying

Texas Specialty and Kellerman’s motion to transfer venue.

A.     Standard of Review

       A plaintiff is accorded the right to choose venue; as long as suit is initially

filed in a county of proper venue (i.e., the county is at least a permissive venue

and no mandatory provision applies), the plaintiff’s venue choice cannot be

disturbed. 2 7    If the dispute is between two counties of permissive venue,



       25
            … See id.
       26
        … Appellees point out that in response to special question number two,
the jury found Williams personally liable under the DTPA. See Miller v. Keyser,
90 S.W.3d 712, 717 (Tex. 2002). This finding is not challenged by appellants,
except as to a sufficiency challenge which we have overruled. Consequently,
although we sustain appellants’ sixth issue, it results in no change in the
judgment because Williams is individually liable for the judgment, as a result of
the jury’s DTPA findings.
       27
            … Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 261 (Tex.
1994).

                                         13
transferring the case is improper.28 A plaintiff’s choice of venue stands unless

challenged by a proper motion to transfer venue. 29       Once challenged, the

plaintiff has the burden to present prima facie proof that venue is maintainable

in the county of suit.30 The action must remain in the county of suit if the

plaintiff selected a county of proper venue and supported the selection with

prima facie proof supporting venue there.31

      In reviewing a venue decision, the appellate court must conduct an

independent review of the entire record, including, where applicable, the trial

on the merits, to determine whether any probative evidence supports the trial

court’s venue decision.32 Courts review the evidentiary record in the light most

favorable to the venue ruling; however, no deference is given to the trial court’s

application of the law.33 An appellate court cannot review the sufficiency of




      28
           … Id. at 262.
      29
           … In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999).
      30
       … Tex. R. Civ. P. 87(2)(a), (3)(a); In re Masonite Corp., 997 S.W.2d
194, 197 (Tex. 1999).
      31
           … Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d at 261.
      32
       … Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b) (Vernon 2002); Ruiz
v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).
      33
           … Ruiz, 868 S.W.2d at 758.

                                        14
the evidence supporting the plaintiff’s venue choice.34 If there is any probative

evidence supporting venue in the county of suit, a transfer should be denied

even if the evidence preponderates to the contrary.35 However, conclusive

evidence to the contrary can destroy the “probative evidence.” 36

      “[A]n appellate court must reverse (there cannot be harmless error) if

other evidence in the record, even evidence adduced after venue was

determined, destroys the prima facie proof on which the trial court relied.” 37

Appellate review of the entire record, as required by statute,38 thus “preserves

the plaintiff’s right to select and maintain suit in a county of proper venue, and

it protects the defendant from fraud or inaccuracy at the pleading stage.” 39




      34
           … Id.
      35
       … Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex. 1995);
Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d at 262.
      36
      … Ruiz, 868 S.W.2d at 757; Rosales v. H.E. Butt Grocery Co., 905
S.W.2d 745, 750 (Tex. App.—San Antonio 1995, writ denied).
      37
           … Ruiz, 868 S.W.2d at 757.
      38
           … Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b).
      39
       … Gilcrease v. Garlock, Inc., 211 S.W.3d 448, 459 (Tex. App.—El Paso
2006, no pet.) (citing Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d at
262).

                                        15
B.     Governing Venue Statute

       J&S asserts that venue is proper in Jack County under two permissive

venue statutes: (1) the general venue rule contained in Texas Civil Practice and

Remedies Code section 15.002(a)(1), which provides that venue is proper in the

county where “all or a substantial part of the events or omissions giving rise to

the claim occurred”;40 and (2) the DTPA’s venue provision, which provides that

venue is proper in any “county in which the defendant or an authorized agent

of the defendant solicited the transaction made the subject of the action at

bar.” 41

       Addressing the general venue rule under section 15.002(a)(1), to

determine whether a “substantial part” of the events giving rise to a claim

occurred in the chosen venue, courts examine the record in light of the claim’s

essential elements.42 Thus, a DTPA plaintiff is required to establish for venue


       40
            … Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(1).
       41
            … Tex. Bus. & Com. Code Ann. § 17.56(2).
       42
        … See Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673,
680–82 (Tex. App.—Austin 2003, no pet.) (examining the essential elements
of the claim when determining where a substantial part of events or omissions
occurred giving rise to plaintiff’s declaratory-judgment action regarding insurer’s
duty to defend); see also KW Constr. v. Stephens & Sons Concrete
Contractors, Inc., 165 S.W.3d 874, 882–83 (Tex. App.—Texarkana 2005, pet.
denied) (determining “substantial part” venue in a breach of contract action in
county where events or omissions occurred relating to two of the claim’s four
essential elements).

