                      CONCURRING AND DISSENTING OPINION
                                         No. 04-09-00392-CV

                                       TOTAL CLEAN, LLC,
                                           Appellant

                                                   v.

                                  COX SMITH MATTHEWS, INC.
                           f/k/a Cox & Smith Inc. and Renee F. McElhaney,
                                              Appellees

                      From the 37th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CI-05718
                        Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by: Steven C. Hilbig, Justice
Concurring and Dissenting Opinion by: Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: October 20, 2010

           I concur with the majority’s opinion in all respects except for its conclusion that a fact

issue exists on whether Judge Royal Furgeson made the alleged comment to Renee McElhaney

about shortening trial time. Here, the ultimate fact—the fact on which Total Clean’s entire case

is based and the fact on which the appellees base their motion for a no-evidence summary

judgment—is an alleged lie by McElhaney about her conversation with Judge Furgeson. In my

opinion, there is simply no evidence of a lie in this matter and I would affirm the no-evidence

summary judgment.

           Judge Furgeson could not remember whether he made the comment, and the majority’s

conclusion that evidence of his habit and practice is sufficient to raise a fact issue is premised on

Texas Rules of Evidence 401 and 406, as well as the Texas Supreme Court’s opinion in Acker v.
Concurring and Dissenting Opinion                                                    04-09-00392-CV


Texas Water Commission, 790 S.W.2d 299, 302 (Tex. 1990) (holding that habit or custom of a

person doing a particular act is relevant in determining his conduct on a particular occasion).

However, I believe the resolution of this case turns on the application of the “equal inference”

rule. See Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001).

        Under the “equal inference” rule, when circumstances are consistent with either of two

facts and nothing shows that one is more probable than the other, neither fact can be inferred.

Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997); Litton Indus. Prods., Inc. v.

Gammage, 668 S.W.2d 319, 324 (Tex. 1984); Bay Rock Operating Co. v. St. Paul Surplus Lines

Ins. Co., 298 S.W.3d 216, 229 (Tex. App.—San Antonio 2009, pet. denied).                 “[M]eager

circumstantial evidence from which equally plausible but opposite inferences may be drawn is

speculative and thus legally insufficient to support a finding.” See Wal-Mart Stores, Inc. v.

Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). “[W]hen the circumstantial evidence is so slight

that any plausible inference is purely a guess, it is in legal effect no evidence.” Lozano, 52

S.W.3d at 148.

        Here, both Mr. and Mrs. Nami do not dispute there is no direct evidence supporting their

contention that McElhaney lied. Instead, the response to the appellees’ no-evidence motion for

summary judgment relies almost exclusively on circumstantial evidence, predominantly in the

form of Judge Furgeson’s deposition testimony. When Judge Furgeson was asked during his

August 2008 deposition if he could recall “deciding or entering an order or telling the lawyers in

this case that [he] was going to limit them to five days of trial,” he responded, “I just don’t have

any recollection about that one way or another. I don’t – I just don’t recall.” Later, when asked

more specifically if he remembered telling McElhaney he was going to limit the trial to five

days, he responded as follows: “I don’t have any recollection of having a discussion with Ms.



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Concurring and Dissenting Opinion                                                   04-09-00392-CV


McElhaney about the trial date. I just have no recollection. I’m not saying I – it is possible that

I had a discussion with her, but I have no recollection of it.” [Emphasis added.] In my opinion,

this testimony does not raise a fact issue regarding the alleged conversation. Rankin v. Union

Pac. R. Co., No. 04-09-00454-CV, 2010 WL 1233500, at *5 (Tex. App.—San Antonio Mar. 31,

2010, no pet.) (“The fact that a witness does not remember hearing the whistle or horn sounding

is not probative evidence of any failure to sound the train’s whistle or horn.”).

        Although Judge Furgeson testified it was not his normal practice to limit trial time, when

asked whether he would remember a conversation where he cut a trial from three weeks to one

week, he responded “I don’t know if I would remember.” And although the judge agreed it

would be “out of the ordinary for me to do it,” and he tended not to discuss pending cases in

social settings, he also conceded he might “make a careless statement about a case.” Judge

Furgeson’s testimony about his common practice shows circumstances consistent with one of

two inferences: he did not make the comment or he carelessly made the comment but could not

recall doing so. Other than Judge Furgeson’s deposition testimony, Total Clean only offered a

transcript of a June 2003 pretrial discussion at which the lawyers estimated the length of trial at

three weeks. However, the lawyers’ estimation of a three-week trial does not make the ultimate

fact—whether McElhaney lied—more or less probable.

        I believe Total Clean’s summary judgment evidence amounts to mere suspicion of a lie

and, therefore, was insufficient to raise a fact issue. Although circumstantial evidence may be

used to establish any material fact, it “must transcend mere suspicion.” Lozano, 52 S.W.3d at

149. Evidence that is mere surmise or suspicion is no evidence. See Reynosa v. Huff, 21 S.W.3d

510, 512 (Tex. App.—San Antonio 2000, no pet.). Judge Furgeson’s testimony that it was

possible he made the comment to McElhaney but he could not recall doing so would require the



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Concurring and Dissenting Opinion                                                  04-09-00392-CV


jury to speculate about whether he did or did not make the comment. Also, Judge Furgeson’s

practice of discussing a case only when all attorneys are present contrasted with his

acknowledgement that he may have made a “careless statement” leads only to more speculation

about what, if anything, he said to McElhaney. Because Judge Furgeson’s practice and habit still

would require a jury to speculate, it amounts to “no evidence.” Accordingly, I do not believe the

trial court erred in granting a no-evidence summary judgment in favor of the appellees.




                                                Sandee Bryan Marion, Justice




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