                                        16
purposes the following elements:      (1) the plaintiff is a consumer; (2) the

defendant committed an action or omission listed as a violation under DTPA

section 17.46(b); (3) the plaintiff detrimentally relied upon the wrongful action

or omission; and (4) the wrongful action or omission was a producing cause of

the plaintiff’s damages.43

C.    Evidence Supports Venue in Jack County

      The evidence in this case shows that Jackson was in Jack County during

the telephone conversation in which Williams made the misrepresentation that

Texas Specialty “could move” the rig and that Jackson, on behalf of J&S,

indeed entered into the contract with Texas Specialty while in Jack County.

Texas Specialty contends, however, that Williams’s representation is not

actionable under the DTPA, and that, even if it is, the facts surrounding it are

not sufficient to meet the substantiality requirement.

      We have already held that Williams’s misrepresentation that Texas

Specialty “could move” the rig is an actionable DTPA violation.44       Thus, to

determine whether venue is proper in Jack County, we must determine whether


      43
        … Tex. Bus. & Com. Code Ann. §§ 17.46, 17.50(a); see also Henry
Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 (Tex. 2002); Gill v. Boyd
Distribution Ctr., 64 S.W.3d 601, 604 (Tex. App.—Texarkana 2001, pet.
denied). The parties do not dispute that J&S is a consumer under the DTPA.
      44
       … The jury found Texas Specialty and Williams violated DTPA section
17.46(b)(5), (7), and (12).

                                       17
the facts surrounding that actionable misrepresentation satisfy section

15.002(a)(1)’s substantiality requirement.45 In so doing, we are mindful that

our task is not to determine the best venue, but to determine whether any

probative evidence supports the trial court’s venue determination under section

15.002(a)(1).46

      In making venue determinations, Texas courts have held that the receipt

of telephone calls and letters in a particular county are facts that weigh in favor

of finding venue to be appropriate in that county.47 Here, it is undisputed that

Jack County is where Jackson received the telephone call in which Williams

told him that Texas Specialty “could move” the rig. Jackson also testified that

he relied upon this representation, and it is undisputed that Jack County is

where Jackson acted by placing the telephone call in which he accepted Texas



      45
           … See Chiriboga, 96 S.W.3d at 681.
      46
           … Id.
      47
        … See Massey v. Columbus State Bank, 35 S.W.3d 697, 700 (Tex.
App.—Houston [1st Dist.] 2000, pet. denied) (noting venue would be proper
based on threatening and harassing telephone calls and letters sent to
defendant in the county of venue); see also Moveforfree.com Inc. v. David
Hetrick, Inc., No. 14-07-00044-CV, 2009 WL 1416069, at *3 (Tex.
App.—Houston [14th Dist.] May 21, 2009, no pet.) (finding venue under
section 15.002(a)(1) in the county in which misrepresentations were received
and partial performance of the contract was required); Siemens Corp. v. Bartek,
No. 03-04-00613-CV, 2006 WL 1126219, at *6–7 (Tex. App.—Austin Apr.
28, 2006, no pet.) (mem. op.) (same).

                                        18
Specialty’s offer to move the rig. Viewing these facts in light of the entire

record, we conclude that they constitute probative evidence that a substantial

part of J&S’s DTPA claim occurred in Jack County. We overrule appellants’

first issue.48

                       VI.    Proportionate Responsibility

      In their third, fourth, and fifth issues, appellants assert that the trial court

erred in failing to find J&S and Jackson to be responsible parties and, therefore,

deprived appellants of the right to submit their proportionate responsibility to

the jury.49

      We review alleged error in the jury charge for abuse of discretion, which

occurs only when the trial court acts arbitrarily, unreasonably, or without

reference to guiding rules or principles.50 If an issue is properly pleaded and is


      48
        … Because we hold that the evidence supports venue in Jack County
under section 15.002(a)’s “substantial part” provision based on the actionable
misrepresentation that Texas Specialty “could move” the rig, we do not reach
application of the DTPA’s section 17.56(2) venue provision. See Tex. R. App.
P. 47.1.
      49
        … Appellants complain that the trial court erred (1) in granting J&S’s
traditional and no-evidence partial summary judgment motion on Texas
Specialty’s proportionate responsibility defense, (2) in granting Jackson’s
traditional and no-evidence partial summary judgment and motion to strike the
designation of Jackson as a responsible third party, and (3) in failing to submit
the issue of J&S’s and Jackson’s proportionate responsibility to the jury.
      50
      … GuideOne Lloyds Ins. Co. v. First Baptist Church of Bedford, 268
S.W.3d 822, 837 (Tex. App.—Fort Worth 2008, no pet.) (citing In re V.L.K.,

                                         19
supported by some evidence, a litigant is entitled to have controlling questions

submitted to the jury.51

A.    Texas Civil Practice and Remedies Code Chapter 33

      The proportionate responsibility provisions of civil practice and remedies

code Chapter 33 apply to “any cause of action based on tort” and to “any

action brought under the [DTPA]” “in which a defendant, settling person, or

responsible third party is found responsible for a percentage of the harm for

which relief is sought.” 52

      Under Chapter 33, submission of a comparative fault question regarding

the conduct of any person is not allowed “without sufficient evidence to

support the submission.” 53       Because comparative responsibility involves

measuring the parties’ comparative fault in causing the plaintiff’s injuries, it

requires a preliminary finding that the plaintiff was in fact contributorily

negligent.54


24 S.W.3d 338, 341 (Tex. 2000)).
      51
        … Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995);
see also Tex. R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243
(Tex.1992) (“A trial court may refuse to submit an issue only if no evidence
exists to warrant its submission.”).
      52
           … Tex. Civ. Prac. & Rem. Code Ann. § 33.002(a)(1), (2) (Vernon 2008).
      53
           … Tex. Civ. Prac. & Rem. Code Ann. § 33.003(b).
      54
        … Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex. 2000); see Moore v.
Kitsmiller, 201 S.W.3d 147, 151 (Tex. App.—Tyler 2006, pet. denied).

                                        20
      Contributory negligence contemplates an injured person’s failure to use

ordinary care in regard to his or her own safety 55 and requires proof that the

plaintiff was negligent and that this negligence was the proximate cause of his

or her injuries.56     The standards and tests for determining contributory

negligence are the same as those for determining negligence, and the same

rules of law apply to both.57

B.    Duty to Safely Load and Secure the Rig

      To bring a negligence action in Texas, a plaintiff must present evidence

establishing a legal duty, breach of that duty, and damages proximately caused

by the breach.58 The existence of a legal duty is a question of law for the court

to decide, determined from the facts surrounding the occurrence in question.59




      55
           … Parker v. Highland Park, Inc., 565 S.W.2d 512, 520 (Tex. 1978).
      56
      … Keng, 23 S.W.3d at 351; Brown v. Edwards Transfer Co., 764
S.W.2d 220, 223 (Tex. 1988).
      57
           … Moore, 201 S.W.3d at 151.
      58
      … Nabors Drilling, U.S.A., Inc. v. Escoto, 52 Tex. Sup. Ct. J. 885, 886,
2009 WL 1712797, at *2 (Tex. June 19, 2009); D. Houston, Inc. v. Love, 92
S.W.3d 450, 454 (Tex. 2002).
      59
        … Tri, 162 S.W.3d at 563; see also Fort Bend County Drainage Dist. v.
Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991) (reviewing judgment
notwithstanding the verdict and recognizing that “[t]he existence of a legal duty
is a question of law for the court although in some instances it may require the
resolution of disputed facts or inferences which are inappropriate for legal
resolution”).

                                       21
Liability cannot be imposed if no duty exists.60 Moreover, when a duty exists,

to have a question submitted to the jury, the evidence must raise a material fact

issue.61

      J&S and Jackson contend, among other arguments, that, even if they

participated in the loading process, they are not responsible parties and that the

trial court was correct in refusing to submit issues to the jury regarding their

responsibility for damage to the rig because Texas Specialty and Kellerman had

non-delegable duties under federal and state law to load and secure the rig

safely.

      1.       General Rule of Carrier Liability

      It is undisputed that Texas Specialty and Kellerman were subject to

federal and state regulations regarding safely loading and securing the rig.62

Under applicable federal regulations, the carrier is solely responsible for

distributing and loading cargo.63 The Texas Transportation Code provides that


      60
           … Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006).
      61
        … Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74,
77 (Tex. 2000) (“A court may instruct a verdict if no evidence of probative
force raises a fact issue on the material questions in the suit.”).
      62
      … See 49 C.F.R. § 392.9 (2007); 37 Tex. Admin. Code § 4.11 (last
amended 2008) (Tex. Dep’t of Pub. Safety).
      63
           … For example, section 392.9 provides:

      [A] motor carrier may not require or permit a driver to operate a

                                          22
“the duties and liabilities of a carrier in this state and the remedies against the

carrier are the same as prescribed by the common law” unless otherwise

provided by law.64

      At common law, carriers are “fully” liable for any loss or injury to property

occurring during transport.65    Carriers, however, may avoid this liability by

affirmatively showing that the loss or injury at issue was caused solely by the

fault of the shipper.66 This exception to carrier liability, however, only applies

when the shipper assumes the carrier’s responsibility for loading and securing

the cargo.67



      commercial motor vehicle unless ––

               (1) the commercial motor vehicle’s cargo is properly
               distributed and adequately secured as specified in §§
               393.100 through 393.136 of this subchapter.

49 C.F.R. § 392.9.
      64
           … Tex. Transp. Code Ann. § 5.001(a)(1) (Vernon 1999).
      65
        … Common Carrier Motor Freight Ass'n v. NCH Corp., 788 S.W.2d 207,
209 (Tex. App.—Austin 1990, writ denied); see United States v. Savage Truck
Line Inc., 209 F.2d 442, 445–47 (4th Cir. 1953), cert. denied, 347 U.S. 952
(1954).
      66
        … Mo. Pac. R.R. Co. v. Elmore & Stahl, 368 S.W.2d 99, 101
(Tex.1963), aff’d, 377 U.S. 134 (1964); see also Cent. Freight Lines, Inc. v.
Naztec, Inc., 790 S.W.2d 733, 735 (Tex. App.—El Paso 1990, no writ); Utils.
Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719, 723 (Tex. App.—Dallas
1988, no writ).
      67
           … See Savage Truck Line Inc., 209 F.2d at 445–47.

                                        23
     2.    J&S and Jackson Did Not Assume the Duty to Safely Load and
Secure the Rig

      The evidence in this case shows that Texas Specialty and Kellerman

retained full control and responsibility for loading and securing the rig. Williams

conceded during his deposition testimony that Texas Specialty retained

responsibility to load and secure the rig, despite J&S’s assistance:

      Q:    Well, now, Texas Specialty Trailer has the responsibility to
            load and secure its load that it’s going to haul?

      A:    We have the responsibility to secure whatever we haul, yes,
            sir.

      Q:    And what I’m trying to get down is a breakdown as to what
            [J&S] was going to do and what Texas Specialty was going
            to do before the tractor trailer pulled out of the yard . . . .

      A:    What I want to –– We was [sic] told that there would be ––
            [J&S’s] crew would be there to assist us is [sic] in any way
            we needed to help get the rig up there.

      Q:    To do whatever you needed them to do?

      A:    Right.

      Q:    Whatever you directed them to do?

      A:    Whatever we asked to do, yes.

      Q:    Okay. But as far as securing the load, as between Jackson
            & Simmen and Texas Specialty, that was Texas Specialty’s
            responsibility?

      A:    That was Texas Specialty’s.

      Similarly, Kellerman testified that he was responsible for loading the rig:


                                        24
      Q:       Who’s in charge of loading that rig?

      A:       Me.

               ....

      Q:       So let’s say Mr.––Mr. Williams come [sic] in and says, I want
               to do this differently; and you feel like this is unsafe, you’re
               not driving the rig?

      A:       I’m responsible.

      Q:       Okay. And so the day that this rig was loaded, it was under
               your direction and control?

      A:       Yes, sir.

      Q:       All right. And as you ––as you sit here this morning, you’re
               –– you’re taking full responsibility for the loading of that rig?

      A:       Yes, sir.

      Based on the evidence, we conclude that J&S and Jackson had no duty

as a matter of law with regard to the loading of the rig, and, thus, the trial court

did not err or abuse its discretion in failing to treat them as responsible parties

or in refusing to submit to the jury issues regarding their proportionate

responsibility.      The fact that J&S and Jackson assisted in loading the rig,

without more, does not impose on them a duty to insure the safe and secure

loading of the rig. 68 Accordingly, we overrule appellants’ third, fourth, and fifth

issues.



      68
           … See, e.g., Elmore & Stahl, 368 S.W.2d at 101.

                                          25
                           VII.   Prejudgment Interest

      In their eighth issue on appeal, appellants contend that the trial court

erred in awarding J&S prejudgment interest on its claims for the cost to repair

or replace the rig and for its lost profits.

A.    Standard of Review

      We review a trial court’s award of prejudgment interest under the abuse

of discretion standard.69 Under this standard, we will not disturb a trial court’s

findings on factual issues unless the court reasonably could have reached only

one decision and it failed to do so.70 However, a “trial court has no ‘discretion’

in determining what the law is or applying the law to the facts.” 71 The abuse

of discretion standard applies to the trial court’s factual findings as they relate

to prejudgment interest, but the de novo standard applies to the trial court’s

application of the law to the facts.72




      69
        … Toshiba Mach. Co., Am. v. SPM Flow Control, Inc., 180 S.W.3d 761,
785 (Tex. App.—Fort Worth 2005, pet. granted, judgm't vacated w.r.m.)
(citing J.C. Penney Life Ins. Co. v. Heinrich, 32 S.W.3d 280, 289 (Tex.
App.—San Antonio 2000, pet. denied)).
      70
           … Id. (citing Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.1992)).
      71
           … Walker, 827 S.W.2d at 840 (citation omitted).
      72
           … Toshiba Mach. Co., 180 S.W.3d at 785.

                                         26
B.    Damages to Repair or Replace the Rig

      Appellants complain that the damages of $750,000 to repair or replace

the rig constitutes “future damages” because the rig had not been repaired as

of the date judgment was entered, and, thus, the award of prejudgment interest

on these damages is improper.

      Prejudgment interest is not recoverable for future losses.73 Instead, it is

intended to compensate “for lost use of the money due as damages during the

lapse of time between the accrual of the claim and the date of judgment.” 74

      It is undisputed in this case that J&S’s claim accrued when the rig

sustained damage at the time of the accident. J&S’s right to money damages

for repair or replacement of the rig accrued at this time, not when the rig was

or will be actually repaired or replaced. Therefore, we hold these are not future

damages and that the trial court did not abuse its discretion in awarding

prejudgment interest on J&S’s claim for damages to repair or replace the rig.


      73
         … See Tex. Bus. & Com. Code Ann. § 17.50(f) (Vernon Supp. 2008)
(stating in part that “[a] court may not award prejudgment interest applicable
to . . . damages for future loss under [the DTPA]”); see also Tex. Fin. Code
Ann. § 304.101 (Vernon 2006) (“This subchapter applies only to a wrongful
death, personal injury, or property damage case of a court of this state.”).
Prejudgment interest may not be assessed or recovered on an award of future
damages governed by chapter 304 subchapter B. See Tex. Fin. Code Ann.
§ 304.1045 (Vernon 2006).
      74
           … Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 812 (Tex.
2006).

                                       27
C.    Lost Profit Damages

      Appellants also contend that the trial court improperly awarded

prejudgment interest on J&S’s lost profits damages because past and future

lost profits were not segregated. J&S concedes that the trial court erred in

awarding prejudgment interest as to the future lost profits, but asks that we

modify the judgment by reducing it by an amount it claims is attributable to

prejudgment interest on future lost profits only.

      To recover prejudgment interest on an award of past damages, the party

seeking to obtain prejudgment interest must segregate past damages from

future damages.75 Prejudgment interest is not recoverable on the elements of

damages at issue when this burden is not met.76 Accordingly, we reverse and

vacate the award of prejudgment interest on J&S’s lost profits.77 Appellants’

eighth issue challenging the award of prejudgment interest on J&S’s lost profits

is sustained. Otherwise, the eighth issue is overruled.



      75
       … Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 556 (Tex.
1985); Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214, 223 (Tex.
App.—Amarillo 2003, no pet.).
      76
        … Cavnar, 696 S.W.2d at 556; KMG Kanal-Muller-Gruppe Deutschland
GmbH & Co. KG v. Davis, 175 S.W.3d 379, 396–97 (Tex. App.—Houston [1st
Dist.] 2005, no pet.); Cresthaven, 134 S.W.3d at 223.
      77
       … See, e.g., Cavnar, 696 S.W.2d at 556; KMG Kanal-Muller-Gruppe
Deutschland, 175 S.W.3d at 396–97.

                                      28
                               VIII.   Conclusion

      We reverse the judgment in part as to Williams’ individual liability and the

award of prejudgment interest on J&S’s lost profits. Accordingly, we render

judgment that J&S take nothing from Williams individually on J&S’s negligence

claim, we vacate the award of prejudgment interest on J&S’s lost profits, and

we remand the case to the trial court to recalculate prejudgment interest on

J&S’s remaining damages that are subject to prejudgment interest, excluding

the amounts improperly awarded as future lost profits. In all other respects, we

affirm the judgment of the trial court.




                                                    JOHN CAYCE
                                                    CHIEF JUSTICE


PANEL: CAYCE, C.J.; WALKER, J.; and HOLMAN, J. (Retired)

HOLMAN, J. (Retired), not participating. See Tex. R. App. P. 41.1(b)

DELIVERED: August 13, 2009




                                          29
